1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LASANCE DOUGLAS, No. 2:23-cv-00985-CKD P 12 Plaintiff, 13 v. ORDER 14 DEEPTHI SURINENI, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983 and 18 has requested authority pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis. 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 must contain more than a “formulaic recitation of the elements of a cause of 17 action;” it must contain factual allegations sufficient to “raise a right to relief above the 18 speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “The pleading 19 must contain something more. . . than . . . a statement of facts that merely creates a suspicion [of] 20 a legally cognizable right of action.” Id., quoting 5 C. Wright & A. Miller, Federal Practice and 21 Procedure § 1216, pp. 235-35 (3d ed. 2004). “[A] complaint must contain sufficient factual 22 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 23 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). “A claim has 24 facial plausibility when the plaintiff pleads factual content that allows the court to draw the 25 reasonable inference that the defendant is liable for the misconduct alleged.” Id. 26 In reviewing a complaint under this standard, the court must accept as true the allegations 27 of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 28 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in 1 the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421(1969). 2 II. Allegations in the Complaint 3 At all times relevant to the allegations in the complaint, plaintiff was an inmate at Mule 4 Creek State Prison. Named as defendants are two medical providers at the prison. 5 Plaintiff sues defendant Surineni, the Physician’s Assistant, who refused to provide him 6 more effective pain management for left knee pain beginning in May, 2022. Plaintiff specifically 7 requested pain medication that was different than Motrin, Tylenol, and Gabapentin because these 8 were not effective to treat his knee pain. As a result of the failure to receive effective pain 9 management from defendant Surineni, plaintiff alleges that he now has a permanent limp. 10 Plaintiff also sues defendant Ullery who is the doctor who reviewed plaintiff’s medical 11 grievance against defendant Surineni. Plaintiff bases his claim against defendant Ullery on 12 respondeat superior liability since he “is responsible for the proper medical treatment of the 13 inmates in his charge.” ECF No. 1 at 5. Specifically, plaintiff contends that defendant Ullery 14 failed to properly train and supervise defendant Surineni, who was his subordinate. 15 By way of relief, plaintiff seeks a declaratory judgment as well as compensatory and 16 punitive damages. 17 III. Legal Standards 18 The following legal standards are provided based on plaintiff’s pro se status as well as the 19 nature of the allegations in the complaint. 20 A. Linkage 21 The civil rights statute requires that there be an actual connection or link between the 22 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 23 Monell v. Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 24 (1976). The Ninth Circuit has held that “[a] person ‘subjects' another to the deprivation of a 25 constitutional right, within the meaning of section 1983, if he does an affirmative act, participates 26 in another's affirmative acts or omits to perform an act which he is legally required to do that 27 causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th 28 Cir. 1978) (citation omitted).
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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 LASANCE DOUGLAS, No. 2:23-cv-00985-CKD P 12 Plaintiff, 13 v. ORDER 14 DEEPTHI SURINENI, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983 and 18 has requested authority pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis. 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 must contain more than a “formulaic recitation of the elements of a cause of 17 action;” it must contain factual allegations sufficient to “raise a right to relief above the 18 speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “The pleading 19 must contain something more. . . than . . . a statement of facts that merely creates a suspicion [of] 20 a legally cognizable right of action.” Id., quoting 5 C. Wright & A. Miller, Federal Practice and 21 Procedure § 1216, pp. 235-35 (3d ed. 2004). “[A] complaint must contain sufficient factual 22 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 23 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). “A claim has 24 facial plausibility when the plaintiff pleads factual content that allows the court to draw the 25 reasonable inference that the defendant is liable for the misconduct alleged.” Id. 26 In reviewing a complaint under this standard, the court must accept as true the allegations 27 of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 28 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in 1 the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421(1969). 2 II. Allegations in the Complaint 3 At all times relevant to the allegations in the complaint, plaintiff was an inmate at Mule 4 Creek State Prison. Named as defendants are two medical providers at the prison. 5 Plaintiff sues defendant Surineni, the Physician’s Assistant, who refused to provide him 6 more effective pain management for left knee pain beginning in May, 2022. Plaintiff specifically 7 requested pain medication that was different than Motrin, Tylenol, and Gabapentin because these 8 were not effective to treat his knee pain. As a result of the failure to receive effective pain 9 management from defendant Surineni, plaintiff alleges that he now has a permanent limp. 10 Plaintiff also sues defendant Ullery who is the doctor who reviewed plaintiff’s medical 11 grievance against defendant Surineni. Plaintiff bases his claim against defendant Ullery on 12 respondeat superior liability since he “is responsible for the proper medical treatment of the 13 inmates in his charge.” ECF No. 1 at 5. Specifically, plaintiff contends that defendant Ullery 14 failed to properly train and supervise defendant Surineni, who was his subordinate. 15 By way of relief, plaintiff seeks a declaratory judgment as well as compensatory and 16 punitive damages. 17 III. Legal Standards 18 The following legal standards are provided based on plaintiff’s pro se status as well as the 19 nature of the allegations in the complaint. 20 A. Linkage 21 The civil rights statute requires that there be an actual connection or link between the 22 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 23 Monell v. Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 24 (1976). The Ninth Circuit has held that “[a] person ‘subjects' another to the deprivation of a 25 constitutional right, within the meaning of section 1983, if he does an affirmative act, participates 26 in another's affirmative acts or omits to perform an act which he is legally required to do that 27 causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th 28 Cir. 1978) (citation omitted). In order to state a claim for relief under section 1983, plaintiff must 1 link each named defendant with some affirmative act or omission that demonstrates a violation of 2 plaintiff's federal rights. 3 B. Deliberate Indifference to a Serious Medical Need 4 Denial or delay of medical care for a prisoner’s serious medical needs may constitute a 5 violation of the prisoner’s Eighth and Fourteenth Amendment rights. Estelle v. Gamble, 429 U.S. 6 97, 104-05 (1976). An individual is liable for such a violation only when the individual is 7 deliberately indifferent to a prisoner’s serious medical needs. Id.; see Jett v. Penner, 439 F.3d 8 1091, 1096 (9th Cir. 2006); Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002); Lopez v. 9 Smith, 203 F.3d 1122, 1131-32 (9th Cir. 2000). 10 In the Ninth Circuit, the test for deliberate indifference consists of two parts. Jett, 439 11 F.3d at 1096, citing McGuckin v. Smith, 974 F.2d 1050 (9th Cir. 1991), overruled on other 12 grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc). First, the 13 plaintiff must show a “serious medical need” by demonstrating that “failure to treat a prisoner’s 14 condition could result in further significant injury or the ‘unnecessary and wanton infliction of 15 pain.’” Id., citing Estelle, 429 U.S. at 104. “Examples of serious medical needs include ‘[t]he 16 existence of an injury that a reasonable doctor or patient would find important and worthy of 17 comment or treatment; the presence of a medical condition that significantly affects an 18 individual’s daily activities; or the existence of chronic and substantial pain.’” Lopez, 203 F. 3d 19 at 1131-1132, citing McGuckin, 974 F.2d at 1059-60. 20 Second, the plaintiff must show the defendant’s response to the need was deliberately 21 indifferent. Jett, 439 F.3d at 1096. This second prong is satisfied by showing (a) a purposeful act 22 or failure to respond to a prisoner’s pain or possible medical need and (b) harm caused by the 23 indifference. Id. Under this standard, the prison official must not only “be aware of facts from 24 which the inference could be drawn that a substantial risk of serious harm exists,” but that person 25 “must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). This “subjective 26 approach” focuses only “on what a defendant’s mental attitude actually was.” Id. at 839. A 27 showing of merely negligent medical care is not enough to establish a constitutional violation. 28 Frost v. Agnos, 152 F.3d 1124, 1130 (9th Cir. 1998), citing Estelle, 429 U.S. at 105-106. A 1 difference of opinion about the proper course of treatment is not deliberate indifference, nor does 2 a dispute between a prisoner and prison officials over the necessity for or extent of medical 3 treatment amount to a constitutional violation. See, e.g., Toguchi v. Chung, 391 F.3d 1051, 1058 4 (9th Cir. 2004); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). Furthermore, mere delay of 5 medical treatment, “without more, is insufficient to state a claim of deliberate medical 6 indifference.” Shapley v. Nev. Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). 7 Where a prisoner alleges that delay of medical treatment evinces deliberate indifference, the 8 prisoner must show that the delay caused “significant harm and that Defendants should have 9 known this to be the case.” Hallett, 296 F.3d at 745-46; see McGuckin, 974 F.2d at 1060. 10 C. Supervisory Liability 11 Government officials may not be held liable for the unconstitutional conduct of their 12 subordinates under a theory of respondeat superior. Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009) 13 (“In a § 1983 suit ... the term “supervisory liability” is a misnomer. Absent vicarious liability, 14 each Government official, his or her title notwithstanding is only liable for his or her own 15 misconduct.”). When the named defendant holds a supervisory position, the causal link between 16 the defendant and the claimed constitutional violation must be specifically alleged; that is, a 17 plaintiff must allege some facts indicating that the defendant either personally participated in or 18 directed the alleged deprivation of constitutional rights or knew of the violations and failed to act 19 to prevent them. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Taylor v. List, 880 F.2d 20 1040, 1045 (9th Cir. 1989); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). 21 D. Grievance Personnel 22 The existence of a prison grievance procedure establishes a procedural right only and 23 “does not confer any substantive right upon the inmates.” Buckley v. Barlow, 997 F.2d 494, 495 24 (8th Cir. 1993) (citation omitted); see also Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) 25 (no liberty interest in processing of appeals because no entitlement to a specific grievance 26 procedure). This means that a prison official’s action in reviewing an inmate grievance cannot 27 serve as a basis for liability under Section 1983. Buckley, 997 F.2d at 495. “Only persons who 28 cause or participate in the violations are responsible. Ruling against a prisoner on an 1 administrative complaint does not cause or contribute to the violation. A guard who stands and 2 watches while another guard beats a prisoner violates the Constitution; a guard who rejects an 3 administrative complaint about a completed act of misconduct does not.” George v. Smith, 507 4 F.3d 605, 609-10 (7th Cir. 2007) (citations omitted). 5 IV. Analysis 6 The court finds that the allegations in the complaint fail to state a claim for relief against 7 any named defendant. The allegations against defendant Surineni amount to a difference of 8 opinion concerning the type of pain medication prescribed for plaintiff’s left knee pain. 9 However, that does not rise to the level of an Eighth Amendment claim of deliberate indifference. 10 See, e.g., Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004); Sanchez v. Vild, 891 F.2d 240, 11 242 (9th Cir. 1989). The claims against defendant Ullery are based either on his supervisory 12 capacity or his review of plaintiff’s medical grievance. Neither of these two theories is sufficient 13 to establish civil liability. See Ashcroft v. Iqbal, 556 U.S. at 677; George v. Smith, 507 F.3d at 14 609-10. For all these reasons, the court dismisses the complaint, but grants plaintiff leave to file 15 an amended complaint. 16 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions 17 complained of have resulted in a deprivation of plaintiff’s constitutional rights. See Ellis v. 18 Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, the complaint must allege in specific terms how 19 each named defendant is involved. There can be no liability under 42 U.S.C. § 1983 unless there 20 is some affirmative link or connection between a defendant’s actions and the claimed deprivation. 21 Rizzo v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); 22 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, vague and conclusory 23 allegations of official participation in civil rights violations are not sufficient. See Ivey v. Board 24 of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 25 In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to 26 make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended 27 complaint be complete in itself without reference to any prior pleading. This is because, as a 28 general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 1 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no 2 longer serves any function in the case. Therefore, in an amended complaint, as in an original 3 complaint, each claim and the involvement of each defendant must be sufficiently alleged. 4 V. Plain Language Summary for Pro Se Party 5 The following information is meant to explain this order in plain English and is not 6 intended as legal advice. 7 The court has reviewed the allegations in your complaint and determined that they do not 8 state any claim against the defendants. Your complaint is being dismissed, but you are being 9 given the chance to fix the problems identified in this screening order. 10 Although you are not required to do so, you may file an amended complaint within 30 11 days from the date of this order. If you choose to file an amended complaint, pay particular 12 attention to the legal standards identified in this order which may apply to your claims. 13 In accordance with the above, IT IS HEREBY ORDERED that: 14 1. Plaintiff's motion for leave to proceed in forma pauperis (ECF No. 2) is granted. 15 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 16 is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 17 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 18 Director of the California Department of Corrections and Rehabilitation filed concurrently 19 herewith. 20 3. The complaint is dismissed for the reasons discussed above. 21 4. Plaintiff is granted thirty days from the date of service of this order to file an amended 22 complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil 23 ///// 24 ///// 25 ///// 26 ///// 27 ///// 28 //// 1 | Procedure, and the Local Rules of Practice; the amended complaint must bear the docket number 2 || assigned this case and must be labeled “Amended Complaint”; and, the failure to file an amended 3 || complaint in accordance with this order will result in a recommendation that this action be 4 || dismissed. 5 || Dated: September 10, 2023 Card Kt | (£4 (g— 6 CAROLYN K DELANEY? 7 UNITED STATES MAGISTRATE JUDGE 8 9 10 1] 12 13 14 12/doug0985.B 15 16 17 18 19 20 21 22 23 24 25 26 27 28