(PC) Schmaus v. Covello ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JASON ERIK SCHMAUS, No. 2:20-cv-1356 KJM AC P 12 Plaintiff, 13 v. ORDER 14 P. COVELLO, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983 and 18 has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. 19 I. Application to Proceed In Forma Pauperis 20 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. 21 § 1915(a). ECF No. 2. Accordingly, the request to proceed in forma pauperis will be 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 will be 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 will be obligated for monthly payments 27 of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account. 28 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time 1 the 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 II. Statutory Screening of Prisoner Complaints 4 The court is required to screen complaints brought by prisoners seeking relief against a 5 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 6 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 7 “frivolous, malicious, or fail[] to state a claim upon which relief may be granted,” or that “seek[] 8 monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b). 9 A claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.” 10 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 ( 11 Cir. 1984). “[A] judge may dismiss . . . claims which are ‘based on indisputably meritless legal 12 theories’ or whose ‘factual contentions are clearly baseless.’” Jackson v. Arizona, 885 F.2d 639, 13 640 (9th Cir. 1989) (quoting Neitzke, 490 U.S. at 327), superseded by statute on other grounds as 14 stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). The critical inquiry is whether a 15 constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. 16 Franklin, 745 F.2d at 1227-28 (citations omitted). 17 “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the 18 claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of 19 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 20 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 21 “Failure to state a claim under § 1915A incorporates the familiar standard applied in the context 22 of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Wilhelm v. Rotman, 23 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). In order to survive dismissal for failure 24 to state a claim, a complaint must contain more than “a formulaic recitation of the elements of a 25 cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the 26 speculative level.” Twombly, 550 U.S. at 555 (citations omitted). “‘[T]he pleading must contain 27 something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally 28 //// 1 cognizable right of action.’” Id. (alteration in original) (quoting 5 Charles Alan Wright & Arthur 2 R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)). 3 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 4 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 5 Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual 6 content that allows the court to draw the reasonable inference that the defendant is liable for the 7 misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In reviewing a complaint under this 8 standard, the court must accept as true the allegations of the complaint in question, Hosp. Bldg. 9 Co. v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976) (citation omitted), as well as construe the 10 pleading in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, 11 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (citations omitted). 12 III. Complaint 13 The complaint sets forth three claims against six named defendants: P. Covello, the 14 Warden of Mule Creek State Prison; Christopher Smith, the prison’s Chief Physician and 15 Surgeon; Dr. Bal, the prison’s Chief Medical Executive; Drs. Wong and Vaughn, plaintiff’s 16 primary care providers at MCSP; and S. Gates, identified as “Chief Healthcare Correspondence & 17 Appeals Branch, Policy & Risk Management Services, California Correctional Health Care 18 Services.” The complaint alleges in sum as follows. 19 Plaintiff had facial reconstructive surgery in 2017, which included the insertion of metal 20 plates and screws. When his pain medication was subsequently discontinued too soon, plaintiff 21 filed a 602 (inmate grievance). Dr. Smith reviewed the 602 and said to plaintiff that unless 22 plaintiff signed off on the 602, Dr. Smith would take away plaintiff’s lower bunk chrono. On 23 July 3, 2017, plaintiff refused to sign off and Dr. Smith rescinded the lower bunk chrono. Drs. 24 Wong and Vaughn then refused to re-issue the lower bunk chrono, even though they knew that 25 plaintiff had a history of elbow instability and lower back problems. On November 25, 2017, 26 plaintiff fell off the top bunk and injured his knee, neck and lower back. 27 Claim One asserts that Drs. Smith, Wong and Vaughn violated plaintiff’s Eighth 28 Amendment right to adequate medical care by rescinding (Smith) and failing to re-issue (Wong 1 and Vaughn) plaintiff’s lower bunk chrono. ECF No. 1 at 4-5. Claim Two contends that Smith 2 retaliated against plaintiff by rescinding the lower bunk chrono. Id. at 6. Claim Three asserts that 3 all defendants threatened plaintiff’s safety by failing to “fix the [upper bunk] issue before the 4 injury occurred.” Plaintiff’s several 602 and other written complaints notified all defendants of 5 the problem, and the warden is the hiring authority. Id. at 7-8. 6 IV. Claim for Which a Response Will Be Required: Retaliation 7 To state a viable First Amendment retaliation claim, a prisoner must allege facts 8 supporting the following five elements of liability: “(1) An assertion that a state actor took some 9 adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and that 10 such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action did 11 not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567- 12 68 (9th Cir. 2005). Conduct protected by the First Amendment includes communications that are 13 “part of the grievance process.” Brodheim v. Cry, 584 F.3d 1262, 1271 n.4 (9th Cir. 2009). 14 For purposes of screening, the court will assume that the alleged refusal to “sign off” on 15 Smith’s review of plaintiff’s 602 constitutes protected conduct. Plaintiff has alleged that Smith 16 specifically threatened him with revocation of the lower bunk chrono should plaintiff refuse to 17 sign; the swift rescission of the chrono following plaintiff’s continued refusal therefore 18 reasonably supports retaliatory intent. Smith will be required to answer Claim Two. 19 V. Failure to State a Claim: Eighth Amendment 20 Claims One (medical care) and Three (safety) are both governed by the Eighth 21 Amendment’s deliberate indifference standard. See Farmer v. Brennan, 511 U.S. 825 (1994). 22 Inadequate medical care is unconstitutional when the acts and omissions of prison officials are 23 “sufficiently harmful to evidence deliberate indifference to serious medical needs.” Estelle v. 24 Gamble, 429 U.S. 97, 106 (1976). Plaintiff’s allegations must show both that his medical or 25 safety needs were objectively serious, and that defendants possessed a sufficiently culpable state 26 of mind. See Wilson v. Seiter, 501 U.S. 294, 299 (1991). The requisite state of mind, “deliberate 27 indifference,” is more than negligence. Farmer, 511 U.S. at 835-837. Rather, deliberate 28 indifference is established only where the defendant subjectively knows of and disregards an 1 excessive risk to inmate health and safety. Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2 2004). These requirements apply to each defendant individually. 3 The allegations here involve plaintiff’s safety in light of his medical condition, but do not 4 challenge his medical care per se. As to defendants Smith, Wong and Vaughn, who made the 5 disputed decisions to rescind and not to reinstate plaintiff’s lower bunk chrono, the claim fails for 6 lack of facts demonstrating either the objective existence of an excessive risk of harm or a 7 culpable state of mind. The fact that plaintiff had pre-existing elbow and back problems does not, 8 without more, support an inference that it was objectively dangerous for him to be assigned to an 9 upper bunk, or that any doctor failed to ensure a lower bunk assignment in deliberate disregard of 10 a subjectively appreciated and excessive risk to plaintiff’s safety. As pleaded, these claims sound 11 only in negligence, which does not rise to the level of an Eighth Amendment violation. Farmer, 12 511 U.S. at 835-837. 13 The failure of other defendants (Covell, Bal and Gates) to intervene once alerted by 14 plaintiff’s 602s does not, without more, support liability. The warden’s general responsibility for 15 staff, including his hiring authority, does not make him liable for the actions of subordinates. See 16 Iqbal, supra, 556 U.S. at 676 (section 1983 does not permit respondeat superior liability). To 17 establish supervisory liability, plaintiff must show facts to indicate that a supervisor defendant 18 such a the warden either: (1) personally participated in the alleged deprivation of constitutional 19 rights; (2) knew of the violations and failed to act to prevent them; or (3) promulgated or 20 implemented a policy so deficient that the policy itself is a repudiation of constitutional rights and 21 is the moving force of the constitutional violation. Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 22 1989). Plaintiff’s conclusory allegations that high-ranking defendants knew about his appeals are 23 insufficient to establish their knowledge of ongoing violations and failure to take remedial actions 24 available to them. 25 Similarly, the rejection of plaintiff’s appeals does not support § 1983 liability. The 26 mishandling of inmate appeals does not itself violate the Constitution, because inmates are not 27 constitutionally entitled to a specific grievance procedure. See Ramirez v. Galaza, 334 F.3d 850, 28 860 (9th Cir. 2003); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988). Officials who respond 1 to a grievance regarding a completed wrong cannot be liable for that wrong. See George v. 2 Smith, 507 F.3d 605, 609 (7th Cir. 2007) (ruling against a prisoner on an administrative 3 complaint about a completed injury does not cause or contribute to the violation). If plaintiff 4 chooses to amend, he may add specific facts demonstrating the participation of supervisory 5 defendants in causing the alleged deprivation of his rights. Such facts might include, for 6 example, details of the information about plaintiff’s situation that was provided to a defendant, on 7 what date, by what means. In addition to facts showing that supervisory defendants were 8 involved in the deprivation, a viable claim requires facts showing a culpable state of mind – 9 subjective understanding of the excessive risk faced by plaintiff, and deliberate disregard of that 10 risk. Toguchi, 391 F.3d at 1057. 11 VI. Leave to Amend 12 For the reasons set forth above, the court finds that the complaint does not state 13 cognizable Eight Amendment claims against any defendant. However, it appears that plaintiff 14 may be able to allege facts to remedy this and he will be given the opportunity to amend the 15 complaint if he desires. 16 Plaintiff may proceed forthwith to serve defendant Christopher Smith on Claim Two 17 (retaliation in violation of First Amendment) only, or he may delay serving any defendant and 18 amend the complaint. 19 Plaintiff will be required to complete and return the attached notice advising the court how 20 he wishes to proceed. If plaintiff chooses to amend the complaint, he will be given thirty days to 21 file an amended complaint. If plaintiff elects to proceed on his retaliation claim against 22 defendants Smith without amending the complaint, the court will proceed to serve the complaint. 23 A decision to go forward without amending the complaint will be considered a voluntarily 24 dismissal without prejudice of Claims One and Three, and all defendants other than Smith. 25 If plaintiff chooses to file a first amended complaint, he must demonstrate how the 26 conditions about which he complains resulted in a deprivation of his constitutional rights. Rizzo 27 v. Goode, 423 U.S. 362, 370-71 (1976). Also, the complaint must allege in specific terms how 28 each named defendant is involved. Arnold v. Int’l Bus. Machs. Corp., 637 F.2d 1350, 1355 (9th 1 Cir. 1981). There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link 2 or connection between a defendant’s actions and the claimed deprivation. Id.; Johnson v. Duffy, 3 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, “[v]ague and conclusory allegations of official 4 participation in civil rights violations are not sufficient.” Ivey v. Bd. of Regents, 673 F.2d 266, 5 268 (9th Cir. 1982) (citations omitted). 6 Plaintiff is also informed that the court cannot refer to a prior pleading in order to make 7 his first amended complaint complete. Local Rule 220 requires that an amended complaint be 8 complete in itself without reference to any prior pleading. This is because, as a general rule, an 9 amended complaint supersedes the original complaint. Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 10 1967), overruled in part by Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (claims 11 dismissed with prejudice and without leave to amend do not have to be re-pled in subsequent 12 amended complaint to preserve appeal). Once plaintiff files a first amended complaint, the 13 original complaint no longer serves any function in the case. Therefore, in an amended 14 complaint, as in an original complaint, each claim and the involvement of each defendant must be 15 sufficiently alleged. 16 VII. Plain Language Summary of this Order for a Pro Se Litigant 17 Your request to proceed in forma pauperis is granted and you are not required to pay the 18 entire filing fee immediately. 19 Some of the allegations in the complaint state claims and some do not. You have stated a 20 claim against Christopher Smith for retaliating against you. However, you have not presented 21 facts which show that any defendant violated your Eighth Amendment rights. To state a 22 constitutional claim for failing to provide good enough medical care or failing to prevent injury, 23 you must show that each defendant knew you faced an “excessive risk” to your health or safety 24 and deliberately disregarded it. Being negligent (not doing something one should do to protect or 25 care for another) is not enough to violate the Eighth Amendment. High ranking officials can only 26 be sued for their own actions, not the actions of people working under them. 27 You have a choice to make. You may either (1) proceed immediately on your retaliation 28 claim against Smith only and voluntarily dismiss the other claims or (2) try to amend the 1 complaint. If you want to go forward without amending the complaint, you will be voluntarily 2 dismissing without prejudice Claims One and Three and all defendants other than Smith. If you 3 choose to amend your complaint, the amended complaint must include all of the claims you want 4 to make, including the ones that have already been found to state a claim, because the court will 5 not look at the claims or information in the original complaint. Any claims not in the amended 6 complaint will not be considered. You must complete the attached notification showing what 7 you want to do and return it to the court. Once the court receives the notice, it will issue an order 8 telling you what you need to do next (i.e. file an amended complaint or wait for defendants to be 9 served). 10 CONCLUSION 11 In accordance with the above, IT IS HEREBY ORDERED that: 12 1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 2) is granted. 13 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 14 is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 15 § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 16 Director of the California Department of Corrections and Rehabilitation filed concurrently 17 herewith. 18 3. Plaintiff’s claims against defendants Covello, Bal, Wong, Vaughn and Gates do not 19 state claims for which relief can be granted. 20 4. Plaintiff has the option to proceed immediately on Claim Two (First Amendment 21 retaliation) against defendant Smith only, or to amend the complaint. 22 5. Within fourteen days of service of this order, plaintiff shall complete and return the 23 attached form notifying the court whether he wants to proceed on the screened complaint or 24 whether he wants to file a first amended complaint. If plaintiff does not return the form, the court 25 will assume that he is choosing to proceed on the complaint as screened and will recommend 26 //// 27 //// 28 //// 1 | dismissal without prejudice of the Claims One and Three and defendants Covello, Bal, Wong, 2 || Vaughn and Gates. 3 || DATED: June 23, 2021 ~ 4 ttt0n— ALLISON CLAIRE 5 UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JASON ERIK SCHMAUS, No. 2:20-cv-1356 KJM AC P 12 Plaintiff, 13 v. PLAINTIFF’S NOTICE ON HOW TO PROCEED 14 P. COVELLO, et al., 15 Defendants. 16 17 Check one: 18 _____ Plaintiff wants to proceed immediately on Claim Two (First Amendment retaliation) 19 against defendant Christopher Smith only, without amending the complaint. Plaintiff 20 understands that by going forward without amending the complaint he is voluntarily 21 dismissing without prejudice Claims One and Three (Eighth Amendment) and defendants 22 Covello, Bal, Wong, Vaughn , and Gates. 23 24 _____ Plaintiff wants to amend the complaint. 25 26 DATED:_______________________ 27 JASON ERIK SCHMAUS Plaintiff pro se 28