(PC) Chambers v. Covello ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHRISTOPHER CHAMBERS, No. 2:23-cv-02025 DB P 12 Plaintiff, 13 v. ORDER 14 PATRICK COVELLO, et al., 15 Defendants. 16 17 Plaintiff Christopher Chambers proceeds without counsel and seeks relief under 42 U.S.C. 18 § 1983. This matter was referred to the undersigned by Local Rule 302. See 28 U.S.C. § 19 636(b)(1). Plaintiff’s complaint and motion to proceed in forma pauperis are before the court. The 20 complaint fails to state a claim, but plaintiff is granted leave to file an amended complaint within 21 30 days of the date of this order. 22 I. In Forma Pauperis 23 Plaintiff seeks to proceed in forma pauperis. (ECF Nos. 2, 7.) The declaration makes the 24 showing required by 28 U.S.C. § 1915(a). Leave to proceed in forma pauperis is granted. By 25 separate order, plaintiff will be assessed an initial partial filing fee in accordance with the 26 provisions of 28 U.S.C. § 1915(b)(1). The order will direct the appropriate agency to collect the 27 initial partial filing fee from plaintiff’s trust account and forward it to the Clerk of the Court. 28 Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding 1 month’s income credited to plaintiff’s prison trust account. These payments will be forwarded by 2 the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s account 3 exceeds $10.00 until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2). 4 II. Screening Requirement 5 Pursuant to 28 U.S.C. § 1915(e), the court must screen every in forma pauperis 6 proceeding, and mut order dismissal of the case if it is “frivolous or malicious,” “fails to state a 7 claim on which relief may be granted,” or “seeks monetary relief against a defendant who is 8 immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); Lopez v. Smith, 203 F.3d 1122, 1126-27 9 (2000). A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 10 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 11 Cir. 1984). The court may dismiss a claim as frivolous if it is based on an indisputably meritless 12 legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. 13 Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a short and plain statement 14 of the claim that shows the pleader is entitled to relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 15 544, 555 (2007). In order to state a cognizable claim, a complaint must contain more than “a 16 formulaic recitation of the elements of a cause of action;” it must contain factual allegations 17 sufficient “to raise a right to relief above the speculative level.” Id., 550 U.S. at 555. The facts 18 alleged must “‘give the defendant fair notice of what the... claim is and the grounds upon which it 19 rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Twombly, 550 U.S. at 555). In 20 reviewing a complaint under this standard, the court accepts as true the allegations of the 21 complaint and construes the pleading in the light most favorable to the plaintiff. See id.; Scheuer 22 v. Rhodes, 416 U.S. 232, 236 (1974). 23 III. Plaintiff’s Allegations 24 Plaintiff’s complaint describes three incidents that took place while plaintiff was 25 incarcerated at Mule Creek State Prison. (ECF No. 1 at 1.) Through this action, plaintiff seeks 26 monetary damages. (Id. at 8.) 27 On August 2, 2023, plaintiff was on outpatient medical transport. (ECF No. 1 at 5.) When 28 he got up to throw away trash in the front of the bus, his leg shackles got caught in a large black 1 hook on the floor for wheelchair seatbelts which had not been safely packed away by defendants 2 Batson and Smith. (Id.) Plaintiff fell forward and injured his ankle. (Id.) 3 On Saturday June 17, 2023, inmate Nelson came to plaintiff’s cell. (ECF No. 1 at 6.) 4 Inmate Nelson had threatened plaintiff many times previously in the presence of correctional 5 staff. (Id.) Plaintiff yelled for help, but defendants Baillie and John Doe did not respond 6 immediately. (Id.) As a result, plaintiff was assaulted and injured. (Id.) 7 On or about January 17, 2023, against plaintiff’s protests, Dr. Nguyen, Psychiatrist, 8 abruptly removed plaintiff from Wellbutrin without “stepping him down” as CDCR medical 9 policy requires. (ECF No. 1 at 7.) Plaintiff suffered serious withdrawal symptoms. (Id.) 10 IV. Discussion 11 A. Legal Standards for Civil Rights Claims under 42 U.S.C. § 1983 12 A plaintiff may bring an action under 42 U.S.C. § 1983 to redress violations of “rights, 13 privileges, or immunities secured by the Constitution and [federal] laws” by a person or entity, 14 including a municipality, acting under the color of state law. 42 U.S.C. § 1983. To state a claim 15 under 42 U.S.C. § 1983, a plaintiff must show (1) the defendant committed the alleged conduct 16 while acting under color of state law; and (2) the plaintiff was deprived of a constitutional right as 17 a result of the defendant’s conduct. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 18 1988). The current allegations fail to plausibly allege a constitutional violation. 19 First, plaintiff alleges defendants Batson and Smith failed to use the standard of care 20 necessary to ensure his safety with regard to the wheelchair seatbelts and their selection of the 21 wheelchair bus. (ECF No. 1 at 5.) However, negligence, and even gross negligence, does not rise 22 to the level of a constitutional violation. See Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 23 1990). In order to state a claim under the Eighth Amendment, plaintiff must allege facts plausibly 24 showing the defendants were deliberately indifferent to his health or safety. See Farmer v. 25 Brennan, 511 U.S. 825, 834 (1994); Hearns v. Terhune, 413 F.3d 1036, 1042 (9th Cir. 2005). A 26 violation of the standard of care does not suffice to state a claim under the Eighth Amendment in 27 connection with plaintiff’s fall in the transport bus. 28 //// 1 Second, the allegations fall short of plausibly showing a violation under the Eighth 2 Amendment by defendants Baillie and Doe. The failure of prison officials to protect inmates from 3 attacks by other inmates may rise to the level of an Eighth Amendment violation where prison 4 officials know of and disregard a substantial risk of serious harm to the plaintiff. See Farmer, 511 5 U.S. at 847; Hearns, 413 F.3d at 1040. Here, the allegations that plaintiff had been threatened 6 many times previously in the presence of correctional staff are not sufficient to plausibly show 7 defendants Baillie and Doe knew about a substantial risk of harm to plaintiff’s health or safety 8 which they disregarded. See Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986) (a prison 9 official need not “believe to a moral certainty” that an inmate is at risk of harm “before [being 10 constitutionally] obligated to take steps to prevent such an assault,” but “must have more than a 11 mere suspicion that an attack will occur”) (citation omitted). “[S]peculative and generalized fears 12 of harm at the hands of other prisoners do not rise to a sufficiently substantial risk of serious harm 13 to [an inmate’s] future health.” Williams v. Wood, 223 F. App’x 670, 671 (9th Cir. 2007) 14 (citation omitted). 15 Finally, the complaint’s allegations do not state a claim based on Dr. Nguyen’s decision to 16 stop plaintiff’s Wellbutrin. The complaint lacks facts plausibly showing Dr. Nguyen chose a 17 course of treatment that was “medically unacceptable under the circumstances” in “conscious 18 disregard of an excessive risk to [plaintiff’s] health.” Toguchi v. Chung, 391 F.3d 1051, 1058 (9th 19 Cir. 2004) (citing Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996)). In other words, there 20 are no allegations from which the court could infer that defendant was subjectively aware of a 21 risk of serious harm to plaintiff. See Toguchi, 391 F.3d at 1057. A difference of opinion between 22 plaintiff and his medical provider concerning the appropriate course of treatment does not give 23 rise to an Eighth Amendment claim). See Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) 24 (overruled in part on other grounds by Peralta v. Dillard, 744 F.3d 1076 (9th Cir. 2014)). 25 Negligence in treating a medical condition does not give rise to a claim under the Eighth 26 Amendment. See Estelle v. Gamble, 429 U.S. 97, 106 (1976). The complaint’s allegations reflect 27 no more than a mere disagreement between petitioner and Dr. Nguyen over plaintiff’s Wellbutrin 28 prescription, which is not actionable. 1 V. Conclusion and Order 2 Plaintiff’s complaint does not state any cognizable claims, but plaintiff is granted leave to 3 file an amended complaint. See Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). This 4 opportunity to amend is not for the purpose of adding new and unrelated claims. Plaintiff should 5 focus on curing the deficiencies in the potential claims already presented. If plaintiff chooses to 6 file an amended complaint, it should be titled “first amended complaint” and must state what each 7 named defendant did that led to the deprivation of constitutional rights. See Ashcroft v. Iqbal, 556 8 U.S. 662, 676-77 (2009). An amended complaint supersedes the prior complaint, see Loux v. 9 Rhay, 375 F.2d 55, 57 (9th Cir. 1967), and must be “complete in itself without reference to the 10 prior or superseded pleading,” E.D. Cal. Local Rule 220. 11 In the alternative, plaintiff may notify the court he wishes to stand on the complaint as it is 12 currently pleaded. See Edwards v. Marin Park, Inc., 356 F.3d 1058, 1064-65 (9th Cir. 2004). If 13 plaintiff chooses this option, the undersigned will issue findings and recommendations to dismiss 14 the complaint without further leave to amend, after which plaintiff will be granted an opportunity 15 to file objections, and a district judge will assigned to the case to determine whether the complaint 16 states a cognizable claim. In the further alternative, if plaintiff does not wish to pursue these 17 claims further, plaintiff may file a notice of voluntary dismissal, which will terminate this action 18 by operation of law. 19 VI. Order 20 In accordance with the above, IT IS HEREBY ORDERED as follows: 21 1. Plaintiff’s request to proceed in forma pauperis (ECF Nos. 2, 7) is GRANTED. 22 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action as set forth 23 by separate order. 24 3. The Clerk’s Office shall send plaintiff a blank civil rights complaint form. 25 4. Within thirty days from the date of service of this order, plaintiff must file one of the 26 following: 27 //// 28 //// 1 a. An amended complaint curing the deficiencies identified in this order; 2 b. A notice of election to stand on the complaint as filed; or 3 c. A notice of voluntary dismissal. 4 5. Failure to respond to this order will result in a recommendation that this action be 5 | dismissed for failure to obey a court order and failure to prosecute. 6 | Dated: May 29, 2024 7 8 9 ORAH BARNES DLB7 UNITED STATES MAGISTRATE JUDGE 10 || cham2025.sern 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28