United States District Court, N.D. California
ORDER OF DISMISSAL WITH LEAVE TO AMEND
LABSON FREEMAN UNITED STATES DISTRICT JUDGE
a state prisoner at the Correctional Training Facility
(“CTF”) in Soledad, filed the instant pro
se civil rights action pursuant to 42 U.S.C. § 1983
against CTF personnel. Plaintiff's motion for leave to
proceed in forma pauperis will be addressed in a
Standard of Review
federal court must conduct a preliminary screening in any
case in which a prisoner seeks redress from a governmental
entity or officer or employee of a governmental entity.
See 28 U.S.C. § 1915A(a). In its review, the
court must identify any cognizable claims and dismiss any
claims that are frivolous, malicious, fail to state a claim
upon which relief may be granted or seek monetary relief from
a defendant who is immune from such relief. See Id.
§ 1915A(b)(1), (2). Pro se pleadings must, however, be
liberally construed. See Balistreri v. Pacifica Police
Dep't, 901 F.2d 696, 699 (9th Cir. 1988). To state a
claim under 42 U.S.C. § 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).
claims that he is a “chronic care patient” with
osteo arthritis in his right shoulder which is associated
with chronic pain since July 2015. (Compl. Attach. at 5.) He
had a prescription for 15mg of methadone since July 2015.
(Id.) On July 25, 2018, Plaintiff was transported to
Twin City Medical Community for a recommended
(Id.) Upon his arrival, Plaintiff was directed to
sign a waiver of liability and consent to videotaping
surgery, among other things, before receiving treatment.
(Id. at 5-6.) When Plaintiff declined to sign the
document, he was denied medical treatment by Defendant Dr.
Kowall, the orthopedic specialist whom he was scheduled to
see. (Id. at 6.) On July 29, 2019, Plaintiff was
seen by Defendant D. Fu Law, whom Plaintiff claims informed
him that he was taking Plaintiff off methadone because
Plaintiff had refused to sign the document presented to him
by Dr. Kowall on July 25, 2019. (Id. at 6-7.)
Subsequently, Plaintiff's 15mg methadone prescription was
reduced to 5 mg per day. (Id. at 7.) When Plaintiff
met with Defendant Dr. Ross on August 6, 2018, he requested
some “low level medications” to manage his
withdrawal symptoms from methadone. (Id. at 7-8.)
Plaintiff alleges that Defendant Ross told him that he
“should have just signed the waiver form when you went
to see defendant Dr. Kowall on 07/25/18, now you could smoke
all the marijuana you want to.” (Id. at 8.)
Defendant Ross only prescribed capsaicin cream, which only
inflamed Plaintiff's right shoulder injury.
(Id.) On August 15, 2018, Plaintiff filed an
“emergency appeal” in an effort to have medical
staff intervene and stop the withdrawal symptoms that he was
experiencing, including headaches, dizziness, cramps,
diarrhea, etc. (Id.) Plaintiff claims that Defendant
M. Votaw, the prison health care grievance office
representative, “deliberately ignored a serious medical
need, by bypassing an emergency screening which lead to
extended suffering of withdrawal symptoms for up to two weeks
as a result of defendant M. Votaw's inaction.”
(Id.) Plaintiff claims that Defendant S. Posson, the
Chief Medical Executive, delayed recommended physical therapy
until January 24, 2019. (Id.) Plaintiff claims that
Defendants' actions amounted to retaliation under the
First Amendment and deliberate indifference to serious
medical needs under the Eighth Amendment. (Id. at
2.) Liberally construed, Plaintiff's allegations are
sufficient to state an Eighth Amendment claim for deliberate
indifference to serious medical needs. See Estelle v.
Gamble, 429 U.S. 97, 104 (1976); McGuckin v.
Smith, 974 F.2d 1050, 1059 (9th Cir. 1992),
overruled in part on other grounds by WMX Technologies,
Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en
Plaintiff's allegations are insufficient to state a First
Amendment retaliation claim. “Within the prison
context, a viable claim of First Amendment retaliation
entails five basic elements: (1) An assertion that a state
actor took some adverse action against an inmate (2) because
of (3) that prisoner's protected conduct, and that such
action (4) chilled the inmate's exercise of his First
Amendment rights, and (5) the action did not reasonably
advance a legitimate correctional goal.” Rhodes v.
Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote
omitted). Although Plaintiff clearly believes that Defendants
were acting in concert with each other to deny him medical
treatment because he refused to sign the waiver form,
Plaintiff's allegations are insufficient to state a First
Amendment retaliation claim. Specifically, he fails to
satisfy the second, third, and fourth elements of a
retaliation claim, i.e., that Defendants took adverse actions
against Plaintiff because of Plaintiff's
protected conduct, Plaintiff fails to explain what that
protected conduct was, and that Defendants' actions
chilled the exercise of his First Amendment rights.
Id. Accordingly, this claim is DISMISSED for failure
to state a claim. Plaintiff shall be given an opportunity to
file an amended complaint to attempt to state sufficient
facts to state a First Amendment retaliation claim.
foregoing reasons, the Court orders as follows:
complaint is DISMISSED with leave to amend.
Within twenty-eight (28) days of the date
this order is filed, Plaintiff shall file an amended
complaint to correct the deficiencies discussed above. The
amended complaint must include the caption and civil case
number used in this order, No. C 19-02119 BLF (PR), and the
words “AMENDED COMPLAINT” on the first page. If
using the court form complaint, Plaintiff must answer all the
questions on the form in order for the action to proceed. The
amended complaint supersedes the original, the latter being
treated thereafter as non-existent. Ramirez v. Cty. of
San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015).
Consequently, claims not included in an amended complaint are
no longer claims and defendants not named in an amended
complaint are no longer defendants. See Ferdik v.
Bonzelet, 963 F.2d 1258, 1262 (9th Cir.1992).
alternative, Plaintiff may file notice in the same time
provided that he wishes to proceed solely on the Eighth
Amendment claim found cognizable above and strike the First
Amendment retaliation claim from the complaint.
to respond in accordance with this order in the time provided
will result in the dismissal of this action without prejudice
and without further notice to Plaintiff.
Clerk shall include two copies of the court's complaint
with a ...