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Carlos Alvarez v. James A. Yates


July 29, 2011


The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge




On December 10, 2009, Plaintiff Carlos Alvarez, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. (ECF No. 1). Plaintiff has consented to Magistrate jurisdiction. (ECF No. 6). Plaintiff's Complaint is before the Court for screening.


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, malicious," or 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).

Section 1983 "provides a cause of action for the 'deprivation of any rights, privileges, or immunities secured by the Constitution and laws' of the United States." Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989).

To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated and (2) that the alleged violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987).

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 Atlantic 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.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). Facial plausibility demands more than the mere possibility that a defendant committed misconduct and, while factual allegations are accepted as true, legal conclusions are not. Id. at 1949-50.


The Complaint identifies the following Corcoran State Prison officials as defendants in this action: Doctor Neubarth, Family Nurse Practitioner Saipher, and Warden James A. Yates. Doctor Duenas and the entire medical staff at Pleasant Valley State Prison are also named Defendants. Plaintiff alleges the following in the body of the Complaint:

On September 30, 2005, Plaintiff slipped and injured himself as a result of unsanitary and poor housing conditions at Chino State Prison. (Compl. at 9, 10). Plaintiff's injuries were not addressed at Chino. (Compl. at 10). On October 12, 2005, Plaintiff was transferred to Corcoran. (Compl. at 12).

In February 2006, Plaintiff saw Defendant Neubarth for treatment of pain he was experiencing from the Chino fall. Defendant Neubarth ordered an MRI; it was completed on April 6, 2006. (Compl. at 12). On April 19, 2006, Defendant Neubarth advised Plaintiff that a specialist was needed to treat Plainitff's knee. (Id.) Defendant Neubarth prescribed ibuprofen but did not otherwise treat Plaintiff. (Compl. at10).

Plaintiff is a Spanish speaker who does not communicate well in English. (Id.) Although no interpreter was requested, Plaintiff alleges that one should have been provided during their April 19, 2006 appointment because Defendant Neubarth was aware that he was not communicating well with Plaintiff. (Id.)

At some point, Plaintiff encountered Defendant Saipher, who was informed of Plaintiff's knee pain. Defendant Saipher recommended that Plaintiff bring up his concerns with the specialist during Plaintiff's scheduled appointment for back pain. (Id.) Plaintiff alleges that Defendant Saipher should have issued a referral to the specialist specifically for his knee. (Id.)

As of the filing of his Complaint, Plaintiff alleged that he had not been treated further and not been updated as to the progress of his treatment. (Compl. at 12). The only specialist he has seen was "VIA-TELE-MEDICINE", and he never received medication that specialist prescribed. (Compl. at 10). Plaintiff alleges that his pain is a serious medical need and that the aforementioned conduct on the part of the Defendants constitutes deliberate indifference towards that serious need.

Attached*fn1 to the Complaint are thirty-seven pages of prison appeal and medical records. These documents show:

Plaintiff has actually been treated several times since his April 19, 2006 appointment with Defendant Neubarth. He was seen by a specialist on September 13, 2006, but declined recommended surgery. Accordingly, the Specialist prescribed a knee brace and Motrin. (Compl. at 13 and 16). On or about November 4, 2006, Plaintiff requested a second MRI. (Compl. at 27). It was conducted on March 1, 2007. (Compl. at 18). The records show that by July 31, 2007, officials at Corcoran were providing Plaintiff with accommodations which included a cane, lower bunk, and a floor cell because of his pain. (Compl. at 23, 24). More accommodations followed in June and November of 2008. (Compl. at 25 and 45). Plaintiff again declined surgery on August 22, 2007 (Compl. at 17). Eventually he was treated with lumbar epidural steroid injections. (Compl. at 21, 22, 26, 31-33, 36, 42). A copy of an appeal decision, dated June 12, 2007, indicates that a Spanish speaking interpreter was present at Plaintiff's March 13, 2007 appointment with Defendant Saipher. (Compl. at 13). As of March 12, 2009, Plaintiff was receiving no fewer than five different medications. (Compl. at40).

The Court will address, below, Plaintiff's claim that Defendants were deliberately indifferent to his serious medical need in violation of his Eighth Amendment rights.

A. Section 1983 Linkage Requirement

Under § 1983, Plaintiff must demonstrate that each defendant personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 129 S.Ct. at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Id.

The statute clearly requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by the plaintiff. See Monell v. Department of Social Services, 436 U.S. 658 (1978). Government officials may not be held liable for the actions of their subordinates under a theory of respondeat superior. Iqbal, 129 S.Ct. at 1948. Since a government official cannot be held liable under a theory of vicarious liability in § 1983 actions, Plaintiff must plead sufficient facts showing that the official has violated the Constitution through his own individual actions. Id. at 1948. In other words, to state a claim for relief under § 1983, Plaintiff must link each named defendant with some affirmative act or omission that demonstrates a violation of Plaintiff's federal rights.

Aside from naming them as Defendants, the Complaint makes no mention of Warden Yates, Doctor Duenas, or any of the medical staff at Pleasant Valley State Prison. Plaintiff alleges no facts to illustrate how these named Defendants might be connected to the alleged violations. A defendant in a § 1983 action must be linked to the alleged violation with some affirmative act or omission.

The Court will grant Plaintiff leave to amend his complaint in this regard. In order to state a claim against these Defendants, Plaintiff needs to set forth sufficient truthful facts showing that each personally took some action that violated his constitutional rights. The mere fact that they may have supervised the individuals responsible for a violation is not enough. If Plaintiff is unable truthfully to set forth such facts, he should not attempt to pursue his claim against such Defendants.

B. Inadequate Medical Care

Plaintiff claims that he received inadequate medical care 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, 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 (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." Jett, 439 F.3d at 1096 (citing McGuckin, 974 F.2d at 1060). In order to state a claim for violation of the Eighth Amendment, a plaintiff must allege sufficient facts to support a claim that the named defendants "[knew] of and disregard[ed] an excessive risk to [Plaintiff's] health . . . ." Farmer v. Brennan, 511 U.S. 825, 837 (1994).

Plaintiff was diagnosed with knee and back injuries. An MRI and an orthopedic specialist determined that the knee injury warranted surgical treatment. Another physician actually treated Plaintiff's back injury with an invasive outpatient procedure. The Court finds Plaintiff's injuries to be a serious medical condition that satisfies the first element of his Eighth Amendment claim. See McGuckin, 974 F.2d at 1059-60 ("The existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain are examples of indications that a prisoner has a 'serious' need for medical treatment.")

Plaintiff has failed to satisfy the second prong of the Eighth Amendment analysis. To establish an Eighth Amendment claim based on inadequate or non-existent medical care, Plaintiff must allege that the Defendants exhibited deliberate indifference to his serious medical need. The Complaint attempts to establish deliberate indifference based on the following allegations: that (1) Plaintiff has not received medical care since April 19, 2006; (2) Defendant Neubarth's treatment of ibuprofen was inadequate; (3) Defendant Neubarth did not provide an interpreter; and (4) that Defendant Saipher should have directly referred Plaintiff to a specialist.

The records attached to the Complaint clearly contradict the allegation that Plaintiff has gone without medical care since his appointment with Defendant Neubarth on April 19, 2006.*fn2 Plaintiff has seen an orthopedic specialist and has denied surgical treatment twice, an MRI and an invasive outpatient procedure were conducted, prescriptions have been ordered and filled, and Corcoran officials have made efforts to accommodate Plaintiff's injuries. Based on the fact that Plaintiff's medical records refute his contention that he went without medical care after April 19, 2006, the Court will not grant Plaintiff leave to amend this claim.

Plaintiff also fails to establish deliberate indifference based on Defendant Neubarth's prescribing ibuprofen as pain relief. To state a claim based on the course of treatment provided, Plaintiff "must show that the course of treatment the doctors chose was medically unacceptable under the circumstances, . . . and the plaintiff must show that they chose this course in conscious disregard of an excessive risk to plaintiff's health." Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996). Plaintiff's Complaint fails to satisfy either of these requirements. The Court will grant Plaintiff leave to amend this claim. In order to state a claim based on the course of treatment selected, Plaintiff must allege that the Defendant chose a medically unacceptable course of treatment in conscious disregard of an excessive risk to Plaintiff's health.

The Complaint alleges that Defendant Neubarth's failure to have an interpreter present at the April 19, 2006, appointment violated the Plaintiff's Eighth Amendment rights. There are no facts to indicate that Defendant Neubarth was aware of the risk that the Plaintiff could not effectively communicate during the April 19, 2006, appointment. It is unclear whether Plaintiff requested an interpreter. The Complaint states "Doctor Neubarth was aware that 'I Spoke SPANISH', understood very little ENGLISH & that 'OUR COMMUNICATION WAS POOR'; at this point an 'Interpreter should have been introduced without me having to request one.'" These allegations at most suggest a claim that Defendant Neubarth should have known that an interpreter was necessary. The supporting factual allegations are insufficient to meet the pleading standard. Plaintiff must provide enough factual allegations to make the claim plausible. While it is possible Defendant Neubarth knew or should have known of a risk that Plaintiff did not understand him, the allegations and prison records reflect that the Defendant understood Plaintiff well and prescribed surgery for him and that Plaintiff later, after consulting with a specialist, declined that surgery. Given those facts, Plaintiff's claim is not sufficiently plausible to satisfy the pleading standard. See McAllister v. Gunja, 2010 WL 2773085, *6 (E.D. Cal. July 13, 2010) ("It is clear under Iqbal that the rules for pleading are not so lenient as to allow Plaintiff to proceed on his claim without pleading additional facts that pushes his claims across the line between possibility and plausibility of entitlement to relief."). The Court will grant Plaintiff leave to amend. In order to state a claim, Plaintiff must plead additional truthful facts demonstrating that Plaintiff's alleged need for an interpreter was a serious medical need and that the Defendant consciously disregarded that need.

Finally, the Court cannot discern how Defendant Saipher's alleged conduct could be found to amount to a constitutional violation. There are no facts to indicate that Plaintiff was put at risk by being directed to ask a specialist about his knee during a back appointment rather than at a separate appointment. In fact, it seems likely that asking the specialist about a related injury during an already-scheduled appointment would result in Plaintiff being seen sooner than if he had to schedule a new and different appointment. There is also no indication that Defendant Saipher was authorized to make such referrals. Relying on the few facts plead by Plaintiff against Defendant Saipher, the Court does not recognize a cognizable Eighth Amendment claim. The Court will grant Plaintiff leave to amend. In order to state a claim against Defendant Saipher, it must be alleged that the Defendant consciously disregarded an excessive risk to Plaintiff's health.


Plaintiff's Complaint does not state a claim for relief under section 1983. The Court will grant Plaintiff an opportunity to file an amended complaint. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). If Plaintiff opts to amend, he must demonstrate that the alleged acts resulted in a deprivation of his constitutional rights. Iqbal, 129 S.Ct. at 1948-49. Plaintiff must set forth "sufficient factual matter . . . to 'state a claim that is plausible on its face.'" Id. at 1949 (quoting Twombly, 550 U.S. at 555 (2007)). Plaintiff must also demonstrate that each named Defendant personally participated in a deprivation of his rights. Jones, 297 F.3d at 934.

Plaintiff should note that although he has been given the opportunity to amend, it is not for the purposes of adding new claims. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Plaintiff should carefully read this Screening Order and focus his efforts on curing the deficiencies set forth above.

Finally, Plaintiff is advised that Local Rule 220 requires that an amended complaint be complete in itself without reference to any prior pleading. As a general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once an amended complaint is filed, the original complaint no longer serves any function in the case. Therefore, in an amended complaint, as in an original complaint, each claim and the involvement of each defendant must be sufficiently alleged. The amended complaint should be clearly and boldly titled "First Amended Complaint," refer to the appropriate case number, and be an original signed under penalty of perjury. Plaintiff's amended complaint should be brief. Fed. R. Civ. P. 8(a). 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 (citations omitted).

Accordingly, it is HEREBY RECOMMENDED that: 1. The Clerk's Office shall send Plaintiff (1) a blank civil rights complaint form and (2) a copy of his Complaint, filed December 10, 2009;

2. Plaintiff's complaint is dismissed for failure to state a claim upon which relief may be granted;

3. Plaintiff shall file an amended complaint by September 6, 2011; and

4. If Plaintiff fails to file an amended complaint in compliance with this order, this action will be dismissed, with prejudice, for failure to state a claim and failure to prosecute.


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