1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LUIS A. MARTINEZ, No. 2:22-cv-01369-CKD P 12 Plaintiff, 13 v. ORDER 14 P. LOPEZ, 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 I. Screening Requirement 2 The court is required to screen complaints brought by prisoners seeking relief against a 3 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 4 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 5 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 6 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 7 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 8 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 9 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 10 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 11 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 12 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 13 Cir. 1989); Franklin, 745 F.2d at 1227. 14 In order to avoid dismissal for failure to state a claim a complaint must contain more than 15 “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause 16 of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, 17 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 18 statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim 19 upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A 20 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 21 the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. 22 at 678. When considering whether a complaint states a claim upon which relief can be granted, 23 the court must accept the allegations as true, Erickson v. Pardus, 551 U.S. 89, 93-94 (2007), and 24 construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 25 U.S. 232, 236 (1974). 26 II. Allegations in the Complaint 27 Beginning on December 25, 2021, plaintiff was moved to housing unit I-1 at the 28 California Medical Facility. He was assigned to Registered Nurse P. Lopez based on his short 1 bowel syndrome which requires I.V. infusions seven days a week. 2 On the same day that he was transferred, plaintiff experienced problems with his I.V. 3 Since there was no medical call button in his cell, he started knocking on his cell door to get 4 medical attention. After 45 minutes of knocking, defendant Vang, who is a correctional officer, 5 told plaintiff that he did not know the phone number to contact the medical unit. Defendant Vang 6 brought a nurse to assist plaintiff less than an hour later. 7 Again on December 30, 2021, plaintiff experienced problems with his I.V. After 8 knocking on his cell door for 46 minutes, Correctional Officer Gordon told plaintiff that the nurse 9 would see him. The nurse responded to plaintiff at 9:30 a.m. 10 On January 5, 2022, defendant Gordon told plaintiff that he would not go over R.N. Lopez 11 and find a different nurse to respond to plaintiff’s request for assistance. When defendant Lopez 12 responded at 11:00 to flush plaintiff’s I.V. line, it was already clogged. 13 Due to the delays in flushing his I.V., plaintiff contracted sepsis and required 14 hospitalization in order to have his I.V. line replaced. 15 III. Legal Standards 16 A. Linkage Requirement 17 The civil rights statute requires that there be an actual connection or link between the 18 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 19 Monell v. Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 20 (1976). The Ninth Circuit has held that “[a] person ‘subjects' another to the deprivation of a 21 constitutional right, within the meaning of section 1983, if he does an affirmative act, participates 22 in another's affirmative acts or omits to perform an act which he is legally required to do that 23 causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th 24 Cir. 1978) (citation omitted). In order to state a claim for relief under section 1983, plaintiff must 25 link each named defendant with some affirmative act or omission that demonstrates a violation of 26 plaintiff's federal rights. 27 B. Deliberate Indifference 28 Denial or delay of medical care for a prisoner’s serious medical needs may constitute a 1 violation of the prisoner’s Eighth and Fourteenth Amendment rights. Estelle v. Gamble, 429 U.S. 2 97, 104-05 (1976). An individual is liable for such a violation only when the individual is 3 deliberately indifferent to a prisoner’s serious medical needs. Id.; see Jett v. Penner, 439 F.3d 4 1091, 1096 (9th Cir. 2006); Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002); Lopez v. 5 Smith, 203 F.3d 1122, 1131-32 (9th Cir. 2000). 6 In the Ninth Circuit, the test for deliberate indifference consists of two parts. Jett, 439 7 F.3d at 1096, citing McGuckin 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 LUIS A. MARTINEZ, No. 2:22-cv-01369-CKD P 12 Plaintiff, 13 v. ORDER 14 P. LOPEZ, 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 I. Screening Requirement 2 The court is required to screen complaints brought by prisoners seeking relief against a 3 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 4 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 5 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 6 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 7 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 8 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 9 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 10 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 11 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 12 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 13 Cir. 1989); Franklin, 745 F.2d at 1227. 14 In order to avoid dismissal for failure to state a claim a complaint must contain more than 15 “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause 16 of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, 17 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 18 statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim 19 upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A 20 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 21 the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. 22 at 678. When considering whether a complaint states a claim upon which relief can be granted, 23 the court must accept the allegations as true, Erickson v. Pardus, 551 U.S. 89, 93-94 (2007), and 24 construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 25 U.S. 232, 236 (1974). 26 II. Allegations in the Complaint 27 Beginning on December 25, 2021, plaintiff was moved to housing unit I-1 at the 28 California Medical Facility. He was assigned to Registered Nurse P. Lopez based on his short 1 bowel syndrome which requires I.V. infusions seven days a week. 2 On the same day that he was transferred, plaintiff experienced problems with his I.V. 3 Since there was no medical call button in his cell, he started knocking on his cell door to get 4 medical attention. After 45 minutes of knocking, defendant Vang, who is a correctional officer, 5 told plaintiff that he did not know the phone number to contact the medical unit. Defendant Vang 6 brought a nurse to assist plaintiff less than an hour later. 7 Again on December 30, 2021, plaintiff experienced problems with his I.V. After 8 knocking on his cell door for 46 minutes, Correctional Officer Gordon told plaintiff that the nurse 9 would see him. The nurse responded to plaintiff at 9:30 a.m. 10 On January 5, 2022, defendant Gordon told plaintiff that he would not go over R.N. Lopez 11 and find a different nurse to respond to plaintiff’s request for assistance. When defendant Lopez 12 responded at 11:00 to flush plaintiff’s I.V. line, it was already clogged. 13 Due to the delays in flushing his I.V., plaintiff contracted sepsis and required 14 hospitalization in order to have his I.V. line replaced. 15 III. Legal Standards 16 A. Linkage Requirement 17 The civil rights statute requires that there be an actual connection or link between the 18 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 19 Monell v. Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 20 (1976). The Ninth Circuit has held that “[a] person ‘subjects' another to the deprivation of a 21 constitutional right, within the meaning of section 1983, if he does an affirmative act, participates 22 in another's affirmative acts or omits to perform an act which he is legally required to do that 23 causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th 24 Cir. 1978) (citation omitted). In order to state a claim for relief under section 1983, plaintiff must 25 link each named defendant with some affirmative act or omission that demonstrates a violation of 26 plaintiff's federal rights. 27 B. Deliberate Indifference 28 Denial or delay of medical care for a prisoner’s serious medical needs may constitute a 1 violation of the prisoner’s Eighth and Fourteenth Amendment rights. Estelle v. Gamble, 429 U.S. 2 97, 104-05 (1976). An individual is liable for such a violation only when the individual is 3 deliberately indifferent to a prisoner’s serious medical needs. Id.; see Jett v. Penner, 439 F.3d 4 1091, 1096 (9th Cir. 2006); Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002); Lopez v. 5 Smith, 203 F.3d 1122, 1131-32 (9th Cir. 2000). 6 In the Ninth Circuit, the test for deliberate indifference consists of two parts. Jett, 439 7 F.3d at 1096, citing McGuckin v. Smith, 974 F.2d 1050 (9th Cir. 1991), overruled on other 8 grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc). First, the 9 plaintiff must show a “serious medical need” by demonstrating that “failure to treat a prisoner’s 10 condition could result in further significant injury or the ‘unnecessary and wanton infliction of 11 pain.’” Id., citing Estelle, 429 U.S. at 104. “Examples of serious medical needs include ‘[t]he 12 existence of an injury that a reasonable doctor or patient would find important and worthy of 13 comment or treatment; the presence of a medical condition that significantly affects an 14 individual’s daily activities; or the existence of chronic and substantial pain.’” Lopez, 203 F. 3d 15 at 1131-1132, citing McGuckin, 974 F.2d at 1059-60. 16 Second, the plaintiff must show the defendant’s response to the need was deliberately 17 indifferent. Jett, 439 F.3d at 1096. This second prong is satisfied by showing (a) a purposeful act 18 or failure to respond to a prisoner’s pain or possible medical need and (b) harm caused by the 19 indifference. Id. Under this standard, the prison official must not only “be aware of facts from 20 which the inference could be drawn that a substantial risk of serious harm exists,” but that person 21 “must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). This “subjective 22 approach” focuses only “on what a defendant’s mental attitude actually was.” Id. at 839. A 23 showing of merely negligent medical care is not enough to establish a constitutional violation. 24 Frost v. Agnos, 152 F.3d 1124, 1130 (9th Cir. 1998), citing Estelle, 429 U.S. at 105-106. A 25 difference of opinion about the proper course of treatment is not deliberate indifference, nor does 26 a dispute between a prisoner and prison officials over the necessity for or extent of medical 27 treatment amount to a constitutional violation. See, e.g., Toguchi v. Chung, 391 F.3d 1051, 1058 28 (9th Cir. 2004); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). Furthermore, mere delay of 1 medical treatment, “without more, is insufficient to state a claim of deliberate medical 2 indifference.” Shapley v. Nev. Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). 3 Where a prisoner alleges that delay of medical treatment evinces deliberate indifference, the 4 prisoner must show that the delay caused “significant harm and that Defendants should have 5 known this to be the case.” Hallett, 296 F.3d at 745-46; see McGuckin, 974 F.2d at 1060. 6 IV. Analysis 7 The court has reviewed plaintiff’s complaint and finds that it fails to state a claim upon 8 which relief can be granted under federal law. The allegations in the complaint establish a delay 9 in providing plaintiff with medical attention related to his I.V. line. Between December 25, 2021 10 and January 5, 2022, plaintiff received untimely medical assistance from unidentified nursing 11 staff. Other than undescribed “mistakes,” the complaint does not link defendant Lopez to any 12 asserted constitutional violation until January 5, 2022 when she was unable to flush plaintiff’s 13 I.V. line because it was clogged. The allegations in the complaint do not establish that defendant 14 Lopez should have known that the delay on January 5, 2022 would result in significant harm to 15 plaintiff. See McGuckin, 974 F.2d at 1060. Therefore, the complaint does not state an Eighth 16 Amendment deliberate indifference claim against defendant Lopez. Regarding plaintiff’s 17 allegations against the correctional officers, both of these defendants summoned medical 18 assistance for plaintiff, albeit not as quickly as plaintiff requested. Once again, the complaint 19 does not establish that these defendants were subjectively aware that such a delay would result in 20 harm to plaintiff. See Farmer v. Brennan, 511 U.S. 825, 837 (1994). Absent such allegations, the 21 complaint does not state an Eighth claim against defendants Gordon or Vang. For all these 22 reasons, plaintiff’s complaint must be dismissed. The court will, however, grant leave to file an 23 amended complaint. 24 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions 25 complained of have resulted in a deprivation of plaintiff’s constitutional rights. See Ellis v. 26 Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, in his amended complaint, plaintiff must allege in 27 specific terms how each named defendant is involved. There can be no liability under 42 U.S.C. 28 § 1983 unless there is some affirmative link or connection between a defendant’s actions and the 1 claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976). Furthermore, vague and conclusory 2 allegations of official participation in civil rights violations are not sufficient. Ivey v. Board of 3 Regents, 673 F.2d 266, 268 (9th Cir. 1982). 4 Finally, plaintiff is informed that the court cannot refer to a prior pleading in order to 5 make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended 6 complaint be complete in itself without reference to any prior pleading. This is because, as a 7 general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 8 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no 9 longer serves any function in the case. Therefore, in an amended complaint, as in an original 10 complaint, each claim and the involvement of each defendant must be sufficiently alleged. 11 V. Plain Language Summary for Pro Se Party 12 The following information is meant to explain this order in plain English and is not 13 intended as legal advice. 14 The court has reviewed the allegations in your complaint and determined that they do not 15 state any claim against the defendants. Your complaint is being dismissed, but you are being 16 given the chance to fix the problems identified in this screening order. 17 Although you are not required to do so, you may file an amended complaint within 30 18 days from the date of this order. If you choose to file an amended complaint, pay particular 19 attention to the legal standards identified in this order which may apply to your claims. 20 In accordance with the above, IT IS HEREBY ORDERED that: 21 1. Plaintiff’s motion for leave to proceed in forma pauperis (ECF No. 2) is granted. 22 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. All fees 23 shall be collected and paid in accordance with this court’s order to the Director of the California 24 Department of Corrections and Rehabilitation filed concurrently herewith. 25 3. Plaintiff’s complaint is dismissed. 26 4. Plaintiff is granted thirty days from the date of service of this order to file an amended 27 complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil 28 Procedure, and the Local Rules of Practice. The amended complaint must bear the docket 1 | number assigned this case and must be labeled “Amended Complaint.” Failure to file an 2 || amended complaint in accordance with this order will result in a recommendation that this action 3 || be dismissed. 4 | Dated: January 25, 2023 Card Kt | (£4 (g— 5 CAROLYN K DELANEY? 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 1] 12 12/mart1369.14.docx 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28