The opinion
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8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
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11 COREY ALEXANDER MITCHELL, 1:19-cv-00876 JLT (PC)
12 Plaintiff, ORDER REQUIRING PLAINTIFF TO
SUBMIT A RESPONSE
13 v.
(Doc. 6)
14 LVN ARCHIEGA, et al,
THIRTY-DAY DEADLINE
15 Defendants.
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17 Plaintiff has filed a first amended complaint asserting claims against employees of the
18 California Department of Corrections and Rehabilitation.1 (Doc. 6.) Generally, the Court is
19 required to screen complaints brought by prisoners seeking relief against a governmental entity or
20 officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a
21 complaint or portion thereof if the prisoner has raised claims that are legally “frivolous,
22 malicious,” or that fail to state a claim upon which relief may be granted, or that seek monetary
23 relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).
24 “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall
25 dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a
26 claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).
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28 1 Though titled a “First Amended Complaint,” this is the only complaint filed by plaintiff in this action. The original
1 I. Pleading Standard
2 A complaint must contain “a short and plain statement of the claim showing that the pleader
3 is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but
4 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
5 do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly,
6 550 U.S. 544, 555 (2007)). Plaintiffs must set forth “sufficient factual matter, accepted as true, to
7 state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678. Facial plausibility
8 demands more than the mere possibility that a defendant committed misconduct and, while factual
9 allegations are accepted as true, legal conclusions are not. Iqbal, 556 U.S. at 677-78.
10 Section 1983 “provides a cause of action for the deprivation of any rights, privileges, or
11 immunities secured by the Constitution and laws of the United States.” Wilder v. Virginia Hosp.
12 Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). To state a claim under section 1983,
13 a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws
14 of the United States was violated and (2) that the alleged violation was committed by a person
15 acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v.
16 Alameda Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987).
17 Under section 1983 the plaintiff must demonstrate that each defendant personally
18 participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).
19 This requires the presentation of factual allegations sufficient to state a plausible claim for relief.
20 Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). Prisoners
21 proceeding pro se in civil rights actions are entitled to have their pleadings liberally construed and
22 to have any doubt resolved in their favor, Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010)
23 (citations omitted), but nevertheless, the mere possibility of misconduct falls short of meeting the
24 plausibility standard, Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.
25 II. Plaintiff’s Allegations
26 At all times relevant to this action, plaintiff was a state inmate housed at California
27 Substance Abuse Treatment Facility (“CSATF”) Prison in Corcoran, California. He names as
28 defendants Licensed Vocational Nurse Archiega, Primary Care Physician (Dr. Merritt), ADA
1 Coordinator / Associate Warden S. Smith, and “Chief of California Correctional Health Care” S.
2 Gates. Plaintiff sues each defendant in her or her individual and official capacities. He seeks
3 injunctive relief and damages.
4 Plaintiff’s allegations can be fairly summarized as follows:
5 A. Batteries for Hearing Aids
6 On or around August 29, 2018, plaintiff requested an exchange of four hearing aid
7 batteries. LVN Archiega denied this request and instead took plaintiff’s spare batteries. Though
8 not entirely clear, LVN Archiega is also accused of “depriving the Plaintiff of his medical
9 device.”
10 Plaintiff filed an appeal arguing that it was institutional policy that plaintiff be offered
11 batteries on a one-for-one exchange with no limit as to how often the batteries could be replaced.
12 He also suggests that he was authorized to possess spare batteries following a previous
13 institutional appeal and that these spare batteries were necessary because it sometimes took an
14 extended period before his batteries could be replaced by staff. Associate Warden S. Smith
15 upheld LVN Archiega’s conduct. Dr. Merritt then “rubber stamped a doctor’s order granting
16 Archiega [the] right to take Plaintiffs batteries, after the fact acting in a conspiracy to deny
17 plaintiff his Eighth Amendment rights.” Defendant Gates “is the ultimate authority on this issue
18 and has assigned a new meaning to the definition of CDC’s use of the term one for one exchange
19 in order to deny liability.”
20 Plaintiff claims he has been made to go extended periods without the use of his hearing
21 aid. Without a hearing aid, plaintiff lacks the ability for effective communication and, at times, he
22 fears for his life. He cannot enjoy activities such as phone calls or RV or radio. He has also
23 missed hearing alarms, which he claims places himself, staff, and other inmates at risk of injury
24 from responding officers.
25 B. Hepatitis C Treatment
26 Plaintiff was diagnosed with Hepatitis C in 2008. Since then, plaintiff has sought
27 treatment for the condition, but each request was denied because his viral load was deemed too
28 low. In 2017, plaintiff’s primary care physician at another institution started the process of getting
1 plaintiff started on the treatment. However, plaintiff was then transferred to CSATF where Dr.
2 Merritt “stopped the treatment plan.”
3 III. Discussion
4 A. Improper Joinder
5 Federal Rule of Civil Procedure Rule 20 provides,
6 All persons ... may be joined in one action as defendants if there is
asserted against them jointly, severally, or in the alternative, any right
7 to relief arising out of the same transaction, occurrence or series of
transactions or occurrences and if any question of law or fact
8 common to all defendants will arise in the action.
9 Fed. R. Civ. P. 20(a) (emphasis added). Further, Rule 21 provides that where parties are
10 misjoined, they may be “dropped or added by order of the court ... on such terms as are just.” Fed.
11 R. Civ. P. 21; Coughlin v. Rogers, 130 F.3d 1348, 1351 (9th Cir. 1997).
12 Rule 20(a) requires that a plaintiff cannot assert unrelated claims against different
13 defendants. In his first amended complaint, plaintiff brings an Eighth Amendment claim against
14 all the defendants for their alleged failure to provide him batteries for his hearing aid. He also
15 brings a separate claim against Dr. Merritt for the allegedly improper denial of treatment for
16 plaintiff’s Hepatitis C. These allegations do not arise “out of the same transaction, occurrence or
17 series of transactions or occurrences” and there is no overlap of law or facts between the denial of
18 batteries for a hearing aid and the alleged denial of treatment for Hepatitis C. Plaintiff will
19 therefore be directed to identify which of the two claims he wishes to proceed with in this action.
20 The remaining claim must be alleged in a separate complaint filed in a separate action.
21 B. Official v. Individual Capacity Claims
22 Plaintiff brings claims against the defendants in their individual and official capacities,
23 and the relief he seeks includes injunctive relief and damages. Plaintiff is hereby informed that
24 the Eleventh Amendment bars actions seeking damages from state officials acting in their official
25 capacities. See Eaglesmith v. Ward, 73 F.3d 857, 859 (9th Cir. 1995); Pena v. Gardner, 976 F.2d
26 469, 472 (9th Cir. 1992) (per curiam). The Eleventh Amendment does not, however, bar suits
27 against state officials acting in their personal capacities. See id. Under the doctrine of Ex Parte
28 Young, 209 U.S. 123 (1908), the Eleventh Amendment does not bar suits for prospective
1 declaratory or injunctive relief against state officials in their official capacities. See Armstrong v.
2 Wilson, 124 F.3d 1019, 1025 (9th Cir. 1997).
3 C. Eighth Amendment
4 Where a prisoner’s Eighth Amendment claims arise in the context of medical care, the
5 prisoner must allege and prove “acts or omissions sufficiently harmful to evidence deliberate
6 indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). An Eighth
7 Amendment medical claim has two elements: “the seriousness of the prisoner’s medical need and
8 the nature of the defendant’s response to that need.” McGuckin v. Smith, 974 F.2d 1050, 1059
9 (9th Cir. 1991), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th
10 Cir. 1997) (en banc).
11 A serious medical need exists if the failure to treat the condition could result in further
12 significant injury or the unnecessary and wanton infliction of pain. Jett v. Penner, 439 F.3d 1091,
13 1096 (9th Cir. 2006). To act with deliberate indifference, a prison official must both be aware of
14 facts from which the inference could be drawn that a substantial risk of serious harm exists, and
15 he must also draw the inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). Thus, a defendant
16 is liable if he knows that plaintiff faces “a substantial risk of serious harm and disregards that risk
17 by failing to take reasonable measures to abate it.” Id. at 847. “It is enough that the official acted
18 or failed to act despite his knowledge of a substantial risk of harm.” Id. at 842.
19 In applying this standard, the Ninth Circuit has held that before it can be said that a
20 prisoner’s civil rights have been abridged, “the indifference to his medical needs must be
21 substantial. Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this cause
22 of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle,
23 429 U.S. at 105–06). “[A] complaint that a physician has been negligent in diagnosing or treating
24 a medical condition does not state a valid claim of medical mistreatment under the Eighth
25 Amendment. Medical malpractice does not become a constitutional violation merely because the
26 victim is a prisoner.” Estelle, 429 U.S. at 106; see also Anderson v. County of Kern, 45 F.3d
27 1310, 1316 (9th Cir. 1995). Even gross negligence is insufficient to establish deliberate
28 indifference to serious medical needs. See Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir.
1 1990). Additionally, a prisoner’s mere disagreement with diagnosis or treatment does not support
2 a claim of deliberate indifference. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989).
3 Delays in providing medical care may manifest deliberate indifference. Estelle, 429 U.S.
4 at 104-05. To establish a claim of deliberate indifference arising from a delay in providing care, a
5 plaintiff must show that the delay was harmful. See Berry v. Bunnell, 39 F.3d 1056, 1057 (9th
6 Cir. 1994); McGuckin, 974 F.2d at 1059; Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir.
7 1990); Shapley v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). In this
8 regard, “[a] prisoner need not show his harm was substantial; however, such would provide
9 additional support for the inmate’s claim that the defendant was deliberately indifferent to his
10 needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); see also McGuckin, 974 F.2d at
11 1060. In addition, a physician need not fail to treat an inmate altogether in order to violate that
12 inmate’s Eighth Amendment rights. Ortiz v. City of Imperial, 884 F.2d 1312, 1314 (9th Cir.
13 1989) (per curiam). A failure to competently treat a serious medical condition, even if some
14 treatment is prescribed, may constitute deliberate indifference in a particular case. Id.
15 a. Batteries for Hearing Aid
16 Plaintiff does not state a cognizable claim based on the allegations related to his hearing
17 aid. Though plaintiff alleges that he is hearing impaired and needs a hearing aid for
18 communication and safety, the remainder of his allegations are imprecise. For example, plaintiff
19 accuses LVN Archiega of refusing to exchange batteries for the hearing aid, suggesting that
20 plaintiff was unable to use his hearing aid. However, he also suggests that LVN Archiega merely
21 deprived plaintiff of his spare batteries, suggesting that plaintiff possessed enough batteries for
22 his hearing aid and merely was unable to possess additional batteries. Because these allegations
23 make it impossible for the Court to properly analyze this claim, plaintiff’s pleading must be
24 dismissed.
25 b, Treatment for Hepatitis C
26 In addition, plaintiff’s allegations against Dr. Merritt are too conclusory to state a claim.
27 He alleges only that this defendant “stopped the treatment plan” for Hepatitis C. Without more,
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1 plaintiff’s claim appears to be based solely on a disagreement with Dr. Merritt about the proper
2 course of treatment for plaintiff’s medical condition. This is insufficient to proceed.
3 IV. Conclusion
4 Plaintiff’s first amended complaint fails to state a claim on which relief may be granted.
5 The Court will grant plaintiff an opportunity to file an amended complaint. Noll v. Carlson, 809
6 F.2d 1446, 1448-49 (9th Cir. 1987). If plaintiff does not wish to amend, he may instead file a notice
7 of voluntary dismissal, and the action then will be terminated by operation of law. Fed. R. Civ. P.
8 41(a)(1)(A)(i). Alternatively, plaintiff may forego amendment and notify the Court that he wishes
9 to stand on his complaint. See Edwards v. Marin Park, Inc., 356 F.3d 1058, 1064-65 (9th Cir. 2004)
10 (plaintiff may elect to forego amendment). If the last option is chosen, findings and
11 recommendations will issue to dismiss the complaint without leave to amend, plaintiff will have an
12 opportunity to object, and the matter will be decided by a District Judge.
13 If plaintiff opts to amend, he must demonstrate that the alleged acts resulted in a deprivation
14 of his constitutional rights. Iqbal, 556 U.S. at 677-78. Plaintiff must set forth “sufficient factual
15 matter . . . to ‘state a claim that is plausible on its face.’” Id. at 678 (quoting Twombly, 550 U.S. at
16 555 (2007)). Plaintiff should note that although he has been granted the opportunity to amend his
17 complaint, it is not for the purposes of adding new and unrelated claims. George v. Smith, 507 F.3d
18 605, 607 (7th Cir. 2007). Plaintiff should carefully review this screening order and focus his efforts
19 on curing the deficiencies set forth above.
20 Finally, plaintiff is advised that Local Rule 220 requires that an amended complaint be
21 complete without reference to any prior pleading. As a general rule, an amended complaint
22 supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once an
23 amended complaint is filed, the original complaint no longer serves a function in the case. Id.
24 Therefore, in an amended complaint, as in an original complaint, each claim and the involvement
25 of each defendant must be sufficiently alleged. The amended complaint should be clearly titled, in
26 bold font, “Second Amended Complaint,” reference the appropriate case number, and be an original
27 signed under penalty of perjury. Plaintiff’s amended complaint should be brief. Fed. R. Civ. P. 8(a).
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1 Although accepted as true, the “[f]actual allegations must be [sufficient] to raise a right to relief
2 above the speculative level . . . .” Twombly, 550 U.S. at 555 (citations omitted).
3 Accordingly, the Court ORDERS:
4 1. Within thirty days from the date of service of this order, plaintiff must file either a
5 second amended complaint curing the deficiencies identified by the Court in this
6 order, a notice of voluntary dismissal, or a notice of election to stand on the first
7 amended complaint; and
8 2. If plaintiff fails to file a second amended complaint or notice of voluntary dismissal,
9 the Court will recommend the action be dismissed, with prejudice, for failure to
10 obey a court order and failure to state a claim.
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IT IS SO ORDERED.
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13 Dated: January 29, 2020 /s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE
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