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Mester v. Malakkla

United States District Court, E.D. California

May 24, 2018

MORRIS MESTER, Plaintiff,
v.
N. MALAKKLA, et al., Defendants.

          Morris Mester Plaintiff Pro Se

          ORDER

          ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE

         Plaintiff is a state prisoner proceeding pro se and in forma pauperis in an action brought under 42 U.S.C. § 1983. On August 30, 2017, the court dismissed plaintiff's complaint with leave to amend.[1] ECF No. 6 at 7. On September 6, 2017, plaintiff filed a “supplement to complaint” (“supplement”). ECF No. 9. The supplement, four pages in length, did not amend the complaint. Instead, it referred back to the complaint and simply reiterated its general allegations related to defendants' treatment of plaintiff's degenerative hip condition and related pain. See generally id. For the reasons stated below, plaintiff will be given a second opportunity to file a first amended complaint.

         I. SCREENING REQUIREMENT

         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 “frivolous, malicious, or 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).

         A claim “is [legally] frivolous where 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). “[A] judge may dismiss . . . claims which are ‘based on indisputably meritless legal theories' or whose ‘factual contentions are clearly baseless.'” Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989) (quoting Neitzke, 490 U.S. at 327), superseded by statute on other grounds as stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. Franklin, 745 F.2d at 1227-28 (citations omitted).

         II. PLEADING STANDARD

         A. Generally

         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 Cty., 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, 556 U.S. 662, 678 (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 to relief that is plausible on its face.” Id. 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 677-78.

         B. Linkage Requirement

         Under Section 1983, a plaintiff bringing an individual capacity claim must demonstrate that each defendant personally participated in the deprivation of his rights. See Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). Plaintiff must plead sufficient facts showing that the official has violated the Constitution through his own individual actions by linking each named defendant with some affirmative act or omission that demonstrates a violation of plaintiff's federal rights. Iqbal, 556 U.S. at 676; see Monell v. Dep't of Soc. Servs., of the City of New York, 436 U.S. 658, 691, 695 (1978) (mandating actual connection or link between actions of defendants and deprivation alleged to have been suffered by plaintiff).

         C. Official Capacity Suits

         A suit against a state officer in his official capacity is a suit against the state. Diamond v. Charles, 476 U.S. 54, 57 n.2 (1986) (citing Kentucky v. Graham, 473 U.S. 159, 165-66 (1985)). The Eleventh Amendment bars federal suits for violations of federal law against state officials sued in their official capacities for damages and other retroactive relief. Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989); Quern v. Jordan, 440 U.S. 332, 337 (1979); Pena v. Gardener, 976 F.2d 469, 472 (9th Cir. 1992); see also Hafer v. Melo, 502 U.S. 21, 27 (1991) (stating state officers sued for damages in their official capacities are not “persons” for purposes of suit because they assume identity of government that employs them).

         III. PLAINTIFF'S ALLEGATIONS

         A. Overview

         Plaintiff is an inmate housed at the California Health Care Facility (“CHCF”) in Stockton, California. In his initial complaint, he names Dr. N. Malakkla, Chief Medical Officer; Dr. John Krpan, D.O., a primary care physician; Dr. A. Adams, Chief Executive Officer; Dr. Paik, [2] M.D. and former primary care physician; Dr. Lwin, M.D., and Dr. Huu Nguyen as defendants. See ECF No. 1 at 1-2. Later in the complaint, plaintiff also identifies Dr. James Williamson and Dr. Howard Church as defendants. See id. at 11. He would like to sue some of them in both their individual and official capacities and others solely in their individual capacities. See id. at 2, 11.

         Although plaintiff's complaint is convoluted, a second review of it leads the court to find that plaintiff is alleging that his rights under the Eighth Amendment have been violated. Specifically, plaintiff alleges that all the named defendants have demonstrated deliberate indifference to his serious medical need, by (1) unjustifiably delaying and/or failing to approve hip surgery recommended as early as 2011 by three different orthopedic specialists, and/or (2) failing to provide plaintiff with adequate pain management options while awaiting the surgery. See generally ECF No. 1 at 1, 4-12.

         Plaintiff seeks a declaratory judgment and compensatory damages from each defendant in the amount of $250, 000.00, as well as punitive damages from each defendant. See ECF No. 1 at 4, 11. Plaintiff also requests a jury trial on all issues triable by jury as well as any other relief the court deems just, proper and equitable. See id.

         B. Facts Alleged in Support of Claims

         Plaintiff contends that he has been diagnosed with advanced bone-on-bone bilateral degenerative hip disease and that three consultations with orthopedic specialists, the first of which was in March 2011, [3] have yielded recommendations that he have, at minimum, a total replacement of his right hip. See ECF No. 1 at 4. Since that time, plaintiff states that he has been in acute, chronic pain due to his hip disease, severe back pain, and polyneuropathy, and other ailments. See id. Plaintiff further asserts that despite his pain and numerous trips to the emergency room, he has been treated with less effective medication like Tylenol with codeine, Motrin, Toradol, or with nothing at all. See ECF No. 1 at 5. No narcotics have been given to him despite the severity of his pain. See id.

         1. October 2014 - September 2015

         Plaintiff alleges that in October 2014, prison doctors minimized his “acute chronic change” in back pain. See ECF No. 1 at 9-10. Although he was rushed to the hospital at that time due to his pain, Dr. James Williamson and Dr. Howard Church directed that plaintiff was not to receive narcotics. See id. at 10, 27. Plaintiff believes this was done to punish him and single him out for mistreatment. See id. at 10.

         Plaintiff also alleges that he has had allergic reactions to some of the prescribed, less effective medication. See id. He states that in September 2015, Dr. Paik and the pain management committee insisted that he take Tylenol with codeine to manage his pain. See ECF No. 1 at 5. Plaintiff told them that he was allergic to that medication, but they insisted that he take it before they prescribed him anything else. See id. After a week of taking it, plaintiff had a severe reaction and was rushed to the hospital. See id. at 5-6. To this day, plaintiff asserts, the doctors at CHCF refuse to acknowledge that plaintiff is allergic to Tylenol with codeine. See Id. at 6.

         2. May 2016 ...


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