(PC) Jacques v. Weiss ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL E. JACQUES, No. 2:23-cv-00346 DB P 12 Plaintiff, 13 v. ORDER 14 R. WEISS, 15 Defendant. 16 17 Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 18 U.S.C. § 1983. Plaintiff claims that defendant was deliberately indifferent to her1 medical needs. 19 Presently before the court is plaintiff’s motion to proceed in forma pauperis (ECF No. 2) and her 20 complaint (ECF No. 1) for screening. For the reasons set forth below, the court will grant the 21 motion to proceed in forma pauperis and dismiss the complaint with leave to amend. 22 IN FORMA PAUPERS 23 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 24 1915(a). (ECF No. 2.) Accordingly, the request to proceed in forma pauperis will be granted. 25 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 26 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in 27 1 The court will use female pronouns to refer to plaintiff, as plaintiff uses female pronouns 28 throughout the complaint. (See generally ECF No. 1.) 1 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 2 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 3 forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments 4 of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account. 5 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time 6 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 7 1915(b)(2). SCREENING 8 I. Legal Standards 9 The court is required to screen complaints brought by prisoners seeking relief against a 10 governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. § 11 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims 12 that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be 13 granted, or that seek monetary relief from a defendant who is immune from such relief. See 28 14 U.S.C. § 1915A(b)(1) & (2). 15 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 16 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 17 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 18 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 19 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 20 pleaded, has an arguable legal and factual basis. See Franklin, 745 F.2d at 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 24 AtlanticCorp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 25 (1957)). 26 However, in order to survive dismissal for failure to state a claim, a complaint must 27 contain more than “a formulaic recitation of the elements of a cause of action”; it must contain 28 1 factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 2 550 U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the 3 allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 4 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all 5 doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). 6 The Civil Rights Act under which this action was filed provides as follows: 7 Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation 8 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, 9 or other proper proceeding for redress. 10 42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the 11 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 12 Monell v. Dept. of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 13 (1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the 14 meaning of § 1983, if he does an affirmative act, participates in another’s affirmative acts or 15 omits to perform an act which he is legally required to do that causes the deprivation of which 16 complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 17 Moreover, supervisory personnel are generally not liable under § 1983 for the actions of 18 their employees under a theory of respondeat superior and, therefore, when a named defendant 19 holds a supervisorial position, the causal link between him and the claimed constitutional 20 violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); 21 Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations 22 concerning the involvement of official personnel in civil rights violations are not sufficient. See 23 Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 24 II. Allegations in the Complaint 25 Plaintiff alleges that, at all relevant times, she was incarcerated at Mule Creek State Prison 26 (“MCSP”). She names one defendant, Dr. R. Weiss. (ECF No. 1 at 2.) She asserts a single claim 27 for deliberate indifference to her medical needs, in violation of the Eighth Amendment. (Id. at 28 12.) 1 According to the complaint, plaintiff was transferred to MCSP on July 20, 2021. (Id. at 2 8.) Three days later, she met with defendant, who was her assigned primary care physician at 3 MCSP. (Id.) Defendant told plaintiff that several of her medical accommodations, or “chronos,” 4 had expired on July 14, 2021, including chronos for a lower bunk assignment and for knee and 5 ankle braces. (Id.) Defendant allegedly stated that he had conducted a “complete review” of 6 plaintiff’s “entire medical file,” which he believed contained “no evidence” to justify renewing 7 the chronos for the lower bunk assignment and braces. (Id.) 8 Plaintiff explained to defendant that the braces were necessary to treat pain and mobility 9 issues caused by chondromalacia and the thickening of her lateral ankle ligament, conditions that 10 had been confirmed through magnetic resonance imaging (“MRI”). (Id. at 8–9.) Plaintiff alleged 11 these conditions made her more likely to fall and injure herself when climbing to the top bunk and 12 had previously fallen while at MCSP. (Id.) Plaintiff informed him that she “has a bullet retained 13 in her lower right extremities,” which also contributed to these falls. (Id.) Defendant did not 14 renew the chronos. (Id.) Plaintiff again explained the need for the chronos and told defendant 15 she had previously fallen on August 31, 2019 while ascending a staircase. (Id. at 10.) According 16 to plaintiff, defendant “responded saying that plaintiff complain [sic] too much.” (Id.) 17 On July 30, 2021, plaintiff filed an accommodation request to immediately renew the 18 chronos for the lower bunk assignment and braces. (Id.) Plaintiff states that she filed the request 19 because she “fell multiple times ascending the upper bunk.” (Id.) On August 2, a nurse 20 completed a medical injury report, which documented “healed scrapes to the inner thigh and chin 21 and swelling in her knees.” (Id.) Later, on an unspecified date, defendant issued a lower bunk 22 chrono to plaintiff. (Id. at 10–11.) It included a statement that “after [defendant] received 23 plaintiff’s chart review he ordered a lower bunk/lower tier – no stairs chrono.” (Id. at 11.) 24 III. Does Plaintiff State a Claim under § 1983? 25 A. Legal Standard 26 The Eighth Amendment prohibits “cruel and unusual punishments.” Farmer v. Brennan, 27 511 U.S. 825, 832 (1994). Where a prisoner’s Eighth Amendment claims arise in the context of 28 medical care, the prisoner must allege and prove “acts or omissions sufficiently harmful to 1 evidence deliberate indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 2 (1976). An Eighth Amendment medical claim has two elements: “the seriousness of the 3 prisoner’s medical need and the nature of the defendant’s response to that need.” McGuckin v. 4 Smith, 974 F.2d 1050, 1059 (9th Cir. 1991), overruled on other grounds by WMX Techs., Inc. v. 5 Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc). 6 A serious medical need exists if the failure to treat the condition could result in further 7 significant injury or the unnecessary and wanton infliction of pain. Jett v. Penner, 439 F.3d 1091, 8 1096 (9th Cir. 2006). To act with deliberate indifference, a prison official “must both be aware of 9 facts from which the inference could be drawn that a substantial risk of serious harm exists, and 10 he must also draw the inference.” Farmer, 511 U.S. at 837. Thus, a defendant is liable if he 11 knows that plaintiff faces “a substantial risk of serious harm and disregards that risk by failing to 12 take reasonable measures to abate it.” Id. at 847. “It is enough that the official acted or failed to 13 act despite his knowledge of a substantial risk of harm.” Id. at 842. 14 “Indifference ‘may appear when prison officials deny, delay or intentionally interfere with 15 medical treatment, or it may be shown by the way in which prison physicians provide medical 16 care.’” Jett, 439 F.3d at 1096 (quoting Estelle, 429 U.S. at 1059). To establish a claim of 17 deliberate indifference arising from a delay in providing care, a plaintiff must show that the delay 18 was harmful. See Berry v. Bunnell, 39 F.3d 1056, 1057 (9th Cir. 1994); McGuckin, 974 F.2d at 19 1059; Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir. 1990); Shapley v. Nevada Bd. of 20 State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). In this regard, “[a] prisoner need not 21 show his harm was substantial; however, such would provide additional support for the inmate’s 22 claim that the defendant was deliberately indifferent to his needs.” Jett, 439 F.3d at 1096; see 23 also McGuckin, 974 F.2d at 1060. 24 B. Analysis 25 Plaintiff states that she has chondromalacia, thickening of her lateral ankle ligament, and a 26 bullet embedded in her lower extremities, which cause her pain and makes her more susceptible 27 to falls. (ECF No. 1 at 8-9.) Plaintiff reports that she suffered falls and experienced pain as a 28 result of defendant’s delay in renewing her lower bunk chrono and apparent refusal to renew her 1 braces. (Id. at 10, 12.) According to plaintiff, defendant told her that “there was no evidence to 2 renew” the chronos for the lower bunk assignment and braces. (Id. at 8.) 3 Here, defendant’s denial of a lower bunk chrono and braces, in the face of plaintiff’s 4 disagreement, shows only a difference of medical opinion. “A difference of opinion between a 5 physician and the prisoner—or between medical professionals—concerning what medical care is 6 appropriate does not amount to deliberate indifference.” Snow v. Daniel, 681 F.3d 978, 988 (9th 7 Cir. 2012), overruled in part on other grounds by Peralta v. Dillard, 744 F.3d 1076 (9th Cir. 8 2014) (en banc). To state a cognizable claim, plaintiff must allege facts showing that defendant’s 9 denial was medically unacceptable under the circumstances and chosen in conscious disregard of 10 an excessive risk to plaintiff’s health. Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004). 11 For these reasons, the complaint does not state a cognizable Eighth Amendment claim 12 against defendant. Plaintiff will be granted leave to file an amended complaint. 13 AMENDING THE COMPLAINT 14 As set forth above, the complaint fails to state a claim. However, plaintiff will be given 15 the opportunity to amend the complaint. Plaintiff is advised that in an amended complaint, she 16 must clearly identify each defendant and the action that defendant took that violated her 17 constitutional rights. The court is not required to review exhibits to determine what plaintiff’s 18 charging allegations are as to each named defendant. The charging allegations must be set forth 19 in the amended complaint, so defendants have fair notice of the claims plaintiff is presenting. 20 That said, plaintiff need not provide every detailed fact in support of her claims. Rather, plaintiff 21 should provide a short, plain statement of each claim. See Fed. R. Civ. P. 8(a). 22 Any amended complaint must show the federal court has jurisdiction, the action is brought 23 in the right place, and plaintiff is entitled to relief if plaintiff’s allegations are true. It must 24 contain a request for particular relief. Plaintiff must identify as a defendant only persons who 25 personally participated in a substantial way in depriving plaintiff of a federal constitutional right. 26 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation 27 of a constitutional right if he does an act, participates in another’s act or omits to perform an act 28 he is legally required to do that causes the alleged deprivation). 1 In an amended complaint, the allegations must be set forth in numbered paragraphs. Fed. 2 R. Civ. P. 10(b). Plaintiff may join multiple claims if they are all against a single defendant. Fed. 3 R. Civ. P. 18(a). If plaintiff has more than one claim based upon separate transactions or 4 occurrences, the claims must be set forth in separate paragraphs. Fed. R. Civ. P. 10(b). 5 The federal rules contemplate brevity. See Galbraith v. County of Santa Clara, 307 F.3d 6 1119, 1125 (9th Cir. 2002) (noting that “nearly all of the circuits have now disapproved any 7 heightened pleading standard in cases other than those governed by Rule 9(b)”); Fed. R. Civ. P. 8 84; cf. Rule 9(b) (setting forth rare exceptions to simplified pleading). Plaintiff’s claims must be 9 set forth in short and plain terms, simply, concisely and directly. See Swierkiewicz v. Sorema 10 N.A., 534 U.S. 506, 514 (2002) (“Rule 8(a) is the starting point of a simplified pleading system, 11 which was adopted to focus litigation on the merits of a claim.”); Fed. R. Civ. P. 8. 12 An amended complaint must be complete in itself without reference to any prior pleading. 13 E.D. Cal. R. 220. Once plaintiff files an amended complaint, all prior pleadings are superseded. 14 Any amended complaint should contain all of the allegations related to her claim in this action. If 15 plaintiff wishes to pursue her claims against the defendant, they must be set forth in the amended 16 complaint. 17 By signing an amended complaint, plaintiff certifies she has made reasonable inquiry and 18 has evidentiary support for her allegations, and for violation of this rule the court may impose 19 sanctions sufficient to deter repetition by plaintiff or others. Fed. R. Civ. P. 11. 20 CONCLUSION 21 For the reasons set forth above, IT IS HEREBY ORDERED that: 22 1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 2) is granted. 23 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 24 is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 25 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order 26 to the Director of the California Department of Corrections and Rehabilitation filed 27 concurrently herewith. 28 3. Plaintiff’s complaint (ECF No. 1) is dismissed with leave to amend. 1 4. Plaintiff is granted thirty days from the date of service of this order to file an amended 2 complaint that complies with the requirements of the Civil Rights Act, the Federal 3 Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint 4 must bear the docket number assigned to this case and must be labeled “First 5 Amended Complaint.” 6 5. Failure to comply with this order will result in a recommendation that this action be 7 dismissed. 8 | Dated: October 31, 2023 9 10 ll ORAH BARNES UNITED STATES MAGISTRATE JUDGE 12 DB:15 pBvpp Prisoner Inbox/Civil Rights/S/jacq0346.sern 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28