(PC) Cardenas v. Edwards ( 2019 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 DANNY CARDENAS, Jr., No. 2:19-cv-1066 MCE DB P 11 Plaintiff, 12 v. ORDER 13 B.S. EDWARDS, et al., 14 Defendants. 15 16 Plaintiff, a state prisoner proceeding pro se with a civil rights action, has filed a civil 17 rights action pursuant to 42 U.S.C. § 1983. Plaintiff claims defendants violated his rights under 18 the Eighth Amendment. Presently before the court is plaintiff’s motion to proceed in forma 19 pauperis (ECF No. 2) and his complaint for screening (ECF No. 1). For the reasons set forth 20 below, the court will dismiss the complaint with leave to amend. 21 IN FORMA PAUPERIS 22 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 23 1915(a). (ECF No. 2.) Accordingly, the request to proceed in forma pauperis will be granted. 24 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 25 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in 26 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 27 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 28 forward it to the Clerk of the court. Thereafter, plaintiff will be obligated for monthly payments 1 of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account. 2 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time 3 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 4 1915(b)(2). 5 SCREENING 6 I. Legal Standards 7 The court is required to screen complaints brought by prisoners seeking relief against a 8 governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. § 9 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims 10 that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be 11 granted, or that seek monetary relief from a defendant who is immune from such relief. See 28 12 U.S.C. § 1915A(b)(1) & (2). 13 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 14 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 15 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 16 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 17 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 18 pleaded, has an arguable legal and factual basis. See Franklin, 745 F.2d at 1227. 19 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 20 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 21 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic 22 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 23 However, in order to survive dismissal for failure to state a claim a complaint must 24 contain more than “a formulaic recitation of the elements of a cause of action;” it must contain 25 factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 26 550 U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the 27 allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 28 //// 1 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all 2 doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). 3 The Civil Rights Act under which this action was filed provides as follows: 4 Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation 5 of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, 6 or other proper proceeding for redress. 7 42 U.S.C. § 1983. Here, the defendants must act under color of federal law. Bivens, 403 U.S. at 8 389. The statute requires that there be an actual connection or link between the 9 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 10 Monell v. Dept. of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 11 (1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the 12 meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or 13 omits to perform an act which he is legally required to do that causes the deprivation of which 14 complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 15 Moreover, supervisory personnel are generally not liable under § 1983 for the actions of 16 their employees under a theory of respondeat superior and, therefore, when a named defendant 17 holds a supervisorial position, the causal link between him and the claimed constitutional 18 violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); 19 Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations 20 concerning the involvement of official personnel in civil rights violations are not sufficient. See 21 Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 22 II. Allegations in the Complaint 23 Plaintiff claims the events giving rise to the claim occurred while he was incarcerated at 24 California Medical Facility. (ECF No. 1 at 1.) He names as defendants: (1) correctional officer 25 C. Brooks; (2) correctional officer B.S. Edwards; and (3) inmate W. Davis. (Id. at 2.) 26 Plaintiff states that officer Brooks responded to an “activated alarm.” (Id. at 3.) He 27 claims Brooks left the scene to retrieve life saving gear. Plaintiff further alleges that Brooks 28 failed to administer Cardiopulmonary Resuscitation (CPR). Plaintiff alleges that a correctional 1 officer, presumably defendant Brooks, allowed Davis to perform CPR rather than personally 2 perform CPR. Plaintiff states that officer Edwards was placed on unpaid leave and was under 3 investigation. (Id. at 4.) Plaintiff claims that he has suffered blindness and brain damage as a 4 result of defendants’ actions. (Id. at 3, 4.) 5 III. Failure to State a Claim under § 1983 6 A. Insufficient Factual Allegations 7 It appears from exhibits attached to the complaint, that plaintiff intends to bring a claim 8 based on defendants’ response after plaintiff was found unresponsive due to a suspected overdose 9 on March 2, 2019. (ECF No. 1 at 6-32.) However, plaintiff has not clearly stated such claims in 10 the body of the complaint. Plaintiff is informed that the court is not required to view exhibits to 11 determine what the charging allegations are as to each named defendant. Any claim plaintiff 12 intends to assert must be included in the body of the complaint, so defendants have fair notice of 13 the claims plaintiff is presenting. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002) 14 (The complaint must contain sufficient allegations to “give the defendant fair notice of what the 15 plaintiff’s claim is and the grounds upon which it rests.”). 16 Plaintiff has indicated that officer Brooks “left the situation to get life saving gear,” failed 17 to perform CPR. (ECF No. 1 at 3.) Allegations regarding defendant Brooks’ allegedly deficient 18 response to plaintiff’s medical emergency could potentially state a claim under the Eighth 19 Amendment. However, as alleged in the complaint, the allegations are too vague to put 20 defendants on notice of the claim plaintiff is presenting. 21 Plaintiff’s only allegations as to defendant Edwards state that he was placed on unpaid 22 leave and was under investigation. While it appears, again from the attached exhibits, that 23 plaintiff intends to state a claim based on Edwards’ response, plaintiff must allege facts in the 24 body of the complaint showing how each named defendant violated his rights. Plaintiff’s 25 apparent assumption that Edwards’ response was deficient because there was an investigation is 26 not sufficient to show that Edwards violated his constitutional rights. 27 Accordingly, plaintiff has failed to allege sufficient facts to show that his rights were 28 violated by defendants Brooks and Edwards. 1 B. Inmate is Not a State Actor 2 “To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a 3 right secured by the Constitution or law of the United States was violated, and (2) that the alleged 4 violation was committed by a person acting under color of State law.” Long v. County of L.A., 5 442 F.3d 1178, 1185 (9th Cir. 2006) (citing West v. Atkins, 487 U.S. 42, 48 (1988)); accord 6 Karim-Panahi v. L.A. Police Dep’t, 839 F.2d 621, 624 (9th Cir. 1988) (“To make out a cause of 7 action under section 1983, plaintiffs must plead that (1) the defendants acting under color of state 8 law (2) deprived plaintiff of rights secured by the Constitution or federal statutes” (citations 9 omitted).). 10 Plaintiff has identified a fellow inmate as a defendant in this action. However, he may not 11 pursue a claim against a fellow inmate because an inmate is not a state actor for purposes of § 12 1983. See Calihan v. King, No. 1:17-cv-0530 LJO SKO PC, 2017 WL 4699839 at *2 (E.D. Cal. 13 Oct. 18, 2017). Plaintiff should not identify inmate Davis as a defendant in any amended 14 complaint in this § 1983 action. 15 C. Eighth Amendment Standards 16 The complaint states that plaintiff intends to state a claim for violation of his rights under 17 the Eighth Amendment. Accordingly, in any amended complaint, plaintiff should take note of the 18 following legal standards governing Eighth Amendment claims. 19 The Eighth Amendment prohibits the infliction of “cruel and unusual punishments.” U.S. 20 Const. amend. VIII. The unnecessary and wanton infliction of pain constitutes cruel and unusual 21 punishment prohibited by the Eighth Amendment. Whitley v. Albers, 475 U.S. 312, 319 (1986); 22 Ingraham v. Wright, 430 U.S. 651, 670 (1977); Estelle v. Gamble, 429 U.S. 97, 105-06 (1976). 23 Neither accident nor negligence constitutes cruel and unusual punishment, as “[i]t is obduracy 24 and wantonness, not inadvertence or error in good faith, that characterizes the conduct prohibited 25 by the Cruel and Unusual Punishments Clause.” Whitley, 475 U.S. at 319. 26 What is needed to show unnecessary and wanton infliction of pain “varies according to 27 the nature of the alleged constitutional violation.” Hudson v. McMillian, 503 U.S. 1, 5 (1992) 28 (citing Whitley, 475 U.S. at 320). In order to prevail on a claim of cruel and unusual punishment, 1 however, a prisoner must allege and prove that objectively he suffered a sufficiently serious 2 deprivation and that subjectively prison officials acted with deliberate indifference in allowing or 3 causing the deprivation to occur. Wilson v. Seiter, 501 U.S. 294, 298-99 (1991). 4 If a prisoner’s Eighth Amendment claim arises in the context of medical care, the prisoner 5 must allege and prove “act or omissions sufficiently harmful to evidence deliberate indifference 6 to serious medical needs.” Estelle, 429 U.S. at 106. An Eighth Amendment medical claim has 7 two elements: “the seriousness of the prisoner’s medical need and the nature of the defendant’s 8 response to that need.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on 9 other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc). 10 A medical need is serious “if the failure to treat the prisoner's condition could result in 11 further significant injury or the ‘unnecessary and wanton infliction of pain.’” McGuckin, 974 12 F.2d at 1059 (quoting Estelle, 429 U.S. at 104). Indications of a serious medical need include “the 13 presence of a medical condition that significantly affects an individual's daily activities.” Id. at 14 1059-60. By establishing the existence of a serious medical need, a prisoner satisfies the 15 objective requirement for proving an Eighth Amendment violation. Farmer v. Brennan, 511 U.S. 16 825, 834 (1994). 17 If a prisoner establishes the existence of a serious medical need, he must then show that 18 prison officials responded to the serious medical need with deliberate indifference. See Farmer, 19 511 U.S. at 834. In general, deliberate indifference may be shown when prison officials deny, 20 delay, or intentionally interfere with medical treatment, or may be shown by the way in which 21 prison officials provide medical care. Hutchinson v. United States, 838 F.2d 390, 393-94 (9th 22 Cir. 1988). 23 Before it can be said that a prisoner's civil rights have been abridged with regard to 24 medical care, “the indifference to his medical needs must be substantial. Mere ‘indifference,’ 25 ‘negligence,’ or ‘medical malpractice’ will not support this cause of action.” Broughton v. Cutter 26 Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 105-06); see also 27 Toguchi v. Soon Hwang Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (“Mere negligence in 28 diagnosing or treating a medical condition, without more, does not violate a prisoner's Eighth 1 Amendment rights.”); McGuckin, 974 F.2d at 1059 (same). Deliberate indifference is “a state of 2 mind more blameworthy than negligence” and “requires ‘more than ordinary lack of due care for 3 the prisoner's interests or safety.’” Farmer, 511 U.S. at 835. 4 Delays in providing medical care may manifest deliberate indifference. Estelle, 429 U.S. 5 at 104-05. To establish a claim of deliberate indifference arising from delay in providing care, a 6 plaintiff must show that the delay was harmful. See Hallett v. Morgan, 296 F.3d 732, 745-46 (9th 7 Cir. 2002); Berry v. Bunnell, 39 F.3d 1056, 1057 (9th Cir. 1994); McGuckin, 974 F.2d at 1059; 8 Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir. 1990); Hunt v. Dental Dep't, 865 F.2d 198, 9 200 (9th Cir. 1989); Shapley v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 10 1985). In this regard, “[a] prisoner need not show his harm was substantial; however, such would 11 provide additional support for the inmate's claim that the defendant was deliberately indifferent to 12 his needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). 13 Finally, mere differences of opinion between a prisoner and prison medical staff or 14 between medical professionals as to the proper course of treatment for a medical condition do not 15 give rise to a § 1983 claim. See Toguchi, 391 F.3d at 1058; Jackson v. McIntosh, 90 F.3d 330, 16 332 (9th Cir. 1996); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); Franklin v. Oregon, 662 17 F.2d 1337, 1344 (9th Cir. 1981). 18 D. Amending the Complaint 19 As set forth above, plaintiff has failed to allege facts sufficient to state a claim. However, 20 he will be given the opportunity to file an amended complaint. 21 Plaintiff is advised that in an amended complaint he must clearly identify each defendant 22 and the action that defendant took that violated his constitutional rights. The court is not required 23 to review exhibits to determine what plaintiff’s charging allegations are as to each named 24 defendant. All claims must be included in the body of the complaint. The charging allegations 25 must be set forth in the amended complaint, so defendants have fair notice of the claims plaintiff 26 is presenting. That said, plaintiff need not provide every detailed fact in support of his claims. 27 Rather, plaintiff should provide a short, plain statement of each claim. See Fed. R. Civ. P. 8(a). 28 //// 1 Any amended complaint must show the federal court has jurisdiction, the action is brought 2 in the right place, and plaintiff is entitled to relief if plaintiff’s allegations are true. It must 3 contain a request for particular relief. Plaintiff must identify as a defendant only persons who 4 personally participated in a substantial way in depriving plaintiff of a federal constitutional right. 5 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation 6 of a constitutional right if he does an act, participates in another’s act or omits to perform an act 7 he is legally required to do that causes the alleged deprivation). 8 In an amended complaint, the allegations must be set forth in numbered paragraphs. Fed. 9 R. Civ. P 10(b). Plaintiff may join multiple claims if they are all against a single defendant. Fed. 10 R. Civ. P. 18(a). If plaintiff has more than one claim based upon separate transactions or 11 occurrences, the claims must be set forth in separate paragraphs. Fed. R. Civ. P. 10(b). 12 The federal rules contemplate brevity. See Galbraith v. County of Santa Clara, 307 F.3d 13 1119, 1125 (9th Cir. 2002) (noting that “nearly all of the circuits have now disapproved any 14 heightened pleading standard in cases other than those governed by Rule 9(b)”); Fed. R. Civ. P. 15 84; cf. Rule 9(b) (setting forth rare exceptions to simplified pleading). Plaintiff’s claims must be 16 set forth in short and plain terms, simply, concisely, and directly. See Swierkiewicz, 534 U.S. at 17 514 (“Rule 8(a) is the starting point of a simplified pleading system, which was adopted to focus 18 litigation on the merits of a claim.”); Fed. R. Civ. P. 8. 19 Plaintiff is informed that the court cannot refer to a prior pleading in order to make his 20 amended complaint complete. An amended complaint must be complete in itself without 21 reference to any prior pleading. E.D. Cal. R. 220. Once plaintiff files an amended complaint, all 22 prior pleadings are superseded. Therefore, in an amended complaint, as in an original complaint, 23 each claim and the involvement of each defendant must be sufficiently alleged. 24 By signing an amended complaint, plaintiff certifies he has made reasonable inquiry and 25 has evidentiary support for his allegations, and for violation of this rule the court may impose 26 sanctions sufficient to deter repetition by plaintiff or others. Fed. R. Civ. P. 11. 27 //// 28 //// 1 CONCLUSION 2 In accordance with the above, IT IS HEREBY ORDERED that: 3 1. Plaintiff's motion for leave to proceed in forma pauperis (ECF No. 2) is granted. 4 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 5 is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 8 6 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order 7 to the Director of the California Department of Corrections and Rehabilitation filed 8 concurrently herewith. 9 3. Plaintiff's complaint (ECF No. 1) is dismissed with leave to amend. 10 4. Plaintiff is granted thirty days from the date of service of this order to file an amended 11 complaint that complies with the requirements of the Civil Rights Act, the Federal 12 Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint 13 must bear the docket number assigned to this case and must be labeled “First 14 Amended Complaint.” 15 5. Failure to comply with this order will result in a recommendation that this action be 16 dismissed. 17 | Dated: September 19, 2019 19 0 ‘BORAH BARNES UNITED STATES MAGISTRATE JUDGE 21 22 23 DLB:12 24 | DLB:1Orders/Prisoner/Civil Rights/card1066.scrn 25 26 27 28