Calloway v. Scribner et al
Filing
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ORDER Dismissing Complaint With Leave to File First Amended Complaint 1 , signed by Magistrate Judge Dennis L. Beck on 11/29/11. First Amended Complaint Due in Thirty Days. (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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JAMISI JERMAINE CALLOWAY,
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Plaintiff,
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CASE NO. 1:11-cv-00803 DLB PC
ORDER DISMISSING COMPLAINT WITH
LEAVE TO FILE FIRST AMENDED
COMPLAINT
v.
A. K. SCRIBNER, et al.,
(Doc. 1)
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FIRST AMENDED COMPLAINT DUE IN
THIRTY DAYS
Defendants.
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Screening Order
I.
Screening Requirement
Plaintiff Jamisi Jermaine Calloway (“Plaintiff”), a state prisoner proceeding pro se and in
forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on May 17, 2011.
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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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A complaint must contain “a short and plain statement of the claim showing that the pleader
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is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but
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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
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do not suffice.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v.
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Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). Plaintiff must set forth “sufficient
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factual matter, accepted as true, to ‘state a claim that is plausible on its face.’” Iqbal, 129 S.Ct. at
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1949 (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal
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conclusions are not. Id. at 1949.
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II.
Summary of Plaintiff’s Complaint
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Plaintiff is an African American prisoner in the custody of the California Department of
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Corrections and Rehabilitation (“CDCR”). He is housed at Kern Valley State Prison in Delano,
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California. The events giving rise to the claims at issue in this action allegedly occurred while
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Plaintiff was housed at the California Substance Abuse Treatment Facility (“CSATF”) at Corcoran
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State Prison (“CSP”). Plaintiff names A. K. Scribner, CSATF Warden; CDCR Chief Medical
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Officer; Unknown Medical Care Providers; D. G. Adams, CSP Warden; CDCR; Gambro Healthcare-
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Davita Hemodialysis Clinic (“Gambro Clinic”); Richard Turner, Gambro Clinic CEO; Jenny Porter,
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Gambro Clinic Regional Director; and Doctor Chen, Gambro Clinic Nephrologist. Plaintiff seeks
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money damages and injunctive relief.
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Plaintiff alleges the following: Prior to 2002, Plaintiff was diagnosed with end stage renal
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failure. He requires five hours of hemodialysis (dialysis) three days per week. Compl. p. 9:14-17.
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On or about August 14, 2001, Plaintiff was transferred from San Quentin State Prison to CSATF for
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hemodialysis and care. Compl. pp. 10:25-11:4. From August 14, 2001 to December 6, 2002,
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CDCR, CSATF, and Warden Scribner took no actions to arrange for hemodialysis treatment,
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adequate medications on time or an adequate renal diet. CDCR and CSATF also took no action for
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Plaintiff to receive “a permanent access” and removal of a temporary shunt. On December 6, 2002,
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Plaintiff was transferred from CSATF to CSP for hemodialysis treatment. As CSP was unable to
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provide hemodialysis treatment, medication or medical attention, Plaintiff was sent to Gambro
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Clinic for treatment. Dr. Chen, nephrologist at Gambro Clinic, never referred Plaintiff for a
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transplant or for “permanent access” and removal of the temporary shunt.
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Plaintiff alleges that while he was being treated from December 2002 to April 2006, none
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of the defendants, including the CEO and Regional Director of the Gambro Clinic, arranged for a
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kidney transplant evaluation, adequate dialysis, adequate medications, adequate renal diet, “a
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permanent access” and removal of a temporary shunt.
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Plaintiff also alleges that at some point, state correctional officers damaged his access graft,
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which significantly impaired its functioning, by cuffing him behind the back. For several months,
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his blood could not be adequately cleansed in a normal dialysis session. He suffered frequent bouts
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of fever, chills, nausea, vomiting, diarrhea, and lethargy because the toxins could not be filtered
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through the temporary shunt. Compl. p. 16:1-18. At some point in 2002, the damaged shunt was
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“snatch[ed] out in a cell fight with another inmate.” Plaintiff was sent for another shunt instead of
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having a permanent access place under the skin in his arm or leg. After being denied a permanent
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access, Plaintiff was sent back to prison without any dialysis until he became very ill. Subsequently,
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Plaintiff required a new access shunt to be placed in his chest. Compl. pp. 16:26-17:9.
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At some point in 2002, Plaintiff advised Dr. Chen that he needed a permanent access.
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Defendants Dr. Chen, Richard Turner and Jenny Porter did not arrange for Plaintiff to have a new
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permanent access or a kidney transplant evaluation. Compl. p. 17:10-27.
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At some time, Plaintiff became ill and was admitted to Doctor’s Medical Center with a high
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fever, chills, nausea, vomiting and an infection in his chest access shunt. He remained hospitalized
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for four days. At some other point, he was hospitalized again at Doctor’s Medical Center with
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hyperkalemia, hypertension, and an abnormal electrocardiogram. He was provided emergency
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dialysis and had surgery to implant a new shunt access in his chest. He remained hospitalized for
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twelve days. Compl. p. 18:1-11. At another point, he was hospitalized at the Mt. Diablo Medical
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Center after arriving via ambulance in a “delirious and disoriented state,” with a fever, sepsis and
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a grossly infected access shunt with abscess formations. He received emergency dialysis, treatment
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for his infection and surgical resection of the infected shunt access. He remained hospitalized for
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fourteen days. Compl. p. 18:12-20.
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Plaintiff alleges that he was hospitalized several times while in custody between December
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6, 2002 to April 2007 for infections to his shunt. Between April 2006 and July 2007, Plaintiff was
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transferred to the California Medical Facility for hemodialysis and adequate medical care. He was
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hospitalized again for an infected shunt access in his chest and referred for a permanent access in his
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left upper arm and a temporary shunt replaced on his chest. He was denied a permanent access and
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a kidney referral transplant evaluation. Compl. pp. 18:23-19:12. Plaintiff alleges that between
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August 14, 2001 and 2006, Defendants CDCR, Scribner, Adams, Gambro Clinic, Richard Turner,
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Jenny Porter and Dr. Chen deliberately neglected his serious medical needs. Compl. p. 19:12-21.
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Plaintiff asserts causes of action for violations of the Eighth Amendment, the Americans with
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Disabilities Act and Section 504 of the Rehabilitation Act.
III.
Discussion
The Civil Rights Act under which this action was filed provides:
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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. 1997)
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(internal quotations omitted). “To the extent that the violation of a state law amounts to the
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deprivation of a state-created interest that reaches beyond that guaranteed by the federal Constitution,
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Section 1983 offers no redress.” Id.
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1.
Deficiencies of the Complaint
A.
Rule 8(a)
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Under federal pleading requirements, a complaint must contain “a short and plain statement
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of the claim showing that the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed
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factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action,
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supported by mere conclusory statements, do not suffice,” Iqbal, 129 S.Ct. at 1949 (citing Twombly,
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550 U.S. at 555, 127 S.Ct. at 1955), and courts “are not required to indulge unwarranted inferences,”
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Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and
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citation omitted). Factual allegations are accepted as true but legal conclusions are not, and Plaintiff
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is required to present factual allegations sufficient to state a plausible claim for relief. Iqbal, 129
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S.Ct at 1949-50; Moss. v. United States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere
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possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 129 S.Ct at 1949.
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Plaintiff’s complaint consists of more than twenty-five handwritten pages and fails to comply
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with Rule 8(a)'s requirement that the complaint contain “a short and plain statement of the claim
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showing that the pleader is entitled to relief.” Plaintiff’s repetitive narrative does not clearly or
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succinctly allege facts against the named defendants. Although Plaintiff provides a range of dates
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in which a number of incidents took place, he does not identify any specific conduct by the named
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defendants. Rather, Plaintiff states legal conclusions.
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B.
Eleventh Amendment Immunity
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Plaintiff names CDCR as a defendant. Plaintiff may not sustain an action against a state
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agency. The Eleventh Amendment prohibits federal courts from hearing suits brought against an
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unconsenting state. Brooks v. Sulphur Springs Valley Elec. Co-op., 951 F.2d 1050, 1053 (9th
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Cir.1991) (citation omitted); Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54 (1996); Puerto Rico
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Aqueduct Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993); Austin v. State Indus. Ins.
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Sys., 939 F.2d 676, 677 (9th Cir.1991). The Eleventh Amendment bars suits against state agencies
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as well as those where the state itself is named as a defendant. See Natural Resources Defense
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Council v. California Dep't of Transp., 96 F.3d 420, 421 (9th Cir.1996); Brook, 951 F.2d at 1053;
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Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989) (concluding that Nevada Department of Prisons
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was a state agency entitled to Eleventh Amendment immunity); Mitchell v. Los Angeles Community
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College Dist., 861 F.2d 198, 201 (9th Cir.1989). CDCR is a state agency and it is entitled to
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Eleventh Amendment immunity from suit.
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C.
Supervisory Liability
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Plaintiff appears to attribute supervisory liability to Warden Scribner, Warden Adams and
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the CDCR Chief Medical Officer. Plaintiff fails to state a cognizable claim against them for
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supervisory liability. The term “supervisory liability,” loosely and commonly used by both courts
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and litigants alike, is a misnomer. Iqbal, 129 S. Ct. at 1949. “Government officials may not be held
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liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior.”
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Id. at 1948. Rather, each government official, regardless of his or her title, is only liable for his or
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her own misconduct.
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When the named defendant holds a supervisory position, the causal link between the
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defendant and the claimed constitutional violation must be specifically alleged. See Fayle v. Stapley,
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607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). To state
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a claim for relief under § 1983 for supervisory liability, plaintiff must allege some facts indicating
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that the defendant either: personally participated in the alleged deprivation of constitutional rights;
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knew of the violations and failed to act to prevent them; or promulgated or “implemented a policy
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so deficient that the policy ‘itself is a repudiation of constitutional rights’ and is ‘the moving force
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of the constitutional violation.’” Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989) (internal
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citations omitted); Taylor, 880 F.2d at 1045. Plaintiff alleges no facts to demonstrate that Warden
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Scribner, Warden Adams or the CDCR Chief Medical Officer personally deprived Plaintiff of his
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constitutional rights, knew of constitutional violations and failed to act, or promulgated a policy that
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violated Plaintiff’s constitutional rights.
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D.
Private Parties
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Plaintiff names private parties Gambro Clinic, Gambro Clinic President Richard Turner,
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Gambro Clinic Regional Director Jenny Porter and Gambro Clinic Nephrologist Dr. Chen as
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Defendants. To state a claim under section 1983, a plaintiff must allege that (1) the defendant acted
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under color of state law and (2) the defendant deprived him of rights secured by the Constitution or
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federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). Generally,
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private parties are not acting under color of state law. Brentwood Academy v. Tennessee Secondary
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School Athletic Assoc., 531 U.S. 288, 295, 121 S.Ct. 924, 930 (2001); Single Moms, Inc. v.
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Montana Power Co., 331 F.3d 743, 746-47 (9th Cir. 2003); Sutton v. Providence St. Joseph Med.
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Ctr., 192 F.3d 826, 835 (9th Cir. 1999); Price v. Hawaii, 939 F.2d 702, 707-08 (9th Cir. 1991).
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2.
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In the paragraphs that follow, the court will provide Plaintiff with the legal standards that
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appear to apply to his claims. Plaintiff should carefully review the standards and amend only those
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claims that he believes, in good faith, are cognizable.
Legal Standards
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A.
Eighth Amendment
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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). In order to state a claim for violation
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of the Eighth Amendment, Plaintiff must allege sufficient facts to support a claim that the named
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defendants “[knew] of and disregard[ed] an excessive risk to [Plaintiff’s] health . . . .” Farmer v.
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Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 1979 (1994).
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In applying this standard, the Ninth Circuit has held that before it can be said that a prisoner’s
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civil rights have been abridged, “the indifference to his medical needs must be substantial. Mere
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‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this cause of action.”
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Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980), citing Estelle, 429 U.S. at
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105-06. “[A] complaint that a physician has been negligent in diagnosing or treating a medical
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condition does not state a valid claim of medical mistreatment under the Eighth Amendment.
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Medical malpractice does not become a constitutional violation merely because the victim is a
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prisoner.” Estelle, 429 U.S. at 106. Even gross negligence is insufficient to establish deliberate
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indifference to serious medical needs. See Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir.
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1990).
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Also, “[a] difference of opinion between a prisoner-patient and prison medical authorities
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regarding treatment does not give rise to a § 1983 claim.” Franklin v. Oregon, 662 F.2d 1337, 1344
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(9th Cir. 1981) (internal citation omitted). To prevail, Plaintiff “must show that the course of
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treatment the doctors chose was medically unacceptable under the circumstances . . . and . . . that
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they chose this course in conscious disregard of an excessive risk to plaintiff’s health.” Jackson v.
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McIntosh, 90 F.3d 330, 332 (9th Cir. 1986) (internal citations omitted). A prisoner’s mere
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disagreement with diagnosis or treatment does not support a claim of deliberate indifference.
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Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989).
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In his complaint, Plaintiff does not state a cognizable claim against any of the named
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defendants. Plaintiff fails to include specific factual allegations, as opposed to legal conclusions,
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showing that any defendant knew of and disregarded an excessive risk to Plaintiff’s health or that
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the course of treatment given to him was medically unacceptable under the circumstances.
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B.
Americans with Disabilities Act and § 504 of the Rehabilitation Act
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Plaintiff alleges a violation of the Americans with Disabilities Act and § 504 of the
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Rehabilitation Act. Title II of the Americans with Disabilities Act (ADA) and § 504 of the
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Rehabilitation Act (RA) “both prohibit discrimination on the basis of disability.” Lovell v. Chandler,
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303 F.3d 1039, 1052 (9th Cir.2002). Title II of the ADA provides that “no qualified individual with
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a disability shall, by reason of such disability, be excluded from participation in or be denied the
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benefits of the services, programs, or activities of a public entity, or be subject to discrimination by
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such entity.” 42 U.S.C. § 12132. Section 504 of the RA provides that “no otherwise qualified
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individual with a disability ... shall, solely by reason of her or his disability, be excluded from the
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participation in, be denied the benefits of, or be subjected to discrimination under any program or
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activity receiving Federal financial assistance....” 29 U.S.C. § 794. Title II of the ADA and the RA
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apply to inmates within state prisons. Pennsylvania Dept. of Corrections v. Yeskey, 524 U.S. 206,
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210, 118 S.Ct. 1952, 1955, 141 L.Ed.2d 215 (1998); see also Armstrong v. Wilson, 124 F.3d 1019,
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1023 (9th Cir.1997); Duffy v. Riveland, 98 F.3d 447, 453-56 (9th Cir.1996).
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“To establish a violation of Title II of the ADA, a plaintiff must show that (1)[he] is a
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qualified individual with a disability; (2)[he] was excluded from participation in or otherwise
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discriminated against with regard to a public entity's services, programs, or activities; and (3) such
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exclusion or discrimination was by reason of [his] disability.” Lovell, 303 F.3d at 1052. “To
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establish a violation of § 504 of the RA, a plaintiff must show that (1)[he] is handicapped within the
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meaning of the RA; (2)[he] is otherwise qualified for the benefit or services sought; (3)[he] was
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denied the benefit or services solely by reason of [his] handicap; and (4) the program providing the
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benefit or services receives federal financial assistance.” Id.
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Plaintiff alleges that the defendants failed to provide him adequate hemodialysis, surgery and
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medical care. Plaintiff thus alleges that he failed to receive medical treatment because of his
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disabilities. Courts have found that the ADA and § 504 of the RA do not create a federal cause of
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action for prisoners challenging the medical treatment provided for their underlying disabilities. See,
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e.g., Burger v. Bloomberg, 418 F.3d 882, 883 (8th Cir.2005) (medical treatment decisions not a basis
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for RA or ADA claims); Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1289, 1294 (11th Cir.2005
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(RA not intended to apply to medical treatment decisions); Fitzgerald v. Corr. Corp. of Am., 403
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F.3d 1134, 1144 (10th Cir.2005) (medical decisions not ordinarily within scope of ADA or RA);
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Grzan v. Charter Hosp. Of Northwest Indiana, 104 F.3d 116, 121-22 (7th Cir.1997). Plaintiff's
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allegations concern his medical treatment, not discrimination because of any disability. Plaintiff's
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claims are properly raised under the Eighth Amendment, not the ADA or RA. Plaintiff thus fails to
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state a cognizable claim under the ADA or § 504 of the RA.
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IV.
Conclusion And Order
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Plaintiff fails to state any cognizable claims against the named defendants. The Court will
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provide Plaintiff with an opportunity to file a first amended complaint curing the deficiencies
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identified by the Court in this order. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987).
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Plaintiff may not change the nature of this suit by adding new, unrelated claims in his amended
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complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” complaints).
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If Plaintiff decides to amend, Plaintiff’s amended complaint should be brief, Fed. R. Civ. P.
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8(a), but must state what each named defendant did that led to the deprivation of Plaintiff’s
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constitutional or other federal rights. Iqbal, 129 S. Ct. at 1949. Although accepted as true, the
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“[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level . . . .”
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Twombly, 550 U.S. at 555.
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With regard to the medical doe defendants, Plaintiff is advised that “as a general rule, the use
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of ‘John Doe’ to identify a defendant is not favored.” Gillespie v. Civiletti, 629 F.2d 637, 642 (9th
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Cir. 1980). John Doe or Jane Doe defendants cannot be served by the United States Marshal until
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Plaintiff has identified them as actual individuals and amended his complaint to substitute names for
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John Doe or Jane Doe. For service to be successful, the Marshal must be able to identify and locate
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defendants. Unsuccessful service may result in dismissal of defendants from the action.
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Finally, Plaintiff is advised that an amended complaint supersedes 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 superseded
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pleading,” L. R. 220. Plaintiff is warned that “[a]ll causes of action alleged in an original complaint
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which are not alleged in an amended complaint are waived.” King, 814 F.2d at 567 (citing to
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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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1.
The Clerk’s Office shall send Plaintiff a complaint form;
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2.
Plaintiff’s complaint is dismissed for failure to state a claim, with leave to file a first
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amended complaint within thirty (30) days from the date of service of this order; and
3.
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If Plaintiff fails to comply with this order, the Court will dismiss this action for
failure to obey a court order and failure to state a claim.
IT IS SO ORDERED.
Dated:
3b142a
November 29, 2011
/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE
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