(PC) Montgomery v. Moreno ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DWAYNE STEVEN MONTGOMERY, No. 2:22-cv-0127-EFB (PC) 12 Plaintiff, 13 v. ORDER 14 J. MORENO, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding without counsel and in forma pauperis in an action 18 brought under 42 U.S.C. § 1983. Following the dismissal of his original complaint on screening1 19 (ECF Nos. 1 & 9), plaintiff has filed an amended complaint (ECF No. 14), which the court must 20 now screen. As discussed below, plaintiff’s amended complaint is dismissed with leave to amend 21 for failure to state a claim. 22 ///// 23 ///// 24 ///// 25 1 Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 26 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion 27 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which relief may be granted,” or “seeks monetary relief from a defendant who is immune from such 28 relief.” Id. § 1915A(b). 1 Screening Order 2 Like the original complaint, plaintiff’s amended complaint concerns plaintiff’s slip and 3 fall while working on February 12, 2020. ECF No. 14 at 13. Plaintiff alleges the following: 4 Plaintiff’s supervisor notified defendant Kirkendall (a licensed vocational nurse) of 5 plaintiff’s fall and instructed plaintiff to report to the medical clinic. Id. Plaintiff was unable to 6 walk and a fellow inmate pushed plaintiff to the clinic in a wheelchair. Id. Plaintiff had sustained 7 injuries to his hip, lower back, and neck. Id. at 6. 8 Kirkendall told plaintiff that because there was no physician on duty and because 9 plaintiff’s injures did not appear to be serious, he did not require immediate medical attention. Id. 10 at 13-14. Kirkendall did not follow medical protocol as dictated by the Department Operations 11 Manual (“DOM”).2 Id. at 14. Kirkendall provided plaintiff with two Tylenols for his pain and 12 told plaintiff he could be seen by medical personnel the next day. Id. 13 Beginning on February 14, 2020, plaintiff was excused from work for three days. Id. at 14 17. When this initial “lay-in” period expired, plaintiff had to wait several days to get an 15 appointment for a second lay-in. Id. Plaintiff’s second lay-in excused him from work from 16 February 21, 2020 to February 25, 2020. Id. 17 On February 27, 2020, plaintiff was seen by defendant Dr. Wong, his primary care 18 physician. Id. Dr. Wong agreed that physical therapy was indicated for plaintiff’s injuries, and 19 told plaintiff he might be able to prescribe Tylenol 3. Id. Plaintiff never received physical 20 therapy or Tylenol 3. Id. Dr. Wong issued plaintiff a seven-day lay-in, which expired on March 21 7, 2020. Id. Plaintiff was subsequently compelled to return to his job assignment even though he 22 was not physically ready. Id. Plaintiff “sat around doing nothing” at his job assignment because 23 he could not perform his work tasks without enduring excruciating pain. Id. 24 Plaintiff’s hip and back injuries have gotten so bad that he can barely get out of bed in the 25 morning and needs a walker to get around. Id. at 18. 26 27 2 “There is no independent claim under § 1983 for violation of prison regulations (“Title 15”) or CDCR DOM procedures.” Anderson v. City, No. 1:14-cv-0202-LJO-MJS (PC), 2014 28 U.S. Dist. LEXIS 74313, at *8 (E.D. Cal. May 30, 2014). 1 Plaintiff filed a grievance following his slip and fall and was dissatisfied with how 2 defendant Woods processed it because she fabricated her report and did not intervene to obtain 3 medical care for plaintiff. Id. at 15-16. Plaintiff also claims that other supervisory defendants, 4 including Wong, Smith, and Gates should have intervened to ensure plaintiff received adequate 5 medical attention.3 Id. at 16, 18. 6 Plaintiff claims that defendants were deliberately indifferent to his serious medical needs 7 and violated worker’s compensation relief requirements. Id. at 6-8. Like the original complaint, 8 these allegations cannot survive screening. 9 Deliberate indifference requires a showing that the defendant, acting with a state of mind 10 more blameworthy than negligence, denied, delayed, or interfered with the treatment of plaintiff’s 11 serious medical needs. Farmer v. Brennan, 511 U.S. 825, 835 (1994); Estelle v. Gamble, 429 12 U.S. 97, 106 (1976). In this case, plaintiff alleges that Kirkendall determined that plaintiff could 13 wait a day to be medically evaluated and supplied plaintiff with Tylenol in the interim. Although 14 plaintiff claims that Kirkendall should have done more, the alleged conduct does not demonstrate 15 deliberate indifference. Similarly, Dr. Wong’s alleged conduct does not rise to the level of 16 deliberate indifference. Dr. Wong excused plaintiff from work for seven days. Dr. Wong also 17 informed plaintiff that physical therapy was a good idea and that he would attempt to get plaintiff 18 a stronger form of Tylenol. Although plaintiff never received physical therapy or Tylenol 3, there 19 are no allegations showing that Dr. Wong was to blame or that he otherwise responded to 20 plaintiff’s needs with a state of mind any more blameworthy than negligence. Finally, to the 21 extent plaintiff seeks to hold supervisory defendants liable for a claim of deliberate indifference, 22 the claim fails because it is not clear how any of them personally participated in any violation of 23 plaintiff’s rights. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) ( a defendant’s role as a 24 supervisor is not a proper basis for liability). 25 3 There are no constitutional requirements regarding how a grievance system is operated 26 and plaintiff may not impose liability on a defendant simply because he played a role in 27 processing plaintiff’s appeals or because the appeals process was otherwise rendered unfair. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003); Buckley v. Barlow, 997 F.2d 494, 495 (8th 28 Cir. 1993). 1 In the original screening order, the court informed plaintiff that this court lacks jurisdiction 2 over any claim pertaining to workers’ compensation because exclusive jurisdiction is vested in the 3 California workers’ compensation system. See ECF No. 9 at 5 (citing Cal. Labor Code § 5300(a); 4 also U.S. Fid. & Guar. Co. v. Lee Invs. LLC, 641 F.3d 1126, 1134 (9th Cir. 2011); Mitchell v. Scott 5 Wetzel Servs., Inc., 227 Cal. App. 3d 1474, 1480 (1991)). The court also informed plaintiff that a § 6 1983 claim could be stated by showing that defendants acted in an arbitrary or conscience shocking 7 manner. ECF No. 9 at 5 (citing Wilson v. Ayers, No. 2:07-cv-0283-LRH-LRL, 2010 U.S. Dist. 8 LEXIS 2995, *7-8 (D. Nev. Jan 14, 2010), aff’d, 470 F. App'x. 654, 655 (9th Cir. 2012)). Plaintiff’s 9 conclusory claim that defendants violated worker’s compensation relief requirements is not 10 cognizable under § 1983 and to the extent that it pertains to any relief plaintiff was due pursuant to the 11 California workers’ compensation system, this court lacks jurisdiction. 12 Although plaintiff was given notice of the deficiencies in his original complaint and a chance 13 to amend, he is no closer to stating a cognizable claim for relief. In an abundance of caution, the 14 court will afford plaintiff another opportunity to cure the defects in his complaint. For these reasons, 15 plaintiff’s amended complaint is dismissed with leave to amend. 16 Leave to Amend 17 Plaintiff is cautioned that any amended complaint must identify as a defendant only 18 persons who personally participated in a substantial way in depriving him of his constitutional 19 rights. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the 20 deprivation of a constitutional right if he does an act, participates in another’s act or omits to 21 perform an act he is legally required to do that causes the alleged deprivation). Plaintiff may also 22 include any allegations based on state law that are so closely related to his federal allegations that 23 “they form the same case or controversy.” See 28 U.S.C. § 1367(a). 24 The amended complaint must also contain a caption including the names of all defendants. 25 Fed. R. Civ. P. 10(a). 26 Plaintiff may not change the nature of this suit by alleging new, unrelated claims. See 27 George, 507 F.3d at 607. Nor, as mentioned above, may he bring unrelated claims against 28 multiple defendants. Id. ] Any amended complaint must be written or typed so that it so that it is complete in itself 2 | without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended 3 || complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the 4 | earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114 5 || F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter 6 || being treated thereafter as non-existent.””) (guoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 7 || 1967)). 8 Any amended complaint should be as concise as possible in fulfilling the above 9 || requirements. Fed. R. Civ. P. 8(a). Plaintiff should avoid the inclusion of procedural or factual 10 || background which has no bearing on his legal claims. He should also take pains to ensure that his 11 || amended complaint is as legible as possible. This refers not only to penmanship, but also spacing 12 | and organization. Plaintiff should carefully consider whether each of the defendants he names 13 || actually had involvement in the constitutional violations he alleges. A “scattershot” approach in 14 | which plaintiff names dozens of defendants will not be looked upon favorably by the court. 15 Conclusion 16 Accordingly, it is ORDERED that: 17 1. Plaintiff's amended complaint (ECF No. 14) is DISMISSED with leave to amend 18 within 30 from the date of service of this order; and 19 2. Failure to comply with any part of this this order may result in dismissal of this 20 action. 21 | Dated: August 19, 2022. g Voter Sed SH A 22 EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28