Wilson v. California Dept. of Corrections et al, No. 3:2013cv01455 - Document 5 (S.D. Cal. 2014)
Court Description: ORDER Granting Plaintiff's 4 Motion to Proceed in forma pauperis and Sua Sponte Dismissing Complaint without prejudice for Failure to State a Claim Pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b). The Secretary CDCR, or his designe e, is ordered to collect from prison trust account the $2.16 initial filing fee assessed by this Order and shall forward the remaining $347.84 balance of the filing fee owed in this case by collecting monthly payments from the trust account in an amount equal to 20% of the preceding month income credited to the account and forward payments to the Clerk of the Court each time the amount in the account exceeds $10 in accordance with 28 USC 1915(b)(2). The Plaintiff is Granted f orty five (45) days leave from the date of this Order is entered into the Court's docket in which to file a First Amended Complaint which cures all the deficiencies and must be complete in itself without reference to the original pleading. Shou ld Plaintiff fail to file an Amended Complaint within the time provided, the Court shall enter a final order dismissing this civil action without prejudice based on Plaintiff's failure to state a claim (Order electronically transmitted to Secretary of CDCR). Signed by Judge Barry Ted Moskowitz on 2/18/2014. (All non-registered users served via U.S. Mail Service)(rlu)
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Wilson v. California Dept. of Corrections et al Doc. 5 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 ROY L. WILSON, CDCR #G-26646, Civil No. Plaintiff, 13 vs. 16 17 18 19 20 21 ORDER: (1) GRANTING PLAINTIFF’S MOTION TO PROCEED IN FORMA PAUPERIS (ECF Doc. No. 4) 14 15 13cv1455 BTM (KSC) CALIFORNIA DEPARTMENT OF CORRECTIONS; CORRECTION MANAGEMENT CORP., INC.; UNIDENTIFIED CHIEF MEDICAL OFFICER [CMO]; Dr. A. BLAIN, Dr. M. FRAZE; K. WYATT, RN; T. KIRBY, CCII; J. JIMENEZ, CCII; and A. MILLER, Warden, Defendants. AND (2) SUA SPONTE DISMISSING COMPLAINT FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. §§ 1915(e)(2) AND 1915A(b) 22 23 Roy L. Wilson (“Plaintiff”), currently incarcerated at California Men’s Colony 24 (“CMC”) in San Luis Obispo, California, and proceeding pro se, has initiated this civil 25 action pursuant to 42 U.S.C. § 1983 and the Americans with Disabilities Act, 42 U.S.C. 26 § 12131. 27 Plaintiff is a 57-year old insulin-dependent diabetic who claims Defendants, most 28 of whom are medical officials employed at either CMC and/or Centinela State Prison 1 13cv1455 BTM (KSC) Dockets.Justia.com 1 (“CEN”), violated his rights to adequate medical care under both the ADA and the 2 Eighth Amendment while he was incarcerated there between June 2012 and April 2013. 3 See Compl. (ECF Doc. No. 1) at 2-4. Specifically, Plaintiff alleges to have broken his 4 right wrist and/or thumb in June 2012 at CEN, but for “unknown reasons and without 5 any explanation,” went “untreated” until his transfer to a “medical prison” in April 2013. 6 Id. at 3-4. Plaintiff seeks declaratory relief as well as nominal, compensatory and 7 punitive damages. Id. at 6. 8 After he was denied leave to proceed in forma pauperis (“IFP”) pursuant to 28 9 U.S.C. § 1915(a) without prejudice on July 31, 2013 due to his failure to provide the 10 trust account certificates required by § 1915(a)(2) (ECF Doc. No. 3), Plaintiff submitted 11 a new Motion to Proceed IFP, which now includes the trust account documentation 12 required by statute (ECF Doc. No. 4). 13 I. PLAINTIFF’S MOTION TO PROCEED IFP 14 As Plaintiff is aware, all parties instituting any civil action, suit or proceeding in 15 a district court of the United States, except an application for writ of habeas corpus, must 16 pay a filing fee. See 28 U.S.C. § 1914(a).1 An action may proceed despite the plaintiff’s 17 failure to prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 18 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). 19 However, if the plaintiff is a prisoner and is granted leave to proceed IFP, he 20 nevertheless remains obligated to pay the entire fee in installments, regardless of whether 21 his action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. 22 Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 23 Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act 24 (“PLRA”), a prisoner seeking leave to proceed IFP must also submit a “certified copy 25 of the trust fund account statement (or institutional equivalent) for . . . the six-month 26 1 In addition to the $350 statutory fee, all parties filing civil actions on or after May 1, 2013, must pay an additional administrative fee of $50. See 28 U.S.C. § 1914(a), (b); Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule (eff. May 1, 2013). However, 28 the additional $50 administrative fee is waived if the plaintiff is granted leave to proceed IFP. Id. 27 2 13cv1455 BTM (KSC) 1 period immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); 2 Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account 3 statement, the Court must assess an initial payment of 20% of (a) the average monthly 4 deposits in the account for the past six months, or (b) the average monthly balance in the 5 account for the past six months, whichever is greater, unless the prisoner has no assets. 6 See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of 7 the prisoner must collect subsequent payments, assessed at 20% of the preceding 8 month’s income, in any month in which the prisoner’s account exceeds $10, and forward 9 those payments to the Court until the entire filing fee is paid. 10 See 28 U.S.C. § 1915(b)(2). 11 In support of his new IFP application, Plaintiff has submitted the certified copies 12 of his trust account statements required by 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 13 3.2. Andrews, 398 F.3d at 1119. The Court has reviewed Plaintiff’s trust account 14 statements, as well as the attached prison certificate issued by a trust account official at 15 CMC where he is currently incarcerated verifying his account history and available 16 balances. Plaintiff’s statements show an average monthly balance of $10.83, average 17 monthly deposits of $10.83, and an available balance in his account of $15.00 at the time 18 it was submitted to the Court for filing. Based on this financial information, the Court 19 GRANTS Plaintiff’s Motion to Proceed IFP (ECF Doc. No. 4) and assesses an initial 20 partial filing fee of $2.16 pursuant to 28 U.S.C. § 1915(b)(1). 21 However, the Secretary of the California Department of Corrections and 22 Rehabilitation, or his designee, shall collect this initial fee only if sufficient funds in 23 Plaintiff’s account are available at the time this Order is executed pursuant to the 24 directions set forth below. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event 25 shall a prisoner be prohibited from bringing a civil action or appealing a civil action or 26 criminal judgment for the reason that the prisoner has no assets and no means by which 27 to pay the initial partial filing fee.”); Taylor, 281 F.3d at 850 (finding that 28 U.S.C. 28 § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case based 3 13cv1455 BTM (KSC) 1 solely on a “failure to pay ... due to the lack of funds available to him when payment is 2 ordered.”). The remaining balance of the $350 total owed in this case shall be collected 3 and forwarded to the Clerk of the Court pursuant to the installment payment provisions 4 set forth in 28 U.S.C. § 1915(b)(1). 5 II. INITIAL SCREENING PER 28 U.S.C. §§ 1915(e)(2)(b)(ii) AND 1915A(b)(1) 6 Notwithstanding IFP status or the payment of any partial filing fees, the PLRA 7 also obligates the Court to review complaints filed by all persons proceeding IFP and by 8 those, like Plaintiff, who are “incarcerated or detained in any facility [and] accused of, 9 sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or 10 conditions of parole, probation, pretrial release, or diversionary program,” “as soon as 11 practicable after docketing.” See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these 12 provisions of the PLRA, the Court must sua sponte dismiss complaints, or any portions 13 thereof, which are frivolous, malicious, fail to state a claim, or which seek damages from 14 defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. 15 Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Rhodes v. 16 Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). 17 “[W]hen determining whether a complaint states a claim, a court must accept as 18 true all allegations of material fact and must construe those facts in the light most 19 favorable to the plaintiff.” Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000); see also 20 Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that § 1915(e)(2) 21 “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”). However, while 22 a plaintiff’s allegations are taken as true, courts “are not required to indulge unwarranted 23 inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal 24 quotation marks and citation omitted). Thus, while the court “ha[s] an obligation where 25 the petitioner is pro se, particularly in civil rights cases, to construe the pleadings 26 liberally and to afford the petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 27 338, 342 & n.7 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 28 1985)), it may not, in so doing, “supply essential elements of claims that were not 4 13cv1455 BTM (KSC) 1 initially pled.” Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 2 (9th Cir. 1982). “Vague and conclusory allegations of official participation in civil 3 rights violations” are simply not “sufficient to withstand a motion to dismiss.” Id. 4 A. 5 “Section 1983 creates a private right of action against individuals who, acting 6 under color of state law, violate federal constitutional or statutory rights.” Devereaux v. 7 Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of 8 substantive rights, but merely provides a method for vindicating federal rights elsewhere 9 conferred.” Graham v. Connor, 490 U.S. 386, 393–94 (1989) (internal quotation marks 10 and citations omitted). “To establish § 1983 liability, a plaintiff must show both (1) 11 deprivation of a right secured by the Constitution and laws of the United States, and (2) 12 that the deprivation was committed by a person acting under color of state law.” Tsao 13 v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). B. 14 42 U.S.C. § 1983 Improper Defendants 1. 15 CDCR & CMC 16 As an initial matter, the Court finds that to the extent Plaintiff names the 17 “California Department of Corrections” and the “Correction Management Corp., Inc.” 18 (“CMC”) as Defendants, his claims must be dismissed sua sponte pursuant to both 28 19 U.S.C. § 1915(e)(2) and § 1915A(b) for both failing to state a claim and for seeking 20 damages against defendants who are immune. The State of California’s Department of 21 Corrections and Rehabilitation (“CDCR”) and any state correctional agency, sub- 22 division, or department under its jurisdiction are not persons subject to suit under § 1983. 23 Hale v. State of Arizona, 993 F.2d 1387, 1398–99 (9th Cir. 1993) (holding that a state 24 department of corrections is an arm of the state, and thus, not a “person” within the 25 meaning of § 1983). And if by naming the CDCR or the CMC Plaintiff really seeks to 26 sue the State of California itself, his claims are clearly barred by the Eleventh 27 Amendment. See Alabama v. Pugh, 438 U.S. 781, 782 (1978) (per curiam) (“There can 28 /// 5 13cv1455 BTM (KSC) 1 be no doubt . . . that [a] suit against the State and its Board of Corrections is barred by 2 the Eleventh Amendment, unless [the State] has consented to the filing of such a suit.”). 3 Therefore, to the extent Plaintiff seeks monetary damages against the CDCR and 4 the CMC, his Complaint is dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), (iii) and 5 28 U.S.C. § 1915A(b)(1) & (2). 6 2. Respondeat Superior and Individual Liability 7 Plaintiff also names A. Miller, the Warden of Centinela State Prison, an 8 unidentified Chief Medical Officer (“CMO”) at CEN, Dr. M. Fraze, T. Kirby, and J. 9 Jimenez as Defendants. See Compl. at 1-2. However, his Complaint contains virtually 10 no allegations that any of these individuals knew of or took any part in any constitutional 11 violation. “Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must 12 plead that each government-official defendant, through the official’s own individual 13 actions, has violated the Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009); see 14 also Jones v. Community Redevelopment Agency of City of Los Angeles, 733 F.2d 646, 15 649 (9th Cir. 1984) (even pro se plaintiff must “allege with at least some degree of 16 particularity overt acts which defendants engaged in” in order to state a claim). 17 First, Plaintiff includes Warden Miller and the unnamed CMO as parties because 18 they are “responsible” for “conditions and operations at Centinela,” for “implementing 19 and maintaining all medical policies,” and for “supervising all medical staff[ing].” See 20 Compl. at 2 ¶¶ 4, 5. Plaintiff includes no further details as to what Miller or the CMO 21 specifically did, or failed to do, which resulted in the violation of any constitutional 22 right. Iqbal, 662 U.S. at 678 (noting that FED.R.CIV.P. 8 “demands more than an 23 unadorned, the-defendant-unlawfully-harmed-me accusation,” and that “[t]o survive a 24 motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, 25 to ‘state a claim for relief that is plausible on its face.’”) (quoting Bell Atlantic Corp. v. 26 Twombly, 550 U.S. 544, 555, 570 (2007)). 27 Thus, to the extent it appears Plaintiff seeks to sue Warden Miller and the CMO 28 only by virtue of their positions within the prison and/or their supervisory duties over 6 13cv1455 BTM (KSC) 1 other correctional or medical officials, in order to avoid the respondeat superior bar, his 2 pleading must include sufficient “factual content that allows the court to draw the 3 reasonable inference that the defendant is liable for the misconduct alleged,” Iqbal, 556 4 U.S. at 678, and include a description of personal acts by each individual defendant 5 which show a direct causal connection to a violation of specific constitutional rights. 6 Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). A supervisor is only liable for the 7 constitutional violations of his subordinates if the supervisor participated in or directed 8 the violations, or knew of the violations and with deliberate indifference, failed to act to 9 prevent them. Wilson v. Seiter, 501 U.S. 294, 303 (1991); Taylor, 880 F.2d at 1045. If 10 there is no affirmative link between a defendant’s conduct and the alleged injury, there 11 is no deprivation of the plaintiff’s constitutional rights. Rizzo v. Goode, 423 U.S. 362, 12 370 (1976). 13 Plaintiff’s Complaint similarly lacks specific “factual content that allows the court 14 to draw the reasonable inference” that M. Fraze, T. Kirby, or J. Jimenez may be held 15 personally liable for any misconduct, and thus also fails to “state a claim to relief that is 16 plausible on its face.” Iqbal, 556 U.S. at 678 (citing Twombly 550 U.S. at 556, 570). 17 Plaintiff identifies M. Fraze as a “medical doctor” and an “employee” at CEN “at the 18 time of the events in []his complaint,” but never mentions him again. See Compl. at 2 19 ¶ 7. The same is true for T. Kirby, who is merely identified as a “Health Care Appeals 20 Coordinator,” id. ¶ 9, and J. Jimenez, who is described as a “CCII (co-ordinator).” Id. 21 ¶ 10. 22 Thus, as currently pleaded, the Court finds Plaintiff’s Complaint sets forth no facts 23 which might be liberally construed to support any sort of individualized constitutional 24 claim against Warden Miller, CEN’s unidentified CMO, Dr. M. Fraze, T. Kirby, or J. 25 Jimenez, all of whom are purportedly being sued based on the positions they hold and 26 not because of any individually identifiable conduct alleged to have caused Plaintiff 27 injury. “Causation is, of course, a required element of a § 1983 claim.” Estate of Brooks 28 v. United States, 197 F.3d 1245, 1248 (9th Cir. 1999). “The inquiry into causation must 7 13cv1455 BTM (KSC) 1 be individualized and focus on the duties and responsibilities of each individual 2 defendant whose acts or omissions are alleged to have caused a constitutional 3 deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (citing Rizzo, 423 U.S. 4 at 370-71). Therefore, Plaintiff has failed to state a claim against any of them and his 5 Complaint requires dismissal on this basis pursuant to 28 U.S.C. § 1915(e)(2) and 6 § 1915A(b). See Lopez, 203 F.3d at 1126-27; Resnick, 213 F.3d at 446. 7 C. Americans with Disabilities Act 8 Plaintiff also cites to the ADA, 42 U.S.C. § 12131, in the caption of his Complaint, 9 see Compl. at 1, and he claims to be an “insulin[-]depend[e]nt diabetic,” id. at 4; 10 however, his Complaint focuses only on allegedly inadequate medical treatment related 11 to a June 20, 2012 wrist injury, and fails to allege facts sufficient to show that any prison 12 or medical official discriminated against him “solely by reason of disability.” Lee v. 13 City of Los Angeles, 250 F.3d 668, 691 (9th Cir. 2001) (citation and internal quotation 14 marks omitted); see also Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1022 (9th Cir. 15 2010) (“The ADA prohibits discrimination because of disability, not inadequate 16 treatment for disability.”). Thus, to the extent Plaintiff intends to raise a separate cause of action under the 17 18 ADA, his Complaint fails to currently state a claim upon which relief can be granted. 19 See Lopez, 203 F.3d at 1126-27; Resnick, 213 F.3d at 446. 20 D. Inadequate Medical Care Claims 21 Finally, Plaintiff does allege some specific facts as to the two remaining 22 Defendants: K. Wyatt, RN, and Dr. A. Blain. Plaintiff contends that on or about June 23 20, 2012, Wyatt, a nurse, “properly diagnosed a fracture to [his] right hand / thumb area,” 24 and recommended an x-ray. See Compl. at 5. However, Plaintiff further contends “for 25 unknown reasons and without any explanation,” Wyatt then “terminated” “all medical 26 treatment(s).” Id. On the following day, June 21, 2012, Plaintiff alleges Dr. A. Blain 27 “refused” to examine him and “allowed [his] medical condition to go untreated.” Id. 28 /// 8 13cv1455 BTM (KSC) 1 Based on this incident, Plaintiff concludes both Wyatt and Blain acted with “conscious 2 disregard” and in violation of the Eighth Amendment.2 Id. 3 As to Plaintiff’s medical care, only “deliberate indifference to a [his] serious 4 illness or injury states a cause of action under § 1983.” Estelle v. Gamble, 429 U.S. 97, 5 105 (1976). First, he must allege a “serious medical need” by demonstrating that “failure 6 to treat [his] condition could result in further significant injury or the ‘unnecessary and 7 wanton infliction of pain.’” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1991), 8 overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) 9 (en banc) (citing Estelle, 429 U.S. at 104). Plaintiff contends he suffered a fracture in 10 his right wrist, hand, or “thumb area” on or about June 20, 2012. See Compl. at 3, 5. 11 Thus, the Court will assume, for purposes of screening pursuant to 28 U.S.C. 12 § 1915(e)(2) and § 1915A, that Plaintiff had a serious medical need that required medical 13 attention under the Eighth Amendment. See McGuckin, 974 F.2d at 1059. 14 However, even assuming Plaintiff’s injury was sufficiently objectively serious to 15 invoke Eighth Amendment protection, he must also include in his pleading enough 16 factual content to show that Defendants Wyatt and Blain’s actions on June 20, 2012 and 17 June 21, 2012 were “deliberately indifferent” to his needs. Id. at 1060; see also Jett v. 18 Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). “This second prong–defendant’s response 19 to the need was deliberately indifferent–is satisfied by showing (a) a purposeful act or 20 2 21 22 23 24 25 26 27 28 Plaintiff also invokes the Due Process Clause of the Fourteenth Amendment in relation to the denial of his medical care. See Compl. at 5. However, “[i]f a constitutional claim is covered by a specific constitutional provision . . . the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process.” County of Sacramento v. Lewis, 523 U.S. 833, 843 (1998) (quoting United States v. Lanier, 520 U.S. 259, 272 n.7 (1997)); accord Albright v. Oliver, 510 U.S. 266, 272-73 (1994) (noting that when a broad “due process” violation is alleged, but a particular amendment “provides an explicit textual source of constitutional protection” against a particular sort of government behavior, “that Amendment, not the more generalized notion of ‘substantive due process,’ must be the guide for analyzing these claims.” (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)); Fontana v. Haskin, 262 F.3d 871, 882 (9th Cir. 2001). The Eighth Amendment prohibits punishment that involves the “unnecessary and wanton infliction of pain.” Estelle, 429 U.S. at 103 (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)). It is this principle that “establish[es] the government’s obligation to provide medical care for those whom it is punishing by incarceration.” Id. Accordingly, Plaintiff’s inadequate medical care claims are properly analyzed under the Eighth, rather than the Fourteenth Amendment’s standards. 9 13cv1455 BTM (KSC) 1 failure to respond to [the] prisoner’s pain or possible medical need and (b) harm caused 2 by the indifference.” Jett, 439 F.3d at 1096. “Deliberate indifference is a high legal 3 standard,” and claims of medical malpractice or negligence are insufficient to establish 4 a constitutional deprivation. Simmons v. Navajo County, 609 F.3d 1011, 1019 (9th Cir. 5 2010) (citing Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004)). 6 As currently pleaded, Plaintiff claims that while Wyatt “properly” diagnosed his 7 injury to involve a fracture and “suggested” an x-ray to the doctors, Compl. at 5, no x-ray 8 was provided “for unknown reasons.” Id. Plaintiff’s only allegation involving Dr. Blain 9 is that he or she “refused” to examine him the following day. Id. Plaintiff concludes that 10 this exposed him to “excessive risk” and is evidence of Wyatt and Blains’ “conscious 11 disregard,” id., however, without more, these “[t]hreadbare recitals of the elements of a[n 12 Eighth Amendment] cause of action, supported by mere conclusory statements, do not 13 suffice.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). 14 “Deliberate indifference” is evidenced only when a prisoner can show that the 15 official he seeks to hold liable “kn[ew] of and disregard[ed] an excessive risk to inmate 16 health and safety; the official must be both aware of facts from which the inference could 17 be drawn that a substantial risk of serious harm exist[ed], and he must also [have] 18 draw[n] the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). Specifically, 19 Plaintiff must allege “factual content,” Iqbal, 556 U.S. at 678, which demonstrates “(a) 20 a purposeful act or failure to respond to [his] pain or possible medical need, and (b) harm 21 caused by the indifference.” Wilhelm, 680 F.3d at 1122 (citing Jett, 439 F.3d at 1096). 22 The requisite state of mind is one of subjective recklessness, which entails more than 23 ordinary lack of due care. Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012) (citation 24 and quotation marks omitted); Wilhelm, 680 F.3d at 1122. 25 Here, while Plaintiff may not have agreed with Defendant Wyatt or Blain’s failure 26 to provide him with an x-ray and/or to examine him on one particular occasion, see 27 Compl. at 5, his disagreement, without more does not provide sufficient “factual content” 28 to plausibly suggest that either Wyatt or Blain acted with deliberate indifference. Iqbal, 10 13cv1455 BTM (KSC) 1 556 U.S. at 678 (“The plausibility standard is not akin to a ‘probability requirement,’ but 2 it asks for more than a sheer possibility that a defendant has acted unlawfully.”). “A 3 difference of opinion between a physician and the prisoner–or between medical 4 professionals–concerning what medical care is appropriate does not amount to deliberate 5 indifference.” Snow v. McDaniel, 681 F.3d 978, 987 (9th Cir. 2012) (citing Sanchez v. 6 Vild, 891 F.2d 240, 242 (9th Cir. 1989)); Wilhelm, 680 F.3d at 1122-23. Rather, Plaintiff 7 “must show that the course of treatment the doctors chose was medically unacceptable 8 under the circumstances and that the defendants chose this course in conscious disregard 9 of an excessive risk to [his] health.” Snow, 681 F.3d at 988 (citing Jackson, 90 F.3d at 10 332) (internal quotation marks omitted). 11 Indeed, in Estelle the Supreme Court rejected a prisoner’s Eighth Amendment 12 claim that prison doctors should have done more by way of diagnosis and treatment after 13 he injured his back, and emphasized that “the question whether an X-ray or additional 14 diagnostic techniques or forms of treatment is indicated is a classic example of a matter 15 for medical judgment” and “does not represent cruel and unusual punishment.” 429 U.S. 16 at 107. The same is true here as to Plaintiff’s alleged lack of care on June 20 and June 17 21, 2012. 18 Accordingly, the Court finds that Plaintiff has failed to state an Eighth Amendment 19 inadequate medical care claim against either Defendant Wyatt or Blain, and that these 20 claims must also be dismissed pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). See 21 Lopez, 203 F.3d at 1126-27; Resnick, 213 F.3d at 446. 22 Because Plaintiff is proceeding in pro se, however, the Court having now provided 23 him with “notice of the deficiencies in his complaint,” will also grant him an opportunity 24 to “effectively” amend. See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citing 25 Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)).3 26 3 Finally, the Court notes that while Plaintiff need not allege in his Complaint that he has exhausted all administrative remedies as are available pursuant to 42 U.S.C. § 1997e(a), see Jones v. Bock, 549 U.S. 199, 216 (2007) (concluding that the “failure to exhaust is an affirmative 28 defense under the PLRA, and . . . inmates are not required to specially plead or demonstrate exhaustion in their complaints.”), it appears from the face of his pleading that his purported 27 11 13cv1455 BTM (KSC) 1 III. CONCLUSION AND ORDER 2 Good cause appearing, IT IS HEREBY ORDERED that: 3 1. 4 5 Plaintiff’s Motion to proceed IFP pursuant to 28 U.S.C. § 1915(a) (ECF Doc. No. 4) is GRANTED. 2. The Secretary of the California Department of Corrections and 6 Rehabilitation, or his designee, shall collect the $2.16 intial filing fee assessed by this 7 Order from Plaintiff’s prison trust account, and shall forward the remaining $347.84 8 balance of the full fee owed by collecting monthly payments from Plaintiff’s account in 9 an amount equal to twenty percent (20%) of the preceding month’s income and shall 10 forward payments to the Clerk of the Court each time the amount in the account exceeds 11 $10 in accordance with 28 U.S.C. § 1915(b)(2). ALL PAYMENTS SHALL BE 12 CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS 13 ACTION. 14 3. The Clerk of the Court is directed to serve a copy of this Order on Jeffrey 15 A. Beard, Secretary, California Department of Corrections and Rehabilitation, P.O. Box 16 942883, Sacramento, California, 94283-0001. 17 IT IS FURTHER ORDERED that: 18 4. Plaintiff’s Complaint is DISMISSED without prejudice for failing to state 19 a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(b) and 1915A(b). However, Plaintiff is 20 GRANTED forty five (45) days leave from the date this Order is entered into the Court’s 21 docket in which to file a First Amended Complaint which cures all the deficiencies of 22 pleading noted above. Plaintiff’s Amended Complaint must be complete in itself without 23 reference to his original pleading. See S.D. CAL. CIVLR 15.1; Hal Roach Studios, Inc. 24 v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended 25 26 medical care claims may not have been fully exhausted prior to the initiation of this suit. See Compl. at 4 ¶ 22 (“Plaintiff ‘did not’ exhaust all of the [a]dministrative [r]emedies regarding 27 the matters described herein.”). Plaintiff is hereby advised that “[t]he available remed[y] must be ‘exhausted’ before a complaint under § 1983 may be entertained.” McKinney v. Carey, 311 28 F.3d 1198, 1199 (quoting Booth v. Churner, 523 U.S. 731, 738 (2001) (emphasis added)). “Exhaustion subsequent to the filing of suit will not suffice.” Id. 12 13cv1455 BTM (KSC) 1 pleading supersedes the original.”); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) 2 (citation omitted) (“All causes of action alleged in an original complaint which are not 3 alleged in an amended complaint are waived.”). 4 Should Plaintiff fail to file an Amended Complaint within the time provided, the 5 Court shall enter a final order dismissing this civil action without prejudice based on 6 Plaintiff’s failure to state a claim upon which relief can be granted pursuant to 28 U.S.C. 7 § 1915(e)(2) and § 1915A(b). 8 9 10 11 Dated: February 18, 2014 ____________________________ BARRY TED MOSKOWITZ CHIEF JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 13cv1455 BTM (KSC)
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