(PC) Davis v. Pam

• Court: District Court, E.D. California
• Decided: June 1, 2021
• Docket: 2:21-cv-00634
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DEMETRIUS DAVIS, No. 2:21-cv-0634 KJN P 12 Plaintiff, 13 v. ORDER 14 PAM, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner housed in the Sacramento County jail, proceeding pro se.1 18 Plaintiff seeks relief pursuant to 42 U.S.C. § 1983, and requested leave to proceed in forma 19 pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court by Local Rule 20 302 pursuant to 28 U.S.C. § 636(b)(1). 21 Plaintiff submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). 22 Accordingly, the request to proceed in forma pauperis is granted. 23 As discussed below, plaintiff’s complaint is dismissed with leave to amend. 24 Screening Standards 25 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. 26 §§ 1914(a), 1915(b)(1). By this order, plaintiff is assessed an initial partial filing fee in 27

28 1 Plaintiff is an AB 109 inmate serving his prison sentence in county jail. (ECF No. 6.) 1 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court directs the 2 appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and forward 3 it to the Clerk of the Court. Thereafter, plaintiff is obligated to make monthly payments of twenty 4 percent of the preceding month’s income credited to plaintiff’s trust account. These payments 5 will be forwarded by the appropriate agency to the Clerk of the Court each time the amount in 6 plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. 7 § 1915(b)(2). 8 The court is required to screen complaints brought by prisoners seeking relief against a 9 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 10 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 11 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 12 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 13 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 14 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 15 Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an 16 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 17 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 18 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 19 Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 20 2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably 21 meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at 22 1227. 23 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 24 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 25 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic 26 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 27 In order to survive dismissal for failure to state a claim, a complaint must contain more than “a 28 formulaic recitation of the elements of a cause of action;” it must contain factual allegations 1 sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550 U.S. at 555. 2 However, “[s]pecific facts are not necessary; the statement [of facts] need only ‘give the 3 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v. 4 Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal 5 quotations marks omitted). In reviewing a complaint under this standard, the court must accept as 6 true the allegations of the complaint in question, Erickson, 551 U.S. at 93, and construe the 7 pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 8 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984). 9 Plaintiff’s Complaint 10 Plaintiff alleges that while working with a dull knife, steadily cutting, the knife slipped 11 and badly severed plaintiff’s thumb. Plaintiff claims he needed stitches, but never received the 12 proper medical attention. Plaintiff claims that he did not sign a release of liability and was not 13 provided proper training on how to use a knife. Plaintiff states he was given days off with 14 improper healing. As defendants, plaintiff names Pam and Tammy (“the boss”) who are both free 15 staff who work in the RCCC kitchen. Plaintiff sets forth no specific relief he seeks. 16 Eighth Amendment: Prison Work Conditions 17 The Constitution does not mandate comfortable prisons, but neither does it permit 18 inhumane ones. See Farmer v. Brennan, 511 U.S. 825, 832 (1994). The treatment a prisoner 19 receives in prison or while housed at the county jail and the conditions under which he is confined 20 are subject to scrutiny under the Eighth Amendment. See Helling v. McKinney, 509 U.S. 25, 31 21 (1993). The Eighth Amendment imposes duties on prison officials to provide prisoners with the 22 basic necessities of life, such as food, clothing, shelter, sanitation, medical care, and personal 23 safety. See Farmer, 511 U.S. at 832. A plaintiff alleging that conditions of confinement amount 24 to cruel and unusual punishment prohibited by the Eighth Amendment must satisfy a two-prong 25 test. Wilson v. Seiter, 501 U.S. 294, 298 (1991). First, a plaintiff must satisfy an objective test 26 showing that “he is incarcerated under conditions posing a substantial risk of serious harm.” 27 Farmer, 511 U.S. at 834. In determining whether a deprivation of a basic necessity is sufficiently 28 serious to satisfy the objective component of an Eighth Amendment claim, courts consider the 1 circumstances, nature, and duration of the deprivation. See Johnson v. Lewis, 217 F.3d 726, 731 2 (9th Cir. 2000). Second, the plaintiff must show that the prison official inflicted the deprivation 3 with a “sufficiently culpable state of mind,” that is, with “deliberate indifference” to his health or 4 safety. Farmer, 511 U.S. at 834. The deliberate indifference standard requires that the official 5 know of and disregard an excessive risk to inmate health or safety. See id. at 837. The official 6 must both be aware of facts from which the inference could be drawn that a substantial risk of 7 serious harm exists, and he must also draw the inference. See id. 8 “[T]he Eighth Amendment is implicated in the prison work context only when a prisoner 9 employee alleges that a prison official compelled him to ‘perform physical labor which [was] 10 beyond [his] strength, endanger[ed his life] or health, or cause[d] undue pain.’” Morgan v. 11 Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006) (quoting Berry v. Bunnell, 39 F.3d 1056, 1057 12 (9th Cir. 1994) (per curiam)); see also Wallis v. Baldwin, 70 F.3d 1074 (9th Cir. 1995) (analyzing 13 under the Eighth Amendment a prisoner’s claim that his health was endangered when he was 14 forced to remove asbestos without protective gear). 15 Here, the complaint fails to state a claim for an Eighth Amendment violation, as both 16 prongs of an Eighth Amendment claim are missing. Using a dull knife does not amount to an 17 objectively serious condition. Compare Osolinski v. Kane, 92 F.3d 934, 936 (9th Cir. 1996) 18 (defective prison oven, by itself, does not create objectively insufficiently humane condition in 19 violation of the Eighth Amendment), and id. at 938 (noting that “minor safety hazards were found 20 not to violate the Eighth Amendment” in earlier cases involving the existence of a greasy 21 staircase which caused a prisoner to slip and fall, the failure to repair leaking dishwasher which 22 resulted in a pool of soapy water in which prisoner slipped, and a slippery kitchen floor), with 23 Morgan, 465 F.3d at 1044, 1046 (summary judgment on Eighth Amendment claim properly 24 denied in case brought by prisoner whose thumb was torn off by a printing press that was known 25 to have loose chains that “caused the press to buck and shake”), and Wallis, 70 F.3d at 1076-77 26 (requiring inmates to clean from attic material known to contain dangerous asbestos without 27 protective gear demonstrated deliberate indifference). Cutting one’s thumb while using a dull 28 knife to cut vegetables is insufficient to demonstrate an Eighth Amendment violation. Plaintiff 1 does not allege an objectively serious condition necessary for an Eighth Amendment conditions 2 of confinement claim. 3 The complaint also does not allege that any defendant acted with the requisite mental state 4 of deliberate indifference, i.e., that a prison official knew of and disregarded an excessive risk to 5 plaintiff’s health or safety. See Farmer, 511 U.S. at 837. Plaintiff identifies no wrongdoing by 6 any particular defendant. 7 Eighth Amendment: Inadequate Medical Care 8 Plaintiff refers to “improper healing” and alleges he suffered an “injury of needed 9 stitches.” (ECF No. 1 at 3.) Liberally construed, plaintiff could be attempting to claim that jail 10 staff failed to provide plaintiff medical care. However, plaintiff fails to explain how his injury 11 was not properly treated, or by whom. Thus, it is unclear whether plaintiff can state a cognizable 12 Eighth Amendment claim based on deliberate indifference to his serious medical needs. In an 13 abundance of caution, plaintiff is provided with the standards governing such claims in the event 14 he is able to amend his complaint to state a cognizable Eighth Amendment claim. 15 “[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate 16 must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091, 17 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two-part test for 18 deliberate indifference requires the plaintiff to show (1) “‘a serious medical need’ by 19 demonstrating that ‘failure to treat a prisoner’s condition could result in further significant injury 20 or the unnecessary and wanton infliction of pain,’” and (2) “the defendant’s response to the need 21 was deliberately indifferent.” Jett, 439 F.3d at 1096 (quoting McGuckin v. Smith, 974 F.2d 1050, 22 1059 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133, 23 1136 (9th Cir. 1997) (en banc) (internal quotations omitted)). Deliberate indifference is shown by 24 “a purposeful act or failure to respond to a prisoner’s pain or possible medical need, and harm 25 caused by the indifference.” Jett, 39 F.3d at 1096 (citing McGuckin, 974 F.2d at 1060). 26 Deliberate indifference may be manifested “when prison officials deny, delay or intentionally 27 interfere with medical treatment, or it may be shown by the way in which prison physicians 28 provide medical care.” Id. Where a prisoner is alleging a delay in receiving medical treatment, 1 the delay must have led to further harm in order for the prisoner to make a claim of deliberate 2 indifference to serious medical needs. McGuckin at 1060 (citing Shapely v. Nevada Bd. of State 3 Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985)). 4 “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 5 1060 (9th Cir. 2004). “Under this standard, the prison official must not only ‘be aware of the 6 facts from which the inference could be drawn that a substantial risk of serious harm exists,’ but 7 that person ‘must also draw the inference.’” Id. at 1057 (quoting Farmer, 511 U.S. at 837). “‘If a 8 prison official should have been aware of the risk, but was not, then the official has not violated 9 the Eighth Amendment, no matter how severe the risk.’” Toguchi, 391 F.3d at 1057 (quoting 10 Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)). “A showing of 11 medical malpractice or negligence is insufficient to establish a constitutional deprivation under 12 the Eighth Amendment.” Toguchi, 391 F.3d at 1060. “[E]ven gross negligence is insufficient to 13 establish a constitutional violation.” Id. (citing Wood v. Housewright, 900 F.2d 1332, 1334 (9th 14 Cir. 1990)). 15 “A difference of opinion between a prisoner-patient and prison medical authorities 16 regarding treatment does not give rise to a § 1983 claim.” Franklin v. Oregon, 662 F.2d 1337, 17 1344 (9th Cir. 1981) (internal citation omitted). To prevail, a plaintiff “must show that the course 18 of treatment the doctors chose was medically unacceptable under the circumstances . . . and . . . 19 that they chose this course in conscious disregard of an excessive risk to plaintiff’s health.” 20 Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (internal citations omitted). 21 Leave to Amend 22 For the above reasons, plaintiff’s complaint must be dismissed.2 In an abundance of 23 caution, the court, however, grants leave to file an amended complaint. 24 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions 25 about which he complains resulted in a deprivation of plaintiff’s constitutional rights. See e.g., 26 27 2 On May 26, 2021, plaintiff wrote a letter inquiring whether he qualifies for early release and, if so, what steps to take. (ECF No. 6.) Plaintiff is advised that this court cannot provide legal 28 advice. 1 West v. Atkins, 487 U.S. 42, 48 (1988). Also, the complaint must allege in specific terms how 2 each named defendant is involved. Rizzo v. Goode, 423 U.S. 362, 371 (1976). There can be no 3 liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a 4 defendant’s actions and the claimed deprivation. Rizzo, 423 U.S. at 371; May v. Enomoto, 633 5 F.2d 164, 167 (9th Cir. 1980). Furthermore, vague and conclusory allegations of official 6 participation in civil rights violations are not sufficient. Ivey v. Bd. of Regents, 673 F.2d 266, 7 268 (9th Cir. 1982). 8 In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to 9 make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended 10 complaint be complete in itself without reference to any prior pleading. This requirement exists 11 because, as a general rule, an amended complaint supersedes the original complaint. See Ramirez 12 v.County of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) (“an ‘amended complaint 13 supersedes the original, the latter being treated thereafter as non-existent.’” (internal citation 14 omitted)). Once plaintiff files an amended complaint, the original pleading no longer serves any 15 function in the case. Therefore, in an amended complaint, as in an original complaint, each claim 16 and the involvement of each defendant must be sufficiently alleged. 17 In accordance with the above, IT IS HEREBY ORDERED that: 18 1. Plaintiff’s request for leave to proceed in forma pauperis is granted. 19 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 20 is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 21 §1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 22 appropriate agency filed concurrently herewith. 23 3. Plaintiff’s complaint is dismissed. 24 4. Within thirty days from the date of this order, plaintiff shall complete the attached 25 26 Notice of Amendment and submit the following documents to the court: 27 a. The completed Notice of Amendment; and 28 b. An original Amended Complaint. 1 | Plaintiffs amended complaint shall comply with the requirements of the Civil Rights Act, the 2 || Federal Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint must 3 || also bear the docket number assigned to this case and must be labeled “Amended Complaint.” 4 Failure to file an amended complaint in accordance with this order may result in the 5 || dismissal of this action. 6 5. The Clerk of the Court shall send plaintiff the form for filing a § 1983 action by a 7 || prisoner. 8 || Dated: June 1, 2021 Foci) Aharon 10 | aniocss.s UNITED STATES MAGISTRATE JUDGE 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9

10 DEMETRIUS DAVIS, No. 2:21-cv-0634 KJN P 11 Plaintiff, 12 v. NOTICE OF AMENDMENT 13 PAM, et al., 14 Defendants. 15

16 Plaintiff submits the following document in compliance with the court’s order 17 filed______________. 18 _____________ Amended Complaint 19 DATED:

20 ________________________________ 21 Plaintiff

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