claims dismissed with prejudice and without leave to amend do not have to be re-pled 17 in subsequent amended complaint to preserve appeal
How later courts described this case
- claims dismissed with prejudice and without leave to amend do not have to be re-pled 17 in subsequent amended complaint to preserve appeal
Written by the judges who cited it.
The opinion
1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11 IVAN KILGORE, No. 2:17-cv-1560 AC P
12 Plaintiff,
13 v. ORDER
14 R. COMPTON, et al.,
15 Defendants.
16
17 Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983 and
18 California law. The complaint was originally filed in state court, and defendants removed it on
19 July 27, 2017. ECF No. 1. The complaint was not screened pursuant to 28 U.S.C. § 1915A upon
20 removal. The court now belatedly undertakes that task.
21 I. Statutory Screening of Prisoner Complaints
22 The court is required to screen complaints brought by prisoners seeking relief against a
23 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The
24 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are
25 “frivolous, malicious, or fail[] to state a claim upon which relief may be granted,” or that “seek[]
26 monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b).
27 A claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.”
28 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th
1 Cir. 1984). “[A] judge may dismiss . . . claims which are ‘based on indisputably meritless legal
2 theories’ or whose ‘factual contentions are clearly baseless.’” Jackson v. Arizona, 885 F.2d 639,
3 640 (9th Cir. 1989) (quoting Neitzke, 490 U.S. at 327), superseded by statute on other grounds as
4 stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). The critical inquiry is whether a
5 constitutional claim, however inartfully pleaded, has an arguable legal and factual basis.
6 Franklin, 745 F.2d at 1227-28 (citations omitted).
7 “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the
8 claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of
9 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550
10 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
11 “Failure to state a claim under § 1915A incorporates the familiar standard applied in the context
12 of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Wilhelm v. Rotman,
13 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). In order to survive dismissal for failure
14 to state a claim, a complaint must contain more than “a formulaic recitation of the elements of a
15 cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the
16 speculative level.” Twombly, 550 U.S. at 555 (citations omitted). “‘[T]he pleading must contain
17 something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally
18 cognizable right of action.’” Id. (alteration in original) (quoting 5 Charles Alan Wright & Arthur
19 R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)).
20 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to
21 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
22 Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual
23 content that allows the court to draw the reasonable inference that the defendant is liable for the
24 misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In reviewing a complaint under this
25 standard, the court must accept as true the allegations of the complaint in question, Hosp. Bldg.
26 Co. v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976) (citation omitted), as well as construe the
27 pleading in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor,
28 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (citations omitted).
1 II. Complaint
2 Plaintiff presents one claim under the Civil Rights Act for violation of his Eighth
3 Amendment right to adequate medical care, and one claim for medical negligence under Cal. Civ.
4 Code § 1714.8. ECF No. 1 at 20-21. Both claims are predicated on plaintiff’s inability to obtain
5 over-the-counter (OTC) pain relief medication, even when it was prescribed for him, for a period
6 of approximately one month following a knee injury in the second week of March 2015. Plaintiff
7 attributes the delay to a CDCR protocol for distribution of OTC products exclusively through the
8 canteen services system, and thus subject to canteen limits. Id. at 15.
9 The allegations regarding individual defendants are as follows. On March 19, 2015,
10 plaintiff told defendant Correctional Officer Heredia, who was in charge of canteen access, that
11 he needed OTC pain medication. Heredia told plaintiff that he had to wait until his regularly
12 scheduled canteen draw the next month. ECF No. 1 at 14, 16.
13 On March 23 and 30, 2015, plaintiff saw defendant Nurse Wangombe about his knee, and
14 told her that he needed OTC pain medication and could not access it from the canteen. On both
15 occasions she failed to provide or ensure that plaintiff was provided the medication, and merely
16 referred him to the canteen. ECF No. 1 at 13, 16-18.
17 On March 27, 2015, plaintiff saw defendant Dr. Bobbala about his knee, and told the
18 doctor about his problem accessing OTC medication. Dr. Bobbala wrote a prescription for Aleve,
19 but failed to order that the pharmacy provide the medication independently of the canteen. Doe 1,
20 a prison pharmacy employee, subsequently referred plaintiff to the canteen rather than filling the
21 prescription. ECF No. 1 at 13, 17.
22 The complaint states no facts regarding the personal involvement of defendants Compton,
23 Macomber, Barreatto or Enriquez in plaintiff’s delayed access to OTC medication. The
24 complaint states that Macomber was the Warden, Barreatto was the Associate Warden, and
25 Enriquez was a “canteen systems manager”; the supervisory responsibilities of these individuals
26 are recited at ECF No. 1, pages 12-14. Plaintiff alleges that he raised concerns about the system
27 for OTC product access with prison administrators in his capacity as Chairman of the Inmate
28 Advisory Committee, before he personally required any OTC medication. Id. at 15-16.
1 Plaintiff finally obtained the OTC medication on April 8, 2015. ECF No. 1 at 18.
2 III. Governing Eighth Amendment Principles
3 In order to state a § 1983 claim for violation of the Eighth Amendment based on
4 inadequate medical care, a plaintiff must allege “acts or omissions sufficiently harmful to
5 evidence deliberate indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106
6 (1976). To prevail, plaintiff must show both that his medical needs were objectively serious, and
7 that defendants possessed a sufficiently culpable state of mind. Wilson v. Seiter, 501 U.S. 294,
8 299 (1991); McKinney v. Anderson, 959 F.2d 853 (9th Cir. 1992) (on remand). A serious
9 medical need exists if the failure to treat a prisoner’s condition could result in further significant
10 injury or the unnecessary and wanton infliction of pain. See Wood v. Housewright, 900 F. 2d
11 1332, 1337-41 (9th Cir. 1990). The requisite state of mind is “deliberate indifference.” Hudson
12 v. McMillian, 503 U.S. 1, 4 (1992).
13 In Farmer v. Brennan, 511 U.S. 825 (1994), the Supreme Court established a very strict
14 standard which a plaintiff must meet in order to establish “deliberate indifference.” Negligence is
15 insufficient. Farmer, 511 U.S. at 835. Even civil recklessness (failure to act in the face of an
16 unjustifiably high risk of harm which is so obvious that it should be known) is insufficient. Id. at
17 836-37. Neither is it sufficient that a reasonable person would have known of the risk or that a
18 defendant should have known of the risk. Id. at 842. A prison official acts with “deliberate
19 indifference only if he subjectively knows of and disregards an excessive risk to inmate health
20 and safety. Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004).
21 IV. Failure to State a Claim
22 Here, plaintiff’s allegations against Heredia, Wangombe, Bobbala and Doe fail to
23 demonstrate deliberate indifference. The circumstances alleged do not reasonably support the
24 conclusion that plaintiff’s need for OTC pain relief in March 2015 constituted a “serious medical
25 need” or that any of these defendants was subjectively aware of and disregarded a risk of further
26 harm if plaintiff had to wait for his next canteen draw to obtain Naproxen or Aleve.
27 Plaintiff has also failed to state a claim against Compton, Macomber, Barreatto or
28 Enriquez. No defendant can be liable merely because he or she held a position of general
1 authority or was responsible for supervising others; there is no respondeat superior liability under
2 Section 1983. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). A supervisor may be liable
3 only if (1) he or she is personally involved in the constitutional deprivation, or (2) there is a
4 sufficient causal connection between the supervisor’s wrongful conduct and the constitutional
5 violation. Crowley v. Bannister, 734 F.3d 967, 977 (9th Cir. 2013). The complaint contains no
6 allegations that would support the liability of any supervisor or prison administrator. The alleged
7 failure of administrators to heed plaintiff’s warnings about the OTC canteen program cannot
8 support Eighth Amendment liability absent allegations sufficient to demonstrate that plaintiff’s
9 Eighth Amendment rights were actually violated as the result of that failure.
10 Plaintiff alleges in support of his Eighth Amendment claim that all defendants “either
11 knew or should have known” that the system of providing OTC medications through the canteen
12 created a risk that inmates would experience unwarranted pain and suffering, and despite this
13 knowledge failed to address the systemic risk. ECF No. 1 at 20, ¶ 47. This theory will not
14 support liability under the Eighth Amendment, for several reasons. First, deliberate indifference
15 requires actual knowledge of risk; “should have known” is not enough. Farmer, 511 U.S. at 842.
16 Second, the risk involved must be “excessive.” Gibson v. County of Washoe, Nevada, 290 F.3d
17 1175, 1187 (9th Cir. 2002). The complaint does not identify an “excessive” risk to health or
18 safety, merely a risk of delayed access to over-the-counter medications. Third, the failure to take
19 reasonable precautionary measures amounts to no more than negligence, or at most civil
20 recklessness, neither of which rises to the level of an Eighth Amendment violation. Farmer, 511
21 U.S. at 835, 836-37.
22 For all these reasons, the complaint fails to state a claim under the Eighth Amendment as
23 to any defendant. Without a viable federal claim under § 1983, this court will not exercise its
24 supplemental jurisdiction to consider plaintiff’s state law negligence claim. See Acri v. Varian
25 Assocs., Inc., 114 F.3d 999, 1000 (9th Cir. 1997) (en banc). Rather than recommending dismissal
26 of this action, however, the undersigned will grant plaintiff leave to amend. If plaintiff is aware
27 of additional facts that may cure the problems identified above, he may include them in an
28 amended complaint subject to the standards now provided.
1 V. Leave to Amend
2 If plaintiff chooses to file a first amended complaint, he must demonstrate how the
3 conditions about which he complains resulted in a deprivation of his constitutional rights. Rizzo
4 v. Goode, 423 U.S. 362, 370-71 (1976). Also, the complaint must allege in specific terms how
5 each named defendant is involved. Arnold v. Int’l Bus. Machs. Corp., 637 F.2d 1350, 1355 (9th
6 Cir. 1981). There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link
7 or connection between a defendant’s actions and the claimed deprivation. Id.; Johnson v. Duffy,
8 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, “[v]ague and conclusory allegations of official
9 participation in civil rights violations are not sufficient.” Ivey v. Bd. of Regents, 673 F.2d 266,
10 268 (9th Cir. 1982) (citations omitted).
11 Plaintiff is also informed that the court cannot refer to a prior pleading in order to make
12 his first amended complaint complete. Local Rule 220 requires that an amended complaint be
13 complete in itself without reference to any prior pleading. This is because, as a general rule, an
14 amended complaint supersedes the original complaint. Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.
15 1967) (citations omitted), overruled in part by Lacey v. Maricopa County, 693 F.3d 896, 928 (9th
16 Cir. 2012) (claims dismissed with prejudice and without leave to amend do not have to be re-pled
17 in subsequent amended complaint to preserve appeal). Once plaintiff files a first amended
18 complaint, the original complaint no longer serves any function in the case. Therefore, in an
19 amended complaint, as in an original complaint, each claim and the involvement of each
20 defendant must be sufficiently alleged.
21 VI. Plain Language Summary of this Order for a Pro Se Litigant
22 Your complaint has been screened under the Prison Litigation Reform Act, and the court
23 finds that it does not state a claim on which relief could be granted. You are being given the
24 opportunity to file an amended complaint that fixes the problems discussed above. If you file an
25 amended complaint that states a claim against any defendants, those defendants will be ordered to
26 answer the complaint. If you do not file an amended complaint, the undersigned will recommend
27 dismissal.
28 ////
wOASe ChE UVM ENN OMI OO TEN OM
1 If you choose to amend, the first amended complaint must include all of the claims you
2 || want to make because the court will not look at the claims or information in the original
3 | complaint. Any claims not in the first amended complaint will not be considered.
4 In accordance with the above, IT IS HEREBY ORDERED that:
5 1. The complaint has been screened pursuant to 28 U.S.C. § 1915A and found not to state
6 || aclaim against any defendant.
7 2. Plaintiff may, forty-five (45) days after the filing of this order, file an amended
8 || complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil
9 | Procedure, and the Local Rules of Practice. The amended complaint must bear the docket
10 || number assigned this case and must be labeled “First Amended Complaint.” Plaintiff must file an
11 | original and two copies of the amended complaint. Failure to file an amended complaint in
12 || accordance with this order will result in dismissal of this action.
13 3. The Clerk of the Court is directed to send plaintiff a copy of the prisoner complaint
14 | form used in this district.
15 || DATED: April 17, 2020 ~
17 UNITED STATES MAGISTRATE JUDGE
18
19
20
21
22
23
24
25
26
27
28