Matter v. Washington Department of Corrections et al

Filing 6

ORDER TO AMEND OR SHOW CAUSE, due by 4/29/2013, signed by Magistrate Judge Karen L Strombom. (Attachments: # 1 1983 Complaint, # 2 Defendant List, # 3 General Order)(GMR- cc: pltf) (Attachment 1 replaced on 3/28/2013) (GMR).

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1 2 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 3 4 5 BERNARD J. MATTER, 6 7 8 9 10 11 12 Plaintiff, No. C13-5213 RBL/KLS v. ORDER TO AMEND OR SHOW CAUSE WASHINGTON DEPARTMENT OF CORRECTIONS, BERNARD WARNER, MARK STERN, G. STEVEN HAMMOND, SUSAN LUCAS, PAT GLEBE, SARA SMITH, NORM GOODENOUGH, CLIFFORD JOHNSON, ELIZABETH SUITER, LARA STRICK, ELIZABETH ESCHBACH, BARBARA CURTIS, CATHERINE BAUM, 13 Defendants. 14 15 Before the Court for review is Plaintiff’s proposed civil rights complaint. ECF No. 5. 16 Plaintiff has been granted leave to proceed in forma pauperis. ECF No. 4. The Court will not 17 direct service of Plaintiff’s complaint at this time because it contains several deficiencies. 18 Plaintiff will, however, be given an opportunity to show cause why his complaint should not be 19 dismissed or to file an amended complaint. 20 DISCUSSION 21 22 Under the Prison Litigation Reform Act of 1995, the Court is required to screen 23 complaints brought by prisoners seeking relief against a governmental entity or officer or 24 employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint 25 or portion thereof if the prisoner has raised claims that are legally “frivolous or malicious,” that 26 fail to state a claim upon which relief may be granted, or that seek monetary relief from a ORDER TO AMEND OR SHOW CAUSE- 1 1 defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b)(1), (2) and 1915(e)(2); See 2 Barren v. Harrington, 152 F.3d 1193 (9th Cir. 1998). A complaint is legally frivolous when it 3 lacks an arguable basis in law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. 4 Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). 5 A complaint or portion thereof, will be dismissed for failure to state a claim upon which 6 7 relief may be granted if it appears the “[f]actual allegations . . . [fail to] raise a right to relief 8 above the speculative level, on the assumption that all the allegations in the complaint are true.” 9 See Bell Atlantic, Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007) (citations omitted). Although 10 complaints are to be liberally construed in a plaintiff’s favor, conclusory allegations of the law, 11 unsupported conclusions, and unwarranted inferences need not be accepted as true. Jenkins v. 12 McKeithen, 395 U.S. 411, 421 (1969). Neither can the court supply essential facts that an 13 inmate has failed to plead. Pena, 976 F.2d at 471 (quoting Ivey v. Board of Regents of Univ. of 14 15 Alaska, 673 F.2d 266, 268 (9th Cir. 1982)). 16 Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, “the complaint [must 17 provide] ‘the defendant fair notice of what the plaintiff’s claim is and the ground upon which it 18 rests.’” Kimes v. Stone 84 F.3d 1121, 1129 (9th Cir. 1996) (citations omitted). 19 20 Plaintiff purports to sue the Washington Department of Corrections (DOC), Bernard Warner, the Secretary of the DOC, two chief medical officers, the superintendent of the Stafford 21 22 Creek Corrections Center (SCCC), and various DOC health care providers. Plaintiff alleges that 23 pursuant to a plea agreement in his criminal case, it was agreed that his transfer to DOC custody 24 would be expedited so that he could receive treatment for Hepatitis C. Before he arrived at the 25 DOC on April 29, 2011, Plaintiff had been receiving treatment for his condition, including 26 Interferon and Ribavirin treatment. He alleges that his doctor wanted to continue this treatment ORDER TO AMEND OR SHOW CAUSE- 2 1 for an additional four weeks. He claims that a drug company sponsored his treatment and had 2 provided $50,000.00 in medication “that was left in his refrigerator.” Plaintiff claims that “all 3 the Defendants denied him access to his medication, and put off and denied his treatment based 4 upon his potential longevity, and most notably, denied him treatment based on WDOC 5 ‘budgetary concerns.’” ECF No. 5, pp. 3-4. He also claims that he sought continued treatment 6 7 8 9 and although not indicated based on standard protocol, he was subjected to a very painful and incomplete liver-biopsy. Id., p. 4. Plaintiff claims that Defendants subjected him to cruel and unusual punishment in 10 violation of the Eighth Amendment, violated his Equal Protection rights, and retaliated against 11 him for exercising his right to file grievances. Id., p. 4. He seeks an unspecified amount of 12 compensatory and punitive damages. Id. 13 Based on the foregoing allegations, Plaintiff has failed to state a viable claim under 42 14 15 U.S.C. § 1983. To state a claim under 42 U.S.C. § 1983, a complaint must allege both that: (i) 16 the conduct complained of was committed by a person acting under color of state law and (ii) the 17 conduct deprived a person of a right, privilege, or immunity secured by the Constitution or laws 18 of the United States. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 687 L.Ed.2d 420 19 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327 (1986). To be liable for 20 “causing” the deprivation of a constitutional right, the particular defendant must commit an 21 22 affirmative act, or omit to perform an act, that he or she is legally required to do, and which 23 causes the plaintiff’s deprivation. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978); Arnold v. 24 IBM, 637 F.2d 1350, 1355 (9th Cir. 1981). 25 Plaintiff complains that he was denied necessary medical treatment and was retaliated 26 against for filing grievances during his incarceration at WCC. He specifically names Bernard ORDER TO AMEND OR SHOW CAUSE- 3 1 Warner, Mark Stern, G. Steven Hammond, Susan Lucas, Pat Glebe, Sara Smith, Norm 2 Goodenough, Clifford Johnson, Elizabeth Suiter, Lara Strick, Elizabeth Eschbach, Barbara 3 Curtis, and Catherine Baum. However, he fails to allege how any of these individuals violated 4 his constitutional rights. He also names the DOC, which is immune from Section 1983 liability. 5 A. Medical Treatment 6 With regard to Plaintiff’s claim that he was denied proper medical care, he is advised that 7 8 to establish a constitutional violation under the Eighth Amendment due to inadequate or denial of 9 medical care, a plaintiff must show “deliberate indifference” by prison officials to a “serious 10 medical need.” Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). 11 Deliberate indifference to a prisoner’s medical needs is defined by the Court as the “unnecessary 12 and wanton infliction of pain.” Id. Indifference proscribed by the Eighth Amendment may be 13 manifested by a prison doctor’s response to the prisoner’s need, by the intentional denying or 14 15 16 17 delaying access to medical care, or the intentional interference with treatment once prescribed. Id. To succeed on a deliberate indifference claim, an inmate must demonstrate that the prison 18 official had a sufficiently culpable state of mind. Farmer v. Brennan, 511 U.S. 825, 836 (1994). 19 A determination of deliberate indifference involves an examination of two elements: the 20 seriousness of the prisoner’s medical need and the nature of the defendant’s response to that 21 22 need. McGuckin v. Smith, 954 F.2d 1050 (9th Cir.1992). A “serious medical need” exists if the 23 failure to treat a prisoner’s condition would result in further significant injury or the unnecessary 24 and wanton infliction of pain contrary to contemporary standards of decency. Helling v. 25 McKinney, 509 U.S. 25, 32–35; McGuckin, 954 F.2d at 1059. 26 ORDER TO AMEND OR SHOW CAUSE- 4 Second the prison official must be deliberately indifferent to the risk of harm to the 1 2 inmate. Farmer, 511 U.S. at 834. To withstand summary dismissal, a prisoner must not only 3 allege he was subjected to unconstitutional conditions, he must allege facts sufficient to indicate 4 that the officials were deliberately indifferent to his complaints. Id. Differences in judgment 5 between an inmate and prison medical personnel regarding appropriate medical diagnosis and 6 7 treatment are not enough to establish a deliberate indifference claim. See Sanchez v. Vild, 891 8 F.2d 240, 242 (9th Cir.1989). Further, mere indifference, medical malpractice, or negligence 9 will not support a cause of action under the Eighth Amendment. Broughton v. Cutter Lab., 622 10 F.2d 458, 460 (9th Cir.1980). 11 12 Plaintiff must provide factual allegations to describe his claim, including the nature of his condition, which defendant denied him care or provided inappropriate care and when this denial 13 occurred. It is not enough for Plaintiff to claim that “all defendants” or that “medical staff” 14 15 failed to provide him with adequate medical care. He must name the individuals who denied him 16 medical care and describe how their failure to do so deprived him of his constitutional rights. 17 B. 18 19 20 21 22 Retaliation With regard to Plaintiff’s claim that one or more of the defendants retaliated against him for filing grievances, he is advised that prisoners have a constitutionally protected right to file grievances and to pursue civil rights litigation without retaliation. Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2005); see also Hines v. Gomez, 108 F.3d 265, 267 (9th Cir.1997) (prisoner 23 may not be retaliated against for use of grievance system); Bradley v. Hall, 64 F.3d 1276, 1279 24 (9th Cir.1995) (prisoner may not be penalized for exercising the right of redress of grievances). 25 To prevail on a retaliation claim under 42 U.S.C. § 1983, a plaintiff must establish that a 26 defendant or defendants retaliated against him for exercising his constitutional rights; that the ORDER TO AMEND OR SHOW CAUSE- 5 1 retaliatory action chilled the exercise of his First Amendment rights; and that the retaliatory 2 action failed to advance legitimate penological goals, such as preserving institutional order and 3 discipline. Rhodes, 408 F.3d at 567–68. 4 Plaintiff alleges, in conclusory manner only, that unknown defendants retaliated against 5 him for filing grievances. This is not sufficient to state a claim of retaliation. Plaintiff must 6 7 allege facts describing when, where, and how he was retaliated against. He must describe who 8 retaliated against him and the nature of the retaliation; i.e., what adverse action was taken against 9 him that caused him harm because he filed a grievance. 10 11 12 C. DOC As Defendant Section 1983 authorizes assertion of a claim for relief against a “person” who acted under color of state law. A suable §1983 “person” encompasses state and local officials sued in their 13 personal capacities, municipal entities, and municipal officials sued in an official capacity. Will 14 15 v. Michigan Department of State Police, 491 U.S. 58 (1989). “Arms of the State” such as the 16 Department of Corrections are not “persons” amenable to suit under 42 U.S.C. § 1983. Id., at 70. 17 Therefore, claims against the Department of Corrections would be subject to dismissal. 18 Due to the deficiencies described above, the Court will not serve the complaint. 19 However, Plaintiff will be given an opportunity to amend his complaint to cure the above noted 20 deficiencies. In the amended complaint, Plaintiff must write out short, plain statements telling 21 22 the Court (1) the constitutional right Plaintiff believes was violated; (2) name of the person who 23 violated the right; (3) exactly what that individual did or failed to do; (4) how the action or 24 inaction of that person is connected to the violation of Plaintiff’s constitutional rights; and (5) 25 what specific injury Plaintiff suffered because of that person’s conduct. See Rizzo v. Goode, 423 26 U.S. 362, 371–72, 377, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976). ORDER TO AMEND OR SHOW CAUSE- 6 1 If the person named as a defendant is a supervisory official, Plaintiff must either state that 2 the defendant personally participated in the constitutional deprivation (and tell the Court the five 3 things listed above), or Plaintiff must state, if he can do so in good faith, that the defendant was 4 aware of the similar widespread abuses, but with deliberate indifference to Plaintiff’s 5 constitutional rights, failed to take action to prevent further harm to Plaintiff and also state facts 6 7 8 to support this claim. See Monell v. New York City Department of Social Services, 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Plaintiff must repeat this process for each person he names as a defendant. If Plaintiff 9 10 fails to affirmatively link the conduct of each named defendant with the specific injury suffered 11 by Plaintiff, the claim against that defendant will be dismissed for failure to state a claim. 12 Conclusory allegations that a defendant or a group of defendants have violated a constitutional 13 right are not acceptable and will be dismissed. 14 An amended complaint operates as a complete substitute for (rather than a mere 15 16 supplement to) the present complaint and supersedes the original in its entirety. Therefore, 17 reference to a prior pleading or another document is unacceptable – once Plaintiff files an 18 amended complaint, the original pleading or pleadings will no longer serve any function in this 19 case. 20 Plaintiff shall present his complaint on the form provided by the Court. The amended 21 22 complaint must be legibly rewritten or retyped in its entirety, it should be an original and not a 23 copy, it may not incorporate any part of the original complaint by reference, it must be clearly 24 labeled the “Amended Complaint,” and must contain the same cause number as this case. 25 Plaintiff should complete all sections of the court’s form. Plaintiff may attach continuation 26 pages as needed but may not attach a separate document that purports to be his amended ORDER TO AMEND OR SHOW CAUSE- 7 1 complaint. The Court will screen the amended complaint to determine whether it contains 2 factual allegations linking each defendant to the alleged violations of Plaintiff's rights. The Court 3 will not authorize service of the amended complaint on any defendant who is not specifically 4 linked to the violation of Plaintiff's rights. 5 If Plaintiff decides to file an amended civil rights complaint in this action, he is cautioned 6 7 that if the amended complaint is not timely filed or if he fails to adequately address the issues 8 raised herein on or before April 29, 2013, the Court will recommend dismissal of this action as 9 frivolous pursuant to 28 U.S.C. § 1915 and the dismissal will count as a “strike” under 28 U.S.C. 10 § 1915(g). Pursuant to 28 U.S.C. § 1915(g), enacted April 26, 1996, a prisoner who brings three 11 or more civil actions or appeals which are dismissed on grounds they are legally frivolous, 12 malicious, or fail to state a claim, will be precluded from bringing any other civil action or 13 appeal in forma pauperis “unless the prisoner is under imminent danger of serious physical 14 15 16 injury.” 28 U.S.C. § 1915(g). The Clerk is directed to send Plaintiff the appropriate forms for filing a 42 U.S.C. 17 1983 civil rights complaint and for service. The Clerk is further directed to send a copy of 18 this Order and a copy of the General Order to Plaintiff. 19 20 DATED this 28th day of March, 2013. 21 A 22 Karen L. Strombom United States Magistrate Judge 23 24 25 26 ORDER TO AMEND OR SHOW CAUSE- 8

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