(PC) Linarez-Rodriguez v. Honea ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RAUL DANIEL LINAREZ- No. 2:22-cv-1692 KJN P RODRIGUEZ, 12 Plaintiff, 13 ORDER v. 14 KORY L. HONEA, et al., 15 Defendants. 16 17 Plaintiff is a county jail inmate prisoner, proceeding pro se. Plaintiff seeks relief pursuant 18 to 42 U.S.C. § 1983, and requested leave to proceed in forma pauperis pursuant to 28 U.S.C. 19 § 1915. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. 20 § 636(b)(1). 21 Plaintiff submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). 22 Accordingly, the request to proceed in forma pauperis is granted. 23 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. 24 §§ 1914(a), 1915(b)(1). By this order, plaintiff is assessed an initial partial filing fee in 25 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 26 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 27 forward it to the Clerk of the Court. Thereafter, plaintiff is obligated to make monthly payments 28 of twenty percent of the preceding month’s income credited to plaintiff’s trust account. These 1 payments will be forwarded by the appropriate agency to the Clerk of the Court each time the 2 amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. 3 § 1915(b)(2). 4 As set forth below, plaintiff’s complaint is dismissed with leave to amend. 5 Screening Standards 6 The court is required to screen complaints brought by prisoners seeking relief against a 7 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 8 court must dismiss a complaint or portion thereof if the prisoner raised claims that are legally 9 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 10 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 11 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 12 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 13 Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an 14 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 15 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 16 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 17 Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 18 2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably 19 meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at 20 1227. 21 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 22 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 23 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic 24 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 25 In order to survive dismissal for failure to state a claim, a complaint must contain more than “a 26 formulaic recitation of the elements of a cause of action;” it must contain factual allegations 27 sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550 U.S. at 555. 28 However, “[s]pecific facts are not necessary; the statement [of facts] need only ‘give the 1 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v. 2 Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal 3 quotations marks omitted). In reviewing a complaint under this standard, the court must accept as 4 true the allegations of the complaint in question, Erickson, 551 U.S. at 93, and construe the 5 pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 6 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984). 7 The Civil Rights Act 8 To state a claim under § 1983, a plaintiff must allege facts that demonstrate: (1) the 9 violation of a federal constitutional or statutory right; and (2) that the violation was committed by 10 a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Jones v. 11 Williams, 297 F.3d 930, 934 (9th Cir. 2002). An individual defendant is not liable on a civil 12 rights claim unless the facts establish the defendant’s personal involvement in the constitutional 13 deprivation or a causal connection between the defendant’s wrongful conduct and the alleged 14 constitutional deprivation. See Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. 15 Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978). That is, plaintiff may not sue any official on the 16 theory that the official is liable for the unconstitutional conduct of his or her subordinates. 17 Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). The requisite causal connection between a 18 supervisor’s wrongful conduct and the violation of the prisoner’s constitutional rights can be 19 established in a number of ways, including by demonstrating that a supervisor’s own culpable 20 action or inaction in the training, supervision, or control of his subordinates was a cause of 21 plaintiff’s injury. Starr v. Baca, 652 F.3d 1202, 1208 (9th Cir. 2011). 22 Plaintiff’s Complaint 23 On April 16 and 17, 2022, plaintiff told defendant Rayome, a physician’s assistant, that 24 plaintiff was suffering kidney pain. Rayome told the nurse to check plaintiff’s vitals for two days 25 while plaintiff was in pain. Instead of taking plaintiff’s medical concern seriously, Rayome gave 26 plaintiff ibuprofen on April 18, 2022, “thinking it was a kidney stone when he was wrong.” (ECF 27 No. 1 at 3.) Plaintiff alleges he notified multiple officers of plaintiff’s kidney pain and urinating 28 blood, and on April 19, 2022, an unidentified nurse failed to see him. On April 20, 2022, plaintiff 1 went to Oroville Hospital where he was diagnosed with kidney damage, consistent with 2 polycystic kidney disease. Plaintiff also names Sheriff Kory L. Honea and Jail Commander 3 Hovey as defendants, alleging they failed to train jail employees. Plaintiff seeks money damages. 4 Discussion 5 Because plaintiff is a pretrial detainee, his claim of inadequate medical care arises under 6 the Fourteenth Amendment and is evaluated under an objective deliberate indifference standard. 7 See Gordon v. Cnty. of Orange, 888 F.3d 1118, 1124-25 (9th Cir. 2018) (citing Castro v. Cnty. of 8 Los Angeles, 833 F.3d 1060, 1070 (9th Cir. 2016) (en banc)). The elements of such a claim are: 9 “(i) the defendant made an intentional decision with respect to the conditions under which the 10 plaintiff was confined; (ii) those conditions put the plaintiff at substantial risk of suffering serious 11 harm; (iii) the defendant did not take reasonable available measures to abate that risk, even 12 though a reasonable official in the circumstances would have appreciated the high degree of risk 13 involved -- making the consequences of the defendant’s conduct obvious; and (iv) by not taking 14 such measures, the defendant caused the plaintiff’s injuries.” Id. at 1125 (citing Castro, 833 F.3d 15 at 1071). 16 “With respect to the third element, the defendant’s conduct must be objectively 17 unreasonable, a test that will necessarily ‘turn[ ] on the facts and circumstances of each particular 18 case.’” Gordon, 888 F.3d at 1125 (quoting Castro, 833 F.3d at 1071 (quoted sources omitted)). 19 Moreover, a defendant’s “mere lack of due care” is insufficient to state a Fourteenth 20 Amendment claim. Gordon, 888 F.3d at 1125. “[M]ere malpractice” does not establish a 21 constitutional violation. Id.; see also Thompson v. Worch, 6 F. App’x 614, 616 (9th Cir. 2001) 22 (noting that even malpractice does not establish a constitutional violation). Gross negligence can 23 be insufficient to establish a constitutional violation. Wood v. Housewright, 900 F.2d 1332, 1334 24 (9th Cir. 1990). “[T]he plaintiff must ‘prove more than negligence but less than subjective intent 25 -- something akin to reckless disregard.’” Gordon, 888 F.3d at 1125 (citing Castro, 833 F.3d at 26 1070). Also, “a difference in medical opinion does not constitute deliberate indifference.” 27 George v. Sonoma Cty. Sheriff’s Dep’t, 732 F. Supp. 2d 922, 937 (N.D. Cal. 2010) (citing 28 Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989)). 1 Further, misdiagnosis does not establish a constitutional violation. See DiMarzio v. 2 Jacobs, 162 F. App’x 774, at *1 (9th Cir. 2006) (affirming district court’s dismissal of “claims 3 that defendants acted with deliberate indifference by misdiagnosing his ruptured disc”). Instead, 4 “[i]n order for deliberate indifference to be established . . . there must be a purposeful act or 5 failure to act on the part of the defendant and resulting harm.” Moore v. Thomas, 653 F. Supp. 2d 6 984, 1000 (N.D. Cal. 2009) (citing McGuckin, 974 F.2d at 1060; Shapley v. Nevada Bd. of State 7 Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985)). “A difference of medical opinion may 8 amount to deliberate indifference if the prisoner shows that ‘the course of treatment was 9 medically unacceptable under the circumstances’ and defendants ‘chose this course in conscious 10 disregard of an excessive risk to [the prisoner’s] health.’” Watson v. Veal, 302 F. App’x 654, 655 11 (9th Cir. 2008) (quoting Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996)). Finally, the 12 delay of, or interference with, medical treatment for a serious medical need, however, can amount 13 to deliberate indifference. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (citing McGuckin 14 v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1991), overruled on other grounds by WMX Techs., 15 Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc)). The inmate must show harm resulting 16 from the delay. Id. 17 Defendant Rayome 18 Here, plaintiff’s allegations confirm that defendant Rayome believed plaintiff was 19 suffering from a kidney stone and prescribed plaintiff ibuprofen for his pain. Such allegation 20 does not demonstrate that defendant Rayome’s actions were objectively unreasonable.1 21 Moreover, that plaintiff was misdiagnosed is insufficient to demonstrate a civil rights violation, 22 but rather would constitute, at most, medical malpractice. Plaintiff alleges no facts demonstrating 23 24 1 “Red blood cells can enter the urine at any level of the urogenital tract, from the kidney 25 (beginning at the glomerulus) to the end of the urethra (where it leaves the body). Hematuria is the presence of more than five red cells when the urine is examined under high power. It can be 26 painful or painless. Painful hematuria can occur with renal trauma, kidney stones, sickle-cell 27 disorder, polycystic kidney disease (a congenital condition), and kidney, bladder, and prostate infections.” 44 Am. Jur. Proof of Facts 2d 55 (Originally published in 1986). 28 1 that any defendant was aware that plaintiff suffered from a kidney disease, 2 or that Rayome’s 2 actions under the circumstances were medically unacceptable. See Gordon, 6 F.4th at 970. In 3 addition, it appears that plaintiff was properly diagnosed only four days later. See Allison v. 4 Gomez, 20 F. App’x 615, 615-16 (9th Cir. 2001) (reiterating that “differences in medical opinion 5 as to an inmate’s medical treatment do not amount to deliberate indifference,” and granting 6 defendant doctor summary judgment because no triable issue existed that any delay in 7 transferring Allison, who suffered hypertension and polycystic kidney disease, to the California 8 Medical Facility caused Allison injury”).3 9 In addition, plaintiff’s claim that an unidentified nurse “failed to see” plaintiff on April 19, 10 2022, standing alone, is insufficient to state a cognizable civil rights claim. 11 Plaintiff’s complaint fails to state a cognizable civil rights claim against defendant 12 Rayome. 13 Defendants Honea and Hovey 14 Plaintiff alleges that defendant Honea is in charge of the jail and “responsible for all his 15 employees’ training,” and that defendant Hovey is the watch commander who is “in charge of all 16 jail operations and functions and employee training,” and “is at fault for his employees’ lack of 17 training.” (ECF No. 1 at 3.) However, to the extent plaintiff names defendants Honea and Hovey 18 based solely on their supervisorial roles, such claims fail. Iqbal, 556 U.S. at 676 (“Government 19 officials may not be held liable for the unconstitutional conduct of their subordinates under a 20 theory of respondeat superior.”). 21 //// 22 2 “Polycystic kidney disease (“PKD”) is an inherited disorder in which clusters of cysts develop 23 primarily within your kidneys, causing your kidneys to enlarge and lose function over time. Cysts are noncancerous round sacs containing fluid. The cysts vary in size, and they can grow 24 very large.” Polycystic kidney disease, Mayo Clinic, (accessed Nov. 29, 2022). 25 3 In Allison, it appears that the prisoner initially sought transfer to a medical facility in his June 26 19, 1995 inmate appeal, and was transferred to California Medical Facility on May 2, 1997. 27 Allison v. Gomez, No. CIV S-97-0773 GEB GGH P (E.D. Cal. Apr. 31, 2000) (ECF No. 67 at 7- 8) (findings and recommendations on motion for summary judgment). 28 1 Plaintiff also fails to establish liability based on a failure to train theory. Plaintiff appears 2 to allege, in conclusory fashion, that defendants Hovey and Honea failed to train. Failure to train 3 may amount to a policy of “deliberate indifference,” if the need to train was obvious and the 4 failure to do so made a violation of constitutional rights likely. City of Canton v. Harris, 489 U.S. 5 378, 390 (1989). Similarly, a failure to supervise that is “sufficiently inadequate” may amount to 6 “deliberate indifference.” Davis v. City of Ellensburg, 869 F.2d 1230, 1235 (9th Cir. 1989), 7 overruled on other grounds by Beck v. City of Upland, 527 F.3d 853 (9th Cir. 2008). However, 8 mere negligence in training or supervision does not give rise to a Monell claim. Harris, 489 U.S. 9 at 390. 10 Here, even considering that a failure to train can be a policy under Monell,4 plaintiff 11 includes no facts showing that the lack of training actually caused the misdiagnosis. Given that 12 plaintiff’s symptoms could have resulted from kidney stones, it is not obvious that there was a 13 need for further training, or that any lack of training was the moving force for the misdiagnosis. 14 See Harris, 489 U.S. at 390-91 & n.10. 15 Plaintiff’s complaint fails to state a cognizable civil rights claim as to defendants Honea 16 and Hovey. 17 Conclusion 18 Accordingly, plaintiff’s complaint must be dismissed for failure to state a claim. Based on 19 his allegations, it does not appear that plaintiff can allege facts stating cognizable civil rights 20 violations. However, because plaintiff has not had an opportunity to amend and is proceeding pro 21 se, the court grants plaintiff an opportunity to file an amended complaint. 22 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions 23 about which he complains resulted in a deprivation of plaintiff’s constitutional rights. See, e.g., 24 West v. Atkins, 487 U.S. 42, 48 (1988). Also, the complaint must allege in specific terms how 25 4 Monell v. Department of Social Services, 436 U.S. 658, 690 (1978). To show that the County had a policy or custom leading to Monell liability, plaintiff must allege facts demonstrating (1) he 26 had a constitutional right of which he was deprived, (2) the municipality had a policy, (3) the 27 policy amounts to deliberate indifference of his constitutional right, and (4) the policy is the moving force behind the constitutional violation. Dougherty v. City of Covina, 654 F.3d 892, 28 900 (9th Cir. 2011). 1 each named defendant is involved. Rizzo v. Goode, 423 U.S. 362, 371 (1976). There can be no 2 liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a 3 defendant’s actions and the claimed deprivation. Rizzo, 423 U.S. at 371; May v. Enomoto, 633 4 F.2d 164, 167 (9th Cir. 1980). Furthermore, vague and conclusory allegations of official 5 participation in civil rights violations are not sufficient. Ivey v. Bd. of Regents, 673 F.2d 266, 6 268 (9th Cir. 1982). 7 In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to 8 make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended 9 complaint be complete in itself without reference to any prior pleading. This requirement exists 10 because, as a general rule, an amended complaint supersedes the original complaint. See Ramirez 11 v. County of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) (“an ‘amended complaint 12 supersedes the original, the latter being treated thereafter as non-existent.’” (internal citation 13 omitted)). Once plaintiff files an amended complaint, the original pleading no longer serves any 14 function in the case. Therefore, in an amended complaint, as in an original complaint, each claim 15 and the involvement of each defendant must be sufficiently alleged. 16 In accordance with the above, IT IS HEREBY ORDERED that: 17 1. Plaintiff’s request for leave to proceed in forma pauperis is granted. 18 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 19 is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 20 § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 21 Sheriff of the Butte County Jail filed concurrently herewith. 22 3. Plaintiff’s complaint is dismissed. 23 4. Within thirty days from the date of this order, plaintiff shall complete the attached 24 Notice of Amendment and submit the following documents to the court: 25 a. The completed Notice of Amendment; and 26 b. An original of the Amended Complaint. 27 Plaintiff’s amended complaint shall comply with the requirements of the Civil Rights Act, the 28 Federal Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint must 1 | also bear the docket number assigned to this case and must be labeled “Amended Complaint.” 2 Failure to file an amended complaint in accordance with this order may result in the 3 || dismissal of this action. 4 || Dated: December 1, 2022 Foci) Aharon 6 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 7 || few/linal692.140 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 RAUL DANIEL LINAREZ- No. 2:22-cv-1692 KJN P 11 RODRIGUEZ, 12 Plaintiff, NOTICE OF AMENDMENT 13 v. 14 KORY L. HONEA, et al., 15 Defendants. 16 Plaintiff hereby submits the following document in compliance with the court’s order 17 filed______________. 18 _____________ Amended Complaint 19 DATED: 20 ________________________________ 21 Plaintiff 22 23 24 25 26 27 28