(PC) Shropshire v. D'Agostini

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 RYAN NEIL SHROPSHIRE, No. 2:21-cv-0466 DB P 12 Plaintiff, 13 v. ORDER 14 JOHN D’AGOSTINI, et al., 15 Defendants. [16] 17 Plaintiff is a county jail inmate proceeding pro se with a civil rights action pursuant to 42 18 U.S.C. § 1983 . Plaintiff claims he received inadequate dental care while incarcerated in El 19 Dorado County. Presently before the court is plaintiff’s motion to proceed in forma pauperis 20 (ECF No. 2), motion for medical records (ECF No. 6), and his complaint for screening (ECF No. 21 1). For the reasons set forth below, the court will grant the motion to proceed in forma paupers, 22 deny the motion for medical records without prejudice, and give plaintiff the option to proceed 23 with the complaint as screened or file an amended complaint. 24 IN FORMA PAUPERIS 25 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 26 1915(a). (ECF No. 2.) Accordingly, the request to proceed in forma pauperis will be granted. 27 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 28 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in 1 accordance with the provisions of 28 U.S.C. § 1915 (b)(1). By separate order, the court will direct 2 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 3 forward it to the Clerk of the court. Thereafter, plaintiff will be obligated for monthly payments 4 of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account. 5 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time 6 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 7 1915(b)(2). 8 SCREENING 9 I. Legal Standards 10 The court is required to screen complaints brought by prisoners seeking relief against a 11 governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. § 12 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims 13 that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be 14 granted, or that seek monetary relief from a defendant who is immune from such relief. See 28 15 U.S.C. § 1915A(b)(1) & (2). 16 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 17 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 18 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 19 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, [20] 490 U.S. at 327 . The critical inquiry is whether a constitutional claim, however inartfully 21 pleaded, has an arguable legal and factual basis. See Franklin, 745 F.2d at 1227 . 22 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 23 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 24 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell 25 AtlanticCorp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41 , 47 26 (1957)). 27 However, in order to survive dismissal for failure to state a claim a complaint must 28 contain more than “a formulaic recitation of the elements of a cause of action;” it must contain 1 factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, [2] 550 U.S. at 555 . In reviewing a complaint under this standard, the court must accept as true the 3 allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 4 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all 5 doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). 6 The Civil Rights Act under which this action was filed provides as follows: 7 Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation 8 of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, 9 or other proper proceeding for redress. [10] 42 U.S.C. § 1983 . Here, the defendants must act under color of federal law. Bivens, 403 U.S. at 11 389. The statute requires that there be an actual connection or link between the 12 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 13 Monell v. Dept. of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 14 (1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the 15 meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or 16 omits to perform an act which he is legally required to do that causes the deprivation of which 17 complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 18 Moreover, supervisory personnel are generally not liable under § 1983 for the actions of 19 their employees under a theory of respondeat superior and, therefore, when a named defendant 20 holds a supervisorial position, the causal link between him and the claimed constitutional 21 violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); 22 Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations 23 concerning the involvement of official personnel in civil rights violations are not sufficient. See 24 Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 25 II. Allegations in the Complaint 26 Plaintiff has alleged the events giving rise to the claim occurred while plaintiff was in the 27 custody of El Dorado County Sheriff’s Department. (ECF No. 1 at 1.) He has identified the 28 following defendants: (1) John D’Agostini; (2) correctional officer Danialson; (3) correctional 1 officer Ragan; (4) correctional officer Garibay; (5) the El Dorado County Jail; (6) dentist and 2 dental care provider Nathan Hansen; (7) dentist and dental care dental provider Jeffery Rose; (8) 3 nurse Alex Kuzmenko; (9) nurse Daryl Lauffer; (10) Wellpath Medical Care; (11) El Dorado 4 County Sheriff’s Office. (Id. at 1-2.) 5 Plaintiff alleges that prior to realignment, an inmate would serve a maximum of one-year 6 in jail. (Id. at 6.) He states that the county jails “worked out a disingenuous way to cut costs” by 7 limiting the dental care offered to emergency care and extractions. Now that inmates are serving 8 longer sentences in county jails, El Dorado County Jail and Classification officers are restricting 9 inmates’ access to dental care to cut costs. He alleges they are transferring inmates with dental 10 needs to a jail facility that does not have a dental care provider. (Id.) 11 He was taken into custody on June 6, 2019 and booked into El Dorado County Jail’s 12 Placerville facility.1 (Id. at 7-8.) After two of his fillings fell out, he requested to be seen by 13 medical. (Id. at 8.) He was seen by nurse Kuzmenko on September 3, 2019 and by dental care 14 provider Hansen on September 7, 2019. (Id.) Hansen’s notes regarding the visit indicate that 15 there was no sign of infection, that plaintiff’s teeth were restorable, and that plaintiff was advised 16 pursuant to policy he would receive a new temporary filling, and after he had been in custody for 17 a year he would be eligible for an annual dental exam. 18 Plaintiff alleges that he had angered several officers and sergeants by exhausting the 19 grievance procedure and filing a civil action. The “day after [his] Forma Pauperis papers were 20 signed by the jail” in his other case, he was transferred to the South Lake Tahoe facility. He 21 alleges that classification officer Danialson transferred plaintiff in retaliation for plaintiff’s 22 completing the grievance process and filing a lawsuit. (Id. at 9.) 23 Plaintiff requested to see a dentist. He was seen by Nurse Lauffer on May 25, 2020. 24 Lauffer’s notes regarding the visit reflect that plaintiff was told that he would be placed on a list 25 for transfer, but movement was limited due to the COVID-19 pandemic. (Id.) [26] 1 Plaintiff states that he “came to be in custody at El Dorado County Jail” following his 27 conviction for violation of California Health and Safety Code § 11379.6. (Id. at 7.) He maintains that he was wrongfully convicted and is currently pursuing appellate and habeas review of his 28 conviction and sentence. 1 Plaintiff was temporarily transported to the Placerville facility to receive his annual dental 2 exam on September 26, 2020. (Id. at 10.) He states the exam took place four months after his 3 one-year mark. Dentist Jeffery Rose’s report stated plaintiff did not want to lose any of his teeth 4 and that one of his teeth was “no longer restorable.” Rose also noted that plaintiff needed an 5 annual exam and an X-ray to follow up. 6 Plaintiff was transferred back to the South Lake facility that same day. (Id.) On the drive 7 he spoke with officer Ragan about the importance of getting his annual exam done to save his 8 teeth. Officer Ragan assured plaintiff that he would make sure it got done. 9 Plaintiff submitted classification and medical requests emphasizing the importance of 10 being able to get his annual dental appointment. (Id. at 11.) Classification officer Garibay 11 responded by stating plaintiff’s concerns were “noted.” Plaintiff was still waiting for an 12 appointment as of January 1, 2021. 13 He alleges the lack of access to dental treatment caused him unnecessary pain and 14 suffering. (Id. at 12.) Additionally, his teeth were reparable when he entered custody, but 15 because his treatment was delayed, his teeth are now no longer reparable. (Id. at 13.) 16 Plaintiff alleges that the jail’s failure to screen inmates’ medical/dental needs amounted to 17 cruel and unusual punishment. (Id.) Plaintiff further claims “Wellpath is contracted to provide 18 health and dental care” and the jail allowed Wellpath to provide less than adequate care. (Id. at 19 17.) 20 III. Does Plaintiff State a § 1983 Claim? 21 A. Eighth Amendment 22 Where a prisoner’s Eighth Amendment claims arise in the context of medical care, the 23 prisoner must allege and prove “acts or omissions sufficiently harmful to evidence deliberate 24 indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). An Eighth 25 Amendment medical claim has two elements: “the seriousness of the prisoner’s medical need and 26 the nature of the defendant’s response to that need.” McGuckin v. Smith, 974 F.2d 1050 , 1059 27 (9th Cir. 1991), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th 28 Cir. 1997) (en banc). 1 A serious medical need exists if the failure to treat the condition could result in further 2 significant injury or the unnecessary and wanton infliction of pain. Jett v. Penner, 439 F.3d 1091 , 3 1096 (9th Cir. 2006). To act with deliberate indifference, a prison official must both be aware of 4 facts from which the inference could be drawn that a substantial risk of serious harm exists, and 5 he must also draw the inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). Thus, a 6 defendant is liable if he knows that plaintiff faces “a substantial risk of serious harm and 7 disregards that risk by failing to take reasonable measures to abate it.” Id. at 847 . “It is enough 8 that the official acted or failed to act despite his knowledge of a substantial risk of harm.” Id. at 9 842. 10 Delays in providing medical care may manifest deliberate indifference. Estelle, 429 U.S. 11 at 104–05. To establish a claim of deliberate indifference arising from a delay in providing care, 12 a plaintiff must show that the delay was harmful. See Berry v. Bunnell, 39 F.3d 1056, 1057 (9th 13 Cir. 1994); McGuckin, 974 F.2d at 1059 ; Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir. 14 1990); Shapley v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). In 15 this regard, “[a] prisoner need not show his harm was substantial; however, such would provide 16 additional support for the inmate’s claim that the defendant was deliberately indifferent to his 17 needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); see also McGuckin, 974 F.2d at 18 1060. In addition, a physician need not fail to treat an inmate altogether in order to violate that 19 inmate’s Eighth Amendment rights. Ortiz v. City of Imperial, 884 F.2d 1312 , 1314 (9th Cir. 20 1989) (per curiam). A failure to competently treat a serious medical condition, even if some 21 treatment is prescribed, may constitute deliberate indifference in a particular case. Id. 22 Plaintiff has alleged that defendants delayed treatment for his dental issues. Such 23 allegations could potentially state a cognizable deliberate indifference claim. Specifically, 24 plaintiff has indicated that dental care provider Nathan Hansen knew he required treatment and 25 yet failed to ensure that he received treatment in a timely manner. As a result of the delay some 26 of plaintiff’s teeth are no longer restorable. Thus, plaintiff has alleged treatment was delayed and 27 he was harmed as a result of the delay. Plaintiff has alleged a potentially cognizable claim 28 against Hansen. 1 The complaint does not state an Eighth Amendment claim against any of the other 2 defendants because he has failed to state specific facts indicating what action the remaining 3 defendants took that led to the harm alleged in the complaint. See Jones v. Williams, 297 F.3d 4 930, 934 (9th Cir. 2002) (Under § 1983, plaintiff must demonstrate that each named defendant 5 personally participated in the deprivation of his rights.). In any amended complaint, plaintiff 6 must indicate how each defendant’s actions deprived him of the right to adequate dental care. 7 B. First Amendment 8 “Within the prison context, a viable claim of First Amendment retaliation entails five 9 basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) 10 because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s 11 exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate 12 correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote and 13 citations omitted). 14 Plaintiff has alleged that classification officer Danialson transferred him in retaliation just 15 before he became eligible for a dental exam because he completed the grievance process and filed 16 a lawsuit. (ECF No. 1 at 8-9.) Such allegations could state a claim against Danialson for 17 violation of his rights under the First Amendment. 18 C. Eleventh Amendment 19 The Eleventh Amendment bars any suit against a state or state agency absent a valid 20 waiver or abrogation of its sovereign immunity. Seminole Tribe of Florida v. Florida, 517 U.S. 21 44, 54 (1996); Hans v. Louisiana, 134 U.S. 1, 10 (1890). “The State of California has not waived 22 its Eleventh Amendment immunity with respect to claims brought under § 1983 in federal court . 23 . . .” Dittman v. California, 191 F.3d 1020, 1025-26 (9th Cir. 1999) (citing Atascadero State 24 Hosp. v. Scanlon, 473 U.S. 234, 241 (1985)); see also Brown v. Cal. Dep’t of Corr., 554 F.3d 25 747, 752 (9th Cir. 2009). This immunity applies regardless of whether a state or state agency is 26 sued for damages or injunctive relief, Alabama v. Pugh, 438 U.S. 781, 782 (1978) (per curiam), 27 and regardless of whether the plaintiff’s claim arises under federal or state law, Pennhurst State 28 Sch. & Hosp. v. Halderman, 465 U.S. 89, 121 (1984). 1 Plaintiff has identified the El Dorado County Jail, the El Dorado County Sheriff’s Office, 2 and Wellpath Medical Care as defendants in this action. However, these entities are immune 3 from suit under the Eleventh Amendment. See Will v. Michigan Dep’t of State Police, 491 U.S. 4 58, 66 (1989); Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam) (holding 5 that prisoner’s Eighth Amendment claims against CDCR for damages and injunctive relief were 6 barred by Eleventh Amendment immunity); Pennhurst State Sch. & Hosp. v. Halderman, 465 7 U.S. 89, 100 (1984) (Eleventh Amendment immunity extends to state agencies); see also Pugh, [8] 438 U.S. at 782 (a state’s agency responsible for incarceration and correction of prisoners is a 9 state agency for purposes of the Eleventh Amendment). Accordingly, the complaint fails to state 10 a claim against these defendants. 11 IV. Amending the Complaint 12 As stated above, plaintiff has alleged a potentially cognizable claims against defendants 13 Hansen and Danialson. However, the complaint does not contain any additional cognizable 14 claims. Accordingly, plaintiff will be given the option to proceed with the complaint as screened 15 or to file an amended complaint. 16 Plaintiff is advised that in an amended complaint he must clearly identify each defendant 17 and the action that defendant took that violated his constitutional rights. The court is not required 18 to review exhibits to determine what plaintiff’s charging allegations are as to each named 19 defendant. The charging allegations must be set forth in the amended complaint, so defendants 20 have fair notice of the claims plaintiff is presenting. That said, plaintiff need not provide every 21 detailed fact in support of his claims. Rather, plaintiff should provide a short, plain statement of 22 each claim. See Fed. R. Civ. P. 8(a). 23 Any amended complaint must show the federal court has jurisdiction, the action is brought 24 in the right place, and plaintiff is entitled to relief if plaintiff’s allegations are true. It must 25 contain a request for particular relief. Plaintiff must identify as a defendant only persons who 26 personally participated in a substantial way in depriving plaintiff of a federal constitutional right. 27 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation 28 //// 1 of a constitutional right if he does an act, participates in another’s act or omits to perform an act 2 he is legally required to do that causes the alleged deprivation). 3 In an amended complaint, the allegations must be set forth in numbered paragraphs. Fed. 4 R. Civ. P. 10(b). Plaintiff may join multiple claims if they are all against a single defendant. Fed. 5 R. Civ. P. 18(a). If plaintiff has more than one claim based upon separate transactions or 6 occurrences, the claims must be set forth in separate paragraphs. Fed. R. Civ. P. 10(b). 7 The federal rules contemplate brevity. See Galbraith v. County of Santa Clara, 307 F.3d 8 1119, 1125 (9th Cir. 2002) (noting that “nearly all of the circuits have now disapproved any 9 heightened pleading standard in cases other than those governed by Rule 9(b)”); Fed. R. Civ. P. 10 84; cf. Rule 9(b) (setting forth rare exceptions to simplified pleading). Plaintiff’s claims must be 11 set forth in short and plain terms, simply, concisely and directly. See Swierkiewicz v. Sorema 12 N.A., 534 U.S. 506, 514 (2002) (“Rule 8(a) is the starting point of a simplified pleading system, 13 which was adopted to focus litigation on the merits of a claim.”); Fed. R. Civ. P. 8. 14 An amended complaint must be complete in itself without reference to any prior pleading. 15 E.D. Cal. R. 220. Once plaintiff files an amended complaint, all prior pleadings are superseded. 16 Any amended complaint should contain all of the allegations related to his claim in this action. If 17 plaintiff wishes to pursue his claims against the defendant, they must be set forth in the amended 18 complaint. 19 By signing an amended complaint, plaintiff certifies he has made reasonable inquiry and 20 has evidentiary support for his allegations, and for violation of this rule the court may impose 21 sanctions sufficient to deter repetition by plaintiff or others. Fed. R. Civ. P. 11. 22 MOTION FOR MEDICAL RECORDS 23 Plaintiff has filed a motion seeking his medical records. (ECF No. 6.) He states that he 24 needs a copy of his medical records in order “to successfully litigate his claim.” (Id. at 1.) At this 25 stage of the proceedings, there is no need for plaintiff to present medical records or other 26 evidence. Additionally, should this case proceed past the initial screening stage plaintiff will be 27 entitled to request his medical records during discovery. Therefore, the court will deny the 28 motion without prejudice to its renewal at a later stage of the proceedings. 1 CONCLUSION 2 For the reasons set forth above, IT IS HEREBY ORDERED that: 3 1. Plaintiff's motion to proceed in forma pauperis (ECF No. 2) is granted. 4 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 5 is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 6 § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s 7 order to the Sheriff of El Dorado County filed concurrently herewith. 8 3. Plaintiff's motion for medical records (ECF No. 6) is denied without prejudice. 9 4. Plaintiff has stated a potentially cognizable deliberate indifference claim against 10 defendant Hansen and a potentially cognizable retaliation claim against defendant 1] Danialson. The complaint does not contain any additional claims. 12 5. Plaintiff has the option to proceed immediately on his deliberate indifference claim 13 against defendant Hansen and his retaliation claim against defendant Danialson as set 14 forth in Section III above, or to amend the complaint. 15 6. Within twenty (20) days of service of this order, plaintiff shall complete and return 16 the attached form notifying the court whether he wants to proceed on the screened 17 complaint or whether he wants to file a second amended complaint. 18 7. Failure to comply with this order will result in a recommendation that this action be 19 dismissed. [20] 21 || Dated: August 11, 2021 [23] ORAH BARNES UNITED STATES MAGISTRATE JUDGE [26] 27 pp.2 2g DB/DB Prisoner Inbox/Civil Rights/S/sh100466.scrn [5] UNITED STATES DISTRICT COURT [6] FOR THE EASTERN DISTRICT OF CALIFORNIA [8] 9 RYAN NEIL SHROPSHIRE, No. 2:21-cv-0466 DB P 10 Plaintiff, 11 v. PLAINTIFF’S NOTICE ON HOW TO PROCEED 12 JOHN D’AGOSTINI, et al., 13 Defendants. [14] Check one: [16] _____ Plaintiff wants to proceed immediately on his deliberate indifference claim against [17] defendant Hansen and his retaliation claim against defendant Danialson. Plaintiff [18] understands that by going forward without amending the complaint he is [19] voluntarily dismissing all other claims and defendants. [21] _____ Plaintiff wants to amend the complaint. [23] DATED:_______________________ [25] Ryan Neil Shropshire 26 Plaintiff pro se