(PC) Felder v. Gates ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BOBBY DEWAYNE FELDER, No. 2:23-cv-1686 DB P 12 Plaintiff, 13 v. ORDER 14 S. GATES, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se with a civil rights action under 42 U.S.C. 18 §1983. Before the court are plaintiff’s motion to proceed in forma pauperis (“IFP”) and 19 complaint for screening. For the reasons set forth below, this court will grant plaintiff’s IFP 20 motion, dismiss the complaint, and give plaintiff leave to file an amended complaint. 21 IN FORMA PAUPERIS 22 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. 23 §1915(a). 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 for Civil Rights Complaints 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 10 claims 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. Rule 8(a)(2) of 19 the Federal Rules of Civil Procedure “requires only ‘a short and plain statement of the claim 20 showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what 21 the . . . claim is and the grounds upon which it rests.’” Bell Atlantic Corp. v. Twombly, 550 U.S. 22 544, 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. The 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. Dept. of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). “A 10 person ‘subjects’ another to the deprivation of a constitutional right, within the meaning of § 11 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform 12 an act which he is legally required to do that causes the deprivation of which complaint is made.” 13 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 14 II. Discussion 15 Plaintiff is incarcerated at Kern Valley State Prison. He complains of conduct that 16 occurred when he was incarcerated at Mule Creek State Prison (“MCSP”). He identifies three 17 defendants: (1) Chief of Healthcare Appeals S. Gates; (2) Registered Nurse L. Tomboc; and (3) 18 MCSP Chief Physician M. Ullery. 19 Plaintiff’s complaint is very brief. Plaintiff simply states that defendants violated his 20 Eighth Amendment rights to medical care because he is in pain and each defendant “rubber 21 stamped denials” of his grievances. 22 A. Legal Standards for Eighth Amendment Medical Claim 23 The unnecessary and wanton infliction of pain constitutes cruel and unusual punishment 24 prohibited by the Eighth Amendment. Whitley v. Albers, 475 U.S. 312, 319 (1986); Ingraham v. 25 Wright, 430 U.S. 651, 670 (1977); Estelle v. Gamble, 429 U.S. 97, 105-06 (1976). In order to 26 state a claim of cruel and unusual punishment, a prisoner must allege that objectively he suffered 27 a sufficiently serious deprivation and that subjectively prison officials acted with deliberate 28 //// 1 indifference in allowing or causing the deprivation to occur. Wilson v. Seiter, 501 U.S. 294, 298- 2 99 (1991). 3 In the context of medical care, the prisoner must allege “acts or omissions sufficiently 4 harmful to evidence deliberate indifference to serious medical needs.” Estelle, 429 U.S. at 106. 5 An Eighth Amendment medical claim has two elements: “the seriousness of the prisoner's 6 medical need and the nature of the defendant's response to that need.” McGuckin v. Smith, 974 7 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 8 F.3d 1133 (9th Cir. 1997) (en banc). 9 A medical need is serious “if the failure to treat the prisoner's condition could result in 10 further significant injury or the ‘unnecessary and wanton infliction of pain.’” McGuckin, 974 11 F.2d at 1059 (quoting Estelle, 429 U.S. at 104). Indications of a serious medical need include 12 “the presence of a medical condition that significantly affects an individual's daily activities.” Id. 13 at 1059-60. By establishing the existence of a serious medical need, a prisoner satisfies the 14 objective requirement for proving an Eighth Amendment violation. Farmer v. Brennan, 511 U.S. 15 825, 834 (1994). 16 If a prisoner establishes the existence of a serious medical need, he must then show that 17 prison officials responded to the serious medical need with deliberate indifference. See Farmer, 18 511 U.S. at 834. In general, deliberate indifference may be shown when prison officials deny, 19 delay, or intentionally interfere with medical treatment, or may be shown by the way in which 20 prison officials provide medical care. Hutchinson v. United States, 838 F.2d 390, 393-94 (9th 21 Cir. 1988). 22 Before it can be said that a prisoner's civil rights have been abridged with regard to 23 medical care, “the indifference to his medical needs must be substantial. Mere ‘indifference,’ 24 ‘negligence,’ or ‘medical malpractice’ will not support this cause of action.” Broughton v. Cutter 25 Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 105-06); see also 26 Toguchi v. Soon Hwang Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (“Mere negligence in 27 diagnosing or treating a medical condition, without more, does not violate a prisoner's Eighth 28 Amendment rights.”); McGuckin, 974 F.2d at 1059 (same). Deliberate indifference is “a state of 1 mind more blameworthy than negligence” and “requires ‘more than ordinary lack of due care for 2 the prisoner's interests or safety.’” Farmer, 511 U.S. at 835. 3 Mere differences of opinion between a prisoner and prison medical staff or between medical 4 professionals as to the proper course of treatment for a medical condition do not give rise to a 5 §1983 claim. See Toguchi, 391 F.3d at 1058; Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 6 1996); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); Franklin v. Oregon, 662 F.2d 1337, 7 1344 (9th Cir. 1981). 8 Finally, the review of a prisoner’s grievance by a correctional medical official may constitute 9 deliberate indifference only if the official was aware that the underlying challenged medical 10 decision caused plaintiff “further significant injury or the unnecessary and wanton infliction of 11 pain,” and the official purposefully failed to pursue an appropriate medical remedy. Farmer, 511 12 U.S. at 842; see also Jett, 439 F.3d at 1098 (prison officials, particularly those in administrative 13 positions, may be “liable for deliberate indifference when they knowingly fail to respond to an 14 inmate's requests for help”). This rule is especially true where the reviewer is medically trained. 15 See, e.g., Thomas v. Nangalama, No. 2:10-cv-1295 JAM EFB P, 2013 WL 1281792, *7 (E.D. 16 Cal. Mar. 26, 2013), findings and recos. adopted, 2013 WL 1800344 (E.D. Cal. Apr. 29, 2013); 17 Pogue v. Igbinosa, No. 1:07-cv-1577 GMS, 2012 WL 603230 (E.D. Cal. Feb. 23, 2012) 18 (medically-trained individuals who are made aware of serious medical needs through reviewing a 19 prisoner's grievance may be liable for failure to treat those needs). 20 B. Does Plaintiff State a Claim under the Eighth Amendment? 21 Plaintiff fails to state any claims for relief cognizable under 42 U.S.C. §1983 for at least two 22 reasons. First, plaintiff does not explain his serious medical need. Plaintiff must explain the 23 medical condition causing his pain and why the lack of care for his pain constitutes a serious 24 deprivation of his rights. 25 Second, plaintiff fails to show just what each defendant did. Plaintiff must describe his 26 appeals and explain how each defendant’s conduct demonstrates deliberate indifference to his 27 needs. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the 28 deprivation of a constitutional right if he does an act, participates in another’s act or omits to 1 perform an act he is legally required to do that causes the alleged deprivation). “Vague and 2 conclusory allegations of official participation in civil rights violations are not sufficient.” Ivey v. 3 Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982) (citations omitted). If plaintiff is alleging each 4 defendant is liable based on the denial of his appeals, plaintiff must show that each defendant 5 knew of plaintiff’s medical need, had the ability to remedy that need, failed to do so, and that 6 failure amounted to deliberate indifference rather than negligence. 7 CONCLUSION 8 Plaintiff fails to state any claims for relief under 42 U.S.C. § 1983. Plaintiff will be given 9 an opportunity to amend the complaint. 10 In an amended complaint, plaintiff must address the problems with the complaint that are 11 explained above. Plaintiff is advised that in an amended complaint he must clearly identify each 12 defendant and the action that defendant took that violated plaintiff’s constitutional rights. The 13 court is not required to review exhibits to determine what plaintiff’s charging allegations are as to 14 each named defendant. If plaintiff wishes to add a claim, he must include it in the body of the 15 complaint. The charging allegations must be set forth in the amended complaint so defendants 16 have fair notice of the claims plaintiff is presenting. 17 Any amended complaint must show the federal court has jurisdiction, the action is brought 18 in the right place, and plaintiff is entitled to relief if plaintiff’s allegations are true. It must 19 contain a request for particular relief. Plaintiff must identify as a defendant only persons who 20 personally participated in a substantial way in depriving plaintiff of a federal constitutional right. 21 Johnson, 588 F.2d at 743. 22 In an amended complaint, the allegations must be set forth in numbered paragraphs. Fed. 23 R. Civ. P. 10(b). Plaintiff may join multiple claims if they are all against a single defendant. Fed. 24 R. Civ. P. 18(a). If plaintiff has more than one claim based upon separate transactions or 25 occurrences, the claims must be set forth in separate paragraphs. Fed. R. Civ. P. 10(b). 26 The federal rules contemplate brevity. See Galbraith v. Cnty of Santa Clara, 307 F.3d 27 1119, 1125 (9th Cir. 2002) (noting that “nearly all of the circuits have now disapproved any 28 heightened pleading standard in cases other than those governed by Rule 9(b)”); Fed. R. Civ. P. 1 84; cf. Rule 9(b) (setting forth rare exceptions to simplified pleading). Plaintiff’s claims must be 2 set forth in short and plain terms, simply, concisely and directly. See Swierkiewicz v. Sorema 3 N.A., 534 U.S. 506, 514 (2002) (“Rule 8(a) is the starting point of a simplified pleading system, 4 which was adopted to focus litigation on the merits of a claim.”); Fed. R. Civ. P. 8. 5 An amended complaint must be complete in itself without reference to any prior pleading. 6 E.D. Cal. R. 220. Once plaintiff files an amended complaint, the original pleading is superseded. 7 By signing an amended complaint, plaintiff certifies he has made reasonable inquiry and has 8 evidentiary support for his allegations, and for violation of this rule the court may impose 9 sanctions sufficient to deter repetition by plaintiff or others. Fed. R. Civ. P. 11. 10 For the foregoing reasons, and good cause appearing, IT IS HEREBY ORDERED as 11 follows: 12 1. Plaintiff’s motion to proceed in forma pauperis (ECF No. 2) is granted. 13 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 14 is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. §1915(b)(1). 15 All fees shall be collected and paid in accordance with this court’s order to the Director of the 16 California Department of Corrections and Rehabilitation filed concurrently herewith. 17 3. Plaintiff’s complaint (ECF No. 1) is dismissed with leave to amend. 18 4. Plaintiff is granted sixty 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 number 21 assigned this case and must be labeled “First Amended Complaint;” failure to file an amended 22 complaint in accordance with this order may result in a recommendation that this action be 23 dismissed. 24 //// 25 //// 26 //// 27 //// 28 //// 1 5. The Clerk of the Court is directed to send plaintiff a copy of the prisoner complaint 2 | form used in this district. 3 | Dated: September 8, 2023 4 5 6 ORAH BARNES UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 DLB:9 21 | DB prisoner inbox/civil rights/S/feld1686.scrn LTA 22 23 24 25 26 27 28