Irving v. Calif. Dept. of Corrections et al
Filing
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ORDER DISMISSING 12 First Amended Complaint WITH LEAVE TO AMEND; Second Amended Complaint Due within Thirty Days signed by Magistrate Judge Gerald B. Cohn on 6/17/2011. Second Amended Complaint due by 7/25/2011. (Attachments: # 1 Amended Complaint Form)(Sant Agata, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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ARVELL JAMES IRVING,
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Plaintiff,
CALIFORNI A DE P A RT MENT
CORRECTIONS, et al.,
OF (ECF No. 12)
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SECOND AMENDED COMPLAINT DUE
WITHIN THIRTY DAYS
Defendants.
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1:10-cv-00905-GBC (PC)
FIRST AMENDED COMPLAINT DISMISSED
WITH LEAVE TO AMEND
v.
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CASE NO.
/
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SCREENING ORDER
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I.
PROCEDURAL HISTORY
Plaintiff Arvell James Irving (“Plaintiff”) is a state prisoner proceeding pro se and in
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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this
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action on May 20, 2010 and consented to Magistrate Judge jurisdiction on May 28, 2010.
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(ECF Nos. 1 & 4.) Plaintiff then filed a First Amended Complaint on August 24, 2010.
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(ECF No. 12.) No other parties have appeared. This First Amended Complaint is now
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before the Court for screening.1
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For the reasons set forth below, the Court finds that Plaintiff has failed to state a
claim upon which relief may be granted.
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II.
SCREENING REQUIREMENTS
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The Court is required to screen complaints brought by prisoners seeking relief
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against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.
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§ 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has
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raised claims that are legally “frivolous or malicious,” that fail to state a claim upon which
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relief may be granted, or that seek monetary relief from a defendant who is immune from
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such relief. 28 U.S.C. § 1915A(b)(1), (2). “Notwithstanding any filing fee, or any portion
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thereof, that may have been paid, the court shall dismiss the case at any time if the court
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determines that . . . the action or appeal . . . fails to state a claim upon which relief may be
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granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).
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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
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not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by
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mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949
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(2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set
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forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its
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face.’” Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). While factual
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This Court previously dism issed Claim 2 because it had not been exhausted. (ECF No. 16.)
Thus, Claim 1 is the only rem aining claim in Plaintiff’s First Am ended Com plaint which will be screened in
this Order.
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allegations are accepted as true, legal conclusions are not. Iqbal, 129 S.Ct. at 1949.
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III.
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SUMMARY OF COMPLAINT
Plaintiff alleges violations of his Eighth Amendment right to adequate medical care.
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Plaintiff names the following individuals as Defendants: Santos, Dotson, Kathleen Allison,
D. Artis, D. Foston, A. Enenmoh, Cole, Peters, Paat, and Bennett.
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Plaintiff alleges as follows: On October 12, 2009, Plaintiff was given a urine analysis
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(“UA”) test. Two days later, October 14, 2009, Plaintiff’s pain management medication
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prescription expired. On October 16, 2009, the UA test came back positive for morphine.
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Defendant Santos was contacted on the same day to verify Plaintiff’s medical and
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pharmaceutical records. Santos stated that Plaintiff’s records did not indicate issuance of
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any authorized medication that would account for the positive UA test. Plaintiff was found
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guilty of administering his own pain medication (morphine) on November 21, 2009 by
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Defendant Dotson.
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Plaintiff seeks punitive and monetary damages, and injunctive relief.
IV.
ANALYSIS
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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.
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42 U.S.C. § 1983. “Section 1983 . . . creates a cause of action for violations of the federal
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Constitution and laws.” Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir.
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1997) (internal quotations omitted).
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A.
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Plaintiff alleges inadequate medical care and deliberate indifference to his serious
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Eighth Amendment Claims
medical condition.
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“[T]o maintain an Eighth Amendment claim based on prison medical treatment, an
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inmate must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439
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F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). The
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two part test for deliberate indifference requires the plaintiff to show (1) “‘a serious medical
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need’ by demonstrating that ‘failure to treat a prisoner’s condition could result in further
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significant injury or the unnecessary and wanton infliction of pain,’” and (2) “the defendant’s
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response to the need was deliberately indifferent.” Jett, 439 F.3d at 1096 (quoting
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McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds,
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WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc) (internal quotations
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omitted)). Deliberate indifference is shown by “a purposeful act or failure to respond to a
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prisoner’s pain or possible medical need, and harm caused by the indifference.” Jett, 439
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F.3d at 1096 (citing McGuckin, 974 F.2d at 1060). In order to state a claim for violation of
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the Eighth Amendment, a plaintiff must allege sufficient facts to support a claim that the
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named defendants “[knew] of and disregard[ed] an excessive risk to [Plaintiff’s] health . .
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. .” Farmer v. Brennan, 511 U.S. 825, 837 (1994).
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In applying this standard, the Ninth Circuit has held that before it can be said that
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a prisoner’s civil rights have been abridged, “the indifference to his medical needs must be
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substantial. Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this
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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). “[A] complaint that a physician has been negligent in
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diagnosing or treating a medical condition does not state a valid claim of medical
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mistreatment under the Eighth Amendment. Medical malpractice does not become a
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constitutional violation merely because the victim is a prisoner.” Estelle, 429 U.S. at 106;
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see also Anderson v. County of Kern, 45 F.3d 1310, 1316 (9th Cir. 1995); McGuckin, 974
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F.2d at 1050, overruled on other grounds, WMX, 104 F.3d at 1136. Even gross negligence
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is insufficient to establish deliberate indifference to serious medical needs. See Wood v.
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Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990).
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Also, “a difference of opinion between a prisoner-patient and prison medical
authorities regarding treatment does not give rise to a § 1983 claim.” Franklin v. Oregon,
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662 F.2d 1337, 1344 (9th Cir. 1981) (internal citation omitted). To prevail, Plaintiff “must
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show that the course of treatment the doctors chose was medically unacceptable under
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the circumstances . . . and . . . that they chose this course in conscious disregard of an
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excessive risk to plaintiff’s health.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1986)
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(internal citations omitted). A prisoner’s mere disagreement with diagnosis or treatment
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does not support a claim of deliberate indifference. Sanchez v. Vild, 891 F.2d 240, 242
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(9th Cir. 1989).
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Plaintiff states that his pain management prescription was allowed to expire by
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medical staff. He goes on to state that a breach in protocol allowed this expiration to
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occur. He attributes the medical staff breach to Defendant Enenmoh2 who, Plaintiff states,
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is the chief medical officer.
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The Court also notes that Plaintiff attributes this violation to Defendant Enenm oh in an
apparently supervisory capacity as he is the chief m edical officer. Supervisory liability is addressed below
in a separate section.
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Plaintiff has failed to state an Eighth Amendment violation claim. He does not state
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that any named Defendant was aware that his pain management medication was about
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to expire or had expired. He does not state that he informed anyone. Thus, no named
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Defendant knew that Plaintiff’s prescription expired; therefore, no one could be deliberately
indifferent to this expiration.
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Plaintiff’s claim is dismissed with leave to amend. In the amended complaint,
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Plaintiff must demonstrate that a named Defendant knew of and disregarded a serious risk
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to Plaintiff’s health.
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B.
Due Process
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Plaintiff appears to be arguing that he did not receive due process regarding the
allegations against him.
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The Due Process Clause protects prisoners from being deprived of liberty without
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due process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). In order to state a
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cause of action for deprivation of due process, a plaintiff must first establish the existence
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of a liberty interest for which the protection is sought.
“States may under certain
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circumstances create liberty interests which are protected by the Due Process Clause.”
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Sandin v. Conner, 515 U.S. 472, 483–84 (1995). Liberty interests created by state law are
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generally limited to freedom from restraint which “imposes atypical and significant hardship
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on the inmate in relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at 484.
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Where prison conditions are at issue, a change in conditions so severe as to affect
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the sentence imposed in an unexpected manner implicates the Due Process Clause itself,
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whether or not such change is authorized by state law. Id. at 484. Neither changes in
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conditions relating to classification and reclassification nor the hardship associated with
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administrative segregation, such as loss of recreational and rehabilitative programs or
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confinement to one’s cell for a lengthy period of time, violate the Due Process Clause itself.
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See Hernandez v. Johnston, 833 F.2d 1316, 1318 (9th Cir. 1987) (classification); Toussaint
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v. McCarthy, 801 F.2d 1080, 1091-92 (9th Cir. 1986) (administrative segregation).
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Additionally, the decision to confine an inmate to administrative confinement only
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requires “some evidence” in support of the decision. Toussaint, 801 F.2d at 1105. When
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an inmate is confined to administrative segregation due process requires that he be
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informed of the charges against him or the reason for his segregation, an informal
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nonadversary hearing must be held within a reasonable time, and the inmate must be
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allowed to present his views. Toussaint, 801 F.2d at 1100.
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Plaintiff states that he was taking a morphine derivative to control his pain. He took
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a UA test and two days later his prescription was allowed to expire. The UA test came
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back positive for morphine. Defendant Santos was contacted about Plaintiff’s medical and
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prescription files. Santos stated that Plaintiff was not currently authorized to be taking
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anything that would show up as morphine on the test. Plaintiff was then found guilty of
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possession of a controlled substance by Defendant Dotson.
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Plaintiff does not describe the hearing at all. He does not state that he was not
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allowed to present his side of the story. He does state that he tried to get a copy of his
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medical files and “M.A.R.S.” to prove that he was taking a morphine derivative drug, which
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would account for the positive test result.
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As currently pleaded, the Court is unable to determine whether Plaintiff received
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adequate due process. Plaintiff is given leave to amend and in doing so should describe
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the situation in greater detail including, but not limited to: any notice he received prior to
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the hearing, what happened at the hearing, if he was allowed to present his side of the
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story, etc.
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C.
Personal Participation and Supervisory Liability
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Plaintiff does not refer to any of the named Defendants in the statement of the case.
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Plaintiff could be arguing that some of the Defendants are liable for the conduct of his or
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her subordinates as they were, apparently, not present and did not participate in the
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complained of conduct as currently described by Plaintiff. And, Plaintiff appears to be
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specifically naming Defendant Enenmoh in his or her supervisory capacity as chief medical
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officer.
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Under Section 1983, Plaintiff must demonstrate that each named Defendant
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personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930,
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934 (9th Cir. 2002). The Supreme Court has emphasized that the term “supervisory
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liability,” loosely and commonly used by both courts and litigants alike, is a misnomer.
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Iqbal, 129 S.Ct. at 1949.
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“Government officials may not be held liable for the
unconstitutional conduct of their subordinates under a theory of respondeat superior.” Id.
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at 1948. Rather, each government official, regardless of his or her title, is only liable for
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his or her own misconduct, and therefore, Plaintiff must demonstrate that each defendant,
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through his or her own individual actions, violated Plaintiff’s constitutional rights. Id. at
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1948-49.
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When examining the issue of supervisor liability, it is clear that the supervisors are
not subject to vicarious liability, but are liable only for their own conduct. Jeffers v. Gomez,
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267 F.3d 895, 915 (9th Cir. 2001); Wesley v. Davis, 333 F.Supp.2d 888, 892 (C.D.Cal.
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2004). In order to establish liability against a supervisor, a plaintiff must allege facts
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demonstrating (1) personal involvement in the constitutional deprivation, or (2) a sufficient
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causal connection between the supervisor’s wrongful conduct and the constitutional
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violation. Jeffers, 267 F.3d at 915; Wesley, 333 F.Supp.2d at 892. The sufficient causal
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connection may be shown by evidence that the supervisor implemented a policy so
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deficient that the policy itself is a repudiation of constitutional rights.
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F.Supp.2d at 892 (internal quotations omitted). However, an individual’s general
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responsibility for supervising the operations of a prison is insufficient to establish personal
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involvement. Id. (internal quotations omitted).
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Wesley, 333
Supervisor liability under Section 1983 is a form of direct liability. Munoz v.
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Kolender, 208 F.Supp.2d 1125, 1149 (S.D.Cal. 2002). Under direct liability, Plaintiff must
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show that Defendant breached a duty to him which was the proximate cause of his injury.
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Id. “‘The requisite causal connection can be established . . . by setting in motion a series
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of acts by others which the actor knows or reasonably should know would cause others to
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inflict the constitutional injury.’” Id. (quoting Johnson v. Duffy, 588 F.2d 740, 743-744 (9th
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Cir. 1978)).
However, “where the applicable constitutional standard is deliberate
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indifference, a plaintiff may state a claim for supervisory liability based upon the
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supervisor’s knowledge of and acquiescence in unconstitutional conduct by others.” Star
v. Baca, 633 F.3d 1191, 1196 (9th Cir. 2011).
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Plaintiff has not alleged facts demonstrating that any of the named Defendants
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personally acted to violate his rights. Plaintiff needs to specifically link each Defendant to
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a violation of his rights. Plaintiff shall be given the opportunity to file an amended
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complaint curing the deficiencies in this respect.
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Further, it appears that Plaintiff is alleging that Defendants Dotson, Hall, Allison,
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Artis, Foston, Enenmoh, and Santos violated his rights by denying his appeal. Plaintiff
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should note that he may not include any Defendants solely on the ground that they denied
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or improperly processed his administrative grievances. See Ramirez v. Galaza, 334 F.3d
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850, 860 (9th Cir. 2007).
V.
CONCLUSION AND ORDER
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The Court finds that Plaintiff’s First Amended Complaint fails to state any Section
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1983 claims upon which relief may be granted. The Court will provide Plaintiff time to file
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an amended complaint to address the potentially correctable deficiencies noted above.
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See Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). In his Amended Complaint,
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Plaintiff must demonstrate that the alleged incident or incidents resulted in a deprivation
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of his constitutional rights. Iqbal, 129 S.Ct. at 1948-49. Plaintiff must set forth “sufficient
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factual matter . . . to ‘state a claim that is plausible on its face.’” Iqbal, 129 S.Ct. at 1949
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(quoting Twombly, 550 U.S. at 555). Plaintiff must also demonstrate that each defendant
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personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930,
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934 (9th Cir. 2002).
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Plaintiff should note that although he has been given the opportunity to amend, it
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is not for the purposes of adding new defendants or claims. Plaintiff should focus the
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amended complaint on claims and defendants relating solely to issues arising out of the
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events described herein.
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Finally, Plaintiff is advised that Local Rule 220 requires that an amended complaint
be complete in itself without reference to any prior pleading. As a general rule, an
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amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55,
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57 (9th Cir. 1967). Once an amended complaint is filed, the original complaint no longer
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serves any function in the case. Therefore, in an amended complaint, as in an original
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complaint, each claim and the involvement of each defendant must be sufficiently alleged.
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The amended complaint should be clearly and boldly titled “Second Amended Complaint,”
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refer to the appropriate case number, and be an original signed under penalty of perjury.
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Based on the foregoing, it is HEREBY ORDERED that:
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Plaintiff’s complaint is dismissed for failure to state a claim, with leave to file
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an amended complaint within thirty (30) days from the date of service of this
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order;
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Plaintiff shall caption the amended complaint “Second Amended Complaint”
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and refer to the case number 1:10-cv-905-GBC (PC); and
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failure to state a claim upon which relief may be granted.
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If Plaintiff fails to comply with this order, this action will be dismissed for
IT IS SO ORDERED.
Dated:
1j0bbc
June 17, 2011
UNITED STATES MAGISTRATE JUDGE
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