(PC) Colbourn v. Done

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 ORRIN TYLER COLBOURN, No. 2:19-cv-2308 JAM KJN P

12 Plaintiff,

13 v. ORDER

14 DONE, et al.,

15 Defendant.

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17 I. Introduction

18 Plaintiff is a state prisoner, proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C.

19 § 1983, and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This

20 proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

21 On January 15, 2020, plaintiff provided a certified copy of his inmate trust account

22 statement. Plaintiff’s declaration makes the showing required by 28 U.S.C. § 1915(a).

23 Accordingly, the request to proceed in forma pauperis is granted.

24 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C.

25 §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in

26 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct

27 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and

28 forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated to make monthly

1 payments of twenty percent of the preceding month’s income credited to plaintiff’s trust account.

2 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time

3 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C.

4 § 1915(b)(2).

5 As discussed below, plaintiff’s complaint is dismissed, and plaintiff is granted leave to file

6 an amended complaint.

7 II. Screening Standards

8 The court is required to screen complaints brought by prisoners seeking relief against a

9 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

10 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

11 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

12 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).

13 A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

14 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th

15 Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an

16 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

17 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

18 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th

19 Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir.

20 2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably

21 meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at

22 1227.

23 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain

24 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the

25 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic

26 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

27 In order to survive dismissal for failure to state a claim, a complaint must contain more than “a

28 formulaic recitation of the elements of a cause of action;” it must contain factual allegations

1 sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550 U.S. at 555.

2 However, “[s]pecific facts are not necessary; the statement [of facts] need only ‘give the

3 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v.

4 Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal

5 quotations marks omitted). In reviewing a complaint under this standard, the court must accept as

6 true the allegations of the complaint in question, Erickson, 551 U.S. at 93, and construe the

7 pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236

8 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984).

9 III. Plaintiff’s Complaint

10 Plaintiff alleges that Butte County Jail kitchen and Sheriff’s Department are poisoning his

11 foot with snake venom, “injecting poison into his food, fruit and food trays, and now plaintiff is

12 “pissing blood and throwing up poisonous chemicals.” (ECF No. 1 at 3.) Plaintiff also claims he

13 is being denied medical care. Plaintiff names at least 16 defendants, but fails to include charging

14 allegations as to each named defendant. Rather, plaintiff appended a laundry list of individuals

15 named as defendants. (ECF No. 1 at 7.)

16 IV. Discussion

17 Plaintiff was previously informed that his allegations that Butte County jail staff are

18 poisoning his food and food trays with snake venom are implausible and far-fetched (ECF No. 11

19 at 4), and therefore should not be included in any amended complaint. That said, if jail staff are

20 refusing to provide plaintiff with medical care for his serious medical needs, plaintiff is advised

21 of the following standards governing such claims.

22 A. Pretrial Detainees

23 If plaintiff is a pretrial detainee awaiting trial, the following standards govern:

24 A claim of inadequate medical attention by a detainee is based on the Fourteenth

25 Amendment and evaluated under the deliberate indifference standard. See City of Revere v.

26 Mass. Gen. Hosp., 463 U.S. 239, 244 (1983). Courts analyze inadequate medical care claims like

27 other conditions-of-confinement claims, including failure to protect. Gordon v. County of

28 Orange, 888 F.3d 1118, 1123-24 (9th Cir. 2018). The Court of Appeals for the Ninth Circuit

1 identifies the “elements of a pretrial detainee’s Fourteenth Amendment failure-to-protect claim

2 against an individual officer” as follows:

3 (1) The defendant made an intentional decision with respect to the

conditions under which the plaintiff was confined;

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(2) Those conditions put the plaintiff at substantial risk of suffering

5 serious harm;

6 (3) The defendant did not take reasonable available measures to abate

that risk, even though a reasonable officer in the circumstances

7 would have appreciated the high degree of risk involved -- making

the consequences of the defendant’s conduct obvious; and

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(4) By not taking such measures, the defendant caused the plaintiff’s

9 injuries.

10 Castro v. County of Los Angeles, 833 F.3d 1060, 1071 (9th Cir. 2016). In addition, “[w]ith

11 respect to the third element, the defendant’s conduct must be objectively unreasonable, a test that

12 will necessarily turn on the ‘facts and circumstances of each particular case.’” Id., citing

13 Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015) (quoting Graham v. Connor, 490 U.S.

14 386, 396 (1989). Pretrial detainees do not have to prove that prison officials who allegedly

15 administered subpar medical treatment were subjectively aware of the medical risk; instead,

16 plaintiffs need only show that the misconduct was objectively unreasonable. Id.; Kingsley v.

17 Hendrickson, 135 S. Ct. 2466, 2473-74 (2015). However, a plaintiff must prove more than mere

18 negligence, or the lack of due care, to prove an intentional deprivation under this standard.

19 Daniels v. Williams, 474 U.S. 327, 330-31 (1986).

20 B. Convicted Prisoner

21 If plaintiff has been convicted, the following standards govern a medical Eighth

22 Amendment claim.

23 In order to state a claim under the Eighth Amendment regarding medical care, plaintiff

24 must allege and prove that he suffered a sufficiently serious deprivation (the objective prong of

25 the claim) and that officials acted with deliberate indifference in allowing or causing the

26 deprivation to occur (the subjective prong of the claim). Wilson v. Seiter, 501 U.S. 294, 298-99

27 (1991). Thus, when a prisoner’s Eighth Amendment claim arises in the context of medical care,

28 the prisoner must allege and prove “acts or omissions sufficiently harmful to evidence deliberate

1 indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976).

2 A viable Eighth Amendment medical claim states two elements: “the seriousness of the

3 prisoner’s medical need and the nature of the defendant’s response to that need.” McGuckin v.

4 Smith, 974 F.2d 1050, 1059 (9th Cir. 1991), overruled on other grounds by WMX Techs., Inc. v.

5 Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc). A medical need is serious “if the failure to treat

6 the prisoner’s condition could result in further significant injury or the ‘unnecessary and wanton

7 infliction of pain.’” McGuckin, 974 F.2d at 1059 (quoting Estelle, 429 U.S. at 104). Indications

8 of a serious medical need include “the presence of a medical condition that significantly affects

9 an individual’s daily activities.” Id. at 1059-60. By establishing the existence of a serious

10 medical need, a prisoner satisfies the objective requirement for proving an Eighth Amendment

11 violation. Farmer v. Brennan, 511 U.S. 825, 834 (1994). If a prisoner establishes the existence of

12 a serious medical need, he must then show that prison officials responded to it with deliberate

13 indifference. Farmer, 511 U.S. at 834. In general, a prisoner may show deliberate indifference

14 with evidence that officials denied, delayed, or intentionally interfered with medical treatment, or

15 he may show it by the way in which prison officials actively provided medical care. Hutchinson

16 v. United States, 838 F.2d 390, 393-94 (9th Cir. 1988).

17 “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051,

18 1060 (9th Cir. 2004). “Under this standard, the prison official must not only ‘be aware of the

19 facts from which the inference could be drawn that a substantial risk of serious harm exists,’ but

20 that person ‘must also draw the inference.’” Id. at 1057 (quoting Farmer, 511 U.S. at 837). “‘If a

21 prison official should have been aware of the risk, but was not, then the official has not violated

22 the Eighth Amendment, no matter how severe the risk.’” Id. (quotation omitted). “A showing of

23 medical malpractice or negligence is insufficient to establish a constitutional deprivation under

24 the Eighth Amendment.” Id. at 1060. “[E]ven gross negligence is insufficient to establish a

25 constitutional violation.” Id. (citing Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990)).

26 “A difference of opinion between a prisoner-patient and prison medical authorities regarding

27 treatment does not give rise to a § 1983 claim.” Franklin v. Oregon, 662 F.2d 1337, 1344 (9th

28 Cir. 1981) (internal citation omitted). To prevail, a plaintiff “must show that the course of

1 treatment the doctors chose was medically unacceptable under the circumstances . . . and . . . that

2 they chose this course in conscious disregard of an excessive risk to plaintiff’s health.” Jackson

3 v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (internal citations omitted).

4 C. Naming Defendants

5 The Civil Rights Act under which this action was filed provides as follows:

6 Every person who, under color of [state law] . . . subjects, or causes

to be subjected, any citizen of the United States . . . to the deprivation

7 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,

8 or other proper proceeding for redress.

9 42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the

10 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See

11 Monell v. Department of Social Servs., 436 U.S. 658 (1978) (“Congress did not intend § 1983

12 liability to attach where . . . causation [is] absent.”); Rizzo v. Goode, 423 U.S. 362 (1976) (no

13 affirmative link between the incidents of police misconduct and the adoption of any plan or policy

14 demonstrating their authorization or approval of such misconduct). “A person ‘subjects’ another

15 to the deprivation of a constitutional right, within the meaning of § 1983, if he does an affirmative

16 act, participates in another’s affirmative acts or omits to perform an act which he is legally

17 required to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588

18 F.2d 740, 743 (9th Cir. 1978).

19 Moreover, supervisory personnel are generally not liable under § 1983 for the actions of

20 their employees under a theory of respondeat superior and, therefore, when a named defendant

21 holds a supervisorial position, the causal link between him and the claimed constitutional

22 violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979)

23 (no liability where there is no allegation of personal participation); Mosher v. Saalfeld, 589 F.2d

24 438, 441 (9th Cir. 1978) (no liability where there is no evidence of personal participation), cert.

25 denied, 442 U.S. 941 (1979). Vague and conclusory allegations concerning the involvement of

26 official personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673

27 F.2d 266, 268 (9th Cir. 1982) (complaint devoid of specific factual allegations of personal

28 participation is insufficient).

1 Plaintiff is cautioned that he must include charging allegation as to each individual named

2 as a defendant, but should only include individuals who are directly linked or connected to the

3 constitutional violation alleged.

4 V. Leave to Amend

5 The court finds the allegations in plaintiff’s complaint so vague and conclusory that it is

6 unable to determine whether the current action is frivolous or fails to state a claim for relief. The

7 court has determined that the complaint does not contain a short and plain statement as required

8 by Fed. R. Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible pleading policy, a

9 complaint must give fair notice and state the elements of the claim plainly and succinctly. Jones

10 v. Cmty. Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least

11 some degree of particularity overt acts which defendants engaged in that support plaintiff's claim.

12 Id. Because plaintiff has failed to comply with the requirements of Fed. R. Civ. P. 8(a)(2), the

13 complaint must be dismissed. The court will, however, grant leave to file an amended complaint.

14 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions

15 about which he complains resulted in a deprivation of plaintiff’s constitutional rights. See e.g.,

16 West v. Atkins, 487 U.S. 42, 48 (1988). Also, the complaint must allege in specific terms how

17 each named defendant is involved. Rizzo v. Goode, 423 U.S. 362, 371 (1976). There can be no

18 liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a

19 defendant’s actions and the claimed deprivation. Rizzo, 423 U.S. at 371; May v. Enomoto, 633

20 F.2d 164, 167 (9th Cir. 1980). Furthermore, vague and conclusory allegations of official

21 participation in civil rights violations are not sufficient. Ivey v. Bd. of Regents, 673 F.2d 266,

22 268 (9th Cir. 1982).

23 In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to

24 make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended

25 complaint be complete in itself without reference to any prior pleading. This requirement exists

26 because, as a general rule, an amended complaint supersedes the original complaint. See Ramirez

27 v. County of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) (“an ‘amended complaint

28 supersedes the original, the latter being treated thereafter as non-existent.’” (internal citation

1 | omitted)). Once plaintiff files an amended complaint, the original pleading no longer serves any

2 | function in the case. Therefore, in an amended complaint, as in an original complaint, each claim

3 | and the involvement of each defendant must be sufficiently alleged.

4 In accordance with the above, IT IS HEREBY ORDERED that:

5 1. Plaintiffs request for leave to proceed in forma pauperis is granted.

6 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff

7 | is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C.

8 | § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the

9 | Sheriff of Butte County filed concurrently herewith.

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11 3. Plaintiff's complaint is dismissed.

12 4. Within thirty days from the date of this order, plaintiff shall complete the attached

13 | Notice of Amendment and submit the following documents to the court:

14 a. The completed Notice of Amendment; and

15 b. An original and one copy of the Amended Complaint.

16 | Plaintiff's amended complaint shall comply with the requirements of the Civil Rights Act, the

17 | Federal Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint must

18 | also bear the docket number assigned to this case and must be labeled “Amended Complaint.”

19 Failure to file an amended complaint in accordance with this order may result in the

20 | dismissal of this action.

21 | Dated: January 29, 2020

2 Aectl Aharon

23 KENDALL J. NE

/eolb2308.14new.kjn UNITED STATES MAGISTRATE JUDGE

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 ORRIN TYLER COLBOURN, No. 2:19-cv-2308 JAM KJN P

12 Plaintiff,

13 v. NOTICE OF AMENDMENT

14 DONE, et al.,

15 Defendant.

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17 Plaintiff hereby submits the following document in compliance with the court's order

18 filed______________.

19 _____________ Amended Complaint

DATED:

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21 ________________________________

Plaintiff

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