(PC) Howard v. Aryad

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 GREGORY EUGENE HOWARD, No. 2:19-cv-02062-KJM-CKD P 12 Plaintiff, 13 v. ORDER 14 DOCTOR ARYAD, et al., 15 Defendants. [16] 17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this federal civil 18 rights action filed pursuant to 42 U.S.C. § 1983 . On April 9, 2020 the court dismissed plaintiff’s 19 complaint with leave to file an amended complaint. Plaintiff filed a first amended complaint 20 which is before the court for screening. 21 I. Screening Requirement 22 The court is required to screen complaints brought by prisoners seeking relief against a 23 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 24 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 25 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 26 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 27 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 28 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 1 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 2 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, [3] 490 U.S. at 327 . The critical inquiry is whether a constitutional claim, however inartfully 4 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 5 Cir. 1989); Franklin, 745 F.2d at 1227 . 6 In order to avoid dismissal for failure to state a claim a complaint must contain more than 7 “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause 8 of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, 9 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 10 statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim 11 upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570 . “A 12 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 13 the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. 14 at 678 . When considering whether a complaint states a claim upon which relief can be granted, 15 the court must accept the allegations as true, Erickson v. Pardus, 551 U.S. 89, 93-94 (2007), and 16 construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 17 U.S. 232 , 236 (1974). 18 II. Allegations in the First Amended Complaint 19 At all times relevant to the allegations in the first amended complaint, plaintiff was an 20 inmate at California State Prison-Sacramento. He alleges that on November 1, 2013, several 21 correctional officers used excessive force against him resulting in “back pain, shoulder pain, [a] 22 swollen and throbbing left hand and [a] gash above his left eye.” ECF No. 14 at 3. Based on his 23 injuries, plaintiff was examined by defendant Dr. Ma who stitched up his facial wound. Id. 24 During subsequent medical visits, defendants Aryad and Bobbla failed to order an MRI and 25 refused to allow him to be seen by a specialist.1 Id. By way of relief, plaintiff seeks 26 compensatory and punitive damages. ECF No. 14 at 4. [27] 1 The court notes in passing that the names of these defendants as well as the correctional officers 28 are spelled differently throughout the amended complaint. 1 III. Legal Standards 2 Denial or delay of medical care can violate the Eighth Amendment. Estelle v. Gamble, [3] 429 U.S. 97, 104-05 (1976). A violation occurs when a prison official causes injury as a result of 4 his or her deliberate indifference to a prisoner’s serious medical needs. Id. 5 A plaintiff can show a “serious medical need” by demonstrating that “failure to treat a 6 prisoner’s condition could result in further significant injury or the ‘unnecessary and wanton 7 infliction of pain.’” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) citing Estelle, 429 U.S. at 8 104. “Examples of serious medical needs include ‘[t]he existence of an injury that a reasonable 9 doctor or patient would find important and worthy of comment or treatment; the presence of a 10 medical condition that significantly affects an individual’s daily activities; or the existence of 11 chronic and substantial pain.’” Lopez v. Smith, 203 F.3d 1122, 1131-32 (9th Cir. 2000) citing 12 McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1991). “Deliberate indifference” includes 13 a purposeful act or failure to respond to a prisoner’s pain or possible medical need. Jett, 439 F.3d 14 at 1096 . 15 A showing of merely negligent medical care is not enough to establish a constitutional 16 violation. Frost v. Agnos, 152 F.3d 1124, 1130 (9th Cir. 1998), citing Estelle, 429 U.S. at 105 - 17 106. A difference of opinion about the proper course of treatment is not deliberate indifference, 18 nor does a dispute between a prisoner and prison officials over the necessity for or extent of 19 medical treatment amount to a constitutional violation. See, e.g., Toguchi v. Chung, 391 F.3d 20 1051, 1058 (9th Cir. 2004); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). Furthermore, 21 mere delay of medical treatment, “without more, is insufficient to state a claim of deliberate 22 medical indifference.” Shapley v. Nev. Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 23 1985). Where a prisoner alleges that delay of medical treatment evinces deliberate indifference, 24 the prisoner must show that the delay caused “significant harm and that defendants should have 25 known this to be the case.” Hallett v. Morgan, 296 F.3d 732, 745-46 (9th Cir. 2002); see 26 McGuckin, 974 F.2d at 1060 . 27 The Eighth Amendment prohibits prison officials from inflicting cruel and unusual 28 punishment on inmates which has been defined as “the unnecessary and wanton infliction of 1 pain.” Whitley v. Albers, 475 U.S. 312, 319 (1986). “[W]henever prison officials stand accused 2 of using excessive physical force in violation of the Cruel and Unusual Punishments Clause, the 3 core judicial inquiry is… whether force was applied in a good-faith effort to maintain or restore 4 discipline, or maliciously and sadistically to cause harm.” Hudson v. McMillan, 503 U.S. 1 , 7 5 (1992). The court’s inquiry into an excessive force claim focuses on the extent of the prisoner’s 6 injury, the need for application of force, the relationship between that need and the amount of 7 force used, the threat reasonably perceived by the responsible officials, and any efforts made to 8 temper the severity of a forceful response. Hudson, 503 U.S. at 7 (1992) (quotation marks and 9 citations omitted). While the absence of a serious injury is relevant to the Eighth Amendment 10 inquiry, it does not end it. Hudson, 503 U.S. at 7 . The malicious and sadistic use of force to 11 cause harm always violates contemporary standards of decency in violation of the Eighth 12 Amendment. Whitley, 475 U.S. at 327 . 13 IV. Analysis 14 The court has reviewed plaintiff’s amended complaint and finds that it fails to state a 15 claim upon which relief can be granted under federal law. While plaintiff alleges that defendants 16 Aryad and Bobbla failed to order an MRI and refused to allow him to be seen by a specialist for 17 his back pain, this is nothing more than a difference of opinion over the extent of the medical care 18 he received. See Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004); Sanchez v. Vild, 891 19 F.2d 240, 242 (9th Cir. 1989). 20 Additionally, plaintiff fails to link defendant Ma to the asserted deliberate indifference 21 claims. While plaintiff alleges that he was examined by defendant Ma following the November 1, 22 2013 use of force against him, he received stitches for his facial injury during this exam. ECF 23 No. 14 at 3. Plaintiff does not specify how defendant Ma was deliberately indifferent to his 24 serious medical needs on this occasion or any subsequent medical visit. 25 Further, the court finds that plaintiff has failed to state an Eighth Amendment excessive 26 force claim against Correctional Officers Motzen, Bookout, and Wuest because he does not name 27 them as defendants in this action. Plaintiff must name and identify each individual defendant that 28 he seeks to sue. For all these reasons, plaintiff’s complaint must be dismissed. The court will, 1 however, grant leave to file an amended complaint. 2 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions 3 complained of have resulted in a deprivation of plaintiff’s constitutional rights. See Ellis v. 4 Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, in his amended complaint, plaintiff must allege in 5 specific terms how each named defendant is involved. There can be no liability under 42 U.S.C. 6 § 1983 unless there is some affirmative link or connection between a defendant’s actions and the 7 claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976). Furthermore, vague and conclusory 8 allegations of official participation in civil rights violations are not sufficient. Ivey v. Board of 9 Regents, 673 F.2d 266, 268 (9th Cir. 1982). 10 Finally, plaintiff is informed that the court cannot refer to a prior pleading in order to 11 make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended 12 complaint be complete in itself without reference to any prior pleading. This is because, as a 13 general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 14 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no 15 longer serves any function in the case. Therefore, in an amended complaint, as in an original 16 complaint, each claim and the involvement of each defendant must be sufficiently alleged. 17 V. Plain Language Summary for Pro Se Party 18 The following information is meant to explain this order in plain English and is not 19 intended as legal advice. 20 The amended complaint is being dismissed because it fails to state any cognizable claim 21 for relief. You are being given the chance to try to fix this by filing a second amended complaint. 22 If you choose to do so, pay careful attention to the legal standards explained in this order. 23 Accordingly, IT IS HEREBY ORDERED that: 24 1. Plaintiff’s first amended complaint is dismissed. 25 2. Plaintiff is granted thirty days from the date of service of this order to file an amended 26 complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil 27 Procedure, and the Local Rules of Practice. The amended complaint must bear the docket 28 number assigned this case and must be labeled “Amended Complaint.” Failure to file an 1 | amended complaint in accordance with this order will result in a recommendation that this action 2 | be dismissed. is ae 3 | Dated: December 14, 2020 es id h Kt . Ld { oe 4 CAROLYN K. DELANEY 5 UNITED STATES MAGISTRATE JUDGE [9] 10 | 12/nowa2062.14amd.new.docx