Opinion
No. CV 1-08-1438-JMR.
February 11, 2010
ORDER
Plaintiff Tony Cobos is confined in the Avenal State Prison in Avenal, California. In an October 9, 2009 Order, the Court dismissed Plaintiff's Complaint because Plaintiff had failed to state a claim. The Court gave Plaintiff 30 days to file an amended complaint that cured the deficiencies identified in the Order.
On November 6, 2009, Plaintiff filed a First Amended Complaint (Doc. #9). Defendants Greenman and Suryadevara must answer the First Amended Complaint. Defendants Hartley and Bopari are dismissed without prejudice.
I. Statutory Screening of Prisoner Complaints
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 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).
A pleading 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) (emphasis added). While Rule 8 does not demand detailed factual allegations, "it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.
"[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible "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. "Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950. Thus, although a plaintiff's specific factual allegations may be consistent with a constitutional claim, a court must assess whether there are other "more likely explanations" for a defendant's conduct. Id. at 1951.
II. First Amended Complaint
In his one-count First Amended Complaint, Plaintiff sues the following Defendants at the Avenal State Prison: Warden J.D. Hartley, Chief Medical Officers Drs. Greenman and Suryadevara, and Dr. M. Bopari.
Plaintiff asserts a violation of the Eighth Amendment prohibition against cruel and unusual punishment relating to his medical care. Plaintiff alleges that he has been diagnosed with "calcific granuloma" in his lower left lung and that he has had consistent throat pain that radiates to his left eye and upper lung. Plaintiff asserts that when he arrived at Avenal State Prison, he began having respiratory problems that were diagnosed as pneumonia and treated with antibiotics, an inhaler, and a "pneumococal vaccine." Plaintiff asserts that "medical doctors" at the Avenal State Prison ordered an "open" MRI in 2007, and later opted for an ultrasound in 2008, but neither procedure has been performed. Plaintiff claims a throat culture was taken in 2009, but it was not properly processed and no diagnosis was made. Plaintiff asserts that he suffers from throat, mouth, tongue, and ear pain; has intermittent dizziness; and has sustained ear damage that has caused some hearing loss.
Plaintiff claims that "his custodians have been deliberately indifferent to his pain and suffering by not providing the very basis diagnostics to determine the source of his infection," even though those diagnostic tests have been ordered by medical staff, and have intentionally delayed providing medical treatment. Plaintiff asserts that he "has consistently complained to staff about his medical problems and has consistently notified medical . . . of his medical problems."
Plaintiff alleges that Defendant Hartley is aware of Plaintiff's medical condition because all exhausted administrative actions are sent to him. Plaintiff contends that Defendant Greenman is aware of Plaintiff's medical conditions because he oversees medical care at the prison, has assumed that Plaintiff is suffering from chronic tonsilitis without examining Plaintiff, and has not prescribed any treatment for tonsilitis. Plaintiff claims Defendant Sudyadevara is aware of Plaintiff's medical needs, has "signed off" on inmate appeals, but has not provided any treatment. Plaintiff contends that Defendant Bopari examined Plaintiff, ordered tests for Plaintiff's throat, was aware of Plaintiff's "throat nodules" but stated that they were normal, and, on one occasion, stated that "no medicine is the best medicine."
In his Request for Relief, Plaintiff seeks declaratory and injunctive relief and monetary damages.
III. Failure to State a Claim
A. Defendant Hartley
Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 520-21 (1972), conclusory and vague allegations will not support a cause of action. Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Further, a liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled. Id.
To state a valid claim under § 1983, plaintiffs must allege that they suffered a specific injury as a result of specific conduct of a defendant and show an affirmative link between the injury and the conduct of that defendant. See Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976). There is no respondeat superior liability under § 1983, and therefore, a defendant's position as the supervisor of persons who allegedly violated Plaintiff's constitutional rights does not impose liability. Monell v. New York City Department of Social Services, 436 U.S. 658, 691-92 (1978); Hamilton v. Endell, 981 F.2d 1062, 1067 (9th Cir. 1992);Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). "Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Iqbal, 129 S. Ct. at 1948.
The Court dismisses without prejudice Defendant Hartley because Plaintiff's claim against Defendant Hartley is based, at best, on a failure to remedy allegedly unconstitutional behavior by others. See Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999) (defendants did not commit constitutional violations when they denied administrative grievances, failed to intervene on plaintiff's behalf, and failed to remedy allegedly unconstitutional behavior).
B. Defendant Bopari
Not every claim by a prisoner that he has received inadequate medical treatment states a violation of the Eighth Amendment. To state a § 1983 medical claim, a plaintiff must show that the defendants acted with "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)). A plaintiff must show (1) a "serious medical need" by demonstrating that failure to treat the condition could result in further significant injury or the unnecessary and wanton infliction of pain and (2) the defendant's response was deliberately indifferent. Jett, 439 F.3d at 1096 (quotations omitted).
"Deliberate indifference is a high legal standard." Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). To act with deliberate indifference, a prison official must both know of and disregard an excessive risk to inmate health; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists and he must also draw the inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994).
Deliberate indifference in the medical context may be shown by (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. Deliberate indifference may also be shown when a prison official intentionally denies, delays, or interferes with medical treatment or by the way prison doctors respond to the prisoner's medical needs. Estelle, 429 U.S. at 104-05; Jett, 439 F.3d at 1096.
Deliberate indifference is a higher standard than negligence or lack of ordinary due care for the prisoner's safety. Farmer, 511 U.S. at 835. "Neither negligence nor gross negligence will constitute deliberate indifference." Clement v. California Dep't of Corrections, 220 F. Supp. 2d 1098, 1105 (N.D. Cal. 2002); see also Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980) (mere claims of "indifference," "negligence," or "medical malpractice" do not support a claim under § 1983). "A difference of opinion does not amount to deliberate indifference to [a plaintiff's] serious medical needs." Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989).
Defendant Bopari's statements that Plaintiff's "throat nodules" were normal, and that "no medicine is the best medicine," may have been incorrect or negligent, but do not rise to the level of deliberate indifference, especially because Defendant Bopari actually examined Plaintiff and ordered tests to help diagnose Plaintiff's medical problems. Thus, the Court dismisses without prejudice Plaintiff's claim against Defendant Bopari.
IV. Claims for Which an Answer Will be Required
V. Warnings
A. Address Changes
Plaintiff must file and serve a notice of a change of address in accordance with Rule 83-182(f) and 83-183(b) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other relief with a notice of change of address. Failure to comply may result in dismissal of this action.
B. Copies
Plaintiff must submit an additional copy of every filing for use by the Court. See LRCiv 5-133(d)(2). Failure to comply may result in the filing being stricken without further notice to Plaintiff.
C. Possible Dismissal
If Plaintiff fails to timely comply with every provision of this Order, including these warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure to comply with any order of the Court).
IT IS ORDERED:
(1) Defendants Hartley and Bopari are dismissed without prejudice.
(2) Defendants Greenman and Suryadevara must answer the First Amended Complaint.
(3) The Clerk of Court must send Plaintiff a service packet including the First Amended Complaint (Doc. #9), this Order, a Notice of Submission of Documents form, an instruction sheet, and copies of summons and USM-285 forms for Defendants Greenman and Suryadevara.
(4) Within 30 days of the date of filing of this Order, Plaintiff must complete and return to the Clerk of Court the Notice of Submission of Documents. Plaintiff must submit with the Notice of Submission of Documents: a copy of the First Amended Complaint for each Defendant, a copy of this Order for each Defendant, a completed summons for each Defendant, and a completed USM-285 for each Defendant.
(5) Plaintiff must not attempt service on Defendants and must not request waiver of service. Once the Clerk of Court has received the Notice of Submission of Documents and the required documents, the Court will direct the United States Marshal to seek waiver of service from each Defendant or serve each Defendant.
(6) If Plaintiff fails to return the Notice of Submission of Documents and the required documents within 30 days of the date of filing of this Order, the Clerk of Court must, without further notice, enter a judgment of dismissal of this action without prejudice. See Fed.R.Civ.P. 41(b).
INSTRUCTIONS FOR COMPLETING FORM USM-285
After the court has issued an order granting your application to proceed without prepayment of fees and directing that service of process be made by the United States Marshal, you must complete an original USM-285 form for each individual defendant named in your action. Print your name Print the complete case number listed on your complaint Print the name of one defendant on each separate form Print "Summons and Complaint Enter the name and address for service of one defendant on each individual USM-285 form Enter your name and mailing address 1 Enter the number of defendants you have named in your suit Check ONLY if the defendant listed on the form is an entity of the U.S. Government Sign and date the form, check the box marked "PLAINTIFF" and enter your telephone number (if one is available) If you are the plaintiff and are currently incarcerated 1. PLAINTIFF: . 2. COURT CASE NUMBER: . 3. DEFENDANT: . 4. TYPE OF PROCESS: ." 5. SERVE AT: . 6. SEND NOTICE OF SERVICE TO REQUESTER AT: . 7. NUMBER OF PROCESS TO BE SERVED WITH THIS FORM — 285: . 8. NUMBER OF PARTIES TO BE SERVED IN THIS CASE: . 9. CHECK FOR SERVICE ON U.S.A.: . 10. . [] , you must return the completed USM-285 forms to the Clerk's Office at 2500 Tulare Street, Room 1501, Fresno, CA 93721, together with the following: 1. An original Summons for each defendant to be served; 2. A file-endorsed copy of the complaint to be served on each individual defendant; 3. One copy of the complaint for the U.S. Marshal's file. 4. The completed "Notice of Submission of Documents" form enclosed herewith. PLEASE NOTE that only the defendants against whom the court has determined you have a cognizable claim will be served. IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA ) ) _______________________, ) No. 1:___-cv-___________ ) Plaintiff/Petitioner, ) ) NOTICE OF SUBMISSION vs. ) OF DOCUMENTS ) _______________________, ) ) Defendant/Respondent. ) ____________________________) Plaintiff hereby submits the following documents in compliance with the court's order filed _____________.EASTERN CALIFORNIA SUMMONS IN A CIVIL CASE _____ completed USM-285 forms _____ copies of the complaint/amended complaint _____ completed Summons forms DATED: ______________ _________________________________ Signature of Plaintiff/Petitioner UNITED STATES DISTRICT COURT District of V. CASE NUMBER: TO: (Name and address of Defendant) YOU ARE HEREBY SUMMONED and required to serve upon PLAINTIFF'S ATTORNEY (name and address)an answer to the complaint which is herewith served upon you, within 21 days after service of this summons upon you, exclusive of the day of service. If you fail to do so, judgment by default will be taken against you for the relief demanded in the complaint. You must also file your answer with the Clerk of this Court within a reasonable period of time after service.
VICTORIA C. MINOR ___________________________________ ___________________________________ CLERK DATE ___________________________________ (By) DEPUTY CLERK