1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CUONG HUY DAO, No. 2:23-cv-00682-TLN-CKD P 12 Plaintiff, 13 v. ORDER 14 C. VANHORN, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. 18 § 1983 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This 19 proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). 20 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. 21 § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted. 22 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. 23 §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in 24 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 25 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 26 forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments 27 of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account. 28 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time 1 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. 2 § 1915(b)(2). 3 I. Screening Requirement 4 The court is required to screen complaints brought by prisoners seeking relief against a 5 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 6 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 7 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 8 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 9 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 10 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 11 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 12 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 13 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 14 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 15 Cir. 1989); Franklin, 745 F.2d at 1227. 16 A complaint, or portion thereof, should only be dismissed for failure to state a claim upon 17 which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in 18 support of the claim or claims that would entitle him to relief. Hishon v. King & Spalding, 467 19 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer v. Roosevelt 20 Lake Log Owners Ass’n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under 21 this standard, the court must accept as true the allegations of the complaint in question, Hosp. 22 Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light 23 most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor, Jenkins v. 24 McKeithen, 395 U.S. 411, 421 (1969). 25 II. Allegations in the Complaint 26 At all times relevant to the allegations in the complaint, plaintiff was an inmate at Pelican 27 Bay State Prison (“PBSP”) or California State Prison-Sacramento (“CSP-Sac”). Named as 28 defendants are medical staff at PBSP and an outside medical provider in Modesto, CA who is 1 employed as an ophthalmologist. 2 In his first four claims for relief, plaintiff alleges that defendants employed at PBSP 3 removed sutures from his right eye on two separate occasions in 2019 even though they were not 4 medically qualified to do so, causing pain and blindness in his right eye. He further alleges that 5 defendant Auimine covered up this malpractice and further delayed appropriate medical care by 6 denying plaintiff’s requests for medical treatment. On May 22, 2019, defendant Hassman dilated 7 plaintiff’s eyes and then used an x-ray or laser flashes to burn plaintiff’s right eye causing further 8 damage to his vision. 9 In his last claim for relief, plaintiff contends that he was escorted to an off-site medical 10 clinic on March 9, 2020 for right eye surgery. ECF No. 1 at 8. Defendant Tusluk dilated and 11 examined both of his eyes during this appointment. ECF No. 1 at 8. Plaintiff further alleges that 12 defendant Tusluk caused him pain and injured his left eye by using “a laser machine to burn[] hot 13 flashes of laser lights” into his eye. Id. As a result, his left eye is permanently damaged. Id. 14 III. Legal Standards 15 The following legal standards are provided based on plaintiff’s pro se status as well as the 16 nature of the allegations in the complaint. 17 A. Linkage 18 The civil rights statute requires that there be an actual connection or link between the 19 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 20 Monell v. Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 21 (1976). The Ninth Circuit has held that “[a] person ‘subjects' another to the deprivation of a 22 constitutional right, within the meaning of section 1983, if he does an affirmative act, participates 23 in another's affirmative acts or omits to perform an act which he is legally required to do that 24 causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th 25 Cir. 1978) (citation omitted). In order to state a claim for relief under section 1983, plaintiff must 26 link each named defendant with some affirmative act or omission that demonstrates a violation of 27 plaintiff's federal rights. 28 ///// 1 B. Under Color of State Law 2 Generally, private parties are not acting under color of state law for the purposes of 3 Section 1983 liability. See American Mfrs. Mut. Ins. Co. v.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CUONG HUY DAO, No. 2:23-cv-00682-TLN-CKD P 12 Plaintiff, 13 v. ORDER 14 C. VANHORN, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. 18 § 1983 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This 19 proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). 20 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. 21 § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted. 22 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. 23 §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in 24 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 25 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 26 forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments 27 of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account. 28 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time 1 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. 2 § 1915(b)(2). 3 I. Screening Requirement 4 The court is required to screen complaints brought by prisoners seeking relief against a 5 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 6 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 7 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 8 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 9 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 10 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 11 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 12 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 13 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 14 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 15 Cir. 1989); Franklin, 745 F.2d at 1227. 16 A complaint, or portion thereof, should only be dismissed for failure to state a claim upon 17 which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in 18 support of the claim or claims that would entitle him to relief. Hishon v. King & Spalding, 467 19 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer v. Roosevelt 20 Lake Log Owners Ass’n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under 21 this standard, the court must accept as true the allegations of the complaint in question, Hosp. 22 Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light 23 most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor, Jenkins v. 24 McKeithen, 395 U.S. 411, 421 (1969). 25 II. Allegations in the Complaint 26 At all times relevant to the allegations in the complaint, plaintiff was an inmate at Pelican 27 Bay State Prison (“PBSP”) or California State Prison-Sacramento (“CSP-Sac”). Named as 28 defendants are medical staff at PBSP and an outside medical provider in Modesto, CA who is 1 employed as an ophthalmologist. 2 In his first four claims for relief, plaintiff alleges that defendants employed at PBSP 3 removed sutures from his right eye on two separate occasions in 2019 even though they were not 4 medically qualified to do so, causing pain and blindness in his right eye. He further alleges that 5 defendant Auimine covered up this malpractice and further delayed appropriate medical care by 6 denying plaintiff’s requests for medical treatment. On May 22, 2019, defendant Hassman dilated 7 plaintiff’s eyes and then used an x-ray or laser flashes to burn plaintiff’s right eye causing further 8 damage to his vision. 9 In his last claim for relief, plaintiff contends that he was escorted to an off-site medical 10 clinic on March 9, 2020 for right eye surgery. ECF No. 1 at 8. Defendant Tusluk dilated and 11 examined both of his eyes during this appointment. ECF No. 1 at 8. Plaintiff further alleges that 12 defendant Tusluk caused him pain and injured his left eye by using “a laser machine to burn[] hot 13 flashes of laser lights” into his eye. Id. As a result, his left eye is permanently damaged. Id. 14 III. Legal Standards 15 The following legal standards are provided based on plaintiff’s pro se status as well as the 16 nature of the allegations in the complaint. 17 A. Linkage 18 The civil rights statute requires that there be an actual connection or link between the 19 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 20 Monell v. Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 21 (1976). The Ninth Circuit has held that “[a] person ‘subjects' another to the deprivation of a 22 constitutional right, within the meaning of section 1983, if he does an affirmative act, participates 23 in another's affirmative acts or omits to perform an act which he is legally required to do that 24 causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th 25 Cir. 1978) (citation omitted). In order to state a claim for relief under section 1983, plaintiff must 26 link each named defendant with some affirmative act or omission that demonstrates a violation of 27 plaintiff's federal rights. 28 ///// 1 B. Under Color of State Law 2 Generally, private parties are not acting under color of state law for the purposes of 3 Section 1983 liability. See American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) 4 (finding that § 1983 excludes from its reach “merely private conduct, no matter how 5 discriminatory or wrongful” (citations omitted) ); Florer v. Congregation Pidyon Shevuyim, N.A., 6 639 F.3d 916, 922 (9th Cir. 2011) (“We start with the presumption that conduct by private actors 7 is not state action.”). However, the Supreme Court has found that when a private physician 8 voluntarily contracts with the state to render medical services to inmates, he or she assumes the 9 state's affirmative obligation to provide adequate medical care. See West v. Atkins, 487 U.S. 42, 10 55-56 (1988). 11 C. Deliberate Indifference to a Serious Medical Need 12 Denial or delay of medical care for a prisoner’s serious medical needs may constitute a 13 violation of the prisoner’s Eighth and Fourteenth Amendment rights. Estelle v. Gamble, 429 U.S. 14 97, 104-05 (1976). An individual is liable for such a violation only when the individual is 15 deliberately indifferent to a prisoner’s serious medical needs. Id.; see Jett v. Penner, 439 F.3d 16 1091, 1096 (9th Cir. 2006); Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002); Lopez v. 17 Smith, 203 F.3d 1122, 1131-32 (9th Cir. 2000). 18 In the Ninth Circuit, the test for deliberate indifference consists of two parts. Jett, 439 19 F.3d at 1096, citing McGuckin v. Smith, 974 F.2d 1050 (9th Cir. 1991), overruled on other 20 grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc). First, the 21 plaintiff must show a “serious medical need” by demonstrating that “failure to treat a prisoner’s 22 condition could result in further significant injury or the ‘unnecessary and wanton infliction of 23 pain.’” Id., citing Estelle, 429 U.S. at 104. “Examples of serious medical needs include ‘[t]he 24 existence of an injury that a reasonable doctor or patient would find important and worthy of 25 comment or treatment; the presence of a medical condition that significantly affects an 26 individual’s daily activities; or the existence of chronic and substantial pain.’” Lopez, 203 F. 3d 27 at 1131-1132, citing McGuckin, 974 F.2d at 1059-60. 28 Second, the plaintiff must show the defendant’s response to the need was deliberately 1 indifferent. Jett, 439 F.3d at 1096. This second prong is satisfied by showing (a) a purposeful act 2 or failure to respond to a prisoner’s pain or possible medical need and (b) harm caused by the 3 indifference. Id. Under this standard, the prison official must not only “be aware of facts from 4 which the inference could be drawn that a substantial risk of serious harm exists,” but that person 5 “must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). This “subjective 6 approach” focuses only “on what a defendant’s mental attitude actually was.” Id. at 839. A 7 showing of merely negligent medical care is not enough to establish a constitutional violation. 8 Frost v. Agnos, 152 F.3d 1124, 1130 (9th Cir. 1998), citing Estelle, 429 U.S. at 105-106. A 9 difference of opinion about the proper course of treatment is not deliberate indifference, nor does 10 a dispute between a prisoner and prison officials over the necessity for or extent of medical 11 treatment amount to a constitutional violation. See, e.g., Toguchi v. Chung, 391 F.3d 1051, 1058 12 (9th Cir. 2004); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). Furthermore, mere delay of 13 medical treatment, “without more, is insufficient to state a claim of deliberate medical 14 indifference.” Shapley v. Nev. Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). 15 Where a prisoner alleges that delay of medical treatment evinces deliberate indifference, the 16 prisoner must show that the delay caused “significant harm and that Defendants should have 17 known this to be the case.” Hallett, 296 F.3d at 745-46; see McGuckin, 974 F.2d at 1060. 18 D. Joinder of Claims and Parties 19 A plaintiff may properly assert multiple claims against a single defendant in a civil action. 20 Fed. Rule Civ. P. 18. In addition, a plaintiff may join multiple defendants in one action where 21 “any right to relief is asserted against them jointly, severally, or in the alternative with respect to 22 or arising out of the same transaction, occurrence, or series of transactions and occurrences” and 23 “any question of law or fact common to all defendants will arise in the action.” Fed. R. Civ. P. 24 20(a)(2). However, unrelated claims against different defendants must be pursued in separate 25 lawsuits. See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). This rule is intended “not only 26 to prevent the sort of morass [a multiple claim, multiple defendant] suit produce[s], but also to 27 ensure that prisoners pay the required filing fees—for the Prison Litigation Reform Act limits to 3 28 the number of frivolous suits or appeals that any prisoner may file without prepayment of the 1 required fees. 28 U.S.C. § 1915(g).” Id. 2 IV. Analysis 3 The only defendant located in this judicial district is defendant Tusluk who plaintiff 4 alleges is employed as an ophthalmologist who works off site from CSP-Sac. ECF No. 1 at 8. 5 Plaintiff has not alleged that the state contracted with defendant Tusluk to provide medical 6 services to inmates and was thus acting under color of state law at the time that he examined 7 plaintiff. Absent such information, the court finds that plaintiff has failed to state a claim against 8 defendant Tusluk that is actionable under § 1983. 9 As to the remaining defendants, the undersigned finds that venue is proper in the 10 jurisdiction of the Northern District of California. Plaintiff's claim involving events at Pelican 11 Bay State Prison are not properly raised in an action in the Eastern District of California. The 12 federal venue statute requires that a civil action be brought only in “(1) a judicial district in which 13 any defendant resides, if all defendants are residents of the State in which the district is located; 14 (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim 15 occurred, or a substantial part of property that is the subject of the action is situated; or (3) if there 16 is no district in which an action may otherwise be brought as provided in this section, any judicial 17 district in which any defendant is subject to the court's personal jurisdiction with respect to such 18 action.” 28 U.S.C. § 1391(b). The events or omissions at issue against Pelican Bay State Prison 19 arose in Del Norte County, which is in the Northern District of California. Thus, plaintiff's claims 20 involving events at Pelican Bay State Prison should have been filed in a separate action in the 21 United States District Court for the Northern District of California. See Costlow v. Weeks, 790 22 F.2d 1486, 1488 (9th Cir. 1986) (finding that the court may raise defective venue sua sponte). 23 The undersigned recommends that the PBSP defendants be dismissed without prejudice to 24 refiling as a separate action in the Northern District of California. 25 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions 26 complained of have resulted in a deprivation of plaintiff’s constitutional rights. See Ellis v. 27 Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, the complaint must allege in specific terms how 28 each named defendant is involved. There can be no liability under 42 U.S.C. § 1983 unless there 1 is some affirmative link or connection between a defendant’s actions and the claimed deprivation. 2 Rizzo v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); 3 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, vague and conclusory 4 allegations of official participation in civil rights violations are not sufficient. Ivey v. Bd. of 5 Regents, 673 F.2d 266, 268 (9th Cir. 1982). 6 In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to 7 make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended 8 complaint be complete in itself without reference to any prior pleading. This is because, as a 9 general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 10 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no 11 longer serves any function in the case. Therefore, in an amended complaint, as in an original 12 complaint, each claim and the involvement of each defendant must be sufficiently alleged. 13 I. Plain Language Summary for Pro Se Party 14 The following information is meant to explain this order in plain English and is not 15 intended as legal advice. 16 The court has reviewed the allegations in your complaint and determined that they do not 17 state any claim against defendant Tusluk because you do not identify if he was employed as a 18 state actor at the time that he examined you. The remaining defendants are being dismissed 19 without prejudice to filing a separate lawsuit against them in the Northern District of California 20 where venue lies for actions occurring at Pelican Bay State Prison. 21 Although you are not required to do so, you may file an amended complaint within 30 22 days from the date of this order. If you choose to file an amended complaint, pay particular 23 attention to the legal standards identified in this order which may apply to your claims. 24 In accordance with the above, IT IS HEREBY ORDERED that: 25 1. Plaintiff’s motion for leave to proceed in forma pauperis (ECF No. 2) is granted. 26 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 27 is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 28 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to ] the Director of the California Department of Corrections and Rehabilitation filed 2 concurrently herewith. 3 3. Plaintiff's complaint is dismissed with leave to amend as to defendant Tusluk. The 4 remaining defendants are dismissed without prejudice to filing a separate lawsuit in the 5 Northern District of California where venue is proper for acts that occurred at Pelican Bay 6 State Prison. 7 4. Plaintiff is granted thirty days from the date of service of this order to file an amended 8 complaint that complies with the requirements of the Civil Rights Act, the Federal Rules 9 of Civil Procedure, and the Local Rules of Practice; the amended complaint must bear the 10 docket number assigned this case and must be labeled “Amended Complaint”; failure to 11 file an amended complaint in accordance with this order will result in a recommendation 12 that this action be dismissed. 13 | Dated: August 10, 2023 / ae □□ / a Ly a 4 CAROLYN K DELANEY 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 12/da00682.ord 22 23 24 25 26 27 28