Mack v. Hubbard et al
Filing
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ORDER DISMISSING COMPLAINT 1 , With Leave to File Amended Complaint Within Thirty Days, signed by Magistrate Judge Gary S. Austin on 11/1/11. (Attachments: # 1 Amended Complaint Form)(Gonzalez, R)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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ANTHONY MACK,
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Plaintiff,
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CASE NO. 1:09-cv-02078 AWI GSA PC
ORDER DISMISSING COMPLAINT, WITH
LEAVE TO FILE AMENDED COMPLAINT
WITHIN THIRTY DAYS
v.
SUSAN HUBBARD, et al.,
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(ECF No. 1)
Defendants.
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Screening Order
I.
Screening Requirement
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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil action
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pursuant to the Americans with Disabilities Act (ADA), 42 U.S.C. § 12132.. The matter was
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referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule
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302.
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The Court is required to screen complaints brought by prisoners seeking relief against a
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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The
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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally
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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek
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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).
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“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall
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dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a
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claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).
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Pursuant to Federal Rule of Civil Procedure 8(a), a complaint must contain “a short and plain
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statement of the claim showing that the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a). “Such
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a statement must simply give the defendant fair notice of what the plaintiff’s claim is and the
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grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512. However, “the liberal pleading
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standard . . . applies only to a plaintiff’s factual allegations.” Neitze v. Williams, 490 U.S. 319, 330
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n.9 (1989). “[A] liberal interpretation of a civil rights complaint may not supply essential elements
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of the claim that were not initially pled.” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 1257
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(9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).
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II.
Plaintiff’s Claims
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Plaintiff, an inmate in the custody of the California Department of Corrections and
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Rehabilitation nat Corcoran State Prison, brings this ADA action against officials employed by the
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CDCR at Corcoran State Prison. Plaintiff names 27 individual defendants.
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Plaintiff alleges that he suffers from a “chronic and serious foot disability” and is required
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to wear orthopedic footwear. Plaintiff alleges that “prison officials” confiscated and disposed of
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his footwear. (Compl. ¶ 23.) Plaintiff was forced to wear shoes with no supports for over 28
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months. (Compl. ¶ 24.) Plaintiff alleges that after filing inmate grievances, and multiple medical
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visits, a podiatrist recommended soft shoes. The podiatrist failed to recommend any particular
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specifications. Plaintiff was not issued the soft soled shoes. (Compl. ¶ 31.)
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On February 7, 2008, Plaintiff was summoned to the medical clinic, and offered strap-on soft
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soled shoes “sent from the laundry.” Plaintiff alleges that they were not properly designed for his
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foot condition, and that “no further accommodations or treatment or preventive measures have
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followed since.” (Compl. ¶ 33.)
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In April of 2008, the podiatrist recommended foot surgery.
Plaintiff had “several re-
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consults,” and was approved for foot surgery by an outside orthopedic surgeon on January 12, 2009.
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On January 23, 2009, the Acting Chief Medical Officer rejected the recommendation and cancelled
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the surgery. (Compl. ¶¶ 34-37.) Plaintiff contacted a private organization, the Prison Law Office.
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The Prison Law Office “contacted the Attorney General’s Office under the procedures set forth under
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the Plata stipulation.” (Compl. ¶ 39.)
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On March 10, 2009, Plaintiff was seen at the prison hospital. It was determined that surgery
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was warranted, and another request for surgery was issued. It was also determined that the soft shoes
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issued earlier were “medically inappropriate.” Another chrono for personal footwear was issued.
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On March 17, 2009, Plaintiff’s shoes, ordered on March 12th, were received at the prison. Plaintiff
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alleges that he was given the run around, and eventually told that the shoes were lost. The shoes
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were re-ordered, and Plaintiff eventually received them on October 5, 2009. Plaintiff alleges that
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the shoes did not fit. (Compl. ¶ 66.)
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Plaintiff underwent foot surgery on March 30, 2009. Plaintiff alleged that the surgery was
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performed negligently, as the procedure was only performed on one toe, and not the other toes that
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were affected. (Compl. ¶ 45.)
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A.
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Plaintiff seeks to impose liability for violation of Title II of the Americans with Disabilities
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Act, which “prohibit[s] discrimination on the basis of disability.” Lovell v. Chandler, 303 F.3d
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1039, 1052 (9th Cir. 2002). “To establish a violation of Title II of the ADA, a plaintiff must show
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that (1) [he] is a qualified individual with a disability; (2) [he] was excluded from participation in
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or otherwise discriminated against with regard to a public entity’s services, programs, or activities;
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and (3) such exclusion or discrimination was by reason of [his] disability.” Lovell, 303 F.3d at 1052.
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ADA
Plaintiff has not alleged any facts with support a claim for violation of the ADA. The
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treatment, or lack of treatment, concerning Plaintiff’s medical condition does not provide a basis
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upon which to impose liability under the ADA. Burger v. Bloomberg, 418 F.3d 882, 882 (8th Cir.
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2005) (medical treatment decisions not a basis for RA or ADA claims); Fitzgerald v. Corr. Corp. of
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Am., 403 F.3d 1134, 1144 (10th Cir. 2005) (medical decisions not ordinarily within scope of ADA
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or RA); Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996) (“The ADA does not create a remedy
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for medical malpractice.”). Aside from Defendants’ medical treatment decisions of which Plaintiff
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complains, and which are not an appropriate basis upon which to predicate an ADA claim, Plaintiff
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alleges no facts to show that any named Defendant participated in, or was otherwise responsible for,
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excluding him from activities, programs or benefits otherwise available to him. Therefore, Plaintiff
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fails to state a cognizable claim for violation of his rights under Title II of the ADA.
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B.
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Although Plaintiff fails to identify 42 U.S.C. § 1983 as a separate cause of action, he does
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Eighth Amendment
specifically set forth a claim that Defendants were deliberately indifferent to his medical needs.
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“[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate
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must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091, 1096
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(9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 295 (1976)). The two part
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test for deliberate indifference requires the plaintiff to show (1) “‘a serious medical need’ by
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demonstrating that ‘failure to treat a prisoner’s condition could result in further significant injury or
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the unnecessary and wanton infliction of pain,’” and (2) “the defendant’s response to the need was
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deliberately indifferent.” Jett, 439 F.3d at 1096 (quoting McGuckin v. Smith, 974 F.2d 1050, 1059
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(9th Cir. 1992), overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th
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Cir. 1997) (en banc) (internal quotations omitted)). Deliberate indifference is shown by “a
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purposeful act or failure to respond to a prisoner’s pain or possible medical need, and harm caused
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by the indifference.” Id. (citing McGuckin, 974 F.2d at 1060). Where a prisoner is alleging a delay
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in receiving medical treatment, the delay must have led to further harm in order for the prisoner to
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make a claim of deliberate indifference to serious medical needs. McGuckin at 1060 (citing Shapely
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v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985)).
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To state a claim under section 1983, Plaintiff must allege that (1) the defendant acted under
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color of state law and (2) the defendant deprived him of rights secured by the Constitution or federal
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law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). “A person deprives
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another of a constitutional right, where that person ‘does an affirmative act, participates in another’s
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affirmative acts, or omits to perform an act which [that person] is legally required to do that causes
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the deprivation of which complaint is made.’” Hydrick v. Hunter, 500 F.3d 978, 988 (9th Cir. 2007)
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(quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “[T]he ‘requisite causal connection
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can be established not only by some kind of direct, personal participation in the deprivation, but also
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by setting in motion a series of acts by others which the actor knows or reasonably should know
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would cause others to inflict the constitutional injury.’” Id. (quoting Johnson at 743-44).
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Here, Plaintiff alleges conduct as to correctional staff in general. In order to hold Defendants
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liable, Plaintiff must allege facts as to each Defendant indicating that they knew of and disregarded
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Plaintiff’s serious medical condition. In order to hold an individual defendant liable, Plaintiff must
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name the individual defendant, describe where that defendant is employed and in what capacity, and
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explain how that defendant acted under color of state law. Plaintiff should state clearly, in his or
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her own words, what happened. Plaintiff must describe what each defendant, by name, did to violate
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the particular right described by Plaintiff. Plaintiff is advised the deliberate indifference is a higher
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legal standard than negligence. Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not
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support this cause of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir.1980)
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(citing Estelle, 429 U.S. at 105-06). See also Toguchi v. Chung, 391 F.3d 1051, 1060 (9th
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Cir.2004).
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III.
Conclusion and Order
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The Court has screened Plaintiff’s complaint and finds that it does not state any claims upon
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which relief may be granted under section 1983 or the ADA. The Court will provide Plaintiff with
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the opportunity to file an amended complaint curing the deficiencies identified by the Court in this
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order. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff is cautioned that he may
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not change the nature of this suit by adding new, unrelated claims in his amended complaint.
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George, 507 F.3d at 607 (no “buckshot” complaints).
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Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but must state what each
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named defendant did that led to the deprivation of Plaintiff’s constitutional or other federal rights,
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Hydrick, 500 F.3d at 987-88. Although accepted as true, the “[f]actual allegations must be
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[sufficient] to raise a right to relief above the speculative level . . . .” Bell Atlantic Corp. v.
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Twombly, 127 S.Ct. 1955, 1965 (2007) (citations omitted).
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Finally, Plaintiff is advised that an amended complaint supercedes the original complaint,
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Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567
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(9th Cir. 1987), and must be “complete in itself without reference to the prior or superceded
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pleading,” Local Rule 15-220. Plaintiff is warned that “[a]ll causes of action alleged in an original
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complaint which are not alleged in an amended complaint are waived.” King, 814 F.2d at 567 (citing
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to London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981)); accord Forsyth, 114 F.3d at
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1474.
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Accordingly, based on the foregoing, it is HEREBY ORDERED that:
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Plaintiff’s complaint is dismissed, with leave to amend, for failure to state a claim;
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The Clerk’s Office shall send Plaintiff a complaint form;
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3.
Within thirty (30) days from the date of service of this order, Plaintiff shall file an
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amended complaint;
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complaint and any attempt to do so will result in an order striking the amended
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Plaintiff may not add any new, unrelated claims to this action via his amended
complaint; and
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If Plaintiff fails to file an amended complaint, the Court will recommend that this
action be dismissed, with prejudice, for failure to state a claim.
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IT IS SO ORDERED.
Dated:
6i0kij
November 1, 2011
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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