(PC) Jones v. Bal ( 2021 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GREGORY JONES, No. 2:19-CV-1971-DMC-P 12 Plaintiff, 13 v. ORDER 14 INDERPAL BAL, 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. See ECF No. 19 15. 20 The Court is required to screen complaints brought by prisoners seeking relief 21 against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 22 § 1915A(a). The Court must dismiss a complaint or portion thereof if it: (1) is frivolous or 23 malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief 24 from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover, 25 the Federal Rules of Civil Procedure require that complaints contain a “. . . short and plain 26 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This 27 means that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d 28 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the 1 complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon which it 2 rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because Plaintiff must allege 3 with at least some degree of particularity overt acts by specific defendants which support the 4 claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is 5 impossible for the Court to conduct the screening required by law when the allegations are vague 6 and conclusory. 7 8 I. PLAINTIFF’S ALLEGATIONS 9 As with the original complaint, Plaintiff names the following as defendants in the 10 first amended complaint: (1) Dr. Inderpal Bal, Chief Medical Executive at Mule Creek State 11 Prison (MCSP); (2) Dr. Wesley Vaughn, Physician at MCSP; (3) Dr. Christopher Smith, 12 Physician at MCSP; (4) Dr. Sam Wong, Physician at MCSP; (5) Kimberly Mashad, Executive 13 Nurse at MCSP; (6) Julie Shattuck, Nurse Instructor at MCSP; (7) Bryan Leonard, Registered 14 Nurse at MCSP; (8) Sirrea Roberts, Public Health Nurse at MCSP; and (9) Joe Lizzaraga, former 15 Warden of MCSP. See ECF No. 15, pgs. 2-3. 16 Individuals newly named in the first amended complaint are: (1) Traci Patterson, 17 Chief Executive Officer of Health Care Services at MCSP; (2) Patrick Covello, current Warden of 18 MCSP; (3) J. Vila, Appeals Examiner at the California Department of Corrections and 19 Rehabilitation (CDCR) Office of Appeals; (4) M. Martinez, Health Care Appeals Nurse at MCSP; 20 (5) F. Vasquez, Associate Warden at MCSP; and (6) J. Quiring, Lieutenant Custody Staff 21 Interviewer at MCSP. See id. at 3-4. The Clerk of the Court will be directed to update the docket 22 to add these individuals as defendants. 23 Plaintiff no longer names the following defendants named in the original 24 complaint: (1) the Public Health Department of Amador County; (2) the CDCR Division of 25 Health Services; (3) CDCR Office of the Ombudsman; (4) Sara Li Smith, employee of CDCR 26 Office of the Ombudsman; and (5) Diana Toche. The Clerk of the Court will be directed to 27 terminate these entities and individuals as defendants. 28 / / / 1 Plaintiff asserts three claims for relief. 2 Claim I – Threat to Safety; Failure to Protect 3 Plaintiff states that, in “[e]arly November 2018,” he was housed in cell 103 at 4 MCSP and inmate Ralph Morales was housed in next door in cell 104. See id. at 5. According to 5 Plaintiff, about two weeks later it was discovered that inmate Morales was positive with 6 Tuberculosis (TB). See id. Plaintiff states that, had a proper intake for inmate Morales been 7 conducted, the infection would have quickly been discovered. See id. Plaintiff contends that, 8 instead, Morales was “allowed to intermingle with the rest of the prison population.” Id. Plaintiff 9 states that he began requesting to be tested as soon as he learned that inmate Morales had been 10 infected. See id. 11 Plaintiff claims that “Mule Creek State Prison medical staff failed to take 12 appropriate actions. . . .” Id. at 7. Plaintiff claims Defendants Lizzaraga, Covello, Vasquez are 13 liable “as wardens. . . .” Id. Plaintiff claims Defendant Bal is liable as the chief medical 14 executive at MCSP. See id. Plaintiff claims Defendants Vaughn, Smith, Wong, Mashad, 15 Leonard, Roberts, and Martinez are liable because they failed to follow procedures relating to 16 infectious disease in the prison. See id. at 7-8. Plaintiff claims Defendants Martinez, Vila, and 17 Quiring are liable by way of their handling of Plaintiff’s grievances. See id. at 8. 18 Claim II – Deliberate Indifference; Medical Care 19 Plaintiff states that, on December 5, 2018, after learning that an inmate housed in 20 the cell next to his had contracted TB, Plaintiff became fearful that his own health was at risk and 21 “immediately began requesting to be tested. . . .” Id. at 9. Plaintiff states he has a compromised 22 immune system. See id. According to Plaintiff, when he had not been called for a TB test after a 23 week, he submitted another request to be tested. See id. Plaintiff claims the second request 24 “went unresponded to as well.” Id. Plaintiff states that “subsequent requests” were also ignored. 25 Id. Plaintiff states that he was eventually tested for TB on January 29, 2019 – nearly eight weeks 26 after Plaintiff’s initial request for testing. See id. Plaintiff claims the delay “amounted to 27 deliberate indifference.” Id. at 10. Plaintiff does not reference any named defendant in 28 connection with Claim II. 1 Claim III – Conspiracy to Withhold Care; Medical Care 2 Plaintiff states that he requested forms and records for the purpose of filing a 3 grievance related to inadequate medical care and deliberate indifference to his medical needs. 4 See id. at 11. According to Plaintiff, he was told by “medical staff” the requested records do not 5 exist. See id. Plaintiff states he knows this to be untrue. See id. Plaintiff claims “this indicates 6 that several medical staff personnel are acting in collusion to prevent Plaintiff. . .from 7 []presenting the claims I appealed.” Id. Plaintiff does not reference any named defendant in 8 connection with Claim III. 9 10 II. DISCUSSION 11 As with the original complaint, the Court finds Plaintiff’s first amended complaint 12 continues to suffer from one primary defect. Specifically, Plaintiff fails to allege facts to show a 13 causal connection between any named defendant and a constitutional violation. 14 To state a claim under 42 U.S.C. § 1983, the plaintiff must allege an actual 15 connection or link between the actions of the named defendants and the alleged deprivations. See 16 Monell v. Dep’t of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). “A 17 person ‘subjects’ another to the deprivation of a constitutional right, within the meaning of 18 § 1983, if he does an affirmative act, participates in another's affirmative acts, or omits to perform 19 an act which he is legally required to do that causes the deprivation of which complaint is made.” 20 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Vague and conclusory allegations 21 concerning the involvement of official personnel in civil rights violations are not sufficient. See 22 Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Rather, the plaintiff must set forth 23 specific facts as to each individual defendant’s causal role in the alleged constitutional 24 deprivation. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). 25 Supervisory personnel are generally not liable under § 1983 for the actions of their 26 employees. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (holding that there is no 27 respondeat superior liability under § 1983). A supervisor is only liable for the constitutional 28 violations of subordinates if the supervisor participated in or directed the violations. See id. The 1 Supreme Court has rejected the notion that a supervisory defendant can be liable based on 2 knowledge and acquiescence in a subordinate’s unconstitutional conduct because government 3 officials, regardless of their title, can only be held liable under § 1983 for his or her own conduct 4 and not the conduct of others. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Supervisory 5 personnel who implement a policy so deficient that the policy itself is a repudiation of 6 constitutional rights and the moving force behind a constitutional violation may, however, be 7 liable even where such personnel do not overtly participate in the offensive act. See Redman v. 8 Cnty of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (en banc). As with any other defendant 9 to an § 1983 action, when a defendant holds a supervisory position, the causal link between such 10 defendant and the claimed constitutional violation must be specifically alleged. See Fayle v. 11 Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 12 1978). 13 Here, none of the named defendants is referenced in Claim II or Claim III. While 14 Plaintiff does reference many of the named defendants in Claim I, he does so generically and does 15 not link any particular defendant to the conduct alleged in Claim I or elsewhere in the first 16 amended complaint. Plaintiff’s allegation that “Mule Creek State Prison medical staff failed to 17 take appropriate actions. . . .” is insufficient to put any particular defendant on notice of what 18 actions are being attributed to them. Similarly, Plaintiff contention that certain defendants failed 19 to follow procedures is vague as to who is alleged to have, or not have, done what. Moreover, 20 many named defendants are alleged to be liable solely based on their roles as supervisory 21 personnel, and not based on their own personal conduct. 22 Plaintiff will be provided an additional opportunity to amend to cure this pleading 23 defect. 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 III. CONCLUSION 2 Because it is possible that some of the deficiencies identified in this order may be 3 cured by amending the complaint, plaintiff is entitled to leave to amend prior to dismissal of the 4 entire action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc). Plaintiff 5 is 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 Accordingly, IT IS HEREBY ORDERED that: 24 1. The Clerk of the Court is directed to update the docket to add the following 25 as defendants: (a) Traci Patterson, Chief Executive Officer of Health Care Services at MCSP; (b) 26 Patrick Covello, current Warden of MCSP; (c) J. Vila, Appeals Examiner at the California 27 Department of Corrections and Rehabilitation (CDCR) Office of Appeals; (d) M. Martinez, 28 Health Care Appeals Nurse at MCSP; (e) F. Vasquez, Associate Warden at MCSP; and (f) J. 1 | Quiring, Lieutenant Custody Staff Interviewer at MCSP; 2 2. The Clerk of the Court is directed to update the docket to terminate the 3 | following as defendants: (a) the Public Health Department of Amador County; (b) the CDCR 4 | Division of Health Services; (c) CDCR Office of the Ombudsman; (d) Sara Li Smith, employee 5 | of CDCR Office of the Ombudsman; and (e) Diana Toche; 6 3. Plaintiff's first amended complaint is dismissed with leave to amend; and 7 4. Plaintiff shall file a second amended complaint within 30 days of the date 8 | of service of this order. 9 10 | Dated: August 16, 2021 Ssvcqo_ DENNIS M. COTA 12 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28