Opinion
No. 2:15-cv-1039 AC P
04-27-2016
BRUCE DIXON, Plaintiff, v. M. KROENLEIN, et al., Defendants.
ORDER
Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Plaintiff has consented to the jurisdiction of the undersigned magistrate judge for all purposes pursuant to 28 U.S.C. § 636(c) and Local Rule 305(a). ECF No. 4.
I. Plaintiff's Current Address
As an initial matter, the docket reflects that plaintiff is housed at the California State Prison-Sacramento. However, the Inmate Locator website operated by the California Department of Corrections and Rehabilitation (CDCR) indicates that plaintiff is currently incarcerated at the California Medical Facility. It appears that plaintiff has not complied with Local Rule 183(b) which requires that a party appearing in propria persona inform the court of any address change. The Clerk of the Court will be directed to serve a copy of this order on plaintiff at both his address of record and at the California Medical Facility and plaintiff will be required to file a notice advising the court of his current address. Plaintiff is advised that failure to notify the court of his current address, or to notify the court if his address changes in the future, may result in dismissal of this case for failure to prosecute.
II. Application to Proceed In Forma Pauperis
Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). ECF No. 3. Accordingly, the request to proceed in forma pauperis will be granted.
Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the initial partial filing fee from plaintiff's trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding month's income credited to plaintiff's prison trust account. These payments will be forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff's account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).
III. Statutory Screening of Prisoner Complaints
The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). This standard also applies to complaints brought by non-prisoners that are proceeding pro se. 28 U.S.C. § 1915(e)(2).
A claim "is [legally] frivolous where it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). "[A] judge may dismiss [in forma pauperis] claims which are based on indisputably meritless legal theories or whose factual contentions are clearly baseless." Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989) (citation and internal quotations omitted), superseded by statute on other grounds as stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. Id.
"Federal Rule of Civil Procedure 8(a)(2) requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, in order to survive dismissal for failure to state a claim, a complaint must contain more than "a formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Id. (citations omitted). "[T]he pleading must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id. (alteration in original) (quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)).
"[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp., 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Bell Atl. Corp., 550 U.S. at 556). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976), as well as construe the pleading in the light most favorable to the plaintiff and resolve all doubts in the plaintiff's favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).
IV. Complaint
Plaintiff alleges that he was placed on suicide watch on March 22, 2014, after attempting to hang himself. ECF No. 1 at 4-5, ¶ 11. On March 24, 2014, while still on suicide watch, plaintiff became depressed and began cutting himself. Id. A nursing assistant reported plaintiff's behavior to defendant Lynch and defendant Lynch allegedly told the assistant to stop reporting plaintiff's attempts at self-harm and to tell plaintiff to cut himself deeper. Id. The next day, defendant Kroenlein removed plaintiff from suicide watch without conducting a psych evaluation and later that day plaintiff attempted to hang himself again. Id. After plaintiff's suicide attempt, he got to talk to defendant Kroenlein and explained about his issues. Id. A correctional officer also told her that plaintiff had been trying to hurt himself and that it would be best if he was on suicide watch. Id. Defendant Kroenlein instead put plaintiff in a strip cell. Id.
Between March 25, 2014, and March 26, 2014, while plaintiff was in the strip cell, he attempted to strangle himself three times, cut himself, and banged his head against the cell door. Id. at 5, ¶ 12. Plaintiff's self-harm attempts were witnessed by various medical staff but, under orders from defendant Kroenlein, failed to take any preventative measures or place him on suicide watch. Id., ¶¶ 12, 15. On March 26, 2014, plaintiff also swallowed a sharpened screw in front of defendant Chris, who did nothing to document or report plaintiff's behavior. Id.
Plaintiff was transferred to a crisis bed on March 27, 2014, and was there until April 3, 2014. Id., ¶ 13. While there, plaintiff was under the care of defendant Silar. Id. Plaintiff alleges that defendant Silar knew he had swallowed a screw, and that he could use that screw to harm himself once it passed through his system, but did nothing. Id. He also alleges that he cut himself numerous times while under defendant Silar's care and that defendant Silar ordered the nurses to not give plaintiff any preventative help and to not place him on suicide watch. Id., ¶ 15. Defendants Montoya and Diciro were allegedly mental health supervisors. Id.
V. Eighth Amendment - Deliberate Indifference
A. Legal Standard
"[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate must show 'deliberate indifference to serious medical needs.'" Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006), (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). This requires plaintiff to show (1) "a 'serious medical need' by demonstrating that 'failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain,'" and (2) "the defendant's response to the need was deliberately indifferent." Id. (quoting McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992) (citation and internal quotations marks omitted), overruled on other grounds WMX Technologies v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc)).
Deliberate indifference is established only where the defendant subjectively "'knows of and disregards an excessive risk to inmate health and safety.'" Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (emphasis added) (quoting Gibson v. County of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002)). Deliberate indifference can be established "by showing (a) a purposeful act or failure to respond to a prisoner's pain or possible medical need and (b) harm caused by the indifference." Jett, 439 F.3d at 1096 (citation omitted). A difference of opinion between an inmate and prison medical personnel—or between medical professionals—regarding appropriate medical diagnosis and treatment are not enough to establish a deliberate indifference claim. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); Toguchi, 391 F.3d at 1058.
B. Failure to State a Claim
There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a defendant's actions and the claimed deprivation. Rizzo v. Goode, 423 U.S. 362, 371, 376 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980). "Vague and conclusory allegations of official participation in civil rights violations are not sufficient." Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).
Additionally, "[t]here is no respondeat superior liability under section 1983." Taylor v List, 880 F.2d 1040, 1045 (9th Cir. 1989). "A defendant may be held liable as a supervisor under § 1983 'if there exists either (1) his or her personal involvement in the constitutional deprivation, or (2) a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation.'" Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (quoting Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989)). A supervisor may be liable for the constitutional violations of his subordinates if he "knew of the violations and failed to act to prevent them." Taylor, 880 F.2d at 1045. Finally, supervisory liability may also exist without any personal participation if the official implemented "a policy so deficient that the policy itself is a repudiation of the constitutional rights and is the moving force of the constitutional violation." Redman v. County of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (citations and quotations marks omitted), abrogated on other grounds by Farmer v. Brennan, 511 U.S. 825 (1970).
Plaintiff's only allegation against defendants Montoya and Diciro is that they were head supervising mental health providers. ECF No. 1 at 5, ¶ 15. This is insufficient to state a claim of relief against either defendant. Plaintiff has not alleged any facts that would show that either defendant participated in the deprivation of his rights or knew about the violations and failed to take action to stop them. The claims against these defendants will therefore be dismissed with leave to amend.
C. Claims for Which a Response Will Be Required
Plaintiff alleges that defendant Lynch ordered an assistant to stop reporting plaintiff's acts of self-harm and to encourage plaintiff to cut himself deeper. ECF No. 1 at 4, ¶ 11. He further alleges that defendants Kroenlein and Silar were aware of his suicide attempts and acts of self-harm but refused to provide appropriate care, place him on suicide watch, or take other preventative action and ordered other mental health staff to not take any action. Id. at 4-5, ¶¶ 11-15. Finally, he alleges that defendant Chris watched him swallow a sharpened screw, but failed to report or document the incident, even though the screw could be used by plaintiff for self-harm once it passed through his system and could potentially cause harm while inside of plaintiff. Id. at 5, ¶¶ 12-13. These allegations are sufficient to state a claim for violation of plaintiff's Eighth Amendment rights and these defendants will be required to respond to the complaint.
VI. Leave to Amend
For the reasons set forth above, the court finds that the complaint does not state cognizable claims against defendants Montoya and Diciro. However, it appears that plaintiff may be able to allege facts to remedy this and he will be given the opportunity to amend the complaint if he desires.
Plaintiff may proceed forthwith to serve defendants Kroenlein, Lynch, Chris, and Silar on his claims that they failed to provide appropriate mental health care or he may delay serving any defendant and amend the complaint to attempt to state cognizable claims against defendants Montoya and Diciro.
Plaintiff will be required to complete and return the attached notice advising the court how he wishes to proceed. If plaintiff chooses to amend the complaint, he will be given thirty days to file an amended complaint. If plaintiff elects to proceed on his claims against defendants Kroenlein, Lynch, Chris, and Silar without amending the complaint, the court will send him the necessary forms for service of the complaint and the claims against defendants Montoya and Diciro will remain dismissed without prejudice.
If plaintiff chooses to file a first amended complaint, he must demonstrate how the conditions about which he complains resulted in a deprivation of his constitutional rights. Rizzo, 423 U.S. at 370-71. Also, the complaint must allege in specific terms how each named defendant is involved. Arnold v. International Bus. Machs. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981). There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a defendant's actions and the claimed deprivation. Id.; Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, "[v]ague and conclusory allegations of official participation in civil rights violations are not sufficient." Ivey, 673 F.2d at 268 (citations omitted).
Plaintiff is also informed that the court cannot refer to a prior pleading in order to make his first amended complaint complete. Local Rule 220 requires that an amended complaint be complete in itself without reference to any prior pleading. This is because, as a general rule, an amended complaint supersedes the original complaint. Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967), overruled in part by Lacey v. Maricopa County, 693 F.3d 896, 929 (9th Cir. 2012) (claims dismissed with prejudice and without leave to amend do not have to be re-pled in subsequent amended complaint to preserve appeal). Once plaintiff files a first amended complaint, the original complaint no longer serves any function in the case. Therefore, in an amended complaint, as in an original complaint, each claim and the involvement of each defendant must be sufficiently alleged. ////
VII. Summary
Plaintiff must notify the court of his current address. If plaintiff does not notify the court of his current address and keep the court updated when his address changes, this case may be dismissed for failure to prosecute.
Plaintiff's motion for leave to proceed in forma pauperis is granted.
Some of the allegations in the complaint state claims against the defendants and some do not. Plaintiff's allegations that defendants Kroenlein, Lynch, Chris, and Silar violated his Eighth Amendment rights by not providing proper mental health treatment state a claim. The defendants will be required to respond to these allegations.
Plaintiff's claim that defendants Montoya and Diciro were mental health supervisors does not state a claim because plaintiff has not shown that these defendants were involved in the violation of his rights or knew that the people they were supervising were violating plaintiff's rights and failed to stop them. The fact that they were supervisors is not enough to make them liable for the alleged violation of plaintiff's rights. These claims will be dismissed with leave to amend.
If plaintiff wants, he can either (1) proceed immediately on his claims against defendants Kroenlein, Lynch, Chris, and Silar or (2) try to amend the complaint to state claims against defendants Montoya and Diciro. If plaintiff wants to go forward without amending the complaint, his claims against defendants Montoya and Diciro will remain dismissed without prejudice. If plaintiff chooses to amend his complaint, the first amended complaint must include all of the claims plaintiff wants to make, including the ones that have already been found to state a claim, because the court will not look at the claims or information in the original complaint. In other words, any claims not in the first amended complaint will not be considered. Plaintiff must complete the attached notification showing what he wants to do and return it to the court. Once the court receives the notice, it will issue an order telling plaintiff what he needs to do next (i.e. file an amended complaint or complete and return service paperwork).
In accordance with the above, IT IS HEREBY ORDERED that:
1. The Clerk of the Court is directed to serve this order on plaintiff at his address of record and at the California Medical Facility, P.O. Box 2000, Vacaville, CA 95696-2000.
2. Within twenty-one days of service of this order, plaintiff must notify the court of his current address.
3. Plaintiff's request for leave to proceed in forma pauperis is granted.
4. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). All fees shall be collected and paid in accordance with this court's order to the Director of the California Department of Corrections and Rehabilitation filed concurrently herewith.
5. Plaintiff's claims against defendants Montoya and Diciro are dismissed with leave to amend.
6. Plaintiff has the option to proceed immediately on his Eighth Amendment claims against defendants Kroenlein, Lynch, Chris, and Silar as set forth in Section V.C. above, or to amend the complaint.
7. Within twenty-one days of service of this order, plaintiff shall complete and return the attached form notifying the court whether he wants to proceed on the screened complaint or whether he wants to file a first amended complaint. DATED: April 27, 2016
/s/_________
ALLISON CLAIRE
UNITED STATES MAGISTRATE JUDGE
PLAINTIFF'S NOTICE ON HOW TO PROCEED
Check one: ___ Plaintiff wants to proceed immediately on his Eighth Amendment claims against defendants Kroenlein, Lynch, Chris, and Silar without amending the complaint. Plaintiff understands that going forward without amending the complaint means that his claims against defendants Montoya and Silar will remain dismissed without prejudice. ___ Plaintiff wants to amend the complaint. DATED: __________
/s/_________
BRUCE DIXON
Plaintiff pro se
See Fed. R. Evid. 201 (court may take judicial notice of facts that are capable of accurate determination by sources whose accuracy cannot reasonably be questioned); see also City of Sausalito v. O'Neill, 386 F.3d 1186, 1224 n.2 (9th Cir. 2004) ("We may take judicial notice of a record of a state agency not subject to reasonable dispute.").