Torrez v. Corrections Corporation of America et al, No. 2:2009cv00957 - Document 10 (D. Ariz. 2009)

Court Description: ORDER denying 9 Motion to Order Service by the US Marshal. Pla's 1st amended complaint 8 is dismissed for failure to state a claim. Pla has 30 days to file a 2nd amended complaint in compliance with this order. If pla fails to file a 2nd ame nded complaint within 30 days, the Clerk must, without further notice, enter a judgment of dismissal of this action with prejudice that state that the dismissal counts as a "strike" under 28 U.S.C. section 1915(g). (See document for full details). Signed by Judge Mary H Murguia on 10/2/2009. (Attachments: # 1 Form for Civil Rights Complaint)(LAD)

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Torrez v. Corrections Corporation of America et al 1 Doc. 10 WO SC 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 David Torrez, 10 Plaintiff, 11 vs. 12 Corrections Corp. of America, et al., 13 Defendants. 14 ) ) ) ) ) ) ) ) ) ) No. CV 09-0957-PHX-MHM (MHB) ORDER 15 Plaintiff David Torrez, a California inmate who is confined in the La Palma 16 Correctional Center, a Corrections Corporation of America (CCA) facility in Eloy, Arizona, 17 filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983, which the Court dismissed 18 with leave to amend. (Doc.# 1, 4.)1 Plaintiff has filed a First Amended Complaint. (Doc.# 19 8.) Plaintiff has also filed a motion for service of the First Amended Complaint by the U.S. 20 Marshal. (Doc.# 9.) The Court will dismiss the First Amended Complaint with leave to 21 amend and deny the motion for service. 22 I. Statutory Screening of Prisoner Complaints 23 The Court is required to screen complaints brought by prisoners seeking relief against 24 a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. 25 § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised 26 claims that are legally frivolous or malicious, that fail to state a claim upon which relief may 27 28 1 “Doc.#” refers to the docket number of filings in this case. JDDL-K Dockets.Justia.com 1 be granted, or that seek monetary relief from a defendant who is immune from such relief. 2 28 U.S.C. § 1915A(b)(1), (2). 3 A pleading must contain a “short and plain statement of the claim showing that the 4 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does not 5 demand detailed factual allegations, “it demands more than an unadorned, the-defendant- 6 unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). 7 “Threadbare recitals of the elements of a cause of action, supported by mere conclusory 8 statements, do not suffice.” Id. Further, “a complaint must contain sufficient factual matter, 9 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting Bell 10 Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible “when the 11 plaintiff pleads factual content that allows the court to draw the reasonable inference that the 12 defendant is liable for the misconduct alleged.” Id. “Determining whether a complaint states 13 a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court 14 to draw on its judicial experience and common sense.” Id. at 1950. Thus, although a 15 plaintiff’s specific factual allegations may be consistent with a constitutional claim, a court 16 must assess whether there are other “more likely explanations” for a defendant’s conduct. 17 Id. at 1951. 18 If the Court determines that a pleading could be cured by the allegation of other facts, 19 a pro se litigant is entitled to an opportunity to amend a complaint before dismissal of the 20 action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). The Court 21 should not, however, advise the litigant how to cure the defects. This type of advice “would 22 undermine district judges’ role as impartial decisionmakers.” Pliler v. Ford, 542 U.S. 225, 23 231 (2004); see also Lopez, 203 F.3d at 1131 n.13 (declining to decide whether the court was 24 required to inform a litigant of deficiencies). Plaintiff’s First Amended Complaint will be 25 dismissed for failure to state a claim, with leave to amend because the First Amended 26 Complaint may possibly be saved by amendment. 27 II. 28 JDDL-K First Amended Complaint Plaintiff alleges three counts for violation of privacy, threats to safety, and -2- JDDL-K 1 constitutionally deficient medical care. He sues CCA and the following La Palma 2 Correctional Center (LPCC) employees: Health Service Administrator Burnett; Unit Manager 3 Meier; Security Lieutenant Johnson; an Unknown Male Staff member; and an Unknown 4 Medical Staff, who is a nurse practitioner. He seeks injunctive, compensatory, and punitive 5 relief. 6 Plaintiff’s claims are based on the following allegations: Plaintiff was tested for 7 tuberculosis by the California Department of Corrections and Rehabilitation (CDCR) in April 8 2008. In July 2008, Plaintiff was transferred to the Florence Correctional Center, a CCA 9 facility in Florence, Arizona. On Saturday, September 6, 2008, Plaintiff began to experience 10 severe lower abdominal pain and to urinate blood. Plaintiff was examined by medical staff 11 who concluded that his condition was not an emergency. Plaintiff was returned to his cell 12 and told to submit a health needs request so that he could be scheduled to be seen during the 13 week. On Monday, September 8, Plaintiff was examined by a doctor who diagnosed Plaintiff 14 with a bladder infection. The physician told Plaintiff that the infection and pain should 15 subside within a few days, but to contact him if it did not. Plaintiff alleges that CCA has a 16 policy of delaying in providing medical care in non-emergency situations until regular clinic 17 hours. He contends that the delay in seeing a doctor pursuant to that policy caused him to 18 suffer unnecessary pain. 19 On September 13, 2008, Plaintiff was transferred to LPCC. On arrival at LPCC, 20 Plaintiff and about 30 other inmates were taken to the medical department, where clinic staff 21 gave them an Intake Teaching Packet (ITP) and which they were to acknowledge reading 22 with their signature. A few seconds after receiving the ITP, Defendants Meier, Johnson, and 23 the Unknown Male Staff entered the clinic and took a “security stance” at the door: legs apart 24 and arms crossed. Meier announced that any inmate who refused a tuberculosis test would 25 be strapped down and forced to be tested because that was the “CCA way.” (Doc.# 8 at 3A.) 26 Meier also said that it was CCA policy to test an inmate for tuberculosis every time an inmate 27 was relocated to a new facility. (Id.) Several inmates objected on the basis that they had 28 already recently been tested by CDCR or that they took medications that caused a false -3- JDDL-K 1 positive, both of which would be in their medical files. The discussion between inmates and 2 staff became more acrimonious. One inmate asserted that the ITP provided that they had the 3 right to refuse medical treatment, which he construed to include tuberculosis testing. Meier 4 told the inmates that anyone who refused the test would be strapped down, tested, and then 5 sent to the “hole.” (Id. at 3B.) Johnson told the inmates that the test posed no risk to the 6 inmates and that there would be no exceptions to the test. The Unknown Male Staff added 7 that additional security would be called if necessary to complete testing but that the inmates 8 would regret it if additional security was called. At this juncture, the inmates were angry and 9 Plaintiff feared they would riot and that he would be unable to protect himself, apparently 10 due to his bladder infection. Meier reiterated that everyone had to be tested and threatened 11 to call in the Special Operation Response Team (SORT), if necessary. Meier and the other 12 officers retreated into the clinic and an inmate kicked a chair towards the door. 13 A few minutes later, an officer came out of the clinic and told Plaintiff that he was to 14 go first. Plaintiff objected on the grounds that he had been unable to read the ITP because 15 he did not have his eyeglasses. The officer required Plaintiff to go in. After taking his 16 temperature and blood pressure, Plaintiff submitted to the PPD test over his express 17 objections, while Meier and Johnson observed. 18 III. Failure to State a Claim 19 To state a claim under § 1983, a plaintiff must allege facts supporting that (1) the 20 conduct about which he complains was committed by a person acting under the color of state 21 law and (2) the conduct deprived him of a federal constitutional or statutory right. Wood v. 22 Ostrander, 879 F.2d 583, 587 (9th Cir. 1989). In addition, to state a valid constitutional 23 claim, a plaintiff must allege that he suffered a specific injury as a result of the conduct of 24 a particular defendant and he must allege an affirmative link between the injury and the 25 conduct of that defendant. Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976). Further, 26 negligence by a defendant acting under color of state law is not sufficient to state a claim 27 under § 1983. Daniels v. Williams, 474 U.S. 327, 330-31 (1986) (plaintiff must plead more 28 than mere negligence in a § 1983 action); see Alfrey v. United States, 276 F.3d 557, 568 (9th -4- 1 JDDL-K Cir. 2002). 2 A. Privacy 3 In Count I, Plaintiff alleges that CCA maintained a policy subjecting inmates to 4 tuberculosis testing whenever they are transferred to a new facility and that Plaintiff was 5 subjected to such testing, when unnecessary, over his objections. As a result, Plaintiff 6 suffered a needle prick and contends that he suffered from emotional distress and body aches. 7 Plaintiff alleges that Meier and Johnson remained present over Plaintiff’s objection as 8 Plaintiff disclosed confidential medical information with medical staff, which he contends 9 violated his privacy rights. Plaintiff alleges that Unknown Medical Staff administered the 10 tuberculosis test without Plaintiff’s consent and despite his express objections that the test 11 violated CCA, CDCR, and ITP policies. Plaintiff alleges that the administration of the test 12 caused him pain when the needle was inserted and stress causing neck and back pain and 13 insomnia. 14 “The applicability of the Fourth Amendment turns on whether the person invoking its 15 protection can claim a “justifiable,” a “reasonable,” or a “legitimate expectation of privacy” 16 that has been “invaded by government action.” Hudson v. Palmer, 468 U.S. 517, 525 (1984) 17 (quotation omitted); see also Bell v. Wolfish, 441 U.S. 520, 557 (1979). “A right of privacy 18 in traditional Fourth Amendment terms is fundamentally incompatible with the close and 19 continual surveillance of inmates and their cells required to ensure institutional security and 20 internal order.” Hudson, 468 U.S. at 527-28. Furthermore, any restriction on an inmate’s 21 privacy interests is justified to the extent that it is “reasonably related to legitimate 22 penological interests.” See Turner v. Safley, 482 U.S. 78, 89 (1987). Nevertheless, inmates 23 have a “right to bodily privacy.” Sepulveda v. Ramirez, 967 F.2d 1413, 1415 (9th Cir. 24 1992); see Hydrick v. Hunter, 500 F.3d 978, 1000 (9th Cir. 2007). The state, however, may 25 restrict this right “to the extent necessary to further the correctional system’s legitimate goals 26 and policies.” Grummett v. Rushen, 779 F.2d 491, 493 (9th Cir. 1985). Preventing disease 27 and protecting the health of inmates are legitimate penological goals. See, e.g., Thompson 28 v. City of Los Angeles, 885 F.2d 1439, 1447 (9th Cir.1989). Further, tuberculosis is -5- JDDL-K 1 recognized as a highly contagious disease in prison populations. Lee v. Armontrout, 991 2 F.2d 487, 489 (8th Cir. 1993). The plaintiff “‘bears the burden of pleading and proving the 3 absence of legitimate correctional goals for the conduct of which he complains.’” Bruce v. 4 Ylst, 351 F.3d 1283, 1289 (9th Cir. 2003) (citations omitted). 5 Plaintiff fails to allege any facts to support that CCA maintained a policy that resulted 6 in a violation of Plaintiff’s privacy rights. Indeed, he states that Meier and Johnson remained 7 present during his interview by medical staff in contravention of CCA policy and contracts 8 with the CDCR. Plaintiff also fails to state a claim against Meier or Johnson based on their 9 presence while he discussed medical information prior to administration of the tuberculosis 10 test. Plaintiff fails to allege facts to support that Meier and Johnson were present for any 11 reasons that were not reasonably related to legitimate penological interests: to ensure that 12 Plaintiff complied with testing. Plaintiff otherwise fails to allege facts to support that he had 13 an expectation of privacy in the administration of a tuberculosis test. Plaintiff also fails to 14 allege facts to support that the Unknown Medical Staff who administered the tuberculosis 15 test in any way violated Plaintiff’s reasonable expectations of privacy in connection with the 16 tuberculosis test. For these reasons, Plaintiff fails to state a claim for violation of his privacy 17 rights in Count I. 18 B. 19 In Count II, Plaintiff alleges a violation of the Eighth Amendment against Defendants 20 Meier, Johnson, and Unknown Male Staff because they exposed Plaintiff to “substantial risk 21 of harm with indifference to the risk by instigating a riot using unwarranted combative 22 language” towards the inmates in the clinic waiting room. Plaintiff contends that when the 23 inmates became agitated by the statements of Defendants Meier, Johnson, and Unknown 24 Male Staff, Defendants threatened to call the Special Operation Response Team to control 25 the inmates with pepper spray and physical restraint. Threats to Safety 26 The Eighth Amendment requires prison officials to take reasonable measures to 27 guarantee the safety of inmates, and officials have a duty to protect prisoners from violence 28 at the hands of other prisoners. Farmer v. Brennan, 511 U.S. 825, 832-33 (1994); Hearns v. -6- 1 Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005). The inmate must show that the deprivation 2 is “objectively, sufficiently serious,” and that the prison officials had a “sufficiently culpable 3 state of mind,” acting with deliberate indifference. Hearns, 413 F.3d at 1040 (quoting 4 Farmer, 511 U.S. at 834). To demonstrate deliberate indifference, a prisoner must show that 5 the official knew of and disregarded an excessive risk to inmate safety; the official must both 6 be aware of facts from which the inference could be drawn that a substantial risk of serious 7 harm exists, and the official must also draw the inference. Farmer, 511 U.S. at 837. 8 Plaintiff fails to allege facts to support that Defendants Meier, Johnson, or Unknown 9 Male Staff knew of, but disregarded, a substantial threat to Plaintiff’s safety. To the 10 contrary, Plaintiff alleges that, when Defendants saw that the inmates were becoming 11 agitated, Defendants took steps to control the inmates by informing them that they would call 12 the SORT to control the inmates with pepper spray and physical restraints. No riot occurred. 13 Finally, “[v]erbal harassment or abuse . . . is not sufficient to state a constitutional 14 deprivation[.]’” Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987) (quoting Collins 15 v. Cundy, 603 F.2d 825, 827 (10th Cir. 1979)). For these reasons, Plaintiff fails to state a 16 claim for a threat to his safety in Count II. 17 D. 18 In Count III, Plaintiff alleges unconstitutionally inadequate medical care against CCA, 19 Burnett, and Unknown Medical Staff. Not every claim by a prisoner that he has received 20 inadequate medical treatment states a violation of the Eighth or Fourteenth Amendment. To 21 state a § 1983 medical claim, a plaintiff must allege facts to support that a defendant acted 22 with “deliberate indifference to serious medical needs.” Jett v. Penner, 439 F.3d 1091, 1096 23 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). A plaintiff must show 24 (1) a “serious medical need” by demonstrating that failure to treat the condition could result 25 in further significant injury or the unnecessary and wanton infliction of pain and (2) the 26 defendant’s response was deliberately indifferent. Jett, 439 F.3d at 1096 (quotations 27 omitted). 28 JDDL-K Medical Care “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, -7- JDDL-K 1 1060 (9th Cir. 2004). To act with deliberate indifference, a prison official must both know 2 of and disregard an excessive risk to inmate health; the official must both be aware of facts 3 from which the inference could be drawn that a substantial risk of serious harm exists and 4 he must also draw the inference. Farmer, 511 U.S. at 837. Deliberate indifference in the 5 medical context may be shown by a purposeful act or failure to respond to a prisoner’s pain 6 or possible medical need and harm caused by the indifference. Jett, 439 F.3d at 1096. 7 Deliberate indifference may also be shown when a prison official intentionally denies, 8 delays, or interferes with medical treatment or by the way prison doctors respond to the 9 prisoner’s medical needs. Estelle, 429 U.S. at 104-05; Jett, 439 F.3d at 1096. 10 Deliberate indifference is a higher standard than negligence or lack of ordinary due 11 care for the prisoner’s safety. Farmer, 511 U.S. at 835. “Neither negligence nor gross 12 negligence will constitute deliberate indifference.” 13 Corrections, 220 F. Supp. 2d 1098, 1105 (N.D. Cal. 2002); see also Broughton v. Cutter 14 Labs., 622 F.2d 458, 460 (9th Cir. 1980) (mere claims of “indifference,” “negligence,” or 15 “medical malpractice” do not support a claim under § 1983). “A difference of opinion does 16 not amount to deliberate indifference to [a plaintiff’s] serious medical needs.” Sanchez v. 17 Vild, 891 F.2d 240, 242 (9th Cir. 1989). The indifference must be substantial. The action 18 must rise to a level of “unnecessary and wanton infliction of pain.” Estelle, 429 U.S. at 105- 19 06. Clement v. California Dep’t of 20 Plaintiff alleges that CCA denied him constitutionally adequate medical treatment 21 pursuant to its policy to delay non-emergency medical care until regular weekday 22 appointments. He alleges that he suffered unnecessary pain due to the delay between 23 Saturday, September 6, 2008, and Monday, September 8. Plaintiff acknowledges that he was 24 evaluated by medical staff the day he began to suffer symptoms and that he was thereafter 25 seen the following Monday. Plaintiff further states that the examining physician told 26 Plaintiff that his bladder infection and pain should subside after a few days. Plaintiff does 27 not allege that any treatment was provided by the physician or that the brief delay in anyway 28 prolonged his pain. Plaintiff thus fails to allege an actual injury resulting from the delay in -8- 1 being examined by a physician under CCA’s policy and therefore fails to state a claim 2 against it. 3 Plaintiff sues Burnett based on his supervisory role over the LPCC medical 4 department. “A plaintiff must allege facts, not simply conclusions, that show that an 5 individual was personally involved in the deprivation of his civil rights.” Barren v. 6 Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). Further, there is no respondeat superior 7 liability under § 1983, so a defendant’s position as the supervisor of a someone who 8 allegedly violated a plaintiff’s constitutional rights does not make him liable. Monell v. 9 Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 10 1989). A supervisor in his individual capacity, “is only liable for constitutional violations 11 of his subordinates if the supervisor participated in or directed the violations, or knew of the 12 violations and failed to act to prevent them.” Taylor, 880 F.2d at 1045. Plaintiff fails to 13 assert any basis for liability against Burnett other than respondeat superior. Plaintiff has not 14 alleged that Burnett enacted or enforced a policy, custom, or practice that resulted in the 15 denial of Plaintiff’s constitutional rights. Further, Plaintiff has not alleged that Burnett 16 directly violated his constitutional rights or that he was aware that Plaintiff’s rights were 17 being violated but failed to act. Thus, Plaintiff fails to state a claim against Burnett in Count 18 III. 19 Plaintiff contends that Defendant Unknown Medical Staff forced him to submit to the 20 tuberculosis test without his consent by ordering Plaintiff to extend his arm after Plaintiff 21 objected to the test. Plaintiff has failed to allege facts to support that he was subjected to a 22 wanton infliction of pain or that Defendant Unknown Medical Staff knew of and disregarded 23 an excessive risk to Plaintiff’s health. For the reasons discussed, Plaintiff fails to state a claim for denial of constitutionally 24 JDDL-K 25 adequate medical care. Count III will be dismissed. 26 IV. Leave to Amend 27 For the foregoing reasons, Plaintiff’s First Amended Complaint will be dismissed for 28 failure to state a claim upon which relief may be granted. Within 30 days, Plaintiff may -9- JDDL-K 1 submit a second amended complaint to cure the deficiencies outlined above. The Clerk of 2 Court will mail Plaintiff a court-approved form to use for filing a second amended complaint. 3 If Plaintiff fails to use the court-approved form, the Court may strike the second amended 4 complaint and dismiss this action without further notice to Plaintiff. 5 A second amended complaint supersedes the original Complaint and First Amended 6 Complaint. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. 7 Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the Court will 8 treat the original Complaint and First Amended Complaint as nonexistent. Ferdik, 963 F.2d 9 at 1262. Any cause of action that was raised in the original Complaint or First Amended 10 Complaint is waived if it is not raised in a second amended complaint. King v. Atiyeh, 814 11 F.2d 565, 567 (9th Cir. 1987). 12 V. Motion to Order Service of the First Amended Complaint by U.S. Marshal 13 Plaintiff has filed a motion to order service by the U.S. Marshal. (Doc.# 9.) As 14 discussed above, Plaintiff fails to state a claim against any Defendant in his First Amended 15 Complaint. Therefore, service is premature and Plaintiff’s motion will be denied. When and 16 if Plaintiff files a second amended complaint that states a claim, the Court will order service. 17 VI. Warnings 18 A. Release 19 Plaintiff must pay the unpaid balance of the filing fee within 120 days of his release. 20 Also, within 30 days of his release, he must either (1) notify the Court that he intends to pay 21 the balance or (2) show good cause, in writing, why he cannot. Failure to comply may result 22 in dismissal of this action. 23 B. 24 Plaintiff must file and serve a notice of a change of address in accordance with Rule 25 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other 26 relief with a notice of change of address. Failure to comply may result in dismissal of this 27 action. 28 / / Address Changes / - 10 - 1 C. 2 Plaintiff must submit an additional copy of every filing for use by the Court. See 3 LRCiv 5.4. Failure to comply may result in the filing being stricken without further notice 4 to Plaintiff. 5 D. 6 Because the First Amended Complaint has been dismissed for failure to state a claim, 7 if Plaintiff fails to file a second amended complaint correcting the deficiencies identified in 8 this Order, the dismissal will count as a “strike” under the “3-strikes” provision of 28 U.S.C. 9 § 1915(g). Under the 3-strikes provision, a prisoner may not bring a civil action or appeal 10 a civil judgment in forma pauperis under 28 U.S.C. § 1915 “if the prisoner has, on 3 or more 11 prior occasions, while incarcerated or detained in any facility, brought an action or appeal 12 in a court of the United States that was dismissed on the grounds that it is frivolous, 13 malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is 14 under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). Possible “Strike” 15 E. 16 If Plaintiff fails to timely comply with every provision of this Order, including these 17 warnings, the Court may dismiss this action without further notice. See Ferdik, 963 F.2d at 18 1260-61 (a district court may dismiss an action for failure to comply with any order of the 19 Court). 20 IT IS ORDERED: Possible Dismissal 21 (1) Plaintiff’s motion to order service by the U.S. Marshal is denied. (Doc.# 9.) 22 (2) Plaintiff’s First Amended Complaint (doc.# 8) is dismissed for failure to state 23 a claim. Plaintiff has 30 days from the date this Order is filed to file a second amended 24 complaint in compliance with this Order. (3) 25 JDDL-K Copies If Plaintiff fails to file a second amended complaint within 30 days, the Clerk 26 of Court must, without further notice, enter a judgment of dismissal of this action with 27 prejudice that states that the dismissal counts as a “strike” under 28 U.S.C. § 1915(g). 28 /// - 11 - 1 2 3 (4) The Clerk of Court must mail Plaintiff a court-approved form for filing a civil rights complaint by a prisoner. DATED this 2nd day of October, 2009. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JDDL-K - 12 -

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