(PC) Franklin v. Tate

[7] 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA [10] 11 JEFFREY FRANKLIN, ) Case No. 1:19-cv-01170-SAB (PC) ) 12 Plaintiff, ) ) SCREENING ORDER GRANTING PLAINTIFF 13 v. ) LEAVE TO FILE AN AMENDED COMPLAINT ) 14 HAROLD TATE, et al., [ECF No. 1] ) 15 Defendants. ) ) 16 ) 17 Plaintiff Jeffrey Franklin is appearing pro se in this civil rights action pursuant to 42 U.S.C. § 18 1983. This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 19 636(b)(1)(B) and Local Rule 302. 20 Plaintiff filed the instant action in the United States District Court for the Northern District of 21 California on July 26, 2019. On August 28, 2019, the action was transferred to this Court. Therefore, 22 Plaintiff’s complaint, filed on July 26, 2019, is before the Court for screening. 23 I. 24 SCREENING REQUIREMENT 25 The Court is required to screen complaints brought by prisoners seeking relief against a 26 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 27 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 28 “frivolous or malicious,” that “fail[] to state a claim on which relief may be granted,” or that “seek[] 1 monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915 (e)(2)(B). 2 A complaint must contain “a short and plain statement of the claim showing that the pleader is 3 entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 4 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, 5 do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, [6] 550 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate that each defendant personally 7 participated in the deprivation of Plaintiff’s rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 8 2002). 9 Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally 10 construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 1113 , 1121 11 (9th Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be facially plausible, 12 which requires sufficient factual detail to allow the Court to reasonably infer that each named 13 defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79 ; Moss v. U.S. Secret Service, [14] 572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant has acted unlawfully” is not 15 sufficient, and “facts that are ‘merely consistent with’ a defendant’s liability” falls short of satisfying 16 the plausibility standard. Iqbal, 556 U.S. at 678 ; Moss, 572 F.3d at 969 . 17 II. 18 COMPLAINT ALLEGATIONS 19 The Court accepts Plaintiff’s allegations in the first amended complaint as true only for the 20 purpose of the sua sponte screening requirement under 28 U.S.C. § 1915 . 21 Plaintiff names Doctor Harold Tate, Chief Physician Surgeon U. Baniga, Chief Medical 22 Executive S. Shiesha, and Deputy Director J. Lewis, as Defendants. 23 On or about July 29, 2015 to August 7, 2015, Plaintiff’s cancer mediation was aborted by Dr. 24 Tate because Plaintiff was attending a court orders settlement conference on July 29-30, 2015. Dr. 25 Tate falsely alleged that Plaintiff no longer wished to receive the remaining radiation treatments. Dr. 26 Tate had previously discontinued other prescribed medications based on false pretenses. 27 /// [28] 1 Plaintiff filed medical grievances to obtain the medications, and Dr. Tate “would take on an 2 attitude and do something else towards [Plaintiff’s] medical care – treatment as a result of my 3 exercising the right to seek redress from his non-medically warranted actions regarding my serious 4 medical condition or needs.” (Compl. at 5, ECF No. 1.) 5 Dr. U. Baniga addressed the numerous medical appeals, had a duty to rectify the mistreatment 6 by Dr. Tate, but simply turned a blind eye and refused to take corrective action. 7 Defendants S. Shiesha and J. Lewis failed to properly train and/or supervise Defendants Tate 8 and Baniga and refused to take corrective actions against them. 9 III. 10 DISCUSSION 11 A. Deliberate Indifference to Serious Medical Needs 12 While the Eighth Amendment of the United States Constitution entitles Plaintiff to medical 13 care, the Eighth Amendment is violated only when a prison official acts with deliberate indifference to 14 an inmate’s serious medical needs. Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012), overruled 15 in part on other grounds, Peralta v. Dillard, 744 F.3d 1076, 1082-83 (9th Cir. 2014); Wilhelm v. 16 Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012); Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). 17 Plaintiff “must show (1) a serious medical need by demonstrating that failure to treat [his] condition 18 could result in further significant injury or the unnecessary and wanton infliction of pain,” and (2) that 19 “the defendant’s response to the need was deliberately indifferent.” Wilhelm, 680 F.3d at 1122 (citing 20 Jett, 439 F.3d at 1096 ). Deliberate indifference is shown by “(a) a purposeful act or failure to respond 21 to a prisoner’s pain or possible medical need, and (b) harm caused by the indifference.” Wilhelm, 680 22 F.3d at 1122 (citing Jett, 439 F.3d at 1096 ). The requisite state of mind is one of subjective 23 recklessness, which entails more than ordinary lack of due care. Snow, 681 F.3d at 985 (citation and 24 quotation marks omitted); Wilhelm, 680 F.3d at 1122 . In order to establish a claim of deliberate 25 indifference based on a delay in treatment, a plaintiff must show that the delay was harmful. See 26 Hallett v. Morgan, 296 F.3d 732, 745-46 (9th Cir. 2002); Berry v. Bunnell, 39 F.3d 1056, 1057 (9th 27 Cir. 1994). 28 /// 1 “A difference of opinion between a physician and the prisoner - or between medical 2 professionals - concerning what medical care is appropriate does not amount to deliberate 3 indifference.” Snow, 681 F.3d at 987 (citing Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); 4 Wilhelm, 680 F.3d at 1122 -23 (citing Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1986)). Rather, 5 Plaintiff “must show that the course of treatment the doctors chose was medically unacceptable under 6 the circumstances and that the defendants chose this course in conscious disregard of an excessive risk 7 to [his] health.” Snow, 681 F.3d at 988 (citing Jackson, 90 F.3d at 332 ) (internal quotation marks 8 omitted). In addition, mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this 9 cause of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle 10 v. Gamble, 429 U.S. 97, 105-06 (1976)). “Medical malpractice does not become a constitutional 11 violation merely because the victim is a prisoner.” Estelle, 429 U.S. at 106 ; Snow, 681 F.3d at 987 - 12 88; Wilhelm, 680 F.3d at 1122 (“The deliberate indifference doctrine is limited in scope.”). 13 Here, Plaintiff alleges that Defendant Dr. Tate discontinued his cancer medication for a period 14 of eight days by falsely claiming he refused treatment even though Plaintiff was actually out to court 15 for a settlement conference. Plaintiff fails to demonstrate that the alleged delay of treatment for eight 16 days lead to further harm. See Shapley v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404 , 407 17 (9th Cir. 1995) (“mere delay” in providing medical treatment, without more, does not establish 18 deliberate indifference.) In addition, although Plaintiff contends that Dr. Tate had previously 19 discontinued other medications, he fails to set forth sufficient factual detail to support such claim. 20 Thus, Plaintiff has failed to state a cognizable claim against Defendant Dr. Tate. 21 B. Supervisory Liability 22 Under section 1983, Plaintiff must prove that the defendants holding supervisory positions 23 personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 24 2002). There is no respondeat superior liability, and each defendant is only liable for his or her own 25 misconduct. Iqbal, at 1948-49. A supervisor may be held liable for the constitutional violations of his 26 or her subordinates only if he or she “participated in or directed the violations, or knew of the 27 violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); 28 Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009); Preschooler II v. Clark County School Board of 1 Trustees, 479 F.3d 1175, 1182 (9th Cir. 2007); Harris v. Roderick, 126 F.3d 1189, 1204 (9th Cir. 2 1997). 3 Here, Plaintiff does not allege personal involvement by Defendants Baniga, Shiesha, and 4 Lewis, and fails to allege specific facts tending to show that these Defendants were causally connected 5 to the alleged constitutional violations. Although Plaintiff contends these Defendants were aware of 6 Dr. Tate’s action, he fails to set forth sufficient facts to demonstrate such knowledge and the failure to 7 act to prevent or rectify the problem. Accordingly, Plaintiff fails to state a cognizable claim against 8 Defendants Baniga, Shiesha, and Lewis. 9 C. Retaliation 10 “Prisoners have a First Amendment right to file grievances against prison officials and to be free 11 from retaliation for doing so.” Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) (citing Brodheim 12 v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009)). “Within the prison context, a viable claim of First 13 Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some adverse 14 action against an inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) 15 chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably 16 advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). To 17 state a cognizable retaliation claim, Plaintiff must establish a nexus between the retaliatory act and the 18 protected activity. Grenning v. Klemme, 34 F.Supp.3d 1144, 1153 (E.D. Wash. 2014). Mere verbal 19 harassment or abuse does not violate the Constitution and, thus, does not give rise to a claim for relief 20 under 42 U.S.C. § 1983 . Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987). In addition, 21 threats do not rise to the level of a constitutional violation. Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 22 1987). 23 Here, Plaintiff contends that he filed inmate grievances and Defendant Tate “would take on an 24 attitude and do something else towards my medical care treatment.” Plaintiff’s claim that Defendant 25 Tate would “do something” towards his medical treatment is too vague to demonstrate “adverse action” 26 because of the exercise of his rights under the First Amendment. Furthermore, the mere fact that the 27 alleged adverse action took place after Plaintiff filed prison grievances is insufficient to establish that the 28 exercise of Plaintiff’s First Amendment rights was the legal and proximate cause of the retaliation. 1 Pratt v. Rowland, 65 F.3d 802, 807-08 (9th Cir. 1995) (the timing of adverse actions alone is insufficient 2 to establish retaliatory intent); O’Brien v. Gularte, No. 18CV980-BAS-MDD, 2019 WL 77112 , at *3 3 (S.D. Cal. Jan. 2, 2019) (“Timing alone … is generally not enough to support an inference that prison 4 officials took an adverse action against a prisoner in retaliation for the prisoner’s participation in 5 protected conduct.”). “[R]ather, Plaintiff must allege sufficient facts to plausibly suggest a nexus 6 between” the alleged protected activity and the adverse action taken by a defendant. Rojo v. Paramo, 7 No. 13CV2237-LAB (BGS), 2014 WL 2586904 , at *5 (S.D. Cal. June 10, 2014). Accordingly, Plaintiff 8 fails to state a cognizable retaliation claim. 9 D. Inmate Appeal Process 10 To the extent Plaintiff is seeking to hold Defendants liable simply because they denied his 11 inmate appeals, Plaintiff fails to state a cognizable claim. “The Fourteenth Amendment’s Due Process 12 Clause protects persons against deprivations of life, liberty, or property; and those who seek to invoke 13 its procedural protection must establish that one of these interests is at stake.” Wilkinson v. Austin, 545 14 U.S. 209, 221 (2005). Plaintiff does not a have protected liberty interest in the processing his appeals, 15 and therefore, he cannot pursue a claim for denial of due process with respect to the handling or 16 resolution of his appeals. Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (citing Mann v. Adams, [17] 855 F.2d 639, 640 (9th Cir. 1988)). Accordingly, Plaintiff cannot state a cognizable claim based on the 18 handling of his inmate appeals. 19 IV. 20 CONCLUSION AND ORDER 21 For the reasons discussed, Plaintiff fails to state a cognizable claim and shall be granted leave to 22 file an amended complaint to cure the deficiencies identified in this order. See Lopez v. Smith, 203 F.3d 23 1122, 1127 (9th Cir. 2000). 24 Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but it must state what each 25 named defendant did that led to the deprivation of Plaintiff’s constitutional rights, Iqbal, 556 U.S. at 26 678-79. Although accepted as true, the “[f]actual allegations must be [sufficient] to raise a right to relief 27 above the speculative level . . . .” Twombly, 550 U.S. at 555 (citations omitted). Further, Plaintiff may 28 not change the nature of this suit by adding new, unrelated claims in his amended complaint. George, 1 || 507 F.3d at 607 (no “buckshot” complaints). 2 Finally, Plaintiff is advised that an amended complaint supersedes the original complaint. Lace 3 || v. Maricopa Cnty., 693 F.3d 896, 927 (9th Cir. 2012). Therefore, Plaintiff's amended complaint mu 4 || be “complete in itself without reference to the prior or superseded pleading.” Local Rule 220. 5 Based on the foregoing, it is HEREBY ORDERED that: 6 1. The Clerk’s Office shall send Plaintiff a civil rights complaint form; 7 2. Within thirty (30) days from the date of service of this order, Plaintiff shall file < 8 amended complaint; 9 3. Plaintiff's amended complaint shall not exceed twenty-five (25) pages in length; and 10 4. If Plaintiff fails to file an amended complaint in compliance with this order, the Cou 11 will recommend to a district judge that this action be dismissed consistent with tl 12 reasons stated in this order. [13] 14 || IT IS SO ORDERED. A (ee 15 ||Dated: _ August 30, 2019 IF 16 UNITED STATES MAGISTRATE JUDGE