(PC) Alexander v. Lucas ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 STEPHON DEJON ALEXANDER, No. 2:19-cv-2082 AC 12 Plaintiff, 13 v. ORDER 14 KERR LUCAS, 15 Defendant. 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 (9th 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 Jackson v. Arizona, 885 F.2d 639, 13 640 (9th Cir. 1989) (quoting Neitzke, 490 U.S. at 327), superseded by statute on other grounds as 14 stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).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 cognizable right of action.’” Id. (alteration in original) (quoting 5 Charles Alan Wright & Arthur 1 R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)). 2 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 3 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 4 Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual 5 content that allows the court to draw the reasonable inference that the defendant is liable for the 6 misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In reviewing a complaint under this 7 standard, the court must accept as true the allegations of the complaint in question, Hosp. Bldg. 8 Co. v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976) (citation omitted), as well as construe the 9 pleading in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, 10 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (citations omitted). 11 III. Complaint 12 The complaint states a single claim under the Eighth Amendment against sole defendant 13 Kerr Lucas, a nurse at CSP-Sacramento. The complaint alleges as follows. On January 23, 2018, 14 plaintiff fell in his cell. Plaintiff hit his head and the back of his neck, and landed on his back and 15 right hip, which subsequently “locked up.” Nurse Lucas arrived approximately 30 minutes after 16 plaintiff’s fall, and he refused plaintiff’s pleas for medical attention. Plaintiff specifically told 17 Nurse Lucas he was “man down” and needed the “concussion protocol.” Lucas responded, 18 “What am I supposed to do? Fill out a sick call slip!” Since this incident, plaintiff has suffered 19 daily headaches and neck pain so severe that he can’t sleep. ECF No. 1 at 3. 20 IV. Governing Eighth Amendment Principles 21 In order to state a § 1983 claim for violation of the Eighth Amendment based on 22 inadequate medical care, a plaintiff must allege “acts or omissions sufficiently harmful to 23 evidence deliberate indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 24 (1976). To prevail, plaintiff must show both that his medical needs were objectively serious, and 25 that defendants possessed a sufficiently culpable state of mind. Wilson v. Seiter, 501 U.S. 294, 26 299 (1991); McKinney v. Anderson, 959 F.2d 853 (9th Cir. 1992) (on remand). A serious 27 medical need exists if the failure to treat a prisoner’s condition could result in further significant 28 injury or the unnecessary and wanton infliction of pain. See, Wood v. Housewright, 900 F. 2d 1 1332, 1337-41 (9th Cir. 1990). The requisite state of mind is “deliberate indifference.” Hudson 2 v. McMillian, 503 U.S. 1, 4 (1992). 3 In Farmer v. Brennan, 511 U.S. 825, 114 S. Ct. 1970 (1994) the Supreme Court 4 established a very strict standard which a plaintiff must meet in order to establish “deliberate 5 indifference.” Negligence is insufficient. Farmer, 511 U.S. at 835. Even civil recklessness 6 (failure to act in the face of an unjustifiably high risk of harm which is so obvious that it should 7 be known) is insufficient. Id. at 836-37. Neither is it sufficient that a reasonable person would 8 have known of the risk or that a defendant should have known of the risk. Id. at 842. A prison 9 official acts with deliberate indifference only if he subjectively knows of and disregards an 10 excessive risk to inmate health and safety. Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 11 2004). 12 V. Failure to State a Claim 13 The court finds that the allegations of the complaint, liberally construed for purposes of 14 screening, demonstrate a serious medical need and a deliberately indifferent state of mind on 15 behalf of Nurse Lucas on January 23, 2018. However, because the allegations involve the 16 immediate aftermath of plaintiff’s fall, and not his subsequent medical care (or lack thereof) for 17 any injuries sustained to his back and/or head, Nurse Lucas can only liable if the delay he caused 18 in medical treatment itself harmed plaintiff. See Shapley v. Nevada Bd. of State Prison Comm’rs, 19 766 F.2d 404, 408 (9th Cir. 1985). The complaint is silent as to when plaintiff was medically 20 evaluated for injuries from the fall, whether any were identified, what treatment if any was 21 provided at that time and since, and what additional medical interventions would have been 22 possible had Nurse Lucas acted promptly. Because Nurse Lucas is alleged to have delayed 23 medical attention, that delay must be the cause of identifiable injury for him to be liable. The 24 complaint lacks allegations making this showing, and therefore fails to state a claim for relief 25 against Lucas. Plaintiff will be provided the opportunity to amend. 26 VI. Leave to Amend 27 If plaintiff chooses to file a first amended complaint, he must demonstrate how the 28 conditions about which he complains resulted in a deprivation of his constitutional rights. Rizzo 1 v. Goode, 423 U.S. 362, 370-71 (1976). Also, the complaint must allege in specific terms how 2 each named defendant is involved. Arnold v. Int’l Bus. Machs. Corp., 637 F.2d 1350, 1355 (9th 3 Cir. 1981). There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link 4 or connection between a defendant’s actions and the claimed deprivation. Id.; Johnson v. Duffy, 5 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, “[v]ague and conclusory allegations of official 6 participation in civil rights violations are not sufficient.” Ivey v. Bd. of Regents, 673 F.2d 266, 7 268 (9th Cir. 1982) (citations omitted). 8 Plaintiff is also informed that the court cannot refer to a prior pleading in order to make 9 his first amended complaint complete. Local Rule 220 requires that an amended complaint be 10 complete in itself without reference to any prior pleading. This is because, as a general rule, an 11 amended complaint supersedes the original complaint. Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 12 1967) (citations omitted), overruled in part by Lacey v. Maricopa County, 693 F.3d 896, 928 (9th 13 Cir. 2012) (claims dismissed with prejudice and without leave to amend do not have to be re-pled 14 in subsequent amended complaint to preserve appeal). Once plaintiff files a first amended 15 complaint, the original complaint no longer serves any function in the case. Therefore, in an 16 amended complaint, as in an original complaint, each claim and the involvement of each 17 defendant must be sufficiently alleged. 18 VII. Plain Language Summary of this Order for a Pro Se Litigant 19 Your request to proceed in forma pauperis is granted and you are not required to pay the 20 entire filing fee immediately. 21 You are being given leave to amend because the facts you have alleged in the complaint 22 are not enough to state a claim for relief. In order to state a claim against Nurse Lucas for failing 23 to obtain immediate medical attention after you fell, you must add facts explaining how his 24 actions delayed medical treatment and what would have been different if you had received 25 treatment immediately. A prison official is only liable for delaying medical care when the delay 26 itself caused or contributed to the inmate’s injury. 27 If you choose to amend your complaint, the first amended complaint must include all of 28 the claims you want to make because the court will not look at the claims or information in the 1 || original complaint. Any claims not in the first amended complaint will not be considered. 2 CONCLUSION 3 In accordance with the above, IT IS HEREBY ORDERED that: 4 1. Plaintiff's request for leave to proceed in forma pauperis (ECF No. 2) is granted. 5 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 6 || is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 7 || § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 8 | Director of the California Department of Corrections and Rehabilitation filed concurrently 9 | herewith. 10 3. Plaintiff's complaint fails to state a claim upon which relief may be granted, see 28 11 | U.S.C. § 1915A, and will not be served. 12 4. Within thirty days from the date of service of this order, plaintiff may file an amended 13 || complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil 14 || Procedure, and the Local Rules of Practice. The amended complaint must bear the docket 15 || number assigned this case and must be labeled “First Amended Complaint.” Plaintiff must file an 16 || original and two copies of the amended complaint. Failure to file an amended complaint in 17 || accordance with this order will result in dismissal of this action. 18 5. The Clerk of the Court is directed to send plaintiff a copy of the prisoner complaint 19 | form used in this district. 20 | DATED: June 7, 2021 Z _f ee ee 21 ALLISON CLAIRE 9 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28