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Kemper v. Crosson

United States District Court, E.D. California

August 15, 2014

WINSTON KEMPER, Plaintiff,
v.
CROSSON, et al., Defendants.

ORDER

KENDALL J. NEWMAN, Magistrate Judge.

Plaintiff is a state prisoner proceeding without counsel. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). Plaintiff consented to proceed before the undersigned for all purposes. See 28 U.S.C. § 636(c).

By order filed July 24, 2014, the instant action was dismissed based on plaintiff's failure to pay the filing fee. On August 8, 2014, plaintiff filed a motion for reconsideration, based on his payment of the filing fee to the United States District Court for the Northern District of California. Plaintiff provided copies of his notice from the Northern District, as well as a copy of his trust account statement reflecting payment of the balance due. Good cause appearing, the order and judgment are vacated, and the court will now screen plaintiff's complaint.

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).

A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams , 490 U.S. 319, 325 (1989); Franklin v. Murphy , 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke , 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona , 885 F.2d 639, 640 (9th Cir. 1989), superseded by statute as stated in Lopez v. Smith , 203 F.3d 1122, 1130-31 (9th Cir. 2000) ("a judge may dismiss [in forma pauperis] claims which are based on indisputably meritless legal theories or whose factual contentions are clearly baseless."); Franklin , 745 F.2d at 1227.

Rule 8(a)(2) of the Federal Rules of Civil Procedure "requires only a short and plain statement of the claim showing that the pleader is entitled to relief, ' in order to give the defendant fair notice of what the... claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson , 355 U.S. 41, 47 (1957)). In order to survive dismissal for failure to state a claim, a complaint must contain more than "a formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic , 550 U.S. at 555. However, "[s]pecific facts are not necessary; the statement [of facts] need only give the defendant fair notice of what the... claim is and the grounds upon which it rests.'" Erickson v. Pardus , 551 U.S. 89, 93 (2007) (quoting Bell Atlantic , 550 U.S. at 555, citations and internal quotations marks omitted). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Erickson , 551 U.S. at 93, and construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes , 416 U.S. 232, 236 (1974), overruled on other grounds, Davis v. Scherer , 468 U.S. 183 (1984).

The Civil Rights Act under which this action was filed provides as follows:

Every person who, under color of [state law]... subjects, or causes to be subjected, any citizen of the United States... to the deprivation of any rights, privileges, or immunities secured by the Constitution... shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See Monell v. Department of Social Servs. , 436 U.S. 658 (1978) ("Congress did not intend § 1983 liability to attach where... causation [is] absent."); Rizzo v. Goode , 423 U.S. 362 (1976) (no affirmative link between the incidents of police misconduct and the adoption of any plan or policy demonstrating their authorization or approval of such misconduct). "A person subjects' another to the deprivation of a constitutional right, within the meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made." Johnson v. Duffy , 588 F.2d 740, 743 (9th Cir. 1978).

Moreover, supervisory personnel are generally not liable under § 1983 for the actions of their employees under a theory of respondeat superior and, therefore, when a named defendant holds a supervisorial position, the causal link between him and the claimed constitutional violation must be specifically alleged. See Fayle v. Stapley , 607 F.2d 858, 862 (9th Cir. 1979) (no liability where there is no allegation of personal participation); Mosher v. Saalfeld , 589 F.2d 438, 441 (9th Cir. 1978) (no liability where there is no evidence of personal participation), cert. denied, 442 U.S. 941 (1979). Vague and conclusory allegations concerning the involvement of official personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents , 673 F.2d 266, 268 (9th Cir. 1982) (complaint devoid of specific factual allegations of personal participation is insufficient).

In his complaint, plaintiff alleges that he did not request to see an eye doctor, but found out he was referred to Dr. Crosson by Dr. Pie around December of 2012. Plaintiff states that an unidentified procedure was done to his eyes, and that he was told nothing regarding the damage to his eyes, but that he suffers painful eyes, red and dry eyes, and "diminished vision in the future." (ECF No. 1 at 3.) Plaintiff claims he was "mysteriously moved from Dr. Pie core [sic] to another unit." (Id.) Plaintiff seeks one million dollars in damages for pain and suffering and possible future diminished vision. (Id.)

However, plaintiff provided a copy of an informed consent form, signed by plaintiff on February 12, 2013. (ECF No. 1 at 7.) The form states that physician Dr. Crosson recommended that plaintiff be provided the following procedure: "laser openings to prevent high eye pressure attach both eyes." (ECF No. 1 at 7.) The consent form explained that the procedure "may involve risks of unsuccessful results or complications." (Id.)

First, plaintiff includes no charging allegations as to Dr. Pie. Dr. Pie's referral to Dr. Crosson is insufficient, standing alone, to state a cognizable claim for deliberate indifference under the Eighth Amendment.

Second, not every claim by a prisoner that he has received inadequate medical treatment states a violation of the Eighth Amendment. To maintain an Eighth Amendment claim based on prison medical treatment, plaintiff must 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 ...


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