(PC) Beggs v. South

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 BOBBY JO BEGGS, No. 2:21-cv-2190 KJM KJN P 12 Plaintiff, 13 v. ORDER 14 H. SOUTH, M.D., et al., 15 Defendants. [16] 17 Plaintiff is a state prisoner, proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. 18 § 1983, and requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 . This 19 proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636 (b)(1). 20 Plaintiff submitted a declaration that makes the showing required by 28 U.S.C. § 1915 (a). 21 Accordingly, the request to proceed in forma pauperis is granted. 22 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. 23 §§ 1914(a), 1915(b)(1). By this order, plaintiff is assessed an initial partial filing fee in 24 accordance with the provisions of 28 U.S.C. § 1915 (b)(1). By separate order, the court will direct 25 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 26 forward it to the Clerk of the Court. Thereafter, plaintiff is obligated to make monthly payments 27 of twenty percent of the preceding month’s income credited to plaintiff’s trust account. These 28 payments will be forwarded by the appropriate agency to the Clerk of the Court each time the 1 amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. 2 § 1915(b)(2). 3 As set forth below, plaintiff’s complaint is dismissed with leave to amend. 4 Screening Standards 5 The court is required to screen complaints brought by prisoners seeking relief against a 6 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 7 court must dismiss a complaint or portion thereof if the prisoner raised claims that are legally 8 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 9 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 10 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 11 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 12 Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an 13 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, [14] 490 U.S. at 327 . The critical inquiry is whether a constitutional claim, however inartfully 15 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 16 Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 17 2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably 18 meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at 19 1227. 20 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 21 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 22 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic 23 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 24 In order to survive dismissal for failure to state a claim, a complaint must contain more than “a 25 formulaic recitation of the elements of a cause of action;” it must contain factual allegations 26 sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550 U.S. at 555 . 27 However, “[s]pecific facts are not necessary; the statement [of facts] need only ‘give the 28 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v. 1 Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic, 550 U.S. at 555 , citations and internal 2 quotations marks omitted). In reviewing a complaint under this standard, the court must accept as 3 true the allegations of the complaint in question, Erickson, 551 U.S. at 93 , and construe the 4 pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232 , 236 5 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984). 6 Plaintiff’s Complaint 7 Plaintiff claims defendants violated his rights because they won’t approve his surgery 8 because they think plaintiff is going to die and don’t want it on their hands. Plaintiff claims that 9 the head doctor of the prison approved the surgery in 2017, but despite plaintiff’s appeals, 10 defendants won’t do the surgery, and now won’t even talk to plaintiff about it. Plaintiff claims he 11 fell, hit the bed with the bone sticking out. Plaintiff names three doctors as defendants. As relief, 12 plaintiff seeks hip surgery. 13 Deliberate Indifference 14 The Eighth Amendment prohibits the infliction of “cruel and unusual punishments.” U.S. 15 Const. amend. VIII. The unnecessary and wanton infliction of pain constitutes cruel and unusual 16 punishment prohibited by the Eighth Amendment. Whitley v. Albers, 475 U.S. 312, 319 (1986); 17 Estelle v. Gamble, 429 U.S. 97, 105-06 (1976). Accidents or negligence do not constitute cruel 18 and unusual punishment, as “[i]t is obduracy and wantonness, not inadvertence or error in good 19 faith, that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause.” 20 Whitley, 475 U.S. at 319 . 21 If a prisoner's Eighth Amendment claim arises in the context of medical care the prisoner 22 must allege and prove “acts or omissions sufficiently harmful to evidence deliberate indifference 23 to serious medical needs.” Estelle, 429 U.S. at 106 . An Eighth Amendment medical claim has 24 two elements: “the seriousness of the prisoner's medical need and the nature of the defendant's 25 response to that need.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on 26 other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc). 27 A medical need is serious “if the failure to treat the prisoner's condition could result in 28 further significant injury or the ‘unnecessary and wanton infliction of pain.’” McGuckin, 974 1 F.2d at 1059 (quoting Estelle, 429 U.S. at 104 ). Indications of a serious medical need include 2 “the presence of a medical condition that significantly affects an individual's daily activities.” Id. 3 at 1059-60. By establishing the existence of a serious medical need, a prisoner satisfies the 4 objective requirement for proving an Eighth Amendment violation. Farmer v. Brennan, 511 U.S. 5 825, 834 (1994). 6 If a prisoner establishes the existence of a serious medical need, he must show that prison 7 officials responded to the serious medical need with deliberate indifference. See Id. at 834. In 8 general, deliberate indifference may be shown when prison officials deny, delay, or intentionally 9 interfere with medical treatment, or may be shown by the way in which prison officials provide 10 medical care. Hutchinson v. United States, 838 F.2d 390, 393-94 (9th Cir. 1988). 11 Before it can be said that a prisoner's civil rights have been abridged with regard to 12 medical care, “the indifference to his medical needs must be substantial. Mere ‘indifference,’ 13 ‘negligence,’ or ‘medical malpractice’ will not support this cause of action.” Broughton v. Cutter 14 Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 105-06 ); see also 15 Toguchi v. Soon Hwang Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (“Mere negligence in 16 diagnosing or treating a medical condition, without more, does not violate a prisoner's Eighth 17 Amendment rights.”). Deliberate indifference is “a state of mind more blameworthy than 18 negligence” and “requires ‘more than ordinary lack of due care for the prisoner's interests or 19 safety.’ ” Farmer, 511 U.S. at 835. 20 Delays in providing medical care may manifest deliberate indifference. Estelle, 429 U.S. 21 at 104-05 . To establish a claim of deliberate indifference arising from delay in providing care, a 22 plaintiff must show that the delay was harmful. See Hallett v. Morgan, 296 F.3d 732, 745-46 (9th 23 Cir. 2002); McGuckin, 974 F.2d at 1059 . In this regard, “[a] prisoner need not show his harm 24 was substantial; however, such would provide additional support for the inmate's claim that the 25 defendant was deliberately indifferent to his needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 26 2006). 27 Finally, mere differences of opinion between a prisoner and prison medical staff or 28 between medical professionals as to the proper course of treatment for a medical condition do not 1 give rise to a § 1983 claim. See Toguchi, 391 F.3d at 1058 ; Jackson v. McIntosh, 90 F.3d 330 , 2 332 (9th Cir. 1996). To prevail, a plaintiff “must show that the course of treatment the doctors 3 chose was medically unacceptable under the circumstances . . . and . . . that they chose this course 4 in conscious disregard of an excessive risk to plaintiff’s health.” Id. (internal citations omitted). 5 Discussion 6 It is unclear whether plaintiff can state a cognizable civil rights claim. Although he names 7 three doctors as defendants, he fails to set forth specific facts as to each doctor, demonstrating 8 that each doctor acted with a culpable state of mind. Rather, as pled, plaintiff appears to simply 9 allege a difference of opinion among medical doctors, which is insufficient to state a cognizable 10 civil rights claim. Although one doctor in 2017 approved plaintiff’s surgery, about four years 11 have passed, and it is unclear whether plaintiff’s medical condition has changed, rendering the 12 earlier surgery not possible, or whether the defendants now refuse to do the surgery because it 13 could risk plaintiff’s life. 14 Leave to Amend 15 The court finds the allegations in plaintiff’s complaint so vague and conclusory that it is 16 unable to determine whether the current action is frivolous or fails to state a claim for relief. The 17 court determines that the complaint does not contain a short and plain statement as required by 18 Fed. R. Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible pleading policy, a complaint 19 must give fair notice and state the elements of the claim plainly and succinctly. Jones v. Cmty. 20 Redev. Agency, 733 F.2d 646 , 649 (9th Cir. 1984). Plaintiff must allege with at least some 21 degree of particularity overt acts which defendants engaged in that support plaintiff's claim. Id. 22 Because plaintiff failed to comply with the requirements of Fed. R. Civ. P. 8(a)(2), the complaint 23 must be dismissed. The court will, however, grant leave to file an amended complaint. 24 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions 25 about which he complains resulted in a deprivation of plaintiff’s constitutional rights. See, e.g., 26 West v. Atkins, 487 U.S. 42, 48 (1988). Also, the complaint must allege in specific terms how 27 each named defendant is involved. Rizzo v. Goode, 423 U.S. 362, 371 (1976). There can be no 28 liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a 1 defendant’s actions and the claimed deprivation. Rizzo, 423 U.S. at 371 ; May v. Enomoto, 633 2 F.2d 164, 167 (9th Cir. 1980). Furthermore, vague and conclusory allegations of official 3 participation in civil rights violations are not sufficient. Ivey v. Bd. of Regents, 673 F.2d 266 , 4 268 (9th Cir. 1982). 5 In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to 6 make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended 7 complaint be complete in itself without reference to any prior pleading. This requirement exists 8 because, as a general rule, an amended complaint supersedes the original complaint. See Ramirez 9 v. County of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) (“an ‘amended complaint 10 supersedes the original, the latter being treated thereafter as non-existent.’” (internal citation 11 omitted)). Once plaintiff files an amended complaint, the original pleading no longer serves any 12 function in the case. Therefore, in an amended complaint, as in an original complaint, each claim 13 and the involvement of each defendant must be sufficiently alleged. 14 In accordance with the above, IT IS HEREBY ORDERED that: 15 1. Plaintiff’s request for leave to proceed in forma pauperis is granted. 16 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 17 is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 18 § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 19 Director of the California Department of Corrections and Rehabilitation filed concurrently 20 herewith. 21 3. Plaintiff’s complaint is dismissed. 22 4. Within thirty days from the date of this order, plaintiff shall complete the attached 23 Notice of Amendment and submit the following documents to the court: 24 a. The completed Notice of Amendment; and 25 b. An original of the Amended Complaint. 26 Plaintiff’s amended complaint shall comply with the requirements of the Civil Rights Act, the 27 Federal Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint must 28 also bear the docket number assigned to this case and must be labeled “Amended Complaint.” ] Failure to file an amended complaint in accordance with this order may result in the 2 || dismissal of this action. 3 5. The Clerk of the Court shall send plaintiff the form for filing a civil rights complaint by 4 || aprisoner. 5 | Dated: December 27, 2021 Foci) Aharon TY toeug2190 140 UNITED STATES MAGISTRATE JUDGE [10] 1] [7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] BOBBY JO BEGGS, No. 2:21-cv-2190 KJM KJN P [11] Plaintiff, [12] v. NOTICE OF AMENDMENT [13] H. SOUTH, M.D., et al., [14] Defendants. [16] Plaintiff hereby submits the following document in compliance with the court's order [17] filed______________. [18] _____________ Amended Complaint 19 DATED: [20] ________________________________ 21 Plaintiff