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Gordon v. Welch


July 23, 2009


The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge


Screening Order

Plaintiff Jarrod Gordon is a state prisoner, proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action March 3, 2008. Plaintiff consented to jurisdiction of a U.S. Magistrate Judge on March 26, 2008.

I. Screening Requirement

The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the Court shall dismiss the case at any time if the Court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. §1915(e)(2)(B)(ii).

"Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions," none of which applies to § 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002); Fed. R. Civ. P. 8(a). Pursuant to Rule 8(a), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a). "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, supra, 534 U.S. at 512. A court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. Id. at 514. "'The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test.'" Jackson v. Carey, 353 F.3d 750, 755 (9th Cir. 2003), quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see also Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004) ("'Pleadings need suffice only to put the opposing party on notice of the claim . . . .'"), quoting Fontana v. Haskin, 262 F.3d 871, 977 (9th Cir. 2001). However, "the liberal pleading standard . . . applies only to a plaintiff's factual allegations." Neitzke v. Williams, 490 U.S. 319, 330 n. 9 (1989). "[A] liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled." Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997), quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

II. Plaintiff's Claim

A. Summary of Complaint

Plaintiff, who is presently incarcerated at the California Substance Abuse Treatment Facility ("SATF"), seeks monetary and injunctive relief for injuries (medical deterioration) experienced while he was briefly incarcerated at North Kern State Prison ("NKSP"). Plaintiff, an Americans with Disabilities Act inmate, is partially paralyzed as a result of a spinal gunshot wound incurred prior to his tenure at NKSP. A December 2006 Disability Placement Program Verification identified Plaintiff as mobility impaired, requiring a left leg brace, level terrain and no stairs, and a lower bunk. The examining physician noted Plaintiff's "antalgic gait"*fn1 and "poor tolerance for walking."

Nonetheless, upon arrival at NKSP on January 7, 2007, he was assigned an upper bunk. Climbing in and jumping out of bed caused severe back pain and numbness in his right foot. Although he was promised an accommodation, none was made for two months, allegedly due to overcrowding. Plaintiff's physical condition deteriorated.

Plaintiff names as defendants the correctional officers who threatened Plaintiff with disciplinary action if he refused to "lock up" in his assigned cell: Welch, Person, Huerra, Gorey, Bievlve, and Smallie. Although an unnamed "warden" is included in the caption, the complaint neither identifies, nor sets forth any claims against, the warden.

B. Eighth Amendment Claim: Deliberate Indifference to Serious Medical Need

Although the complaint does not identify a constitutional basis for Plaintiff's claim, Plaintiff appears to allege that the Defendants were deliberately indifferent to his serious medical needs, in violation of the Eighth Amendment.

"[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate must show 'deliberate indifference to serious medical needs.'" Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006), quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976). The two-part test for deliberate indifference requires the plaintiff to show (1) "'a serious medical need' by demonstrating that 'failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain,'" and (2) "the defendant's response to the need was deliberately indifferent." Jett, supra, 439 F.3d at 1096, quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc) (internal quotations omitted). Deliberate indifference is shown by "a purposeful act or failure to respond to a prisoner's pain or possible medical need, and harm caused by the indifference." Ibid. Deliberate indifference may be manifested "when prison officials deny, delay or intentionally interfere with medical treatment, or it may be shown by the way in which prison physicians provide medical care." Ibid. (internal quotations omitted). Where a prisoner is alleging a delay in receiving medical treatment, the delay must have led to further harm in order for the prisoner to make a claim of deliberate indifference to serious medical needs. McGuckin, supra, 974 F.2d at 1060, citing Shapely v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985).

Here, the correction department's own physician and health care manager recognized and documented Plaintiff's disability, granted him ADA status, and identified the accommodations necessary to address the disability. The required accommodations were relatively modest: level terrain, no stairs, a left leg brace, and assignment to a lower bunk. Nonetheless, the Defendants not only failed to provide the prescribed accommodations, they threatened Plaintiff with disciplinary action when he sought to demonstrate his need for a lower bunk. Accordingly, Plaintiff has set forth a cognizable claim for deliberate indifference to serious medical needs.

C. Claim Against Warden

Plaintiff includes the warden within the caption but fails to set forth his claim(s) against the warden in the body of his complaint. If Plaintiff elects to amend his complaint to set forth his claim(s) against the warden, as he is permitted to do by this order, Plaintiff is reminded that supervisory personnel are generally not liable under § 1983 for the actions of their employees under a theory of respondeat superior. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). For defendants in supervisory positions, a plaintiff must specifically allege a causal link between each defendant and his claimed constitutional violation. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978), cert. denied, 442 U.S. 941 (1979). To state a claim for relief for supervisory liability, Plaintiff must allege facts indicating that the warden either personally participated in the alleged deprivation of Plaintiff's constitutional rights, knew of the violations and failed to act to prevent them, or promulgated or "implemented a policy so deficient that the policy 'itself is a deprivation of constitutional rights' and is 'the moving force of the constitutional violation.'" Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989) (internal citations omitted); Taylor, supra, 880 F.2d at 1045. Because Plaintiff's complaint does not do so, it fails to state a cognizable claim against the warden.

III. Conclusion and Order

Plaintiff's complaint states a claim under the Eighth Amendment against Defendants Welch, Person, Huerra, Gorey, Bievlve, and Smallie for deliberate indifference to serious medical needs, but fails to establish a cause of action against the Defendant Warden. This Court will provide Plaintiff with the opportunity to file an amended complaint curing the deficiency identified in this order. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff may not change the nature of this suit by adding new, unrelated claims in his amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no "buckshot" complaints).

If Plaintiff does not wish to file an amended complaint and is agreeable to proceeding only on his claims against Defendants Welch, Person, Huerra, Gorey, Bievlve, and Smallie, Plaintiff may so notify the Court in writing, and the Court will issue a recommendation for dismissal from this action of Plaintiff's claim against Warden. The Court will then forward to Plaintiff six summonses and six USM-285 forms for completion and return. Upon receipt of the completed forms, the Court will direct the United States Marshal to initiate service of process on Defendants Welch, Person, Huerra, Gorey, Bievlve, and Smallie.

If Plaintiff elects to file an amended complaint, Plaintiff is advised that an amended complaint supercedes the original complaint, Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997), aff'd, 525 U.S. 299 (1999); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), and must be "complete in itself without reference to the prior or superceded pleading," Local Rule 15-220. Plaintiff is warned that "[a]ll causes of action alleged in an original complaint which are not alleged in an amended complaint are waived." King, supra, 814 F.2d at 567; accord Forsyth, supra, 114 F.3d at 1474.

Based on the foregoing, it is HEREBY ORDERED that:

1. Plaintiff's complaint fails to state a cause of action against Defendant Warden;

2. The Clerk's Office shall send Plaintiff a civil rights complaint form;

3. Within thirty (30) days from the date of service of this order, Plaintiff must either:

a. File an amended complaint curing the deficiencies identified by the Court in this order, or

b. Notify the Court in writing that he does not wish to file an amended complaint and wishes to proceed only against Defendants Welch, Person, Huerra, Gorey, Bievlve, and Smallie on his Eighth Amendment claim of deliberate indifference to serious medical needs;

4. If Plaintiff fails to comply with this order, this action will be dismissed for failure to obey a Court order.


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