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Kenneth Pearson v. James A. Yates


August 2, 2011


The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge


Screening Order

I. Background

Plaintiff Kenneth Pearson ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action by filing his complaint on January 13, 2011.

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 incarcerated at Pleasant Valley State Prison ("PVSP") in Coalinga, California, where the events giving rise to this action occurred. Plaintiff names as Defendants: warden James A. Yates; chief medical officer Felix Ibginosa; physician's assistant Randolph Wilson, registered nurse M. Griffith, health care appeals coordinators Nesbitt and Martinez, and John Doe 1, a medical doctor, and 2 through 5, primary care office assistants.

Plaintiff alleges the following. Plaintiff was previously diagnosed with cocci infection stemming from valley fever. Plaintiff suffered numerous complications from the cocci infection, including pneumonia and bronchitis, from November 2009 to March 2010.

Plaintiff started to suffer pain and swelling in his lower back on March 5, 2010. Plaintiff met with Defendant Wilson on March 15, 2010. Plaintiff complained of his back pain, which had become severe and disabling, as well as swelling. Defendant Wilson did not diagnose the pain or swelling. Defendant Wilson noted occasional back pain and promised to refer him to Correctional Treatment Center (CTC), and prescribe pain medication. None was done.

On March 26, 2010, Plaintiff submitted a Health Care Services Request Form CDC 7362, complaining of his severe pain. On March 29, 2010, Plaintiff submitted a second CDC 7362, complaining that the severe pain inhibited his ability to eat or walk. Plaintiff had been referred for x-rays, but had yet to be seen by anyone. Defendant Griffith received the first CDC 7362, and responded to the second CDC 7362 by scheduling Plaintiff for the MD line on March 30, 2010. Plaintiff was later seen by Defendants Wilson and Doe 1, who ordered an x-ray, prescribed capsaicin, a topical cream for arthritis, and methcarbamol, a sedative for musculoskeletal pain. Plaintiff received no pain relief.

Plaintiff filed a CDC 602 inmate appeal on April 5, 2010, and a third CDC 7362 on April 8, 2010. On April 12, 2010, Defendant Griffith saw Plaintiff, noted a 15 by 10 centimeter growth near Plaintiff's spinal column, and scheduled an urgent MD line appointment within 24 hours. The appointment did not occur. On April 18, 2010, Plaintiff filed a second CDC 602, complaining of never receiving his MD line appointment. On April 19, 2010, Plaintiff was seen by Defendant Griffith who noted a 4 by 5 inch swollen area on his back, and sharp pain. Plaintiff was scheduled for MD line appointment again, but did not receive it.

On April 21, 2010, Plaintiff filed a third CDC 602 inmate appeal and another CDC 7362 form. Plaintiff also wrote letters to the Prison Law Office and to Clark Kelso. On April 26, 2010, the Prison Law Office contacted a deputy attorney general. Plaintiff was seen on April 29, 2010, by Defendant Wilson, who examined Plaintiff, prescribed Tylenol 3 for the pain, and transferred Plaintiff to Mercy medical center. Plaintiff was treated for over two and a half months for disseminated cocci and related abscess.

Plaintiff contends a violation of the Eighth Amendment. Plaintiff requests as relief compensatory and punitive damages, full medical coverage for life, and fees and costs of suit.

III. Analysis

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 contends that Defendants Wilson and Doe 1 showed deliberate indifference by failing to adequately examine Plaintiff. Pl.'s Compl. 10.*fn1 Plaintiff fails to state a § 1983 claim. Plaintiff's claims do not rise to the level of deliberate indifference. Plaintiff's claims amount at most to negligence. See Estelle v. Gamble, 429 U.S. 97, 106 (1976) ("Medical malpractice does not become a constitutional violation merely because the victim is a prisoner."); Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (holding that isolated occurrences of neglect do not constitute deliberate indifference to serious medical needs).

Plaintiff contends that Defendants Wilson and Doe 1 were deliberately indifferent f or failing to provide any pain medication between March 15 to March 30, and April 10 to April 29, and for failing to provide adequate pain medication between March 30 and April 9. Pl.'s Compl.

11. Plaintiff fails to state a § 1983 claim. Based on Plaintiff's allegations, Plaintiff was referred for an x-ray, and pain medication would be prescribed. Plaintiff then received pain medication. Though the pain medication was allegedly inadequate, Plaintiff's allegations do not demonstrate that Defendants Wilson and Doe 1 were deliberately indifferent. Again, Plaintiff's claims amount at most to negligence.

Plaintiff contends that Defendants Griffith and Does 2 through 5, demonstrated deliberate indifference by failing to schedule Plaintiff for the MD line on four separate occasions. Pl.'s Compl. 11. Plaintiff fails to state a § 1983 claim. Plaintiff's claims indicate that Defendant Griffith did schedule Plaintiff to be seen by a medical doctor within twenty-four hours. Defendant's actions were reasonable under the circumstances. Farmer, 511 U.S. at 844-45/ Plaintiff's pleadings do not demonstrate that Defendant Griffith disregarded an excessive risk of serious harm to Plaintiff's health.

Plaintiff contends that Defendants Nesbitt and Martinez were deliberately indifferent because they failed to implement and enforce an inmate medical appeals procedure that would have led to Plaintiff being seen in a timely manner. Pl.'s Compl. 11-12. Plaintiff fails to state a § 1983 claim. Defendants Nesbitt and Martinez interacted with Plaintiff through the administrative grievance process. There are no other allegations that demonstrate these Defendants knew of and disregarded an excessive risk of serious harm to Plaintiff.

Plaintiff contends that Defendant Igbinosa and Yates were deliberately indifferen by failing to provide adequate medical care, supervise or train their personnel, or correcting alleged systemic deficiencies in the medical services at PVSP. Pl.'s Compl. 12-13. Plaintiff fails to state a § 1983 claim. 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 fails to allege sufficient facts to demonstrate that either Defendants Igbinosa or Yates personally participated in the alleged deprivation of Plaintiff's constitutional rights, knew of constitutional violations and failed to act, or promulgated or implemented a policy that is the moving force of a constitutional violation.

IV. Conclusion And Order

Plaintiff fails to state any cognizable claims 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;

3. Plaintiff should not add new and unrelated claims to his amended complaint and any attempt to do so may result in the amended complaint being stricken; and

4. If Plaintiff fails to comply with this order, the Court will dismiss this action for failure to obey a court order and failure to state a claim.


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