(PC) Howard v. Medical Care Providers for C.D.C.R.

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 TIFFANY HOWARD, No. 2:20-cv-02097-CKD P 12 Plaintiff, 13 v. ORDER 14 MEDICAL CARE PROVIDERS FOR CDCR, et al., [15] Defendants. [17] 18 Plaintiff is a state prisoner proceeding pro se in this civil rights action filed pursuant to 42 19 U.S.C. § 1983 . This proceeding was referred to this court by Local Rule 302 pursuant to 28 20 U.S.C. § 636 (b)(1). 21 Plaintiff requests leave to proceed in forma pauperis. As plaintiff has submitted a 22 declaration that makes the showing required by 28 U.S.C. § 1915 (a), his request will be granted. 23 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 24 1914(a), 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the 25 initial partial filing fee from plaintiff’s trust account and forward it to the Clerk of the Court. 26 Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding 27 month’s income credited to plaintiff’s prison trust account. These payments will be forwarded by 28 the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s account 1 exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915 (b)(2). 2 I. Screening Requirement 3 The court is required to screen complaints brought by prisoners seeking relief against a 4 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 5 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 6 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 7 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 8 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 9 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 10 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 11 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, [12] 490 U.S. at 327 . The critical inquiry is whether a constitutional claim, however inartfully 13 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 14 Cir. 1989); Franklin, 745 F.2d at 1227 . 15 In order to avoid dismissal for failure to state a claim a complaint must contain more than 16 “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause 17 of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, 18 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 19 statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim 20 upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570 . “A 21 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 22 the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. 23 at 678 . When considering whether a complaint states a claim upon which relief can be granted, 24 the court must accept the allegations as true, Erickson v. Pardus, 551 U.S. 89, 93-94 (2007), and 25 construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 26 U.S. 232, 236 (1974). 27 II. Allegations in the Complaint 28 At all times relevant to the allegations in the complaint, plaintiff was an inmate at the 1 California Medical Facility (“CMF”). ECF No. 1 at 1. Plaintiff broke a finger while playing 2 handball which required surgery at an outside hospital. ECF No. 1 at 4. She eventually noticed a 3 wire or piece of metal protruding from her surgical site that began to cause intense pain. ECF No. 4 1 at 5. A month after requesting to be seen by a doctor, she was told that her finger had not 5 healed properly and that she would require another surgery to remove the metal pin in her finger. 6 ECF No. 1 at 5. Plaintiff did not receive the corrective surgery until two months after it was 7 initially requested. ECF No. 1 at 5. Plaintiff alleges that her medical care providers at CMF 8 violated the Eighth Amendment by failing to provide her with adequate and timely post-surgical 9 care. ECF No. 1 at 4-5. However, plaintiff does not identify who her medical providers were. 10 ECF No. 1 at 2 (naming defendants as “Doctor Doe”). By way of relief, plaintiff seeks monetary 11 damages. ECF No. 1 at 3. 12 III. Legal Standards 13 The civil rights statute requires that there be an actual connection or link between the 14 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 15 Monell v. Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 16 (1976). The Ninth Circuit has held that “[a] person ‘subjects' another to the deprivation of a 17 constitutional right, within the meaning of section 1983, if he does an affirmative act, participates 18 in another's affirmative acts or omits to perform an act which he is legally required to do that 19 causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th 20 Cir. 1978) (citation omitted). In order to state a claim for relief under section 1983, plaintiff must 21 link each named defendant with some affirmative act or omission that demonstrates a violation of 22 plaintiff's federal rights. 23 Denial or delay of medical care for a prisoner’s serious medical needs may constitute a 24 violation of the prisoner’s Eighth and Fourteenth Amendment rights. Estelle v. Gamble, 429 U.S. 25 97, 104-05 (1976). An individual is liable for such a violation only when the individual is 26 deliberately indifferent to a prisoner’s serious medical needs. Id.; see Jett v. Penner, 439 F.3d 27 1091, 1096 (9th Cir. 2006); Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002); Lopez v. 28 Smith, 203 F.3d 1122, 1131-32 (9th Cir. 2000). 1 In the Ninth Circuit, the test for deliberate indifference consists of two parts. Jett, 439 2 F.3d at 1096, citing McGuckin v. Smith, 974 F.2d 1050 (9th Cir. 1991), overruled on other 3 grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc). First, the 4 plaintiff must show a “serious medical need” by demonstrating that “failure to treat a prisoner’s 5 condition could result in further significant injury or the ‘unnecessary and wanton infliction of 6 pain.’” Id., citing Estelle, 429 U.S. at 104 . “Examples of serious medical needs include ‘[t]he 7 existence of an injury that a reasonable doctor or patient would find important and worthy of 8 comment or treatment; the presence of a medical condition that significantly affects an 9 individual’s daily activities; or the existence of chronic and substantial pain.’” Lopez, 203 F. 3d 10 at 1131-1132, citing McGuckin, 974 F.2d at 1059-60 . 11 Second, the plaintiff must show the defendant’s response to the need was deliberately 12 indifferent. Jett, 439 F.3d at 1096 . This second prong is satisfied by showing (a) a purposeful act 13 or failure to respond to a prisoner’s pain or possible medical need and (b) harm caused by the 14 indifference. Id. Under this standard, the prison official must not only “be aware of facts from 15 which the inference could be drawn that a substantial risk of serious harm exists,” but that person 16 “must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). This “subjective 17 approach” focuses only “on what a defendant’s mental attitude actually was.” Id. at 839 . A 18 showing of merely negligent medical care is not enough to establish a constitutional violation. 19 Frost v. Agnos, 152 F.3d 1124, 1130 (9th Cir. 1998), citing Estelle, 429 U.S. at 105-106 . A 20 difference of opinion about the proper course of treatment is not deliberate indifference, nor does 21 a dispute between a prisoner and prison officials over the necessity for or extent of medical 22 treatment amount to a constitutional violation. See, e.g., Toguchi v. Chung, 391 F.3d 1051 , 1058 23 (9th Cir. 2004); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). Furthermore, mere delay of 24 medical treatment, “without more, is insufficient to state a claim of deliberate medical 25 indifference.” Shapley v. Nev. Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). 26 Where a prisoner alleges that delay of medical treatment evinces deliberate indifference, the 27 prisoner must show that the delay caused “significant harm and that Defendants should have 28 known this to be the case.” Hallett, 296 F.3d at 745-46 ; see McGuckin, 974 F.2d at 1060 . 1 IV. Analysis 2 The court has reviewed plaintiff’s complaint and finds that it fails to state a claim upon 3 which relief can be granted under federal law. Here, the “Doctor Doe” defendants are not 4 specifically identified and linked to any particular act or omission that gave rise to a violation of 5 plaintiff's constitutional rights. Without such identifying information or linkage to the alleged 6 constitutional violations, the court cannot order plaintiff’s complaint served on any defendant in 7 this action. Compare Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 8 U.S. 388 , 390 n. 2, (1971) (explaining that “the District Court ordered that the complaint be 9 served upon ‘those federal agents who it is indicated by the records of the United States Attorney 10 participated in the November 25, 1965, arrest of the petitioner’”). To the extent that plaintiff 11 seeks to sue her “medical care providers for CDCR,” she must identify them. For all these 12 reasons, plaintiff’s complaint must be dismissed. The court will, however, grant leave to file an 13 amended complaint. 14 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions 15 complained of have resulted in a deprivation of plaintiff’s constitutional rights. See Ellis v. 16 Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, in his amended complaint, plaintiff must allege in 17 specific terms how each named defendant is involved. There can be no liability under 42 U.S.C. 18 § 1983 unless there is some affirmative link or connection between a defendant’s actions and the 19 claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976). Furthermore, vague and conclusory 20 allegations of official participation in civil rights violations are not sufficient. Ivey v. Board of 21 Regents, 673 F.2d 266, 268 (9th Cir. 1982). 22 Finally, plaintiff is informed that the court cannot refer to a prior pleading in order to 23 make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended 24 complaint be complete in itself without reference to any prior pleading. This is because, as a 25 general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 26 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no 27 longer serves any function in the case. Therefore, in an amended complaint, as in an original 28 complaint, each claim and the involvement of each defendant must be sufficiently alleged. 1 V. Plain Language Summary for Pro Se Party 2 The following information is meant to explain this order in plain English and is not 3 | intended as legal advice. 4 The court has reviewed the allegations in your complaint and determined that they do not 5 | state any claim against the unnamed defendants. Your complaint is being dismissed, but you are 6 | being given the chance to fix the problems identified in this screening order. 7 Although you are not required to do so, you may file an amended complaint within 30 8 || days from the date of this order. If you choose to file an amended complaint, pay particular 9 | attention to the legal standards identified in this order which may apply to your claims. 10 In accordance with the above, IT IS HEREBY ORDERED that: 11 1. Plaintiffs request for leave to proceed in forma pauperis (ECF No. 2) is granted. 12 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. All fees 13 | shall be collected and paid in accordance with this court’s order to the Director of the California 14 | Department of Corrections and Rehabilitation filed concurrently herewith. 15 3. Plaintiff may file an amended complaint within thirty days from the date of service of 16 | this order. Any amended complaint must comply with the requirements of the Civil Rights Act, 17 || the Federal Rules of Civil Procedure, and the Local Rules of Practice. It should include the 18 | docket number assigned to this case and must be labeled “First Amended Complaint.” 19 4. Should plaintiff choose not to file an amended complaint, the undersigned will 20 || recommend that this action be dismissed. 21 | Dated: March 25, 2021 dp. A. fe 2 CAROLYN K DELANEY 23 UNITED STATES MAGISTRATE JUDGE [25] 26 12/howa2071.14new.docx