Opinion
ORDER GRANTING PLAINTIFF'S MOTION TO VACATE JUDGMENT (ECF NO. 13) ORDER DIRECTING CLERK OF COURT TO VACATE THE JUDGMENT, REOPEN ACTION AND PROVIDE PLAINTIFF WITH A COPY OF THE COURT'S SCREENING ORDER DATED JANUARY 6, 2015
BARBARA A. McAULIFFE, Magistrate Judge.
I. Procedural Background
Plaintiff Jesus A. Garcia ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on March 31, 2014.
On January 6, 2015, the Court dismissed Plaintiff's first amended complaint with leave to amend within thirty days after service. 28 U.S.C. § 1915A. Plaintiff was warned that if he failed to file a second amended complaint in compliance with the order, the action would be dismissed for failure to obey a court order and failure to state a claim. (ECF No. 10.)
On February 13, 2015, after more than thirty days had passed and Plaintiff failed to respond to the Court's order, the Court dismissed the action for failure to obey a court order and failure to state a claim. (ECF No. 11.) Judgment was entered the same date. (ECF No. 12.)
On March 23, 2015, Plaintiff filed the instant motion to vacate the judgment. (ECF No. 13.)
II. Motion to Vacate Judgment
Rule 60(b)(6) allows the Court to relieve a party from a final judgment for any reason that justifies relief. Rule 60(b)(6) "is to be used sparingly as an equitable remedy to prevent manifest injustice and is to be utilized only where extraordinary circumstances..." exist. Harvest v. Castro, 531 F.3d 737, 749 (9th Cir.2008) (internal quotations marks and citation omitted). The moving party "must demonstrate both injury and circumstances beyond his control...." Id. (internal quotation marks and citation omitted).
Here, Plaintiff claims that the Court should vacate the final judgment because he did not receive the Court's screening order dismissing his amended complaint with leave to amend. In his moving papers, Plaintiff indicates that he received the Court's order dismissing this action on February 18, 2015. He did not understand the order as he had recently filed a first amended complaint. Plaintiff immediately went to the prison library and requested a docket search result. He learned from the docket, printed on February 23, 2015, that the Court had issued a screening order dismissing the amended complaint with leave to amend. (Ex. A to Pl's Mot.) Plaintiff then wrote to the mailroom and requested a CDC 199 Mail Log. (Ex. B to Pl's Mot.) The CDC 119 Inmate Legal Mail History Report provides the dates for Plaintiff's incoming and outgoing legal mail for the period between February 27, 2014, and February 18, 2015. (Ex. C to Pl's Mot.) According to the report, Plaintiff did not receive any legal mail from the Court between November 5, 2014, and February 18, 2015. (Ex. C. to Pl's Mot.)
The Court has considered Plaintiff's moving papers, and finds that they support relief under Rule 60(b) due to highly unusual circumstances. Plaintiff has provided evidence demonstrating that he did not receive the Court's January 6, 2015 screening order. Plaintiff therefore should not be penalized for failure to obey a court order that he did not receive due to circumstances beyond his control. Accordingly, Plaintiff's motion to vacate the final judgment shall be granted. The Clerk of the Court will be directed to vacate the entry of judgment, reopen this action and mail Plaintiff a copy of the Court's January 6, 2015 screening order. Within thirty days following service of the screening order, Plaintiff shall file a second amended complaint. If Plaintiff fails to file a second amended complaint in compliance with the screening order, this action will be dismissed for failure to obey a court order and failure to state a claim.
III. Conclusion and Order
Based on the foregoing reasons, it is HEREBY ORDERED as follows:
1. Plaintiff's motion to vacate the judgment is GRANTED;
2. The Clerk of the Court is directed to VACATE the judgment entered on February 13, 2015, and reopen this action;
3. The Clerk of the Court shall mail Plaintiff a copy of the Court's screening order issued on January 6, 2015;
4. Within thirty (30) days from the date of service of this order, Plaintiff shall file a second amended complaint; and
5. If Plaintiff fails to comply with this order, this action will be dismissed, with prejudice, for failure to obey a court order and failure to state a claim.
IT IS SO ORDERED.
I. Screening Requirement and Standard
Plaintiff Jesus A. Garcia ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On October 14, 2014, the Court dismissed Plaintiff's complaint with leave to amend. Following an extension of time, Plaintiff's first amended complaint, filed on December 3, 2014, is currently before the Court for screening.
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). Plaintiff's complaint, or any portion thereof, is subject to dismissal if it is frivolous or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2); 28 U.S.C. § 1915(e)(2)(B)(ii).
A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief...." Fed.R.Civ.P. 8(a)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). While a plaintiff's allegations are taken as true, courts "are not required to indulge unwarranted inferences." Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted).
To survive screening, Plaintiff's claims must be facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks omitted); Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully is not sufficient, and mere consistency with liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks omitted); Moss, 572 F.3d at 969.
II. Plaintiff's Allegations
Plaintiff is currently housed at Valley State Prison. Plaintiff names the following defendants: (1) Jeffrey Beard, Secretary of the California Department of Corrections; (2) J. Mejia, Classification Staff Representative ("CSR"); (3) J. Faure, Correctional Counselor; (4) Ron Davis, Warden at Avenal State Prison; and (5) Does 1-50.
Plaintiff alleges as follows: In 2009, Plaintiff was sentenced to state prison and sent to the Delano Reception Center. While at Delano, Plaintiff informed prison officials that he had asthma. Plaintiff later saw a correctional counselor, who had the opportunity to review the note in Plaintiff's central file that he had asthma. Plaintiff was sent to Avenal State Prion by Defendant CSR Mejia. Plaintiff alleges that it is the CSR's duty to ensure that inmates fit the classification status necessary to be transferred to a certain prison. Plaintiff contends that it was Defendant Mejia's duty to ensure that Plaintiff was sent to a prison that did not have a disease that could endanger his health.
Plaintiff further alleges that Avenal State Prison is known for having a fungus called coccidioidomycosis ("Valley Fever"), which is highly endemic to both Valley State Prison and Avenal State Prison. Plaintiff contends that CDCR officials have been notified of the risk of contracting Valley Fever.
Plaintiff asserts that he arrived at Avenal State Prison unaware that his life was endangered by Valley Fever and that the chance of contracting the infection was increased because of his asthma. Plaintiff alleges that it was the duty of Avenal State Prison's Warden to ensure that Plaintiff's safety was secure. After Plaintiff was cleared to program at Avenal State Prison, he began to experience flu-like symptoms, which are a strong indicator of Valley Fever. The symptoms worsened in 2010, but doctors at Avenal State Prison informed Plaintiff that they believed he had a common cold.
Plaintiff was paroled from Avenal State Prison on January 5, 2012, without having been tested for Valley Fever. Once paroled, Plaintiff became very sick, with fever, chills, body aches and headaches. Plaintiff sought treatment at a clinic where a physician ordered chest x-rays. The physician indicated that the x-rays presented as a person with bronchitis and that Plaintiff had pneumonia. Plaintiff informed the physician that he had asthma and that he had paroled from Avenal State Prison two weeks earlier. Plaintiff also indicated that they had Valley Fever at Avenal State Prison. The physician gave plaintiff a shot and a prescription.
About 12 months after being released from prison, Plaintiff began to break out with small spots around his ankles and top of his feet. Eighteen months after being released, Plaintiff was reincarcerated. While being detained in the county jail, the spots began to worsen. When finally sent to prison, Plaintiff spots worsened and he broke out in bumps. Plaintiff's shins became swollen and his feet began to peel. Doctors began to prescribe creams which made it worse. Plaintiff asked to be tested for Valley Fever. Without being told the results, Plaintiff was prescribed Diflucanate and antibiotics. Upon his second refill for Diflucanate, Plaintiff asked the nurse what it was prescribed for and for its side effects. The nurse came back with Valley Fever written on Plaintiff's medication bag. Plaintiff asked if he had Valley Fever, but the nurse told him to ask his doctor.
When Plaintiff saw a doctor, he asked about his lab results. The doctor verified that Plaintiff had Valley Fever. Plaintiff took Diflucanate for 9 months, which caused him constipation, dehydration, blurred vision, headaches, dizziness, disorientation, muscle weakness, fatigue, anxiety stress, and weight loss.
Plaintiff further alleges that Defendant Jeffry Beard was responsible for the safety and security of all inmates under the care of CDCR. Plaintiff contends that Defendant Beard deliberately allowed officials to subject Plaintiff to cruel and unusual punishment by allowing him to be housed in a prison where Valley Fever is highly endemic. Plaintiff seeks compensatory and punitive damages.
III. Discussion
A. Linkage Requirement
The Civil Rights Act under which this action was filed provides:
Every person who, under color of [state law]... subjects, or causes to be subjected, any citizen of the United States... to the deprivation of any rights, privileges, or immunities secured by the Constitution... shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
42 U.S.C. § 1983. The statute plainly requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by Plaintiff. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976). The Ninth Circuit has held that "[a] person subjects' another to the deprivation of a constitutional right, within the meaning of section 1983, if he does an affirmative act, participates in another's affirmative acts, or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
Here, Plaintiff fails to J. Faure and the Doe Defendants to any constitutional violation. Plaintiff will be given leave to cure this deficiency. If Plaintiff elects to amend his complaint, he must allege what each individual defendant did or did not do that resulted in a violation of his rights.
B. Doe Defendants
"As a general rule, the use of John Doe' to identify a defendant is not favored." Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). Plaintiff is advised that John Doe defendants (i.e., unknown defendants) cannot be served by the United States Marshal until Plaintiff has identified them as actual individuals and amended his complaint to substitute names for the John Does.
C. Deliberate Indifference/Cruel and Unusual Punishment
To constitute cruel and unusual punishment in violation of the Eighth Amendment, prison conditions must involve "the wanton and unnecessary infliction of pain." Rhodes v. Chapman, 452 U.S. 337, 347 (1981). A prisoner's claim does not rise to the level of an Eighth Amendment violation unless (1) "the prison official deprived the prisoner of the "minimal civilized measure of life's necessities, " and (2) "the prison official acted with deliberate indifference in doing so.'" Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (quoting Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) (citation omitted)). In order to find a prison official liable under the Eighth Amendment for denying humane conditions of confinement within a prison, the official must know "that inmates face a substantial risk of serious harm and disregard [ ] that risk by failing to take reasonable measures to abate it." Farmer v. Brennan, 511 U.S. 825, 847 (1994).
Defendant Jeffrey Beard
Plaintiff fails to state a cognizable claim against Defendant Beard for deliberate indifference to Plaintiff's health and safety. There are no allegations linking Defendant Beard to Plaintiff's housing assignment at Avenal State Prison. There also are no allegations that Defendant Beard knew of Plaintiff's asthma or, more importantly, that Plaintiff contracted Valley Fever while housed at Avenal State Prison.
Defendant J. Mejia
Plaintiff has not stated a cognizable claim against Defendant J. Mejia arising out of Plaintiff's assignment to Avenal State Prison. There are no allegations indicating that Defendant Mejia knew that Avenal State Prison was in an endemic area or that Plaintiff was at risk of contracting Valley Fever. There also are no allegations indicating that Plaintiff contracted Valley Fever while housed at Avenal State Prison.
Ron Davis
Plaintiff has not stated a cognizable claim against Defendant Davis for deliberate indifference to Plaintiff's health and safety. There are no allegations indicating that Defendant Davis knew that Plaintiff had asthma or was at risk to contract Valley Fever. Additionally, there are no allegations indicating that Plaintiff contracted Valley Fever while housed at Avenal State Prison.
D. Deliberate Indifference to Serious Medical Needs
"[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, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976)). The two part test for deliberate indifference requires the 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." Jett, 439 F.3d at 1096; Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012).
Deliberate indifference is shown where the official is aware of a serious medical need and fails to adequately respond. Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1018 (9th Cir. 2010). "Deliberate indifference is a high legal standard." Id. at 1019; Toguchi, 391 F.3d at 1060. The prison official must be aware of facts from which he could make an inference that "a substantial risk of serious harm exists" and he must make the inference. Farmer, 511 U.S. at 837.
Although Plaintiff complains of inadequate medical care, he does not provide sufficient factual allegations to state a cognizable claim for deliberate indifference to serious medical needs against any individual defendant. He merely lumps all medical staff together. Plaintiff will be given leave to cure this deficiency.
IV. Conclusion and Order
Plaintiff has failed to state a cognizable claim against any individual defendant. The Court will grant Plaintiff a final opportunity to cure the identified deficiencies. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).
Plaintiff's amended complaint should be brief, Fed.R.Civ.P. 8(a), but it must state what each named defendant did that led to the deprivation of Plaintiff's constitutional rights, Iqbal, 556 U.S. at 678-79, 129 S.Ct. at 1948-49. Although accepted as true, the "[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level...." Twombly, 550 U.S. at 555 (citations omitted).
Additionally, Plaintiff may not change the nature of this suit by adding new, unrelated claims in his first amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no "buckshot" complaints).
Finally, Plaintiff is advised that an amended complaint supersedes the original complaint. Lacey v. Maricopa County, 693 F.3d 896, 927 (9th Cir. 2012). Therefore, Plaintiff's amended complaint must be "complete in itself without reference to the prior or superseded pleading." Local Rule 220.
Based on the foregoing, it is HEREBY ORDERED that:
1. The Clerk's Office shall send Plaintiff a complaint form;
2. Plaintiff's first amended complaint is dismissed with leave to amend;
3. Within thirty (30) days from the date of service of this order, Plaintiff shall file a second amended complaint; and
4. If Plaintiff fails to file a second amended complaint in compliance with this order, this action will be dismissed for failure to obey a court order and failure to state a claim.
IT IS SO ORDERED.