UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
June 7, 2011
TREATMENT FACILITY AT CORCORAN, ET AL.,
The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER DISMISSING COMPLAINT FOR FAILURE TO STATE A CLAIM WITH LEAVE TO AMEND CALIFORNIA SUBSTANCE ABUSE (DOC. 1) RESPONSE DUE WITHIN THIRTY DAYS
Plaintiff James Bowell ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action by filing his complaint on December 15, 2010. Doc. 1.
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).
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)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id.
II. Summary Of Complaint
Plaintiff was previously incarcerated at California Substance Treatment Facility ("SATF") in Corcoran, California, and High Desert State Prison ("HDSP") in Susanville, California. Plaintiff names as Defendants: M. Ancheta, L. Metzler, R. Kifer, and M. J. Gaedke, dentists employed at SATF; V. Fanous, chief dentist at SATF; C. Lewis, dentist at HDSP; C. Hopson, supervising dentist at HDSP; R. J. Leo, chief dental officer at HDSP; T. Kimura, chief third level dentist manager, at CDCR in Sacramento; and J. Walker, associate deputy director of dental health services, at CDCR in Sacramento.
Plaintiff alleges the following. On May 25, 2008, defendant M. Ancheta wrongfully extracted a molar that could have been repaired in the community (presumably a reference to other dentists in the area).*fn1 The extraction of the molar took over thirty minutes. During the extraction, Defendant Ancheta knocked Plaintiff's front tooth loose by bumping it several times. The unnecessary molar extraction caused a number of problems, including Plaintiff being unable to eat on the left side of his mouth, the bite of his teeth being off, loss of weight from 170 to 140 pounds, left side of Plaintiff's neck becoming loose from lack of biting, damage to Plaintiff's jaw bone, and bone loss and pain. Pl.'s Compl. ¶¶ 5-7.
On January 18, 2008, Defendant Metzler stated that Plaintiff's molars could be repaired out in the community by a local dentist. Pl.'s Compl. ¶ 8.
On February 25, 2008, in response to Plaintiff's 602 inmate grievance, Defendant Gaedke stated that CDCR does not provide root canal treatment for posterior teeth, including Plaintiff's molar. Pl.'s Compl. ¶ 9.
On April 22, 2008, Defendant R. Kifer attempted to pull two teeth, stating that tooth No. 13 cannot be easily restored, and that SATF provides only a silver crown. Plaintiff found that to be unacceptable. Pl.'s Compl. ¶ 10.
On June 17, 2008, Defendant V. Fanous during an interview stated that Plaintiff will not be provided off-site dental care based on the Department Operations Manual. Pl.'s Compl. ¶ 11. Plaintiff was then transferred to HDSP, and his inmate grievance also followed. Pl.'s Compl. ¶12.
On December 17, 2008, Defendant C. Lewis stated that because Plaintiff refused to sign a liability release form for dental services, he would not repair Plaintiff's teeth. Pl.'s Compl. ¶ 13. On February 20, 2009, Defendant C. Hopson affirmed Defendant C. Lewis's decision, denying Plaintiff's request for offsite dental services and cosmetic bonding. Pl.'s Compl. ¶ 14. On December 22, 2008, and March 9, 2009, Defendant R. J. Leo affirmed the denial of Plaintiff's requests. Pl.'s Compl. ¶ 15.
On October 30, 2009, Defendant T. Kimura at the Director's level ruled against Plaintiff in the inmate appeal process, finding that Plaintiff was receiving treatment that was medically necessary. Pl.'s Compl. ¶ 16. On February 9, 2010, Defendant J. Walker ruled against Plaintiff, affirming the lower level responses to Plaintiff's inmate appeals. Pl.'s Compl. ¶ 17.*fn2
Plaintiff alleges violations of the Eighth, Ninth, and Fourteenth Amendments, as well as dental malpractice. Plaintiff requests as relief declaratory judgment and monetary damages. /// ///
A. Ninth Amendment
The Ninth Amendment states, "[t]he enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." The Ninth Amendment has never been recognized as "independently securing any constitutional right, for purposes of pursuing a civil rights claim." See Strandberg v. Helena, 791 F.2d 744, 748 (9th Cir. 1986). Plaintiff fails to state a claim under the Ninth Amendment.
B. Fourteenth Amendment
The Fourteenth Amendment prohibits deprivation of liberty without due process of law. U.S. Const. amend. XIV, § 1. "[W]here a particular amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing a plaintiff's claims." Patel v. Penman, 103 F.3d 850, 874 (9th Cir. 1996) (citations, internal quotations, and brackets omitted). Here, the Eighth Amendment, and not the more generalized notion of due process, is the explicit textual source of Plaintiff's constitutional protection. Thus, Plaintiff's Fourteenth Amendment claims will be denied.
C. Eighth Amendment
The Eighth Amendment prohibits cruel and unusual punishment. "The Constitution does not mandate comfortable prisons." Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quotation and citation omitted). A prisoner's claim of inadequate medical care does not rise to the level of an Eighth Amendment violation unless (1) "the prison official deprived the prisoner of the 'minimal civilized measure of life's necessities,'" and (2) "the prison official 'acted with deliberate indifference in doing so.'" Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (quoting Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) (citation omitted)). The deliberate indifference standard involves an objective and a subjective prong. First, the alleged deprivation must be, in objective terms, "sufficiently serious . . . ." Farmer, 511 U.S. at 834 (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)). Second, the prison official must "know of and disregard an excessive risk to inmate health or safety . . . ." Id. at 837.
"Deliberate indifference is a high legal standard." Toguchi, 391 F.3d at 1060. "Under this standard, the prison official must not only 'be aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists,' but that person 'must also draw the inference.'" Id. at 1057 (quoting Farmer, 511 U.S. at 837). "'If a prison official should have been aware of the risk, but was not, then the official has not violated the Eighth Amendment, no matter how severe the risk.'" Id. (quoting Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)).
Plaintiff fails to state a claim against Defendant Ancheta. Plaintiff alleges insufficient facts to indicate that Defendant Ancheta knew of and disregarded an excessive risk to Plaintiff's health. Plaintiff's allegations amount at most to negligence, which fails to state an Eighth Amendment claim. Estelle v. Gamble, 429 U.S. 97, 106 (1976).
Plaintiff fails to state a claim against Defendant Metzler. It is unclear what the serious harm is. Even if Plaintiff had sufficiently alleged a serious harm, Plaintiff's allegations amount at most to a difference of opinion between the Plaintiff and the dentist concerning the appropriate course of treatment, which does not rise to the level of deliberate indifference to a serious medical need. Toguchi, 391 F.3d at 1058; Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996). Plaintiff also fails to state a claim against Defendants Gaeke and R. Kifer, for the same reason as Defendant Metzler.
Plaintiff fails to state a claim against Defendant Lewis. Again, it is unclear what the serious harm is. Plaintiff's allegations indicate that he refused treatment, which fails to demonstrate that Defendant Lewis disregarded an excessive risk to Plaintiff's health. Farmer, 511 U.S. at 837. Isolated incidents of neglect do not constitute deliberate indifference. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006).
Plaintiff fails to state a claim against Defendants Vanous, Hopson, and Leo. Prisoners have no right to outside medical care to supplement the medical care provided by the prison. Roberts v. Spalding, 783 F.2d 867, 870 (9th Cir. 1986).
Plaintiff fails to state a claim against Defendants Kimura and Walker. Based on the submitted exhibits incorporated into Plaintiff's complaint, Plaintiff was provided medically necessary treatment. Again, Plaintiff's allegations amount at most to a difference of opinion between the Plaintiff and the dentist concerning the appropriate course of treatment, which does not rise to the level of deliberate indifference to a serious medical need. Toguchi, 391 F.3d at 1058. Plaintiff's claims appear to arise solely from their actions in denying his appeal, which fails to state a claim, as prisoners has no due process right to a specific inmate grievance procedure. Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988)).
D. Supervisory Liability
The Supreme Court recently emphasized that the term "supervisory liability," loosely and commonly used by both courts and litigants alike, is a misnomer. Iqbal, 129 S. Ct. at 1949. "Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior." Id. at 1948. Rather, each government official, regardless of his or her title, is only liable for his or her own misconduct.
When the named defendant holds a supervisorial position, the causal link between the defendant and the claimed constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). To state a claim for relief under § 1983 for supervisory liability, plaintiff must allege some facts indicating that the defendant either: personally participated in the alleged deprivation of 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 repudiation 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 v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).
Here, Plaintiff names Defendants Vanous, Hopson, Leo, Kimura, and Walker, all of whom have supervisory positions. Plaintiff fails to demonstrate that any of these Defendants personally participated in the deprivation of constitutional rights, knew of constitutional violations and failed to act to prevent them, or promulgated or implemented a policy that violated Plaintiff's constitutional rights. Hansen, 885 F.2d at 646; Taylor, 880 F.2d at 1045.*fn3
E. State Law Claims and Supplemental Jurisdiction
Plaintiff alleges dental malpractice by Defendants. Because Plaintiff has failed to allege any cognizable federal claims, the Court declines to exercise supplemental jurisdiction over any state law claims. 28 U.S.C. § 1367(c)(3).
IV. Conclusion And Order
Plaintiff's complaint is dismissed for failure to state a claim against any Defendants. The Court will provide Plaintiff with an opportunity to file a first amended complaint curing the deficiencies identified by the Court 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 decides to amend, Plaintiff's amended complaint should be brief, Fed. R. Civ. P. 8(a), but must state what each named defendant did that led to the deprivation of Plaintiff's constitutional or other federal rights. Iqbal, 129 S. Ct. at 1949. Although accepted as true, the "[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level . . . ." Twombly, 550 U.S. at 555.
Finally, Plaintiff is advised that an amended complaint supersedes the original complaint, Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), and must be "complete in itself without reference to the prior or superseded pleading," L. R. 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, 814 F.2d at 567 (citing to London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981)); accord Forsyth, 114 F.3d at 1474.
Accordingly, based on the foregoing, it is HEREBY ORDERED that:
1. The Clerk's Office shall send Plaintiff a complaint form;
2. Plaintiff's complaint is dismissed for failure to state a claim, with leave to file a first amended complaint within thirty (30) days from the date of service of this order; and
3. If Plaintiff fails to comply with this order, the Court will recommend dismissal of this action for failure to obey a court order and failure to state a claim.
IT IS SO ORDERED.