(PC) Davis v. Bobbla

• Court: District Court, E.D. California
• Decided: March 2, 2023
• Docket: 2:22-cv-01658
• Status: Unknown

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 MAURICE DARONTE DAVIS, AKA No. 2:22-cv-1658 TLN DB P MAURICE DARONTE DAVIS-ROGERS, 11 Plaintiff, 12 ORDER v. 13 MANJALA BOBBLA, 14 Defendant. 15

16 17 Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 18 U.S.C. § 1983. Plaintiff claims that defendant violated his Eighth Amendment right to adequate 19 medical care. Presently before the court is plaintiff’s motion to proceed in forma pauperis, 20 request for the appointment of counsel, and his complaint for screening. For the reasons set forth 21 below, the undersigned will grant the request to proceed in forma pauperis, deny the motion to 22 appoint counsel, and dismiss the complaint with leave to amend. 23 IN FORMA PAUPERIS 24 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 25 1915(a). (ECF No. 2.) Accordingly, the request to proceed in forma pauperis will be granted. 26 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 27 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in 28 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 1 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 2 forward it to the Clerk of the court. Thereafter, plaintiff will be obligated for monthly payments 3 of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account. 4 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time 5 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 6 1915(b)(2). SCREENING 7 I. Legal Standards 8 The court is required to screen complaints brought by prisoners seeking relief against a 9 governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. § 10 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims 11 that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be 12 granted, or that seek monetary relief from a defendant who is immune from such relief. See 28 13 U.S.C. § 1915A(b)(1) & (2). 14 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 15 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 16 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 17 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 18 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 19 pleaded, has an arguable legal and factual basis. See Franklin, 745 F.2d at 1227. 20 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 21 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 22 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell 23 AtlanticCorp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 24 (1957)). 25 However, in order to survive dismissal for failure to state a claim a complaint must 26 contain more than “a formulaic recitation of the elements of a cause of action;” it must contain 27 factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 28 1 550 U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the 2 allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 3 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all 4 doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). 5 The Civil Rights Act under which this action was filed provides as follows: 6 Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation 7 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, 8 or other proper proceeding for redress. 9 42 U.S.C. § 1983. Here, the defendants must act under color of federal law. Bivens, 403 U.S. at 10 389. The statute requires that there be an actual connection or link between the 11 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 12 Monell v. Dept. of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 13 (1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the 14 meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or 15 omits to perform an act which he is legally required to do that causes the deprivation of which 16 complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 17 Moreover, supervisory personnel are generally not liable under § 1983 for the actions of 18 their employees under a theory of respondeat superior and, therefore, when a named defendant 19 holds a supervisorial position, the causal link between him and the claimed constitutional 20 violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); 21 Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations 22 concerning the involvement of official personnel in civil rights violations are not sufficient. See 23 Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 24 I. Allegations in the Complaint 25 Plaintiff states the events giving rise to the claim occurred while he was in the custody of 26 the California Department of Corrections and Rehabilitation (“CDCR”), housed at California 27 State Prison, Sacramento (“CSP-SAC”). (ECF No. 1 at 1.) Plaintiff has identified CSP-SAC 28 chief medical executive Manjala Bobbla as the sole defendant in this action. (Id. at 1-2.) 1 Plaintiff alleges that while reviewing his medical records for an unrelated case, he 2 “discovered that [he] was approved for . . . Lumbar [spondylosis] (stenosis surgery) . . . in 2010.” 3 (Id. at 3.) He further states that he has been asking about surgery for the past 12 years but has 4 been denied. Instead, the California Correctional Health Care Services elected to prescribe him 5 NSAIDS (Nonsteroidal anti-inflammatory drugs) and Tylenol from 2010 to 2018. (Id.) 6 In 2018, he was told that his creatinine levels were elevated, and he should stop taking 7 NSAIDS. (Id.) Plaintiff was prescribed two 325 milligram Tylenol tablets three times per day 8 and was also prescribed two different types of blood pressure medication. Plaintiff was also 9 taking two different types of blood pressure medication on April 7, 2021, which he says caused 10 his creatinine levels were elevated enhancing his kidney condition. On July 8, 2022, the 11 California Correctional Health Care Services advised plaintiff that his kidney condition was 12 caused by sustained use of NSAIDS due to low back pain relative to a 2010 sports injury. 13 Plaintiff alleges that “[b]ecause of the negligence shown by California Correctional 14 medical staff by not giving [him] surgery for his [lumbar spondylosis he] now suffers from a life 15 altering disease and deteriorating L3-L4/L4-L5 disc in [his] lower back.” (Id. at 3.) Plaintiff 16 alleges he has a 2.8 centimeter cyst on his kidney, CKD, liver damage, L3-4 mild central canal 17 and moderate neural foraminal stenosis . . . .” (Id. at 5.) 18 Plaintiff seeks monetary damages “for the negligence provided by the California 19 Correctional Health Care Services and blatant disrespect of the Eighth Amendment of the U.S. 20 Constitution.” (Id. at 5.) 21 II. Does Plaintiff State a Claim under § 1983? 22 A. Legal Standards 23 The Eighth Amendment prohibits the infliction of “cruel and unusual punishments.” U.S. 24 Const. amend. VIII. The unnecessary and wanton infliction of pain constitutes cruel and unusual 25 punishment prohibited by the Eighth Amendment. Whitley v. Albers, 475 U.S. 312, 319 (1986); 26 Ingraham v. Wright, 430 U.S. 651, 670 (1977); Estelle v. Gamble, 429 U.S. 97, 105-06 (1976). 27 Neither accident nor negligence constitutes cruel and unusual punishment, as “[i]t is obduracy 28 //// 1 and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited 2 by the Cruel and Unusual Punishments Clause.” Whitley, 475 U.S. at 319. 3 The deliberate indifference standard involves an objective and subjective prong. First, the 4 alleged deprivation must be, in objective terms, “sufficiently serious . . . .” Farmer v. Brennan, 5 511 U.S. 825, 834 (1994) (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)). Second, the prison 6 official must “know[] of and disregard[] an excessive risk to inmate health or safety . . . .” 7 Farmer, 511 U.S. at 837. Thus, a prison official may be held liable under the Eighth Amendment 8 for denying humane conditions of confinement only if he knows that inmates face a substantial 9 risk of harm and disregards that risk by failing to take reasonable measures to abate it. Id. at 837- 10 45. 11 Where a prisoner’s Eighth Amendment claim arises in the context of medical care, the 12 prisoner must allege and prove “acts or omissions sufficiently harmful to evidence deliberate 13 indifference to serious medical needs.” Estelle, 429 U.S. at 106. An Eighth Amendment medical 14 claim has two elements: “the seriousness of the prisoner’s medical need and the nature of the 15 defendant’s response to that need.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), 16 overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en 17 banc). 18 A medical need is serious “if the failure to treat the prisoner’s condition could result in 19 further significant injury or the ‘unnecessary and wanton infliction of pain.’” McGuckin, 974 20 F.2d at 1059 (quoting Estelle, 429 U.S. at 104). Indications of a serious medical need include 21 “the presence of a medical condition that significantly affects an individual’s daily activities.” Id. 22 at 1059-60. By establishing the existence of a serious medical need, a prisoner satisfies the 23 objective requirement for proving an Eighth Amendment violation. Farmer v. Brennan, 511 U.S. 24 825, 834 (1994). 25 If a prisoner establishes the existence of a serious medical need, he must then show that 26 prisoner officials responded to the serious medical need with deliberate indifference. See Farmer, 27 511 U.S. at 834. In general, deliberate indifference may be shown when prison officials deny, 28 delay, or intentionally interfere with medical treatment, or may be shown by the way in which 1 prison officials provide medical care. Hutchinson v. United States, 838 F.2d 390, 393-94 (9th 2 Cir. 1988). 3 Before it can be said that a prisoner’s civil rights have been abridged with regard to 4 medical care, “the indifference to his medical needs must be substantial. Mere ‘indifference,’ 5 ‘negligence,’ or ‘medical malpractice’ will not support this cause of action.” Broughton v. Cutter 6 Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 105-06); see also 7 Toguchi v. Soon Hwang Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (“Mere negligence in 8 diagnosing or treating a medical condition, without more, does not violate a prisoner’s Eighth 9 Amendment rights.”); McGuckin, 974 F.2d at 1059 (same). Deliberate indifference is “a state of 10 mind more blameworthy than negligence” and “requires ‘more than ordinary lack of due care for 11 the prisoner’s interests or safety.’” Farmer, 511 U.S. at 835. 12 Finally, mere differences of opinion between a prisoner and prison medical staff or 13 between medical professionals as to the proper course of treatment for a medical condition do not 14 give rise to a § 1983 claim. See Toguchi, 391 F.3d at 1058; Jackson v. McIntosh, 90 F.3d 330, 15 332 (9th Cir. 1996) overruled in part on other grounds by Peralta v. Dillard, 744 F.3d 1076, 1083 16 (9th Cir. 2014) (en banc); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); Franklin v. Oregon, 17 662 F.2d 1337, 1344 (9th Cir. 1981). 18 B. Analysis 19 “To state a claim under § 1983, a plaintiff must allege the violation of a right secured by 20 the Constitution and laws of the United States, and must show that the alleged deprivation was 21 committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48-49 22 (1988). Plaintiff may1 be able to state a claim based on the delay in his receipt of surgery that 23 caused further deterioration of his spine as well as liver and kidney damage associated with long 24 term use of pain medication. However, plaintiff has not connected the alleged rights deprivation 25 to a named defendant. Plaintiff has identified CSP-SAC chief medical executive Manjala Bobbla 26

27 1 Plaintiff has stated that defendants were “negligent.” (ECF No. 1 at 3.) However, he is advised that “[m]ere negligence . . . without more, does not violate a prisoner’s Eighth Amendment 28 rights.” Hutchinson, 838 F.2d at 394. 1 as the sole defendant in this action. There are no factual allegations in the complaint that explain 2 how Bobbla was involved in the alleged deprivation of plaintiff’s rights under the Eighth 3 Amendment. In any amended complaint plaintiff should state facts showing how any identified 4 defendant was involved in the deprivation. 5 AMENDING THE COMPLAINT 6 As set forth above, the complaint does not state a potentially cognizable claim. However, 7 plaintiff will have the opportunity to file an amended complaint. Plaintiff is advised that in an 8 amended complaint he must clearly identify each defendant and the action that defendant took 9 that violated his constitutional rights. The court is not required to review exhibits to determine 10 what plaintiff’s charging allegations are as to each named defendant. The charging allegations 11 must be set forth in the amended complaint, so defendants have fair notice of the claims plaintiff 12 is presenting. That said, plaintiff need not provide every detailed fact in support of his claims. 13 Rather, plaintiff should provide a short, plain statement of each claim. See Fed. R. Civ. P. 8(a). 14 Any amended complaint must show the federal court has jurisdiction, the action is brought 15 in the right place, and plaintiff is entitled to relief if plaintiff’s allegations are true. It must 16 contain a request for particular relief. Plaintiff must identify as a defendant only persons who 17 personally participated in a substantial way in depriving plaintiff of a federal constitutional right. 18 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation 19 of a constitutional right if he does an act, participates in another’s act or omits to perform an act 20 he is legally required to do that causes the alleged deprivation). 21 In an amended complaint, the allegations must be set forth in numbered paragraphs. Fed. 22 R. Civ. P. 10(b). Plaintiff may join multiple claims if they are all against a single defendant. Fed. 23 R. Civ. P. 18(a). If plaintiff has more than one claim based upon separate transactions or 24 occurrences, the claims must be set forth in separate paragraphs. Fed. R. Civ. P. 10(b). 25 The federal rules contemplate brevity. See Galbraith v. County of Santa Clara, 307 F.3d 26 1119, 1125 (9th Cir. 2002) (noting that “nearly all of the circuits have now disapproved any 27 heightened pleading standard in cases other than those governed by Rule 9(b)”); Fed. R. Civ. P. 28 84; cf. Rule 9(b) (setting forth rare exceptions to simplified pleading). Plaintiff’s claims must be 1 set forth in short and plain terms, simply, concisely and directly. See Swierkiewicz v. Sorema 2 N.A., 534 U.S. 506, 514 (2002) (“Rule 8(a) is the starting point of a simplified pleading system, 3 which was adopted to focus litigation on the merits of a claim.”); Fed. R. Civ. P. 8. 4 An amended complaint must be complete in itself without reference to any prior pleading. 5 E.D. Cal. R. 220. Once plaintiff files an amended complaint, all prior pleadings are superseded. 6 Any amended complaint should contain all of the allegations related to his claim in this action. If 7 plaintiff wishes to pursue his claims against the defendant, they must be set forth in the amended 8 complaint. 9 By signing an amended complaint, plaintiff certifies he has made reasonable inquiry and 10 has evidentiary support for his allegations, and for violation of this rule the court may impose 11 sanctions sufficient to deter repetition by plaintiff or others. Fed. R. Civ. P. 11. 12 MOTION TO APPOINT COUNSEL 13 Plaintiff has filed a motion requesting the appointment of counsel. (ECF No. 7.) In 14 support of his motion, he argues that he is unable to afford counsel, his imprisonment will limit 15 his ability to litigate the case, he has limited access to the law library, and counsel would better 16 enable him to present evidence and examine witnesses at trial. (Id. at 2.) 17 The United States Supreme Court has ruled that district courts lack authority to require 18 counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 19 U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the 20 voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 21 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 22 The test for exceptional circumstances requires the court to evaluate the plaintiff’s 23 likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in 24 light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 25 1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances 26 common to most prisoners, such as lack of legal education and limited law library access, do not 27 establish exceptional circumstances that would warrant a request for voluntary assistance of 28 counsel. 1 In the present case, the court does not find the required exceptional circumstances. 2 | Plaintiff's filings in this action indicate that plaintiff is capable of explaining the allegations in 3 | this action. Additionally, at this point in the proceedings, the court is unable to determine 4 | plaintiffs likelihood of success on the merits. Accordingly, the court will deny the motion to 5 || appoint counsel without prejudice to its renewal at a later stage of the proceedings. 6 CONCLUSION 7 1. Plaintiff's motion to proceed in forma pauperis (ECF No. 2) is granted. 8 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 9 is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 8 10 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order 11 to the Director of the California Department of Corrections and Rehabilitation filed 12 concurrently herewith. 13 3. Plaintiff's motion to appoint counsel (ECF No. 7) is denied without prejudice. 14 4. Plaintiff's complaint (ECF No. 1) is dismissed with leave to amend. 15 5. Plaintiff is granted thirty days from the date of service of this order to file an amended 16 complaint that complies with the requirements of the Civil Rights Act, the Federal 17 Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint 18 must bear the docket number assigned to this case and must be labeled “First 19 Amended Complaint.” 20 6. Failure to comply with this order will result in a recommendation that this action be 21 dismissed. 22 | Dated: March 1, 2023

24 5 ‘BORAH BARNES UNITED STATES MAGISTRATE JUDGE 26 DBIDB Prisoner Inbox/Civil Rights/S/davil658.31