(PC) Ochoa v. Fletcher

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 ADRIAN R. OCHOA, No. 2:19-cv-1431 DB P

12 Plaintiff,

13 v. ORDER

14 SHERRI FLETCHER, et al.,

15 Defendants.

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17 Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983 and

18 has requested authority pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis. (ECF Nos. 1,

19 7). This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. §

20 636(b)(1)(B).

21 For the reasons stated below, the court shall grant plaintiff’s request to proceed in forma

22 pauperis. Plaintiff will also be given an opportunity to amend the complaint.

23 I. IN FORMA PAUPERIS APPLICATION

24 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. §

25 1915(a). (See ECF No. 7). Accordingly, the request to proceed in forma pauperis will be

26 granted.

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

28 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in

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

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

3 forward it to the Clerk of Court. Thereafter, plaintiff will be obligated for monthly payments of

4 twenty percent of the preceding month’s income credited to plaintiff’s prison trust account.

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

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

7 1915(b)(2).

8 II. SCREENING REQUIREMENT

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

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

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

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

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

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

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

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

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

18 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

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

20 Cir. 1989); Franklin, 745 F.2d at 1227.

21 A complaint, or portion thereof, should only be dismissed for failure to state a claim upon

22 which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in

23 support of the claim or claims that would entitle him to relief. Hishon v. King & Spalding, 467

24 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer v. Roosevelt

25 Lake Log Owners Ass’n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under

26 this standard, the court must accept as true the allegations of the complaint in question, Hosp.

27 Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light

28 ////

1 most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor, Jenkins v.

2 McKeithen, 395 U.S. 411, 421 (1969).

3 III. PLEADING STANDARD

4 A. Generally

5 Section 1983 “provides a cause of action for the deprivation of any rights, privileges, or

6 immunities secured by the Constitution and laws of the United States.” Wilder v. Virginia Hosp.

7 Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source

8 of substantive rights, but merely provides a method for vindicating federal rights conferred

9 elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989).

10 To state a claim under Section 1983, a plaintiff must allege two essential elements: (1)

11 that a right secured by the Constitution or laws of the United States was violated and (2) that the

12 alleged violation was committed by a person acting under the color of state law. See West v.

13 Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cty., 811 F.2d 1243, 1245 (9th Cir. 1987).

14 A complaint must contain “a short and plain statement of the claim showing that the

15 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not

16 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

17 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell

18 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual

19 matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. Facial

20 plausibility demands more than the mere possibility that a defendant committed misconduct and,

21 while factual allegations are accepted as true, legal conclusions are not. Id. at 677-78.

22 B. Linkage Requirement

23 Under Section 1983, a plaintiff bringing an individual capacity claim must demonstrate

24 that each defendant personally participated in the deprivation of his rights. See Jones v.

25 Williams, 297 F.3d 930, 934 (9th Cir. 2002). There must be an actual connection or link between

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

27 Ortez v. Washington County, State of Oregon, 88 F.3d 804, 809 (9th Cir. 1996); see also Taylor

28 v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).

1 Government officials may not be held liable for the actions of their subordinates under a

2 theory of respondeat superior. Iqbal, 556 U.S. at 676 (stating vicarious liability is inapplicable in

3 Section 1983 suits). Since a government official cannot be held liable under a theory of vicarious

4 liability in Section 1983 actions, plaintiff must plead sufficient facts showing that the official has

5 violated the Constitution through his own individual actions by linking each named defendant

6 with some affirmative act or omission that demonstrates a violation of plaintiff's federal rights.

7 Id. at 676.

8 IV. PLAINTIFF’S COMPLAINT

9 A. Plaintiff’s Claims

10 Plaintiff names Sherri Fletcher, R.N. and Warden M.E. Spearman of High Desert State

11 Prison’s (“HDSP”) as well as the California Department of Corrections and Rehabilitation

12 (“CDCR”) as defendants in this action. (See ECF No. 1 at 1-2). He alleges that defendant

13 Fletcher was deliberately indifferent to his serious medical needs when, on April 23, 2018, after

14 plaintiff told her that he believed he had broken his right foot while playing basketball, she

15 ignored his complaint, telling him that he was “fine.” (See id. at 3). A couple of days later, when

16 plaintiff went to see defendant Fletcher again to complain about his foot and told her that he

17 thought he need an x-ray, she refused his request, telling him that he had a doctor’s appointment

18 in two weeks and that he should mention his pain to the doctor then. (See id. at 3).

19 Plaintiff states that five weeks – and much pain – later, he was seen by a doctor. The

20 doctor immediately ordered an x-ray of plaintiff’s foot, and it was confirmed that plaintiff’s foot

21 was broken. (See ECF No. 1 at 3).

22 Plaintiff claims that he wrote to defendant Warden Spearman on two separate occasions to

23 complain about defendant Fletcher. (See ECF No. 1 at 3). However, plaintiff contends,

24 defendant Spearman ignored his complaints. (See id. at 3).

25 B. Relief Sought

26 Plaintiff contends that defendant Fletcher’s and defendant Spearman’s treatment of him

27 constituted “cruel and unusual punishment and deliberate indifference,” and that as a result of

28 their treatment of him, he experienced “pain and suffering in [a] sadistic manner.” (See ECF No.

1 1 at 3) (brackets added). He requests damages in the amount of $100,000.00 and states that they

2 should both be fired. (See id. at 3).

3 V. DISCUSSION

4 A. Applicable Law

5 “In the Ninth Circuit, the test for deliberate indifference consists of two parts. First, the

6 plaintiff must show a serious medical need by demonstrating that failure to treat a prisoner’s

7 condition could result in further significant injury or the unnecessary and wanton infliction of

8 pain. Second, the plaintiff must show the defendant’s response to the need was deliberately

9 indifferent. This second prong . . . is satisfied by showing (a) a purposeful act or failure to

10 respond to a prisoner’s pain or possible medical need and (b) harm caused by the indifference.”

11 Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (internal citations, punctuation and quotation

12 marks omitted); accord, Lemire v. CDCR, 726 F.3d 1062, 1081 (9th Cir. 2013); Wilhelm v.

13 Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012).

14 To state a claim for deliberate indifference to serious medical needs, a prisoner must

15 allege that a prison official “kn[ew] of and disregard[ed] an excessive risk to inmate health or

16 safety; the official must both be aware of the facts from which the inference could be drawn that a

17 substantial risk of serious harm exists, and he must also draw the inference.” Farmer v. Brennan,

18 511 U.S. 825, 837 (1994). Because “only the unnecessary and wanton infliction of pain

19 implicates the Eighth Amendment,” evidence must exist to show the defendant acted with a

20 “sufficiently culpable state of mind.” Wilson v. Seiter, 501 U.S. 294, 297 (1991) (internal

21 quotation marks, emphasis and citations omitted).

22 B. Analysis

23 1. Defendant Fletcher

24 Plaintiff has stated a cognizable Eighth Amendment deliberate indifference claim against

25 defendant Fletcher. He has stated that after injuring his foot, during his very first interaction with

26 her and during an interaction with her two days later, he told her that he believed that his foot was

27 broken, yet both times, defendant Fletcher purportedly ignored his complaints and his pain, and

28 she denied his request to have his foot x-rayed. (See generally ECF No. 1 at 3). As a result,

1 plaintiff was left to manage his broken foot and the resulting pain for five weeks until he was seen

2 by a physician. (See id. at 3).

3 On its face, this constitutes – at minimum – a failure to respond to plaintiff’s medical need

4 and harm caused by her indifference.” Jett, 439 F.3d at 1096. For these reasons, this claim is

5 cognizable and defendant Fletcher will be required to respond to these allegations once a

6 complaint is served.

7 2. Defendant Spearman

8 As currently presented, plaintiff has not stated a cognizable claim against defendant

9 Spearman. This is because it is unclear in the record: (1) when plaintiff contacted defendant

10 Spearman, and (2) what plaintiff told defendant Spearman when he contacted him. (See generally

11 ECF No. 1).

12 Plaintiff’s claim against defendant Spearman cannot solely be based on the fact that as the

13 Warden of HDSP, he was technically defendant Fletcher’s supervisor. See generally Iqbal, 556

14 U.S. at 676. On the contrary, in order for plaintiff to state a cognizable claim against defendant

15 Spearman, he must establish that defendant Spearman had personal knowledge of plaintiff’s

16 injury and/or of plaintiff’s pain as he was experiencing it, yet he did nothing to intervene. See

17 generally Iqbal, 556 U.S. at 676 (“[A] plaintiff must plead that each Government-official

18 defendant, through the official’s own individual actions, has violated the Constitution.”); see also

19 Farmer, 511 U.S. at 837, 847 (stating knowledge of excessive risk to inmate health or safety and

20 failure to take reasonable measures to abate risk needed to establish liability).

21 For these reasons, plaintiff’s claim against defendant Spearman is not actionable. Plaintiff

22 will, however, be given the opportunity to provide more facts in support of it in an amended

23 complaint.

24 3. Defendant CDCR

25 Although plaintiff names the CDCR as a defendant, the complaint raises no claims against

26 the institution. (See generally ECF No. 1). Plaintiff will be given the opportunity to raise a

27 cognizable claim against the institution as well in an amended complaint.

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1 VI. CONCLUSION

2 Plaintiff has raised a cognizable deliberate indifference claim against defendant Fletcher.

3 He has not, however, raised viable claims against defendant Spearman or against the CDCR.

4 Consequently, plaintiff will be given an opportunity amend the complaint. However, he is not

5 obligated to do so; he may instead simply proceed on the claim against defendant Fletcher.

6 Whichever choice plaintiff makes, he must inform the court of it via the Notice on How to

7 Proceed form that is attached to the end of this order.

8 VII. OPTION TO AMEND THE COMPLAINT

9 If plaintiff chooses to file an amended complaint, it will take the place of the original

10 complaint. See Lacey v. Maricopa Cty., 693 F.3d 896, 925 (9th Cir. 2012) (amended complaint

11 supersedes original). Any amended complaint should observe the following:

12 An amended complaint must identify as a defendant only persons who personally

13 participated in a substantial way in depriving plaintiff of a federal constitutional right. Johnson

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

15 constitutional right if he does an act, participates in another's act or omits to perform an act he is

16 legally required to do that causes the alleged deprivation).

17 An amended complaint must also contain a caption including the names of all

18 defendants. Fed. R. Civ. P. 10(a). Plaintiff may not change the nature of this suit by alleging

19 new, unrelated claims. See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).

20 Any amended complaint must be written or typed so that it is complete in itself without

21 reference to any earlier filed complaint. See L.R. 220 (E.D. Cal. 2009). This is because an

22 amended complaint supersedes any earlier filed complaint, and once an amended complaint is

23 filed, the earlier filed complaint no longer serves any function in the case. See Loux v. Rhay,

24 375 F.2d 55, 57 (9th Cir. 1967) (“The amended complaint supersedes the original, the latter

25 being treated thereafter as non-existent.”), overruled on other grounds by Lacey v. Maricopa

26 Cty., 693 F.3d 896 (2012).

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wOAOe 2 LUV VETO LP ow PI OV EIEN UM

1 Accordingly, IT IS HEREBY ORDERED that:

2 1. The Clerk of Court is directed to send plaintiff a copy of the court’s Civil Rights

3 | Complaint By A Prisoner;

4 2. Plaintiffs motion to proceed in forma pauperis (ECF No. 7), is GRANTED;

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

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

7 | 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the

8 || appropriate agency filed concurrently herewith;

9 4. Plaintiff's complaint (ECF No. 1) is DISMISSED with leave to amend, and

10 IT IS FURTHER ORDERED that within sixty days of the date of this order, plaintiff shall

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12 1. File an amended complaint, or

13 2. Inform the court in writing that:

14 a. He wishes to proceed only on the cognizable claims identified herein, and

15 b. He voluntarily dismisses any and all other defendants and claims in this action

16 | pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)Q).

17 Failure to take one of these courses of action within the time allotted may result in a

18 | recommendation that this action be dismissed for failure to state a claim upon which relief may be

19 | granted. See 28 U.S.C. 1915A(b)(1).

20 | Dated: August 29, 2020

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3 ORAH BARNES

UNITED STATES MAGISTRATE JUDGE

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DB/ORDERS/ORDERS.PRISONER.CIVIL RIGHTS/ocho1431.scrn

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 ADRIAN R. OCHOA, No. 2:19-cv-1431 DB P

12 Plaintiff,

13 v. PLAINTIFF’S NOTICE ON HOW TO

PROCEED

14 SHERRI FLETCHER, et al.,

15 Defendants.

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CHECK ONE:

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Plaintiff would like to proceed immediately on his deliberate indifference claim against

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defendant Sherri Fletcher, R.N. of High Desert State Prison. By choosing to go forward without

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amending the complaint, plaintiff: (1) consents to the dismissal without prejudice of defendants

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M.E. Spearman, Warden of High Desert State Prison and the California Department of

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Corrections and Rehabilitation, and (2) chooses to forego any related and/or potentially viable

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claims against them and any other potential, yet to be named defendants pursuant to Federal Rule

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of Civil Procedure 41(a)(1)(A)(i).

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Plaintiff would like to amend the complaint.

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26 DATED:

_______________________________

27 ADRIAN R. OCHOA

Plaintiff Pro Se

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