Lloyd v. Rufener et al

Filing 10

ORDER TO SHOW CAUSE OR AMEND, signed by Magistrate Judge Theresa L Fricke. Plaintiff's Show Cause Response or Amended Complaint due by 10/20/2017. (CMG)(cc of order mailed to Plaintiff w/copies of the original complaint, blank amended complaint form, blank address list form, and pro se instruction sheet)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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LARRY LLOYD,
Case No. C17-5627 BHS-TLF

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Plaintiff,

MARK RUFENER, et. al.,
Defendants.

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ORDER TO SHOW CAUSE OR
AMEND THE COMPLAINT

v.

Plaintiff Larry Lloyd, proceeding pro se and in forma pauperis, filed a proposed civil

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rights complaint. The Court declines to serve the complaint because plaintiff has failed to state a

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claim for relief under 42 U.S.C. § 1983. However, the Court will give plaintiff an opportunity to

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show cause why his complaint should not be dismissed or to file an amended complaint to cure,

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if possible, the deficiencies noted herein, on or before October 20, 2017. Additionally, Plaintiff

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filed a motion for a copy of his original complaint on August 24, 2017. Dkt. 7. Plaintiff’s motion

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is GRANTED. However, to receive any future copies from the Court, plaintiff must pay $0.50

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per page.
BACKGROUND

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Plaintiff is incarcerated at Kitsap County Jail (KCJ). He sues Mark Rufener, KCJ Chief;

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ConMed Healthcare Management, Inc.; and “Nurse Senovia,” purportedly a contract employee

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with ConMed who provides healthcare services at the KCJ Medical Facility. Plaintiff makes

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three overarching claims. First, plaintiff alleges that Mr. Rufener has “cultivated a policy or

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ORDER TO SHOW CAUSE OR AMEND THE
COMPLAINT - 1

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custom” that chills his right to file grievances. Dkt. 9, at 28. Second, plaintiff alleges that Nurse

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Senovia demonstrated deliberate indifference to his medical needs. Dkt. 9, at 20. Third, plaintiff

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alleges that Nurse Senovia withheld pain medication from him as retaliation for filing

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grievances. Dkt. 9, at 21. More specifically, plaintiff states that prior to incarceration, orthopedic

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surgeon Dr. James Allen prescribed him pain medication for a leg injury. Dkt. 9, at 15. Plaintiff

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alleges that when he arrived at KCJ in April 2017, he requested ice and a blanket to help with the

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swelling in his leg. Id. When Nurse Senovia did not respond to his request for several weeks,

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plaintiff filed another grievance. Dkt. 9, at 16. Plaintiff further alleges that Nurse Senovia

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withheld his pain medication following the grievance, only reinstating it four days later. Dkt. 9,

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at 18. Plaintiff states that this happened on several instances. Dkt. 9, at 22. Plaintiff further states

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that he filed two grievances that are still pending. Dkt. 9, at 28.

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DISCUSSION

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The Court declines to serve the complaint because it contains fatal deficiencies that, if not

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addressed, might lead to a recommendation of dismissal of the entire action for failure to state a

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claim upon which relief may be granted. 28 U.S.C. §§ 1915(e)(2)(b)(ii), 1915A(b)(1).

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Plaintiff’s complaint is brought under § 1983. To state a claim under § 1983, a plaintiff

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must allege facts showing (1) the conduct about which he complains was committed by a person

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acting under the color of state law; and (2) the conduct deprived him of a federal constitutional

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or statutory right. Wood v. Ostrander, 879 F.2d 583, 587 (9th Cir. 1989). In addition, to state a

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valid § 1983 claim, a plaintiff must allege that he suffered a specific injury as a result of the

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conduct of a particular defendant, and he must allege an affirmative link between the injury and

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the conduct of that defendant. Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976).

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ORDER TO SHOW CAUSE OR AMEND THE
COMPLAINT - 2

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A. Personal Participation
Plaintiff’s complaint fails to state a cognizable claim against Mr. Rufener and against

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ConMed Healthcare. To state a claim under 42 U.S.C. § 1983, plaintiff must allege facts showing

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how a defendant caused or personally participated in causing the harm alleged in the complaint.

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Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988). A person subjects another to a deprivation of

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a constitutional right when committing an affirmative act, participating in another’s affirmative

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act, or omitting to perform an act which is legally required. Johnson v. Duffy, 588 F.2d 740, 743

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(9th Cir. 1978). Sweeping conclusory allegations against an official are insufficient to state a

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claim for relief. Leer, 844 F.2d at 633. Further, a § 1983 suit cannot be based on vicarious

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liability alone, but must allege the defendant’s own conduct violated the plaintiff’s civil rights.

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City of Canton v. Harris, 489 U.S. 378, 385-90 (1989).

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Plaintiff names Mark Rufener, Chief of the Kitsap County Jail, and alleges generally that

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Mr. Rufener has “cultivated a policy or custom” that chills his right to file grievances. Dkt. 9, at

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28. He also names ConMed Healthcare presumably because Nurse Senovia is employed by this

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company. Id. Plaintiff fails to clearly state the alleged wrong-doing of each of these defendants.

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For instance, plaintiff presents no facts regarding Mr. Rufener’s alleged “policy or custom” and

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fails to describe what the policy entails or how it chills his ability to file grievances. Rather, his

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complaint demonstrates the opposite: in his complaint, he states that he has in fact filed a vast

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number of grievances. Furthermore, plaintiff cannot bring § 1983 action against a supervisor on a

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theory that the supervisor is liable for the acts of his or her subordinates. See Polk County v.

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Dodson, 454 U.S. 312, 325 (1981). Plaintiff must describe who violated his rights, when they

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violated his rights, and how this violation caused him harm. Absent such allegations, the

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individuals named in the complaint will be dismissed.

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ORDER TO SHOW CAUSE OR AMEND THE
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B. Nurse Senovia

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Plaintiff makes two claims against Nurse Senovia. First, plaintiff alleges that Nurse Senovia

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was deliberately indifferent to his medical needs by not providing him with ice and a blanket for

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his leg, as well as delaying his pain medication. Dkt. 9, at 20. Second, plaintiff alleges that Nurse

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Senovia retaliated against him by withholding his pain medication for several days each time he

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has filed a grievance. Dkt. 9, at 18. Plaintiff’s retaliation allegation states a cognizable claim;

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however, the deliberate indifference claim does not.

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1. Deliberate Indifference

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Plaintiff has failed to state a § 1983 claim for a constitutional violation based on the lack

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of medical care. “[T]o maintain an Eighth Amendment claim based on prison medical treatment,

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an inmate must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d

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1091, 1096 (9th Cir.2006) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). The two prong

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test for deliberate indifference requires the plaintiff to show (1) “‘a serious medical need’ by

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demonstrating that ‘failure to treat a prisoner’s condition could result in further significant injury

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or the unnecessary and wanton infliction of pain,’” and (2) “the defendant’s response to the need

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was deliberately indifferent.” Jett, 439 F.3d at 1096 (quoting McGuckin v. Smith, 974 F.2d 1050,

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1059 (9th Cir.1992)). Deliberate indifference is shown by “a purposeful act or failure to respond

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to a prisoner’s pain or possible medical need, and harm caused by the indifference.” Jett, 439

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F.3d at 1096 (citing McGuckin, 974 F.2d at 1060). To state a claim for violation of the Eighth

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Amendment, a plaintiff must allege sufficient facts to support a claim that the named defendants

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“[knew] of and disregard[ed] an excessive risk to [plaintiff's] health ....“ Farmer v. Brennan, 511

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U.S. 825, 837 (1994).

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ORDER TO SHOW CAUSE OR AMEND THE
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Before it can be said that a prisoner’s civil rights have been abridged, “the indifference to

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his medical needs must be substantial. Mere ‘indifference,’ ‘negligence,’ or ‘medical

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malpractice’ will not support this cause of action.” Broughton v. Cutter Laboratories, 622 F.2d

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458, 460 (9th Cir.1980) (citing Estelle, 429 U.S. at 105–06). “[A] complaint that a physician has

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been negligent in diagnosing or treating a medical condition does not state a valid claim of

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medical mistreatment under the Eighth Amendment. Medical malpractice does not become a

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constitutional violation merely because the victim is a prisoner.” Estelle, 429 U.S. at 106; see

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also Anderson v. County of Kern, 45 F.3d 1310, 1316 (9th Cir.1995); see also McGuckin, 974

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F.2d at 1050. Even gross negligence is insufficient to establish deliberate indifference to serious

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medical needs. See Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir.1990).
Additionally, “a difference of opinion between a prisoner-patient and prison medical

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authorities regarding treatment does not give rise to a § 1983 claim.” Franklin v. Oregon, 662

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F.2d 1337, 1344 (9th Cir.1981). To prevail, a plaintiff “must show that the course of treatment

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the doctors chose was medically unacceptable under the circumstances ... and ... that they chose

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this course in conscious disregard of an excessive risk to plaintiff's health.” Jackson v. McIntosh,

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90 F.3d 330, 332 (9th Cir.1986). A prisoner’s mere disagreement with diagnosis or treatment

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does not support a claim of deliberate indifference. Sanchez v. Vild, 891 F.2d 240, 242 (9th

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Cir.1989).

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Plaintiff alleges that he was seen by an outside orthopedic surgeon, Dr. Allen, who

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prescribed him with Naproxin. Dkt. 9, at 15. Plaintiff alleges that Defendant Nurse Senovia is

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deliberately indifferent to his needs because she failed to provide him with ice and a blanket and

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an x-ray for his leg, as well as causing several delays in pain medication. Plaintiff also claims

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that this was contrary to Dr. Allen’s suggestions. Id. As noted above, a claim for medical

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ORDER TO SHOW CAUSE OR AMEND THE
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malpractice or negligence cannot support a claim for relief under § 1983. Plaintiff has not

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presented sufficient facts to demonstrate a viable claim for relief, and not merely a difference of

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opinion between Dr. Allen and the healthcare provided at KCJ. In fact, plaintiff states that Nurse

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Senovia’s response to one of his initial grievances was that “once a person enter the KCJ, [they]

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are under [its] provider’s care. KCJ is not obligated to follow outside orders since those

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prescribers do not have prescribing privileges [at KCJ].” Dkt. 9, at 17. As pled, plaintiff’s

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complaint does not set forth enough factual information to show more than negligence, or a

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difference of opinion between Nurse Senovia and Dr. Allen.

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2. Retaliation

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Plaintiff further alleges that Nurse Senovia withheld pain medication from him each time

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he has filed a grievance. Dkt. 9, at 24. Plaintiff contends that this conduct constitutes retaliation,

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violating his First Amendment rights. Id. The facts pled in the complaint are sufficient to state a

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claim for relief under § 1983.

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However, due to the deficiencies described above, the Court will not serve the complaint.

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Plaintiff may show cause why his complaint should not be dismissed or may file an amended

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complaint to cure, if possible, the deficiencies noted herein, on or before October 20, 2017. If

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an amended complaint is filed, it must be legibly rewritten or retyped in its entirety and contain

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the same case number. Any cause of action alleged in the original complaint that is not alleged in

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the amended complaint is waived. Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997),

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overruled in part on other grounds, Lacey v. Maricopa Cnty., 693 F.3d 896 (9th Cir. 2012).

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The Court will screen the amended complaint to determine whether it states a claim for

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relief cognizable under 42 U.S.C. § 1983. If the amended complaint is not timely filed or fails to

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adequately address the issues raised herein, the undersigned will recommend dismissal of the

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ORDER TO SHOW CAUSE OR AMEND THE
COMPLAINT - 6

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problematic claims described above: Mark Rufenor, ConMed, and deliberate indifference by

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Nurse Senovia.

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The Clerk is directed to send Plaintiff the appropriate forms for filing a 42 U.S.C. § 1983

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civil rights complaint and for service, a copy of this Order, a copy of his original civil rights

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complaint (Dkt. 9), and the Pro Se Information Sheet.

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Dated this 20th day of September, 2017.

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A

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Theresa L. Fricke
United States Magistrate Judge

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ORDER TO SHOW CAUSE OR AMEND THE
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