(PC) Harris v. Benkle

1

2

3

4

5

6

7

8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

10

11 DAVID D. HARRIS, No. 2:20-cv-0880 DB P

12 Plaintiff,

13 FAYE BENKLE, ORDER

14 Defendant.

15

16 Plaintiff is a state prisoner proceeding pro se with a civil rights action under 42 U.S.C. §

17 1983. Before the court are plaintiff’s motion to proceed in forma pauperis and plaintiff’s

18 complaint for screening. For the reasons set forth below, this court grants plaintiff’s motion to

19 proceed in forma pauperis and finds plaintiff fails to state a cognizable claim under § 1983.

20 Plaintiff will be given an opportunity to amend his complaint.

21 IN FORMA PAUPERIS

22 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a).

23 Accordingly, the request to proceed in forma pauperis will be 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 for monthly payments

1 of twenty percent of the preceding month’s income credited to plaintiff’s prison 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 SCREENING

6 I. Legal Standards

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

8 governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. §

9 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims

10 that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be

11 granted, or that seek monetary relief from a defendant who is immune from such relief. See 28

12 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. Neitzke

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

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

16 meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at

17 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an

18 arguable legal and factual basis. See Franklin, 745 F.2d at 1227. Rule 8(a)(2) of the Federal

19 Rules of Civil Procedure “requires only ‘a short and plain statement of the claim showing that the

20 pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the . . . claim is and

21 the grounds upon which it rests.’” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)

22 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

23 However, in order to survive dismissal for failure to state a claim a complaint must contain

24 more than “a formulaic recitation of the elements of a cause of action;” it must contain factual

25 allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550

26 U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the

27 allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S.

28 ////

1 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all

2 doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

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

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

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

5 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,

6 or other proper proceeding for redress.

7 42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the

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

9 Monell v. Dept. of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). “A

10 person ‘subjects’ another to the deprivation of a constitutional right, within the meaning of §

11 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform

12 an act which he is legally required to do that causes the deprivation of which complaint is made.”

13 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

14 II. Analysis

15 A. Allegations of the Complaint

16 Plaintiff is incarcerated at the California Health Care Facility (“CHCF”). He identifies one

17 defendant – Registered Nurse Faye Benkle. Plaintiff’s contentions are not entirely clear. It

18 appears that plaintiff informed defendant at either 7:15 p.m. or 7:30 p.m. on January 1, 2019, that

19 he was having auditory hallucinations that were telling him to cut his throat. Defendant may have

20 then contacted the on-call physician who prescribed medication that plaintiff was given. Plaintiff

21 appears to be complaining that defendant did not put him on suicide watch at that time.

22 At 8:00 p.m., plaintiff alleges he cut his throat in a suicide attempt. Defendant may have

23 contacted a doctor at that time. However, plaintiff appears to be complaining that defendant did

24 not come to his cell to treat him until 8:25 p.m., twenty-five minutes after she was informed that

25 plaintiff cut his throat, and that during that time plaintiff suffered pain.

26 Plaintiff seeks compensatory and punitive damages.

27 ////

28 ////

1 B. Analysis

2 1. Legal Standards for Eighth Amendment Medical Claim

3 The unnecessary and wanton infliction of pain constitutes cruel and unusual punishment

4 prohibited by the Eighth Amendment. Whitley v. Albers, 475 U.S. 312, 319 (1986); Ingraham v.

5 Wright, 430 U.S. 651, 670 (1977); Estelle v. Gamble, 429 U.S. 97, 105-06 (1976). Neither

6 accident nor negligence constitutes cruel and unusual punishment, as “[i]t is obduracy and

7 wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by

8 the Cruel and Unusual Punishments Clause.” Whitley, 475 U.S. at 319.

9 What is needed to show unnecessary and wanton infliction of pain “varies according to the

10 nature of the alleged constitutional violation.” Hudson, 503 U.S. at 5 (citing Whitley, 475 U.S. at

11 320). In order to prevail on a claim of cruel and unusual punishment, however, a prisoner must

12 allege and prove that objectively he suffered a sufficiently serious deprivation and that

13 subjectively prison officials acted with deliberate indifference in allowing or causing the

14 deprivation to occur. Wilson v. Seiter, 501 U.S. 294, 298-99 (1991).

15 If a prisoner's Eighth Amendment claim arises in the context of medical care, the prisoner

16 must allege and prove “acts or omissions sufficiently harmful to evidence deliberate indifference

17 to serious medical needs.” Estelle, 429 U.S. at 106. An Eighth Amendment medical claim has

18 two elements: “the seriousness of the prisoner's medical need and the nature of the defendant's

19 response to that need.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on

20 other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc).

21 A medical need is serious “if the failure to treat the prisoner's condition could result in

22 further significant injury or the ‘unnecessary and wanton infliction of pain.’” McGuckin, 974

23 F.2d at 1059 (quoting Estelle, 429 U.S. at 104). Indications of a serious medical need include

24 “the presence of a medical condition that significantly affects an individual's daily activities.” Id.

25 at 1059-60. By establishing the existence of a serious medical need, a prisoner satisfies the

26 objective requirement for proving an Eighth Amendment violation. Farmer v. Brennan, 511 U.S.

27 825, 834 (1994).

28 ////

1 If a prisoner establishes the existence of a serious medical need, he must then show that

2 prison officials responded to the serious medical need with deliberate indifference. See Farmer,

3 511 U.S. at 834. In general, deliberate indifference may be shown when prison officials deny,

4 delay, or intentionally interfere with medical treatment, or may be shown by the way in which

5 prison officials provide medical care. Hutchinson v. United States, 838 F.2d 390, 393-94 (9th

6 Cir. 1988).

7 Before it can be said that a prisoner's civil rights have been abridged with regard to medical

8 care, “the indifference to his medical needs must be substantial. Mere ‘indifference,’

9 ‘negligence,’ or ‘medical malpractice’ will not support this cause of action.” Broughton v. Cutter

10 Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 105-06); see also

11 Toguchi v. Soon Hwang Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (“Mere negligence in

12 diagnosing or treating a medical condition, without more, does not violate a prisoner's Eighth

13 Amendment rights.”); McGuckin, 974 F.2d at 1059 (same). Deliberate indifference is “a state of

14 mind more blameworthy than negligence” and “requires ‘more than ordinary lack of due care for

15 the prisoner's interests or safety.’” Farmer, 511 U.S. at 835.

16 Delays in providing medical care may manifest deliberate indifference. Estelle, 429 U.S. at

17 104-05. To establish a claim of deliberate indifference arising from delay in providing care, a

18 plaintiff must show that the delay was harmful. See Hallett v. Morgan, 296 F.3d 732, 745-46 (9th

19 Cir. 2002); Berry v. Bunnell, 39 F.3d 1056, 1057 (9th Cir. 1994); McGuckin, 974 F.2d at 1059;

20 Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir. 1990); Hunt v. Dental Dep't, 865 F.2d 198,

21 200 (9th Cir. 1989); Shapley v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir.

22 1985). In this regard, “[a] prisoner need not show his harm was substantial; however, such would

23 provide additional support for the inmate's claim that the defendant was deliberately indifferent to

24 his needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006).

25 Finally, mere differences of opinion between a prisoner and prison medical staff or between

26 medical professionals as to the proper course of treatment for a medical condition do not give rise

27 to a § 1983 claim. See Toguchi, 391 F.3d at 1058; Jackson v. McIntosh, 90 F.3d 330, 332 (9th

28 ////

1 Cir. 1996); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); Franklin v. Oregon, 662 F.2d

2 1337, 1344 (9th Cir. 1981).

3 2. Does Plaintiff State a Cognizable Eighth Amendment Claim?

4 To state a claim for deliberate indifference to his serious medical needs, plaintiff must show:

5 (a) a serious medical need; (b) how defendant responded to that need; and (c) why defendant’s

6 response demonstrates deliberate indifference. Plaintiff appears to be stating two serious medical

7 needs: auditory hallucinations and the injury to his throat. However, plaintiff needs to be more

8 specific regarding defendant’s responses to those medical needs and why they demonstrate

9 deliberate indifference. As best this court can tell, plaintiff is alleging that defendant failed to

10 place him on suicide watch after he first reported the hallucinations. However, plaintiff also

11 alleges defendant contacted a doctor about what to do. If this is a correct interpretation of

12 plaintiff’s allegations, it does not demonstrate defendant was deliberately indifferent because she

13 contacted a doctor who told her to give plaintiff medication.

14 With respect to the throat injury, there are some allegations in the complaint that defendant

15 knew that plaintiff had cut himself right after he did so but also that she contacted a doctor at 8:00

16 p.m. Again, plaintiff must be specific about why it was defendant’s responsibility to treat him

17 immediately after he cut his throat; just what she did, or did not do, when she learned about it;

18 and what damage he suffered as a result of defendant’s delay in responding.

19 CONCLUSION

20 This court finds plaintiff fails to state any claims cognizable under the Eighth Amendment.

21 While this court finds it unlikely plaintiff will be able to state a cognizable claim, plaintiff will be

22 given an opportunity to amend his complaint to attempt to do so. Plaintiff is advised that he must

23 adhere to the following legal standards for stating claims for relief under § 1983.

24 • Plaintiff must clearly identify the defendant and describe just what that defendant

25 did that violated his constitutional rights.

26 • Plaintiff must identify as a defendant only persons who personally participated in a

27 substantial way in depriving plaintiff of a federal constitutional right. Johnson v.

28 Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the

1 deprivation of a constitutional right if he does an act, participates in another’s act

2 or omits to perform an act he is legally required to do that causes the alleged

3 deprivation). “Vague and conclusory allegations of official participation in civil

4 rights violations are not sufficient.” Ivey v. Bd. of Regents, 673 F.2d 266, 268

5 (9th Cir. 1982) (citations omitted).

6 • Plaintiff must make a short, plain statement of the facts supporting each claim.

7 See Fed. R. Civ. P. 8(a).

8 • Plaintiff may allege multiple claims against a single defendant. Fed. R. Civ. P.

9 18(a). However, he may not bring a claim against one defendant in the same case

10 as an unrelated claim against another defendant. Unrelated claims against

11 different defendants belong in different suits.” George v. Smith, 507 F.3d 605, 607

12 (7th Cir. 2007) (citing 28 U.S.C. § 1915(g)).

13 • Any amended complaint must show the federal court has jurisdiction, the action is

14 brought in the right place, and plaintiff is entitled to relief if plaintiff’s allegations

15 are true. It must contain a request for particular relief.

16 • An amended complaint must be complete in itself without reference to any prior

17 pleading. E.D. Cal. R. 220. Once plaintiff files an amended complaint, the

18 original pleadings are superseded.

19 • Plaintiff must exhaust his administrative remedies before filing suit. 42 U.S.C. §

20 1997e(a).

21 Finally, plaintiff is advised that by signing an amended complaint, he certifies he has made

22 reasonable inquiry and has evidentiary support for his allegations, and for violation of this rule

23 the court may impose sanctions sufficient to deter repetition by plaintiff or others. Fed. R. Civ. P.

24 11.

25 For the foregoing reasons, and good cause appearing, IT IS HEREBY ORDERED as

26 follows:

27 1. Plaintiff’s motion to proceed in forma pauperis (ECF No. 2) is granted.

28 ////

wOAOe 2 OU OOUW ERP MUVUMETOCTI GPO a er PAY OMI O

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

2 assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. §

3 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to

4 the Director of the California Department of Corrections and Rehabilitation filed

5 concurrently herewith.

6 3. Plaintiff's complaint (ECF No. 1) is dismissed with leave to amend.

7 4. Plaintiff is granted sixty days from the date of service of this order to file an amended

8 complaint that complies with the requirements of the Civil Rights Act, the Federal Rules

9 of Civil Procedure, and the Local Rules of Practice; the amended complaint must bear the

10 docket number assigned this case and must be labeled “First Amended Complaint;”

11 failure to file an amended complaint in accordance with this order may result in a

12 recommendation that this action be dismissed.

13 5. The Clerk of the Court is directed to send plaintiff a copy of the prisoner complaint form

14 used in this district.

15 | Dated: May 18, 2020

16

17

18 ORAH BARNES

UNITED STATES MAGISTRATE JUDGE

19

20

21

22 | DLB:9

DLB | /prisoner-civil rights/harr0880.sern Ita

23

24

25

26

27

28