(PC) Smith v. Osmon

[7] 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 DANIEL ROY SMITH, No. 2:22-CV-1637-WBS-DMC-P 12 Plaintiff, 13 v. ORDER 14 OSMON, et al., 15 Defendants. [16] 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to [18] 42 U.S.C. § 1983 . Pending before the Court is Plaintiff’s first amended complaint, ECF No. 14. 19 The Court is required to screen complaints brought by prisoners seeking relief 20 against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 21 § 1915A(a). This provision also applies if the plaintiff was incarcerated at the time the action was 22 initiated even if the litigant was subsequently released from custody. See Olivas v. Nevada ex rel. 23 Dep’t of Corr., 856 F.3d 1281, 1282 (9th Cir. 2017). The Court must dismiss a complaint or 24 portion thereof if it: (1) is frivolous or malicious; (2) fails to state a claim upon which relief can 25 be granted; or (3) seeks monetary relief from a defendant who is immune from such relief. See 26 28 U.S.C. § 1915A(b)(1), (2). Moreover, the Federal Rules of Civil Procedure require that 27 complaints contain a “. . . short and plain statement of the claim showing that the pleader is 28 entitled to relief.” Fed. R. Civ. P. 8(a)(2). This means that claims must be stated simply, 1 concisely, and directly. See McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (referring to 2 Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the complaint gives the defendant fair notice 3 of the plaintiff’s claim and the grounds upon which it rests. See Kimes v. Stone, 84 F.3d 1121 , 4 1129 (9th Cir. 1996). Because Plaintiff must allege with at least some degree of particularity 5 overt acts by specific defendants which support the claims, vague and conclusory allegations fail 6 to satisfy this standard. Additionally, it is impossible for the Court to conduct the screening 7 required by law when the allegations are vague and conclusory. [8] 9 I. PLAINTIFF’S ALLEGATIONS 10 Plaintiff is a prisoner at California Medical Facility (CMF) in Vacaville California. 11 See ECF No. 14, pg. 1. Plaintiff lists the following as defendants: (1) Dr. Osmon, Chief Medical 12 Executive at CMF; (2) Dr. Angie Hood-Medland, Primary Care Physician at CMF; (3) Deepak 13 Mohan, M.D., Medical Director at San Joaquin General Hospital (SJGH); (4) Julie Torry 14 Watkins, M.D., unknown position at SJGH; (5) Benson Chen, Resident at SJGH; (6) Aubrey 15 Deponte, Registered Nurse at SJGH; and (7) Dr. John or Jane Doe, Neurologist at SJGH. See id. 16 at 3-4. Plaintiff claims Defendants were deliberately indifferent to his medical care. See id. at 5. 17 Defendant Dr. Hood-Medland sent Plaintiff Smith to SJGH for a lumbar puncture, 18 which was performed by Defendant Dr. Nikpour August 27, 2021. See id. According to 19 Plaintiff, the procedure was botched as a result of Dr. Nikpour’s alleged malpractice, causing 20 Smith lasting damage including the need for a foley catheter and a wheelchair. See id. Plaintiff 21 claims the catheter was “placed in wrongly.” Id. at 6. 22 Plaintiff next states that, on September 1, 2021, he returned to SJGH, and 23 Defendant Dr. Torry Watkins (or Dr. Watkin Torry, as stated in the body of the amended 24 complaint) ordered Defendant Resident Chen (also referred to as Chen Do) to place a foley 25 catheter. See id. at 6. Chen/Do was assisted by Defendant Resident Nurse Deponte. See id. The 26 catheter caused Smith pain for twenty-four hours and had to be replaced twice at SJGH. See id. 27 When Smith returned to CMF, Defendant Dr. Hood-Medland ordered it replaced again. Id. 28 / / / 1 Finally, Plaintiff claims that Defendant Dr. Mohan is a supervisor at SJGH and Dr. 2 Osomon is a supervisor at CMF and that they are liable as supervisors for the conduct of the staff 3 under them. See id. at 6-7. [4] 5 II. DISCUSSION 6 Plaintiff’s claims are not currently cognizable because he does not allege that 7 Defendants acted with the purpose of inflicting harm and because Plaintiff’s claims appear to 8 assert negligence. Further, Defendants Dr. Osmon and Dr. Deepak cannot be held liable for the 9 actions of their staff. 10 A. Medical Claim 11 The treatment a prisoner receives in prison and the conditions under which the 12 prisoner is confined are subject to scrutiny under the Eighth Amendment, which prohibits cruel 13 and unusual punishment. See Helling v. McKinney, 509 U.S. 25, 31 (1993); Farmer v. Brennan, [14] 511 U.S. 825, 832 (1994). The Eighth Amendment “. . . embodies broad and idealistic concepts 15 of dignity, civilized standards, humanity, and decency.” Estelle v. Gamble, 429 U.S. 97 , 102 16 (1976). Conditions of confinement may, however, be harsh and restrictive. See Rhodes v. 17 Chapman, 452 U.S. 337, 347 (1981). Nonetheless, prison officials must provide prisoners with 18 “food, clothing, shelter, sanitation, medical care, and personal safety.” Toussaint v. McCarthy, [19] 801 F.2d 1080, 1107 (9th Cir. 1986). A prison official violates the Eighth Amendment only when 20 two requirements are met: (1) objectively, the official’s act or omission must be so serious such 21 that it results in the denial of the minimal civilized measure of life’s necessities; and (2) 22 subjectively, the prison official must have acted unnecessarily and wantonly for the purpose of 23 inflicting harm. See Farmer, 511 U.S. at 834 . Thus, to violate the Eighth Amendment, a prison 24 official must have a “sufficiently culpable mind.” See id. 25 Deliberate indifference to a prisoner’s serious illness or injury, or risks of serious 26 injury or illness, gives rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at 105 ; 27 see also Farmer, 511 U.S. at 837 . This applies to physical as well as dental and mental health 28 needs. See Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982). An injury or illness is 1 sufficiently serious if the failure to treat a prisoner’s condition could result in further significant 2 injury or the “. . . unnecessary and wanton infliction of pain.” McGuckin v. Smith, 974 F.2d 3 1050, 1059 (9th Cir. 1992); see also Doty v. County of Lassen, 37 F.3d 540, 546 (9th Cir. 1994). 4 Factors indicating seriousness are: (1) whether a reasonable doctor would think that the condition 5 is worthy of comment; (2) whether the condition significantly impacts the prisoner’s daily 6 activities; and (3) whether the condition is chronic and accompanied by substantial pain. See 7 Lopez v. Smith, 203 F.3d 1122, 1131-32 (9th Cir. 2000) (en banc). 8 The requirement of deliberate indifference is less stringent in medical needs cases 9 than in other Eighth Amendment contexts because the responsibility to provide inmates with 10 medical care does not generally conflict with competing penological concerns. See McGuckin, [11] 974 F.2d at 1060 . Thus, deference need not be given to the judgment of prison officials as to 12 decisions concerning medical needs. See Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir. 13 1989). The complete denial of medical attention may constitute deliberate indifference. See 14 Toussaint v. McCarthy, 801 F.2d 1080, 1111 (9th Cir. 1986). Delay in providing medical 15 treatment, or interference with medical treatment, may also constitute deliberate indifference. See 16 Lopez, 203 F.3d at 1131 . Where delay is alleged, however, the prisoner must also demonstrate 17 that the delay led to further injury. See McGuckin, 974 F.2d at 1060 . 18 Negligence in diagnosing or treating a medical condition does not, however, give 19 rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at 106 . Moreover, a 20 difference of opinion between the prisoner and medical providers concerning the appropriate 21 course of treatment does not give rise to an Eighth Amendment claim. See Jackson v. McIntosh, [22] 90 F.3d 330, 332 (9th Cir. 1996). 23 Plaintiff pleads that his lumbar procedure was “botched.” To plead a cognizable 24 claim, Plaintiff must allege Defendants acted unnecessarily and wantonly for the purpose of 25 inflicting harm. See Farmer, 511 U.S. at 834 . Plaintiff does not do so, and the facts suggest that, 26 to the contrary, Defendants acted to alleviate his suffering following a procedure allegedly gone 27 awry. From all appearances, Plaintiff’s claims are based on negligence and not deliberate 28 indifference. Plaintiff will be provided leave to amend. 1 B. Supervisor Liability 2 Supervisory personnel are generally not liable under § 1983 for the actions of their 3 employees. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (holding that there is no 4 respondeat superior liability under § 1983). A supervisor is only liable for the constitutional 5 violations of subordinates if the supervisor participated in or directed the violations. See id. The 6 Supreme Court has rejected the notion that a supervisory defendant can be liable based on 7 knowledge and acquiescence in a subordinate’s unconstitutional conduct because government 8 officials, regardless of their title, can only be held liable under § 1983 for his or her own conduct 9 and not the conduct of others. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Supervisory 10 personnel who implement a policy so deficient that the policy itself is a repudiation of 11 constitutional rights and the moving force behind a constitutional violation may, however, be 12 liable even where such personnel do not overtly participate in the offensive act. See Redman v. 13 Cnty of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (en banc). 14 When a defendant holds a supervisory position, the causal link between such 15 defendant and the claimed constitutional violation must be specifically alleged. See Fayle v. 16 Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 17 1978). Vague and conclusory allegations concerning the involvement of supervisory personnel in 18 civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th 19 Cir. 1982). “[A] plaintiff must plead that each Government-official defendant, through the 20 official’s own individual actions, has violated the constitution.” Iqbal, 662 U.S. at 676. 21 According to Plaintiff, Defendants Dr. Osmon and Dr. Deepak had no personal 22 involvement with the Plaintiff. Because they cannot be held liable under § 1983 for the actions of 23 their staff, Plaintiff does not present state cognizable claims against them. See Ashcroft v. Iqbal, [24] 556 U.S. 662, 676 (2009). Plaintiff will be provided leave to amend. 25 / / / 26 / / / 27 / / / 28 / / / 1 III. CONCLUSION 2 Because it is possible that the deficiencies identified in this order may be cured by 3 amending the complaint, Plaintiff is entitled to leave to amend prior to dismissal of the entire 4 action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc). Plaintiff is 5 informed that, as a general rule, an amended complaint supersedes the original complaint. See 6 Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Thus, following dismissal with leave to 7 amend, all claims alleged in the original complaint which are not alleged in the amended 8 complaint are waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Therefore, if 9 Plaintiff amends the complaint, the Court cannot refer to the prior pleading in order to make 10 Plaintiff's amended complaint complete. See Local Rule 220. An amended complaint must be 11 complete in itself without reference to any prior pleading. See id. 12 If Plaintiff chooses to amend the complaint, Plaintiff must demonstrate how the 13 conditions complained of have resulted in a deprivation of Plaintiff’s constitutional rights. See 14 Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms how 15 each named defendant is involved, and must set forth some affirmative link or connection 16 between each defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d 17 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 18 Finally, Plaintiff is warned that failure to file an amended complaint within the 19 time provided in this order may be grounds for dismissal of this action. See Ferdik, 963 F.2d at 20 1260-61; see also Local Rule 110. Plaintiff is also warned that a complaint which fails to comply 21 with Rule 8 may, in the Court’s discretion, be dismissed with prejudice pursuant to Rule 41(b). 22 See Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981). 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / ] Accordingly, IT IS HEREBY ORDERED that: 2 1. Plaintiffs first complaint is dismissed with leave to amend; and 3 2. Plaintiff shall file a second amended complaint within 30 days of the date 4 | of service of this order. [5] 6 || Dated: August 18, 2023 Svc DENNIS M. COTA 8 UNITED STATES MAGISTRATE JUDGE [10] 1]