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Allen Asjes v. Nksp Medical Cmo


March 12, 2013


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


I. Background

Plaintiff Allen Asjes ("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 action pursuant to 42 U.S.C. § 1983. On March 19, 2012, Plaintiff filed his Complaint in the Northern District of California. ECF No. 4. On June 28, 2012, the case was transferred to this Court.

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. Id. § 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." Id. § 1915(e)(2)(B)(ii). 2

A complaint must contain "a short and plain statement of the claim showing that the pleader 3 is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 4 "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, 5 do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 6 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a 7 claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). While factual 8 allegations are accepted as true, legal conclusions are not. Id. 9

II. Summary of Complaint

Plaintiff was incarcerated at North Kern State Prison ("NKSP") in Delano, California, and Wasco State Prison ("WSP") in Wasco, California, where the events giving rise to this action occurred. Plaintiff names as Defendants: NKSP medical chief medical officer; WSP medical chief medical officer; WSP doctor Sao; and WSP warden P. L. Vasquez.

Plaintiff alleges the following. In 2008, while incarcerated at NKSP, Plaintiff's skin tested as positive for tuberculosis ("TB"). Plaintiff was partially treated, and later removed from that treatment by the CDCR's CMO staff. Plaintiff was told to inform anyone who attempted a TB ppd*fn1 or treatment that Plaintiff was a TB 32.*fn2 Plaintiff was paroled in the community for 2 years until he was re-incarcerated. Plaintiff discovered that because of his partial TB treatment Plaintiff may have developed a type of TB that is either extremely resistant or incurable. Plaintiff was unaware of this information, putting greater Los Angeles, his friends, and his loved ones at risk for contracting his TB.

Plaintiff requests as relief: monetary damages, and treatment for his alleged TB. Plaintiff also requests a donation to TB education.

III. Analysis

A. Linkage and Rule 20 of the Federal Rules of Civil Procedure

Plaintiff names Defendants at both NKSP and WSP. Plaintiff however fails to make specific allegations against Defendants at WSP. To state a claim under § 1983, a plaintiff must allege that

(1) the defendant acted under color of state law and (2) the defendant deprived him of rights secured 2 by the Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 3 2006). Plaintiff makes no allegations regarding any Defendants at WSP. 4

Plaintiff's allegations are also in violation of Rule 20(a)(2) of the Federal Rules of Civil Procedure. Pursuant to Federal Rule of Civil Procedure 20(a), persons may be joined in one action as 6 defendants if any right to relief asserted against them arises out of the same transaction, occurrence, 7 or series of transactions and occurrences, and any question of law or fact common to all defendants 8 will arise in the action. See also George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) ("Unrelated 9 claims against unrelated defendants belong in different suits"). Plaintiff's allegations against NKSP Defendants are unrelated to his claims against WSP Defendants and are not permitted to proceed in the same action. Plaintiff is warned that if he again files a pleading containing unrelated claims against unrelated Defendants, the action will be dismissed for failure to obey a court order.

B. 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 2 risk.'" Id. (quoting Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)). 3

Plaintiff fails to state an Eighth Amendment claim against any Defendants. Plaintiff fails to 4 allege facts which demonstrate that any Defendant knew of and disregarded an excessive risk of 5 serious harm to Plaintiff's health. 6

C. Supervisory Liability

Plaintiff names the NKSP medical chief medical officer, WSP medical chief medical officer, and WSP warden P. L. Vasquez as Defendants. The term "supervisory liability," loosely and 9 commonly used by both courts and litigants alike, is a misnomer. Iqbal, 556 U.S. at 677. "Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior." Id. at 676. Rather, each government official, regardless of his or her title, is only liable for his or her own misconduct. Id. at 677. When the named defendant holds a supervisory 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 or knew of the violations and failed to act to prevent them. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Plaintiff alleges no facts which indicate that any supervisory Defendants personally participated in the alleged deprivation of constitutional rights or knew of violations and failed to act to prevent them.

IV. Conclusion and Order

Plaintiff fails to state any cognizable federal 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. See Iqbal, 556 U.S. at 678. Although accepted as true, the 2 "[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level . . . ." 3 Twombly, 550 U.S. at 555. 4

Finally, Plaintiff is advised that an amended complaint supersedes the original complaint, Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997) overruled in part on other grounds, 6 Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. Aug. 29, 2012) (en banc); King v. Atiyeh, 7 814 F.2d 565, 567 (9th Cir. 1987), and must be "complete in itself without reference to the prior or 8 superseded pleading," L. R. 220. 9

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 may not add any new, unrelated claims to this action via the first amended complaint and any attempt to do so may result in an order striking the first amended complaint; 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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