DeAnthony Brooks v. C.M.C

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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

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DEANTHONY BROOKS, Case No. 2:20-cv-10374-DSF (MAA)

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12 Plaintiff, MEMORANDUM DECISION AND

ORDER DISMISSING COMPLAINT

13 v.

WITH LEAVE TO AMEND

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C.M.C. et al,

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Defendants.

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18 I. INTRODUCTION

19 On November 10, 2020, Plaintiff DeAnthony Books (“Plaintiff”), a California

20 inmate proceeding pro se, filed a Complaint alleging violations of his civil rights

21 pursuant to 42 U.S.C. § 1983 (“Section 1983”). (Compl., ECF No. 1.) On

22 December 8, 2020, Plaintiff filed a Request to Proceed Without Prepayment of

23 Filing Fees (ECF No. 5), which the Court granted on December 10, 2020 (ECF No.

24 6).

25 The Court has screened the Complaint as prescribed by 28 U.S.C. § 1915A

26 and 28 U.S.C. § 1915(e)(2)(B). For the reasons stated below, the Complaint is

27 DISMISSED WITH LEAVE TO AMEND. Plaintiff is ORDERED to, within

28 thirty days after the date of this Order, either: (1) file a First Amended Complaint

1 (“FAC”), or (2) advise the Court that Plaintiff does not intend to pursue this lawsuit

2 further and will not file a FAC.

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4 II. PLAINTIFF’S ALLEGATIONS AND CLAIMS1

5 The Complaint is filed against the following Defendants: (1) C.M.C.2; (2) Dr.

6 Tyler Campbell, primary care physician, in his individual capacity; (3) Silveira,

7 registered nurse, in his or her individual capacity; (4) Dr. Aaron Collins, primary

8 care physician, in his individual capacity; (5) Mike Dawson, head supervisor of

9 CMC plant operations maintenance department, in his individual capacity; (6) Matt

10 Doolin, supervisor of CMC plant operations maintenance department, in his

11 individual capacity; (7) Alger, correctional officer, in his or her individual capacity;

12 and (8) T. Whitson, registered nurse, in his or her individual capacity (each, a

13 “Defendant,” and collectively, “Defendants”). (Compl. 1, 3–5.)3

14 Plaintiff asserts claims for violations of the Eighth Amendment for “deliberate

15 indifference to medical care” and “premise liability” based on the following

16 allegations. (Id. at 6.)

17 On May 29, 2020, at approximately 9:15–9:30 a.m., Plaintiff was at work at

18 the C.M.C. plant operations maintenance fabrication shop. (Id.) Plaintiff and his co-

19 worker, inmate Marquette Shelton, were instructed to carry some fence poles—

20 which were fifteen/sixteen feet in length with “substantial weight”—down some

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1 The Court summarizes Plaintiff’s allegations and claims in the Complaint, without

22 opining on their veracity or merit.

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2 The caption of the Complaint names as a Defendant C.M.C., which the Court

24 presumes stands for California Men’s Colony. (See Compl. 1.) C.M.C. is not listed

25 in the body of the Complaint as a Defendant. (See id. at 3–5.) For purposes of this

order only, the Court presumes that Plaintiff intended to include C.M.C. as a

26 Defendant. In any amended complaint, Plaintiff must specifically name each

27 Defendant in the body of the complaint, not just in the caption.

28 3 Citations to pages in docketed documents reference those generated by CM/ECF.

1 stairs. (Id.) The stairs were damaged with a “metal clipping” that “grabs your shoe

2 from the bottom” that “should have been fixed after supervisors were notified of it,

3 making Doolin and Dawson aware of its potential to harm someone.” (Id.) The

4 “chipped out concrete” of the stair plate had been there since inmate Shelton “was

5 first hired.” (Compl., Ex. B.: Shelton Decl. 15.) Plaintiff was carrying the back end

6 of the poles down the stairs, while inmate Shelton was carrying the front end of the

7 poles. (Compl. 6.) As Plaintiff took a step down, his right foot was “grabbed and

8 caught” and he fell down about four steps. (Id.; Shelton Decl. 15.) Plaintiff landed

9 in an awkward position and the fence poles fell “all over him,” hitting his neck and

10 shoulders and knocking his shoulder out of place. (Compl. 6.) Plaintiff

11 “immediately popped [his] shoulder back in place due to the pain he was feeling and

12 history of it from a football injury . . . .” (Id. at 7.) Plaintiff also felt “excruciating,”

13 “sharp” pain in his right leg around the ankle, causing him to scream and say “man

14 down.” (Id.)

15 Plaintiff’s co-workers, including inmate Shelton, yelled to get Plaintiff

16 assistance. (Id.) Plaintiff and inmate Shelton told Defendant Dawson that they

17 thought Plaintiff “broke something, referring to his leg and shoulder”; that Plaintiff

18 had “popped” his shoulder back in place; and that he needed “to go to medical for

19 [an] x-ray or something.” (Id.) Defendant Dawson told Plaintiff to take the day off

20 to rest. (Id.)

21 Plaintiff attempted to go back to his housing unit that was at least one mile

22 away. (Id.) As Defendant Dawson did not offer Plaintiff “any type of ambulatory

23 with his injury,” inmate Shelton attempted to assist Plaintiff. (Id.) Plaintiff was in

24 such excruciating pain that inmate Shelton decided to take Plaintiff to what is known

25 as the old hospital. (Id.) When they arrived, inmate Shelton requested help for

26 Plaintiff and explained that Plaintiff was severely injured at work and needed

27 medical attention because his shoulder was maybe out of place and his leg may be

28 broken. (Id.) Defendants Campbell and Silveira looked at Plaintiff’s leg and agreed

1 that it might be broken and instructed Plaintiff to to go the new clinic. (Id. at 8.)

2 Defendants Campbell and Silveira did not provide any “ambulatory service” or care

3 for Plaintiff. (Id.)

4 Plaintiff walked one to two miles to the new clinic with inmate Shelton. (Id.)

5 When they arrived, Plaintiff told Defendant Alger about his fall and injury, and that

6 Plaintiff first went to the old clinic and was sent to the new clinic. (Id.) Defendant

7 Alger ignored Plaintiff’s request for emergency treatment and told Plaintiff that he

8 needed to be accompanied by one of his supervisors at the clinic. (Id.) Plaintiff said

9 that all his supervisors had left the facility, and that his supervisors were irrelevant at

10 that point because he was no longer at the job site. (Id. at 9.) Defendant Alger

11 called to find Plaintiff’s supervisor but “no one showed up for hours.” (Id.) As

12 Plaintiff was in severe pain, he decided to leave to go back to his housing unit as he

13 was not receiving any care and the injury was swelling and the pain was getting

14 worse. (Id.)

15 As inmate Shelton was helping Plaintiff back to his housing unit, they saw

16 Defendant Doolin, one of Plaintiff’s supervisors. (Id.) Defendant Doolin said he

17 had been called to accompany Plaintiff at the clinic, apologized for not arriving

18 sooner, and said he was “tied up [and] did his best to get there and he knew Plaintiff

19 was in serious pain but he made it eventually.” (Id.) Inmate Shelton left and

20 Defendant Doolin took Plaintiff back to the old clinic, where Plaintiff was given a

21 cane. (Id.)

22 The treatment Plaintiff finally received at the new clinic was below minimal

23 standards. (Id.) Defendants doctor and nurse looked at Plaintiff’s injuries, saw his

24 bone pressing against his skin, and determined it was probably a bad ankle sprain.

25 (Id.) They told Plaintiff that he is a “big guy” and that basketball and football

26 players had this injury all the time and could play the following week, which

27 Plaintiff characterized as an unwarranted “racial comment.” (Id. at 10.) They did

28 ///

1 nothing to treat Plaintiff except give him ibuprofen, and say that they would see him

2 again in five days. (Id.)

3 However, Plaintiff did not see a doctor again for approximately twelve to

4 fourteen days. (Id.) During this time, Plaintiff submitted almost ten requests for

5 medical care but did not receive any responses, had swelling in his leg and ankle,

6 had night sweats, could not sleep due to the pain, could not walk to eat meals and

7 lost weight as a result, could not use the bathroom to take a bowel movement

8 properly, could not shower, and suffered mental anguish and pain. (Id.)

9 Plaintiff did not receive medical treatment again until June 11 or 12, 2020.

10 (Id. at 10–11.) An x-ray was taken of Plaintiff’s leg, which revealed a fracture in

11 Plaintiff’s right fibula around the ankle area. (Id. at 10.) Plaintiff was given a cane,

12 walking boot, and calcium and vitamin D pills. (Id.) Defendants Collins and

13 Whitson provided inadequate medical care because they did not give Plaintiff any

14 physical therapy or surgery. (Id. at 11.)

15 Plaintiff seeks compensatory damages of “$50,000 plus”; nominal damages of

16 “$50,000 plus”; punitive damages of $50,000 per Defendant; and attorney and legal

17 assistant fees. (Id. at 17.)

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19 III. LEGAL STANDARD

20 Federal courts must conduct a preliminary screening of any case in which a

21 prisoner seeks redress from a governmental entity or officer or employee of a

22 governmental entity (28 U.S.C. § 1915A), or in which a plaintiff proceeds in forma

23 pauperis (28 U.S.C. § Section 1915(e)(2)(B)). The court must identify cognizable

24 claims and dismiss any complaint, or any portion thereof, that is: (1) frivolous or

25 malicious, (2) fails to state a claim upon which relief may be granted, or (3) seeks

26 monetary relief from a defendant who is immune from such relief. 28 U.S.C.

27 §§ 1915(e)(2)(B), 1915A(b).

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1 When screening a complaint to determine whether it fails to state a claim upon

2 which relief can be granted, courts apply the Federal Rule of Civil Procedure

3 12(b)(6) (“Rule 12(b)(6)”) standard. See Wilhelm v. Rotman, 680 F.3d 1113, 1121

4 (9th Cir. 2012) (applying the Rule 12(b)(6) standard to 28 U.S.C. § Section 1915A);

5 Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012) (applying the Rule 12(b)(6)

6 standard to 28 U.S.C. § 1915(e)(2)(B)(ii)). To survive a Rule 12(b)(6) dismissal, “a

7 complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to

8 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

9 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial

10 plausibility when the plaintiff pleads factual content that allows the court to draw the

11 reasonable inference that the defendant is liable for the misconduct alleged.” Id.

12 Although “detailed factual allegations” are not required, “an unadorned, the-

13 defendant-unlawfully-harmed-me accusation”; “labels and conclusions”; “naked

14 assertion[s] devoid of further factual enhancement”; and “[t]hreadbare recitals of the

15 elements of a cause of action, supported by mere conclusory statements” are

16 insufficient to defeat a motion to dismiss. Id. (quotations omitted). “Dismissal

17 under Rule 12(b)(6) is appropriate only where the complaint lacks a cognizable legal

18 theory or sufficient facts to support a cognizable legal theory.” Hartmann v. Cal.

19 Dep’t of Corr. & Rehab., 707 F.3d 1114, 1122 (9th Cir. 2013) (quoting Mendiondo

20 v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008)).

21 In reviewing a Rule 12(b)(6) motion to dismiss, courts will accept factual

22 allegations as true and view them in the light most favorable to the plaintiff. Park v.

23 Thompson, 851 F.3d 910, 918 (9th Cir. 2017). Moreover, where a plaintiff is

24 appearing pro se, particularly in civil rights cases, courts construe pleadings liberally

25 and afford the plaintiff any benefit of the doubt. Wilhelm, 680 F.3d at 1121. “If

26 there are two alternative explanations, one advanced by defendant and the other

27 advanced by plaintiff, both of which are plausible, plaintiff’s complaint survives a

28 motion to dismiss under Rule 12(b)(6).” Starr v. Baca, 652 F.3d 1202, 1216 (9th

1 Cir. 2011). However, the liberal pleading standard “applies only to a plaintiff’s

2 factual allegations.” Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989), superseded

3 by statute on other grounds, 28 U.S.C. § 1915. Courts will not “accept any

4 unreasonable inferences or assume the truth of legal conclusions cast in the form of

5 factual allegations.” Ileto v. Glock Inc., 349 F.3d 1191, 1200 (9th Cir. 2003). In

6 giving liberal interpretations to complaints, courts “may not supply essential

7 elements of the claim that were not initially pled.” Chapman v. Pier 1 Imps. (U.S.),

8 Inc., 631 F.3d 939, 954 (9th Cir. 2011) (quoting Pena v. Gardner, 976 F.2d 469, 471

9 (9th Cir. 1992)).

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11 IV. DISCUSSION

12 A. C.M.C. Is Not a Proper Defendant.

13 The Complaint includes as a Defendant C.M.C., a prison which is part of the

14 California Department of Corrections and Rehabilitation. (See Compl. 1.)

15 However, “[i]n the absence of a waiver by the state or a valid congressional

16 override, ‘under the eleventh amendment, agencies of the state are immune from

17 private damage actions or suits for injunctive relief brought in federal court.’”

18 Dittman v. California, 191 F.3d 1020, 1025 (9th Cir. 1999) (quoting Mitchell v. L.A.

19 Cmty. Coll. Dist., 861 F.2d 198, 201 (9th Cir. 1989)). The Eleventh Amendment bar

20 “applies whether the relief sought is legal or equitable in nature.” Brooks v. Sulphur

21 Springs Valley Elec. Coop., 951 F.2d 1050, 1053 (9th Cir. 1991). The Ex Parte

22 Young doctrine, which “provid[es] an exception to Eleventh Amendment immunity

23 for suits against state officials seeking prospective equitable relief, is limited to

24 claims against individual state officials and does not extend to agencies.”

25 Shallowhorn v. Molina, 572 Fed. Appx. 545, 547 (9th Cir. 2014).

26 For these reasons, Plaintiff’s claims against Defendant C.M.C. are not

27 cognizable. If Plaintiff includes claims against Defendant C.M.C. in any amended

28 complaint, they will be subject to dismissal.

1 B. The Complaint Does Not State Any Section 1983 Claims.

2 Section 1983 provides a cause of action against “every person who, under

3 color of any statute . . . of any State . . . subjects, or causes to be subjected, any

4 citizen . . . to the deprivation of any rights, privileges, or immunities secured by the

5 Constitution and laws . . . .” Wyatt v. Cole, 504 U.S. 158, 161 (1992) (alteration in

6 original) (quoting 42 U.S.C. § 1983). “The purpose of §1983 is to deter state actors

7 from using the badge of their authority to deprive individuals of their federally

8 guaranteed rights and to provide relief to victims if such deterrence fails.” Id. “To

9 state a claim under § 1983, a plaintiff must allege the violation of a right secured by

10 the Constitution and laws of the United States, and must show that the alleged

11 deprivation was committed by a person acting under color of state law.” West v.

12 Atkins, 487 U.S. 42, 48 (1988).

13 The Complaint asserts claims pursuant to the Eighth Amendment for

14 “deliberate indifference to medical care” and “premise liability.” (Compl. 6.) For

15 the reasons below, the Complaint fails to state any Section 1983 claims.

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17 1. Eighth Amendment Deliberate Indifference to Serious Medical

18 Needs

19 “The government has an ‘obligation to provide medical care for those whom it

20 is punishing by incarceration,’ and failure to meet that obligation can constitute an

21 Eighth Amendment violation.” Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir.

22 2014) (quoting Estelle v. Gamble, 429 U.S. 97, 103–05 (1976)). “To maintain an

23 Eighth Amendment claim based on prison medical treatment, an inmate must show

24 ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091,

25 1096 (9th Cir. 2006) (quoting Estelle, 429 U.S. at 104). A plaintiff must allege

26 sufficient facts to satisfy a two-prong test: (1) an objective standard—the existence

27 of a serious medical need; and (2) a subjective standard—deliberate indifference.

28 See id.

1 a. Objective Prong

2 A “serious medical need” exists if “failure to treat a prisoner’s condition could

3 result in further significant injury or the ‘unnecessary and wanton infliction of

4 pain.’” Jett, 439 F.3d at 1096 (citing McGuckin v. Smith, 974 F.2d 1050, 1059 (9th

5 Cir. 1992), overruled in part on other grounds by WMX Techs., Inc. v. Miller, 104

6 F.3d 1133 (9th Cir. 1997) (en banc)). Neither result is the type of “routine

7 discomfort [that] is ‘part of the penalty that criminal offenders pay for their offenses

8 against society.’” McGuckin, 974 F.2d at 1059 (alteration in original) (quoting

9 Hudson v. McMillian, 503 U.S. 1, 9 (1992)). “The existence of an injury that a

10 reasonable doctor or patient would find important and worthy of comment or

11 treatment; the presence of a medical condition that significantly affects an

12 individual’s daily activities; or the existence of chronic and substantial pain are

13 examples of indications that a prisoner has a ‘serious’ need for medical treatment.”

14 Id. at 1059–60.

15 Plaintiff alleges that he fell down about four steps while carrying

16 fifteen/sixteen foot-long fence poles of “substantial weight,” that the poles fell “all

17 over him” and hit his neck and shoulders, that his shoulder became dislocated, that

18 he felt “excruciating,” “sharp” pain, and that an x-ray revealed a fracture in his right

19 fibula around the ankle area. (Compl. 6–7, 10.) These allegations potentially plead

20 injuries that a reasonable doctor likely would think are worthy of treatment, and are

21 sufficient to state a serious medical need. See, e.g., Lambert v. Soto, No. 10cv1976-

22 AJB (BLM), 2012 U.S. Dist. LEXIS 166624, at *15–17 (S.D. Cal. Sept. 12, 2012)

23 (concluding that allegations of difficulty breathing, inability to bear weight on a

24 knee, and dislocated shoulder plausibly alleged a serious injury or illness);

25 Woodward v. Wang, No. 1:16-cv-01089-SAB (PC), 2019 U.S. Dist. LEXIS 11693,

26 at *18 (E.D. Cal. Jan. 23, 2019) (concluding that a fractured ankle is a serious

27 medical need).

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1 b. Subjective Prong

2 The subjective “deliberate indifference” prong “is satisfied by showing (a) a

3 purposeful act or failure to respond to a prisoner’s pain or possible medical need and

4 (b) harm caused by the indifference.” Jett, 439 F.3d at 1096. Deliberate

5 indifference may be manifested “when prison officials deny, delay or intentionally

6 interfere with medical treatment,” or in the manner “in which prison physicians

7 provide medical care.” McGuckin, 974 F.2d at 1059. Negligence is insufficient to

8 support an Eighth Amendment claim. See Farmer v. Brennan, 511 U.S. 825, 835

9 (1994). Rather, deliberate indifference is met only if the prison official “knows of

10 and disregards an excessive risk to inmate health or safety; the official must both be

11 aware of facts from which the inference could be drawn that a substantial risk of

12 serious harm exists, and he must also draw the inference.” Id. at 834. “A defendant

13 must purposefully ignore or fail to respond to the plaintiff’s pain or possible medical

14 need for deliberate indifference to be established.” McGuckin, 974 F.2d at 1060.

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16 i. Inadequate Medical Treatment

17 The Complaint asserts an Eighth Amendment claim for alleged deficiencies in

18 medical care provided to Plaintiff. With respect to the treatment Plaintiff received

19 on May 29, 2020, the Complaint alleges that such treatment was below minimal

20 standards; that Defendants doctor and nurse looked at Plaintiff’s injuries, saw his

21 bone pressing against his skin, and determined it was probably a bad ankle sprain;

22 and that Defendants doctor and nurse did nothing to treat Plaintiff except give him

23 ibuprofen. (Compl. 9–10.) With respect to the treatment Plaintiff received on June

24 11 or 12, 2020, the Complaint alleges that an x-ray was taken of Plaintiff’s leg,

25 which revealed a fracture in Plaintiff’s right fibula around the ankle area; that

26 Plaintiff was given a cane, walking boot, and calcium and vitamin D pills; and that

27 Defendants Collins and Whitson provided inadequate medical care because they did

28 not give Plaintiff any physical therapy or surgery. (Id. at 10–11.)

1 To begin with, it is unclear which Defendants provided Plaintiff medical

2 treatment on May 29, 2020 and June 11 or 12, 2020. (See Compl. 9–11.) With

3 respect to May 29, 2020, the Complaint alleges that Plaintiff received medical

4 treatment from “Defendant doctor and nurse,” without providing any specific names.

5 (See id. at 9–10.) With respect to June 11 or 12, 2020, the Complaint again does not

6 specify who provided Plaintiff medical care, but does state that Defendants Collins

7 and Whitson should have provided Plaintiff physical therapy or surgery. (See id. at

8 10–11.) However, to state an individual capacity claim under Section 1983, Plaintiff

9 must specifically identify the Defendants who caused the purported deprivation of

10 his constitutional rights. See Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)

11 (“A person subjects another to the deprivation of a constitutional right, within the

12 meaning of section 1983, if he does an affirmative act, participates in another’s

13 affirmative acts, or omits to perform an act which he is legally required to do that

14 causes the deprivation of which complaint is made.” (quotations and citations

15 omitted)).

16 Even if Plaintiff had specifically named the Defendants who provided Plaintiff

17 medical treatment, the Complaint does not contain sufficient allegations to satisfy

18 the subjective prong of “deliberate indifference.” Plaintiff’s dissatisfaction with his

19 medical treatment is insufficient to state an Eighth Amendment claim. “[A]n

20 inadvertent failure to provide adequate medical care,” “negligence in diagnosing or

21 treating a medical condition,” medical malpractice, or a decision not order a

22 particular form of treatment do not violate the Eighth Amendment. Estelle, 429 U.S.

23 at 105–08. Even gross negligence is insufficient to establish deliberate indifference

24 to serious medical needs. See Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir.

25 1990).

26 To the extent that Plaintiff’s Eighth Amendment claim is based on his

27 disagreement with the care he received, such claim fails. “A difference of opinion

28 between a prisoner-patient and prison medical authorities” does not rise to the level

1 of a constitutional violation. Franklin v. State of Oregon, State Welfare Div., 662

2 F.2d 1337, 1344 (9th Cir. 1981). Indeed, “‘a difference of medical opinion’ as to the

3 need to pursue one course of treatment over another [is] insufficient, as a matter of

4 law, to establish deliberate indifference.” Jackson v. McIntosh, 90 F.3d 330, 332

5 (9th Cir. 1996) (quoting Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989)). Rather,

6 “to prevail on a claim involving choices between alternative courses of treatment, a

7 prisoner must show that the chosen course of treatment ‘was medically unacceptable

8 under the circumstances,’ and was chosen ‘in conscious disregard of an excessive

9 risk to [the prisoner’s] health.’” Toguchi v. Chung, 391F.3d 1051, 1058 (9th Cir.

10 2004) (alteration in original) (quoting Jackson, 90 F.3d at 332). The Complaint

11 contains no allegations to reasonably lead to either conclusion.

12 For these reasons, Plaintiff’s Eighth Amendment deliberate indifference

13 claims regarding the quality of his medical treatment fail. If Plaintiff files an

14 amended complaint with such a claim, he must correct these deficiencies or risk its

15 dismissal.

16

17 ii. Delay of Medical Treatment

18 The Complaint also asserts Eighth Amendment deliberate indifference claims

19 for the alleged delays in Plaintiff’s receipt of medical treatment, both initially on

20 May 29, 2020 and as to his receipt of follow-up treatment on June 11 or 12, 2020.

21 Specifically with respect to Defendant Dawson, the Complaint alleges that

22 Defendant Dawson was advised of Plaintiff’s injuries shortly after the accident on

23 May 29, 2020, and that Defendant Dawson gave Plaintiff the day off. (Compl. 7.)

24 As to Defendants Campbell and Silveira, the Complaint alleges that inmate Shelton

25 took Plaintiff to the old hospital, where Defendants Campbell and Silveira were

26 advised of Plaintiff’s injuries, examined Plaintiff’s leg, agreed that it might be

27 broken, and instructed him to go to the new clinic without providing any ambulatory

28 assistance. (Id. at 7–8.) With respect to Defendant Alger, the Complaint alleges that

1 when Plaintiff and inmate Shelton arrived at the new clinic, Defendant Alger was

2 advised of Plaintiff’s accident and injuries, ignored Plaintiff’s request for emergency

3 treatment, told Plaintiff that he needed to be accompanied by one of his supervisors

4 at the clinic, and attempted to call Plaintiff’s supervisor but “no one showed up for

5 hours.” (Id. at 8–9.) As to Defendant Doolin, the Complaint alleges that Defendant

6 Doolin was called to accompany Plaintiff at the clinic, was “tied up,” but eventually

7 arrived and took Plaintiff to get medical treatment. (Id. at 9.) Lastly, the Complaint

8 alleges that although Defendant doctor and nurse told Plaintiff on May 29, 2020 that

9 they would see him again in five days, Plaintiff did not see a doctor again for

10 approximately twelve to fourteen days, despite submitting approximately ten

11 requests for medical treatment. (Id. at 10.)

12 These allegations fail to state an Eighth Amendment claim for several reasons.

13 First, the allegations of the Complaint do not state sufficient facts from which it

14 reasonably could be inferred that Defendants Dawson, Campbell, Silveira, Alger, or

15 Doolin acted with deliberate indifference. See Farmer, 511 U.S. at 835 (“Eighth

16 Amendment liability requires ‘more than ordinary lack of due care for the prisoner’s

17 interests or safety.’” (quoting Whitley v. Albers, 475 U.S. 312, 319 (1986))).

18 Second, a delay in providing medical treatment, standing alone, does not

19 constitute an Eighth Amendment violation. Hallett v. Morgan, 296 F.3d 732, 746

20 (9th Cir. 2002). Where a plaintiff alleges that delay of medical treatment evinces

21 deliberate indifference, he or she must show that the delay led to further injury. See

22 McGuckin, 974 F.2d at 1060; Hallett, 296 F.3d at 746 (“Plaintiffs could not prove an

23 Eighth Amendment violation because they have not demonstrated that delays

24 occurred to patients with problems so severe that delays would cause significant

25 harm and that Defendants should have known this to be the case.”). Here, the delays

26 of unspecified time in Plaintiff’s receipt of medical treatment on May 29, 2020 are

27 insufficient to state an Eighth Amendment claim because Plaintiff was treated on

28 May 29, 2020 and the Complaint does not allege harms resulting from the delays.

1 See Berry v. Bunhill, 39 F.3d 1056 (9th Cir. 1994) (per curiam) (affirming directed

2 verdict declining to find deliberate indifference for “minor delays”—being seen by a

3 doctor within two hours and provision of antibiotics the next day—where there was

4 no evidence that such delays caused any harm); Wood, 900 F.2d at 1335 (“Nor does

5 the delay in treatment that [plaintiff] suffered constitute an eighth amendment

6 violation; the delay must have caused substantial harm.”).

7 Third, with respect to the alleged delay between Plaintiff’s initial May 29,

8 2020 treatment and his follow-up treatment on June 11 or 12, 2020, the Complaint

9 does not specify which Defendants allegedly were responsible for the delay in

10 Plaintiff’s second treatment. There can be no liability under Section 1983 unless

11 there is an affirmative link or connection between a defendant’s actions and the

12 claimed deprivation. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 692 (1978).

13 For these reasons, Plaintiff’s Eighth Amendment deliberate indifference

14 claims for delays in receiving medical treatment fail. If Plaintiff files an amended

15 complaint with such a claim, he must correct these deficiencies or risk its dismissal.

16

17 2. Eighth Amendment Conditions of Confinement

18 “[T]he treatment a prisoner receives in prison and the conditions under which

19 he is confined are subject to scrutiny under the Eighth Amendment,” which prohibits

20 cruel and unusual punishments. Farmer, 511 U.S. at 832 (quoting Helling v.

21 McKinney, 509 U.S. 25, 31 (1993)). “[W]hile conditions of confinement may be,

22 and often are, restrictive and harsh, they ‘must not involve the wanton and

23 unnecessary infliction of pain.’” Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th

24 Cir. 2006) (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). “In other

25 words, they must not be devoid of legitimate penological purpose, or contrary to

26 evolving standards of decency that mark the progress of a maturing society.” Id.

27 (citations and quotations omitted). “An Eighth Amendment claim that a prison

28 official has deprived inmates of humane conditions must meet two requirements, one

1 objective and one subjective.” Lopez v. Smith, 203 F.3d 1122, 1132 (9th Cir. 2000)

2 (quoting Allen v. Sakai, 48 F.3d 1082, 1087 (9th Cir. 1995)).

3

4 a. Objective Prong

5 To satisfy the objective prong of the Eighth Amendment, “the deprivation

6 alleged must be, objectively, sufficiently serious; a prison official’s act or omission

7 must result in the denial of the minimal civilized measure of life’s necessities.”

8 Farmer, 511 U.S. at 834 (internal quotations and citations omitted). “Prison

9 officials have a duty to ensure that prisoners are provided adequate shelter, food,

10 clothing, sanitation, medical care, and personal safety.” Johnson v. Lewis, 217 F.3d

11 726, 731 (9th Cir. 2000). “The circumstances, nature, and duration of a deprivation

12 of these necessities must be considered in determining whether a constitutional

13 violation has occurred. ‘The more basic the need, the shorter the time it can be

14 withheld.’” Id. (quoting Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982)).

15 Here, the Complaint asserts that Plaintiff tripped on a “metal clipping” on a

16 step, which “grabs your shoe from the bottom” and that “should have been fixed

17 after supervisors were notified of it, making Doolin and Dawson aware of its

18 potential to harm someone.” (Compl. 6.) As Plaintiff was descending the stairs, his

19 right foot was “grabbed and caught” and he fell down four steps. (Id.)

20 “Federal courts have repeatedly rejected Eighth Amendment claims based on

21 slip and falls.” Oubichon v. Carey, No. 2:06-cv-2749-JAM-EFB P, 2017 U.S. Dist.

22 LEXIS 75378, at *22–*23 (E.D. Cal. May 16, 2017) (collecting cases); LeMaire v.

23 Maass, 12 F.3d 1444, 1457 (9th Cir. 1993) (“[E]ven if the floors . . . are slippery and

24 [inmates] might fall . . ., ‘slippery prison floors . . . do not state even an arguable

25 claim for cruel and unusual punishment.’”) (quoting Jackson v. Arizona, 885 F.2d

26 639, 641 (9th Cir. 1989))). “Many courts have concluded that poorly maintained

27 surfaces . . . do not generally pose a substantial risk of serious harm, and are instead

28 claims fundamentally sounding in negligence—which is insufficient to violate the

1 Eighth Amendment as a matter of law.” Miranda v. Madden, No.: 3:19-cv-01605-

2 LAB-RBM, 2019 U.S. Dist. LEXIS 192188, at *11 (S.D. Cal. Nov. 4, 2019)

3 (quotations omitted). “Courts have reached this conclusion, even where the hazard

4 has existed, and been known to prison officials, for years and where the prisoner was

5 required to use the dangerous location . . . .” Pauley v. California, No. 2:18-cv-2595

6 KJN P, 2018 U.S. Dist. LEXIS 193388, at *11 (E.D. Cal. Nov. 13, 2018) (collecting

7 cases).

8 However, poorly-maintained surfaces and floors “could create a sufficient

9 danger to warrant relief” where the plaintiff has a known exacerbating condition.

10 Frost v. Agnos, 152 F.3d 1124, 1129 (9th Cir. 1998) (reversing grant of summary

11 judgment on an Eighth Amendment claim for prison officials’ failure to provide an

12 accessible shower to inmate who used crutches when they knew the inmate had

13 fallen and injured himself several times); Sharrott v. Halawa Prison ADA Compl.

14 Team, No. 18-00486 JMS-RT, 2019 U.S. Dist. LEXIS 6624, at *9 (D. Haw. Jan. 14,

15 2019) (“To state a colorable constitutional violation, slippery floors normally must

16 be alleged in conjunction with some other exacerbating condition.”); Brown v.

17 Flores, No. 18-CV-01578 LHK (PR), 2018 U.S. Dist. LEXIS 229920, at *7 (N.D.

18 Cal. Oct. 3, 2018) (“In order to state a cognizable claim for relief, there must be a

19 confluence of exacerbating conditions such that the flooded cell posed a serious,

20 unavoidable threat to plaintiff's safety and defendants knew of this substantial

21 risk.”). Thus, “awareness of a prisoner’s disability or proclivity toward falling may

22 turn a slippery prison floor into a potential constitutional claim, depending on the

23 level of danger and awareness.” Jones v. Meddly, No. 1:17-cv-00109-SAB (PC),

24 2019 U.S. Dist. LEXIS 122784, at *19 (E.D. Cal. July 23, 2019).

25 Here, the Complaint does not allege that Plaintiff had a known exacerbating

26 condition that would make him susceptible to tripping on the steps. See Slocum v.

27 Fowler, No. 2:16-cv-02169-JAD-CWH, 2018 U.S. Dist. LEXIS 159298, at *7 (D.

28 Nev. Sept. 18, 2018) (holding that plaintiff did not allege an Eighth Amendment

1 violation for a slippery floor where there were no allegations that defendants had

2 prior knowledge of a physical limitation of plaintiff). In the absence of a known,

3 exacerbating condition, the Complaint does not state a claim for cruel and unusual

4 punishment for the defective step. See LeMaire, 12 F.3d at 1457.

5

6 b. Subjective Prong

7 To satisfy the Eighth Amendment’s subjective prong, there must be

8 allegations that a prison official acted with “deliberate indifference” to an inmate’s

9 health or safety—that is, “the official knows of and disregards an excessive risk to

10 inmate health or safety; the official must both be aware of facts from which the

11 inference could be drawn that a substantial risk of serious harm exists, and he must

12 also draw the inference.” Farmer, 511 U.S. at 837. Negligence is insufficient to

13 support an Eighth Amendment claim. See id. at 835.

14 Here, the Complaint alleges that Plaintiff’s shoe got caught on a metal

15 clipping on a stair that “should have been fixed after supervisors were notified of it

16 making Doolin and Dawson aware of its potential to harm someone.” (Compl. 6.)

17 However, there are no allegations in the Complaint from which it reasonably could

18 be inferred that any Defendant acted with deliberate indifference. Indeed, there are

19 only conclusory, speculative allegations that Defendants Doolin and Dawson were

20 aware of the purported risks, which are insufficient to state a claim for deliberate

21 indifference. See, e.g., Graves v. Cal. Dep’t of Corr. & Rehab., No. EDCV 17-1086

22 JGB (SPx), 2019 U.S. Dist. LEXIS 229086, at *19 (C.D. Cal. Nov. 14, 2019)

23 (holding that conclusory assertions unsupported by further factual allegations are not

24 sufficient to infer actual knowledge and indifference); Marks v. Doe, No. C09-5489

25 RJB/KLS, 2010 U.S. Dist. LEXIS 24209, at *13 (W.D. Wash. Feb. 23, 2010)

26 (holding that conclusory allegations without specific facts regarding defendants’

27 knowledge was insufficient to plead deliberate indifference). The allegations in the

28 Complaint that Plaintiff tripped and fell over a faulty step amounts to no more than

1 negligence, which is not actionable under Section 1983. See Johnson v. Hernandez,

2 No. 19-cv-03936-YGR (PR), 2020 U.S. Dist. LEXIS 69123, at *5 (N.D. Cal. Apr.

3 20, 2020) (“Although regrettable, Plaintiff’s allegations that he tripped over a raised

4 metal door sill . . . must be dismissed because it amounts to no more than a claim for

5 negligence, which is not actionable under section 1983.”).

6 For these reasons, Plaintiff’s Eighth Amendment cruel and unusual

7 punishments claim fails. If Plaintiff files an amended complaint with an Eighth

8 Amendment claim for cruel and unusual punishments, he must correct these

9 deficiencies or risk dismissal of such claim.

10

11 V. CONCLUSION

12 For the reasons stated above, the Court DISMISSES the Complaint WITH

13 LEAVE TO AMEND. Plaintiff may have an opportunity to amend and cure the

14 deficiencies given his pro se prisoner status. Plaintiff is ORDERED to, within

15 thirty days after the date of this Order, either: (1) file a FAC, or (2) advise the Court

16 that Plaintiff does not intend to pursue this lawsuit further and will not file a FAC.

17 The FAC must cure the pleading defects discussed above and shall be

18 complete in itself without reference to the Complaint. See L.R. 15-2 (“Every

19 amended pleading filed as a matter of right or allowed by order of the Court shall be

20 complete including exhibits. The amended pleading shall not refer to the prior,

21 superseding pleading.”). This means that Plaintiff must allege and plead any viable

22 claims in the FAC again. Plaintiff shall not include new defendants or new

23 allegations that are not reasonably related to the claims asserted in the Complaint.

24 In any amended complaint, Plaintiff should confine his allegations to those

25 operative facts supporting each of his claims. Plaintiff is advised that pursuant to

26 Rule 8, all that is required is a “short and plain statement of the claim showing that

27 the pleader is entitled to relief.” Plaintiff strongly is encouraged to utilize the

28 standard civil rights complaint form when filing any amended complaint, a

1 copy of which is attached. In any amended complaint, Plaintiff should identify the

2 nature of each separate legal claim and make clear what specific factual allegations

3 support each of his separate claims. Plaintiff strongly is encouraged to keep his

4 statements concise and to omit irrelevant details. It is not necessary for Plaintiff to

5 cite case law, include legal argument, or attach exhibits at this stage of the litigation.

6 Plaintiff also is advised to omit any claims for which he lacks a sufficient factual

7 basis.

8 The Court explicitly cautions Plaintiff that failure to timely file a FAC,

9 or timely advise the Court that Plaintiff does not intend to file a FAC, will

10 result in a recommendation that this action be dismissed for failure to

11 prosecute and/or failure to comply with court orders pursuant to Federal Rule

12 of Civil Procedure 41(b).

13 Plaintiff is not required to file an amended complaint, especially since a

14 complaint dismissed for failure to state a claim without leave to amend may count as

15 a strike under 28 U.S.C. § 1915(g). Instead, Plaintiff may request voluntary

16 dismissal of the action pursuant to Federal Rule of Civil Procedure 41(a) using the

17 attached Notice of Voluntary Dismissal form.

18 Plaintiff is advised that the undersigned Magistrate Judge’s determination

19 herein that the allegations in the Complaint are insufficient to state a particular claim

20 should not be seen as dispositive of the claim. Accordingly, although the

21 undersigned Magistrate Judge believes Plaintiff has failed to plead sufficient factual

22 matter in the pleading, accepted as true, to state a claim for relief that is plausible on

23 its face, Plaintiff is not required to omit any claim or Defendant in order to pursue

24 this action. However, if Plaintiff decides to pursue a claim in an amended complaint

25 that the undersigned Magistrate Judge previously found to be insufficient, then,

26 pursuant to 28 U.S.C. § 636, the undersigned Magistrate Judge ultimately may

27 submit to the assigned District Judge a recommendation that such claim may be

28 ///

1 || dismissed with prejudice for failure to state a claim, subject to Plaintiff's right at tha

2 || time to file objections. See Fed. R. Civ. P. 72(b); C.D. Cal. L.R. 72-3.

3 IT IS SO ORDERED.

4

5 || DATED: January 8, 2021 ple | —

6 | /“MARIA\ A. AUDERO

UNITEBSTATES MAGISTRATE JUDGE

8 || Attachments

9 || Form Civil Rights Complaint (CV-66)

10 | Form Notice of Dismissal

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