(PC) Hosley v. Hill ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DASHENE KAREME HOSLEY, No. 2:21-cv-00362-CKD P 12 Plaintiff, 13 v. ORDER 14 HILL, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se in this civil rights action filed pursuant to 42 18 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 19 U.S.C. § 636(b)(1). 20 Plaintiff requests leave to proceed in forma pauperis. As plaintiff has submitted a 21 declaration that makes the showing required by 28 U.S.C. § 1915(a), his request 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 separate order, the court will direct the appropriate agency to collect the 24 initial partial filing fee from plaintiff’s trust account and forward it to the Clerk of the Court. 25 Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding 26 month’s income credited to plaintiff’s prison trust account. These payments will be forwarded by 27 the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s account 28 exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2). 1 I. Screening Requirement 2 The court is required to screen complaints brought by prisoners seeking relief against a 3 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 4 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 5 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 6 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 7 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 8 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 9 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 10 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 11 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 12 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 13 Cir. 1989); Franklin, 745 F.2d at 1227. 14 In order to avoid dismissal for failure to state a claim a complaint must contain more than 15 “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause 16 of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, 17 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 18 statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim 19 upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A 20 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 21 the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. 22 at 678. When considering whether a complaint states a claim upon which relief can be granted, 23 the court must accept the allegations as true, Erickson v. Pardus, 551 U.S. 89, 93-94 (2007), and 24 construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 25 U.S. 232, 236 (1974). 26 II. Allegations in the Complaint 27 Plaintiff became infected with COVID-19 while an inmate at Folsom State Prison. He 28 alleges that Warden Hill and Chief Deputy Warden Johnson, who he names as defendants in this 1 action, were deliberately indifferent to his risk of infection due to unspecified pre-existing 2 conditions. Plaintiff asserts that defendants could have abated the risk to him by either releasing 3 or transferring him to a different facility because social distancing was impossible under the 4 circumstances. By way of relief, plaintiff seeks monetary damages and release from confinement. 5 III. Legal Standards 6 A. Linkage 7 The civil rights statute requires that there be an actual connection or link between the 8 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 9 Monell v. Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 10 (1976). The Ninth Circuit has held that “[a] person ‘subjects' another to the deprivation of a 11 constitutional right, within the meaning of section 1983, if he does an affirmative act, participates 12 in another's affirmative acts or omits to perform an act which he is legally required to do that 13 causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th 14 Cir. 1978) (citation omitted). In order to state a claim for relief under section 1983, plaintiff must 15 link each named defendant with some affirmative act or omission that demonstrates a violation of 16 plaintiff's federal rights. 17 B. Supervisory Liability 18 Government officials may not be held liable for the unconstitutional conduct of their 19 subordinates under a theory of respondeat superior. Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009) 20 (“In a § 1983 suit ... the term “supervisory liability” is a misnomer. Absent vicarious liability, 21 each Government official, his or her title notwithstanding is only liable for his or her own 22 misconduct.”). When the named defendant holds a supervisory position, the causal link between 23 the defendant and the claimed constitutional violation must be specifically alleged; that is, a 24 plaintiff must allege some facts indicating that the defendant either personally participated in or 25 directed the alleged deprivation of constitutional rights or knew of the violations and failed to act 26 to prevent them. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Taylor v. List, 880 F.2d 27 1040, 1045 (9th Cir. 1989); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). 28 //// 1 C. Deliberate Indifference 2 Denial or delay of medical care for a prisoner’s serious medical needs may constitute a 3 violation of the prisoner’s Eighth and Fourteenth Amendment rights. Estelle v. Gamble, 429 U.S. 4 97, 104-05 (1976). An individual is liable for such a violation only when the individual is 5 deliberately indifferent to a prisoner’s serious medical needs. Id.; see Jett v. Penner, 439 F.3d 6 1091, 1096 (9th Cir. 2006); Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002); Lopez v. 7 Smith, 203 F.3d 1122, 1131-32 (9th Cir. 2000). 8 In the Ninth Circuit, the test for deliberate indifference consists of two parts. Jett, 439 9 F.3d at 1096, citing McGuckin v. Smith, 974 F.2d 1050 (9th Cir. 1991), overruled on other 10 grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc). First, the 11 plaintiff must show a “serious medical need” by demonstrating that “failure to treat a prisoner’s 12 condition could result in further significant injury or the ‘unnecessary and wanton infliction of 13 pain.’” Id., citing Estelle, 429 U.S. at 104. “Examples of serious medical needs include ‘[t]he 14 existence of an injury that a reasonable doctor or patient would find important and worthy of 15 comment or treatment; the presence of a medical condition that significantly affects an 16 individual’s daily activities; or the existence of chronic and substantial pain.’” Lopez, 203 F. 3d 17 at 1131-1132, citing McGuckin, 974 F.2d at 1059-60. 18 Second, the plaintiff must show the defendant’s response to the need was deliberately 19 indifferent. Jett, 439 F.3d at 1096. This second prong is satisfied by showing (a) a purposeful act 20 or failure to respond to a prisoner’s pain or possible medical need and (b) harm caused by the 21 indifference. Id. Under this standard, the prison official must not only “be aware of facts from 22 which the inference could be drawn that a substantial risk of serious harm exists,” but that person 23 “must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). This “subjective 24 approach” focuses only “on what a defendant’s mental attitude actually was.” Id. at 839. A 25 showing of merely negligent medical care is not enough to establish a constitutional violation. 26 Frost v. Agnos, 152 F.3d 1124, 1130 (9th Cir. 1998), citing Estelle, 429 U.S. at 105-106. A 27 difference of opinion about the proper course of treatment is not deliberate indifference, nor does 28 a dispute between a prisoner and prison officials over the necessity for or extent of medical 1 treatment amount to a constitutional violation. See, e.g., Toguchi v. Chung, 391 F.3d 1051, 1058 2 (9th Cir. 2004); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). Furthermore, mere delay of 3 medical treatment, “without more, is insufficient to state a claim of deliberate medical 4 indifference.” Shapley v. Nev. Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). 5 Where a prisoner alleges that delay of medical treatment evinces deliberate indifference, the 6 prisoner must show that the delay caused “significant harm and that Defendants should have 7 known this to be the case.” Hallett, 296 F.3d at 745-46; see McGuckin, 974 F.2d at 1060. 8 IV. Analysis 9 The court has reviewed plaintiff’s complaint and finds that it fails to state a claim upon 10 which relief can be granted under federal law. Plaintiff names the Warden and Chief Deputy 11 Warden at Folsom State Prison as defendants, but he fails to establish their personal participation 12 in the alleged constitutional violations. Their supervisory positions at Folsom State Prison do not 13 make them per se liable for every constitutional violation that occurs there. See Ashcroft, 566 14 U.S. at 677. For this reason, plaintiff’s complaint must be dismissed. The court will, however, 15 grant leave to file an amended complaint. 16 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions 17 complained of have resulted in a deprivation of plaintiff’s constitutional rights. See Ellis v. 18 Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, in his amended complaint, plaintiff must allege in 19 specific terms how each named defendant is involved. There can be no liability under 42 U.S.C. 20 § 1983 unless there is some affirmative link or connection between a defendant’s actions and the 21 claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976). Furthermore, vague and conclusory 22 allegations of official participation in civil rights violations are not sufficient. Ivey v. Board of 23 Regents, 673 F.2d 266, 268 (9th Cir. 1982). 24 Finally, plaintiff is informed that the court cannot refer to a prior pleading in order to 25 make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended 26 complaint be complete in itself without reference to any prior pleading. This is because, as a 27 general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 28 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no 1 | longer serves any function in the case. Therefore, in an amended complaint, as in an original 2 || complaint, each claim and the involvement of each defendant must be sufficiently alleged. 3 V. Plain Language Summary for Pro Se Party 4 The following information is meant to explain this order in plain English and is not 5 || intended as legal advice. 6 The court has reviewed the allegations in your complaint and determined that they do not 7 || state any claim against the defendants. Your complaint is being dismissed, but you are being 8 | given the chance to fix the problems identified in this screening order. 9 Although you are not required to do so, you may file an amended complaint within 30 10 || days from the date of this order. If you choose to file an amended complaint, pay particular 11 | attention to the legal standards identified in this order which may apply to your claims. 12 In accordance with the above, IT IS HEREBY ORDERED that: 13 1. Plaintiffs request for leave to proceed in forma pauperis (ECF No. 2) is granted. 14 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. All fees 15 || shall be collected and paid in accordance with this court’s order to the Director of the California 16 || Department of Corrections and Rehabilitation filed concurrently herewith. 17 3. Plaintiff's complaint is dismissed. 18 4. Plaintiff is granted thirty days from the date of service of this order to file an amended 19 | complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil 20 || Procedure, and the Local Rules of Practice. The amended complaint must bear the docket 21 || number assigned this case and must be labeled “Amended Complaint.” Failure to file an 22 || amended complaint in accordance with this order will result in a recommendation that this action 23 || be dismissed. 24 | Dated: June 29, 2021 / □□ I / dle ae 25 CAROLYNK. DELANEY 2% UNITED STATES MAGISTRATE JUDGE 27 12/hosl0362.14.doc 28