1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GREGORY EUGENE HOWARD, No. 2:19-cv-02062 KJM CKD P 12 Plaintiff, 13 v. ORDER 14 ARYAD, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se and seeking relief pursuant to 42 U.S.C. § 18 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 19 636(b)(1). 20 Plaintiff requests leave to proceed in forma pauperis. As plaintiff has submitted a 21 declaration that makes the showing required by 28 U.S.C. § 1915(a), his request 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 separate order, the court will direct the appropriate agency to collect the 24 initial partial filing fee from plaintiff’s trust account and forward it to the Clerk of the Court. 25 Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding 26 month’s income credited to plaintiff’s prison trust account. These payments will be forwarded by 27 the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s account 28 exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2). 1 The court is required to screen complaints brought by prisoners seeking relief against a 2 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 3 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 4 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 5 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 6 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 7 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 8 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 9 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 10 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 11 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 12 Cir. 1989); Franklin, 745 F.2d at 1227. 13 In order to avoid dismissal for failure to state a claim a complaint must contain more than 14 “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause 15 of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, 16 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 17 statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim 18 upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A 19 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 20 the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. 21 at 678. When considering whether a complaint states a claim upon which relief can be granted, 22 the court must accept the allegations as true, Erickson v. Pardus, 551 U.S. 89, 93-94 (2007), and 23 construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 24 U.S. 232, 236 (1974). 25 The complaint names four physicians at California State Prison-Sacramento as defendants. 26 (ECF No. 1.) Plaintiff asserts medical indifference claims under the Eighth Amendment, alleging 27 in conclusory terms that defendants denied his requests to see a specialist and did not prescribe 28 proper pain medication. (Id. at 4.) Plaintiff attaches a copy of his March 2018 health care 1 grievance, requesting pain medication for his low back pain and claiming insufficient medical 2 care, and the administrative responses to the grievance. (Id. at 8-16.) 3 Denial or delay of medical care for a prisoner’s serious medical needs may constitute a 4 violation of the prisoner’s Eighth and Fourteenth Amendment rights. Estelle v. Gamble, 429 U.S. 5 97, 104-05 (1976). An individual is liable for such a violation only when the individual is 6 deliberately indifferent to a prisoner’s serious medical needs. Id.; see Jett v. Penner, 439 F.3d 7 1091, 1096 (9th Cir. 2006); Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002); Lopez v. 8 Smith, 203 F.3d 1122, 1131-32 (9th Cir. 2000). 9 In the Ninth Circuit, the test for deliberate indifference consists of two parts. Jett, 439 10 F.3d at 1096, citing McGuckin v. Smith, 974 F.2d 1050 (9th Cir. 1991), overruled on other 11 grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc). First, the 12 plaintiff must show a “serious medical need” by demonstrating that “failure to treat a prisoner’s 13 condition could result in further significant injury or the ‘unnecessary and wanton infliction of 14 pain.’” Id., citing Estelle, 429 U.S. at 104. “Examples of serious medical needs include ‘[t]he 15 existence of an injury that a reasonable doctor or patient would find important and worthy of 16 comment or treatment; the presence of a medical condition that significantly affects an 17 individual’s daily activities; or the existence of chronic and substantial pain.’” Lopez, 203 F. 3d 18 at 1131-1132, citing McGuckin, 974 F.2d at 1059-60. 19 Second, the plaintiff must show the defendant’s response to the need was deliberately 20 indifferent. Jett, 439 F.3d at 1096. This second prong is satisfied by showing (a) a purposeful act 21 or failure to respond to a prisoner’s pain or possible medical need and (b) harm caused by the 22 indifference. Id. Under this standard, the prison official must not only “be aware of facts from 23 which the inference could be drawn that a substantial risk of serious harm exists,” but that person 24 “must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). This “subjective 25 approach” focuses only “on what a defendant’s mental attitude actually was.” Id. at 839. A 26 showing of merely negligent medical care is not enough to establish a constitutional violation. 27 Frost v. Agnos, 152 F.3d 1124, 1130 (9th Cir. 1998), citing Estelle, 429 U.S. at 105-106.
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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 GREGORY EUGENE HOWARD, No. 2:19-cv-02062 KJM CKD P 12 Plaintiff, 13 v. ORDER 14 ARYAD, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se and seeking relief pursuant to 42 U.S.C. § 18 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 19 636(b)(1). 20 Plaintiff requests leave to proceed in forma pauperis. As plaintiff has submitted a 21 declaration that makes the showing required by 28 U.S.C. § 1915(a), his request 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 separate order, the court will direct the appropriate agency to collect the 24 initial partial filing fee from plaintiff’s trust account and forward it to the Clerk of the Court. 25 Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding 26 month’s income credited to plaintiff’s prison trust account. These payments will be forwarded by 27 the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s account 28 exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2). 1 The court is required to screen complaints brought by prisoners seeking relief against a 2 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 3 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 4 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 5 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 6 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 7 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 8 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 9 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 10 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 11 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 12 Cir. 1989); Franklin, 745 F.2d at 1227. 13 In order to avoid dismissal for failure to state a claim a complaint must contain more than 14 “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause 15 of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, 16 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 17 statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim 18 upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A 19 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 20 the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. 21 at 678. When considering whether a complaint states a claim upon which relief can be granted, 22 the court must accept the allegations as true, Erickson v. Pardus, 551 U.S. 89, 93-94 (2007), and 23 construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 24 U.S. 232, 236 (1974). 25 The complaint names four physicians at California State Prison-Sacramento as defendants. 26 (ECF No. 1.) Plaintiff asserts medical indifference claims under the Eighth Amendment, alleging 27 in conclusory terms that defendants denied his requests to see a specialist and did not prescribe 28 proper pain medication. (Id. at 4.) Plaintiff attaches a copy of his March 2018 health care 1 grievance, requesting pain medication for his low back pain and claiming insufficient medical 2 care, and the administrative responses to the grievance. (Id. at 8-16.) 3 Denial or delay of medical care for a prisoner’s serious medical needs may constitute a 4 violation of the prisoner’s Eighth and Fourteenth Amendment rights. Estelle v. Gamble, 429 U.S. 5 97, 104-05 (1976). An individual is liable for such a violation only when the individual is 6 deliberately indifferent to a prisoner’s serious medical needs. Id.; see Jett v. Penner, 439 F.3d 7 1091, 1096 (9th Cir. 2006); Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002); Lopez v. 8 Smith, 203 F.3d 1122, 1131-32 (9th Cir. 2000). 9 In the Ninth Circuit, the test for deliberate indifference consists of two parts. Jett, 439 10 F.3d at 1096, citing McGuckin v. Smith, 974 F.2d 1050 (9th Cir. 1991), overruled on other 11 grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc). First, the 12 plaintiff must show a “serious medical need” by demonstrating that “failure to treat a prisoner’s 13 condition could result in further significant injury or the ‘unnecessary and wanton infliction of 14 pain.’” Id., citing Estelle, 429 U.S. at 104. “Examples of serious medical needs include ‘[t]he 15 existence of an injury that a reasonable doctor or patient would find important and worthy of 16 comment or treatment; the presence of a medical condition that significantly affects an 17 individual’s daily activities; or the existence of chronic and substantial pain.’” Lopez, 203 F. 3d 18 at 1131-1132, citing McGuckin, 974 F.2d at 1059-60. 19 Second, the plaintiff must show the defendant’s response to the need was deliberately 20 indifferent. Jett, 439 F.3d at 1096. This second prong is satisfied by showing (a) a purposeful act 21 or failure to respond to a prisoner’s pain or possible medical need and (b) harm caused by the 22 indifference. Id. Under this standard, the prison official must not only “be aware of facts from 23 which the inference could be drawn that a substantial risk of serious harm exists,” but that person 24 “must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). This “subjective 25 approach” focuses only “on what a defendant’s mental attitude actually was.” Id. at 839. A 26 showing of merely negligent medical care is not enough to establish a constitutional violation. 27 Frost v. Agnos, 152 F.3d 1124, 1130 (9th Cir. 1998), citing Estelle, 429 U.S. at 105-106. 28 Here, the complaint does not specify how any defendant was deliberately indifferent to 1 plaintiff’s serious medical needs under the above standard. Plaintiff must allege with at least 2 some degree of particularity overt acts which defendants engaged in that support plaintiff’s claim. 3 Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). 4 The court finds that plaintiff’s complaint fails to state a claim upon which relief can be 5 granted under federal law. Plaintiff’s complaint must be dismissed. The court will, however, 6 grant leave to file an amended complaint. 7 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions 8 complained of have resulted in a deprivation of plaintiff’s constitutional rights. See Ellis v. 9 Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, in his amended complaint, plaintiff must allege in 10 specific terms how each named defendant is involved. There can be no liability under 42 U.S.C. 11 § 1983 unless there is some affirmative link or connection between a defendant’s actions and the 12 claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976). Furthermore, vague and conclusory 13 allegations of official participation in civil rights violations are not sufficient. Ivey v. Board of 14 Regents, 673 F.2d 266, 268 (9th Cir. 1982). 15 Finally, plaintiff is informed that the court cannot refer to a prior pleading in order to 16 make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended 17 complaint be complete in itself without reference to any prior pleading. This is because, as a 18 general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 19 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no 20 longer serves any function in the case. Therefore, in an amended complaint, as in an original 21 complaint, each claim and the involvement of each defendant must be sufficiently alleged. 22 In accordance with the above, IT IS HEREBY ORDERED that: 23 1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 2) is granted. 24 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. All fees 25 shall be collected and paid in accordance with this court’s order to the Director of the California 26 Department of Corrections and Rehabilitation filed concurrently herewith. 27 3. Plaintiff’s complaint is dismissed. 28 4. Plaintiff is granted thirty days from the date of service of this order to file an amended 1 | complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil 2 | Procedure, and the Local Rules of Practice. The amended complaint must bear the docket 3 | number assigned this case and must be labeled “Amended Complaint.” Failure to file an 4 | amended complaint in accordance with this order will result in a recommendation that this action 5 | be dismissed. 6 | Dated: April 9, 2020 i; dp. Al bie 7 CAROLYN K. DELANEY g UNITED STATES MAGISTRATE JUDGE 9 10 11 || 2howard2062.Screen 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28