a person subjects another to the deprivation of a 4 constitutional right if he does an act, participates in another’s act or omits to perform an act he is 5 legally required to do that causes the alleged deprivation
How later courts described this case
- a person subjects another to the deprivation of a 4 constitutional right if he does an act, participates in another’s act or omits to perform an act he is 5 legally required to do that causes the alleged deprivation
- dismissing § 19 1983 substantive due process claims premised on denial of worker’s compensation benefits
- the “‘amended complaint supersedes the original, the latter 18 being treated thereafter as non-existent.’”
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
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11 DWAYNE STEVEN MONTGOMERY, No. 2:22-cv-0127-EFB P
12 Plaintiff,
13 v. ORDER
14 J. MORENO, et al.,
15 Defendant.
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17 Plaintiff is a state prisoner proceeding without counsel in this action brought pursuant to
18 42 U.S.C. § 1983. In addition to filing a complaint (ECF No. 1), he also filed applications to
19 proceed in forma pauperis (ECF Nos. 5, 7 & 8). The court will grant his applications and screen
20 the complaint.
21 Application to Proceed in Forma Pauperis
22 The court has reviewed plaintiff’s applications and finds that they make the showing
23 required by 28 U.S.C. § 1915(a)(1) and (2). Accordingly, by separate order, the court directs the
24 agency having custody of plaintiff to collect and forward the appropriate monthly payments for
25 the filing fee as set forth in 28 U.S.C. § 1915(b)(1) and (2).
26 /////
27 /////
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1 Screening Standards
2 Federal courts must engage in a preliminary screening of cases in which prisoners seek
3 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C.
4 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion
5 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which
6 relief may be granted,” or “seeks monetary relief from a defendant who is immune from such
7 relief.” Id. § 1915A(b).
8 A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a)
9 of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and
10 plain statement of the claim showing that the pleader is entitled to relief, in order to give the
11 defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v.
12 Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)).
13 While the complaint must comply with the “short and plaint statement” requirements of Rule 8,
14 its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556
15 U.S. 662, 679 (2009).
16 To avoid dismissal for failure to state a claim a complaint must contain more than “naked
17 assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of
18 action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of
19 a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at
20 678.
21 Furthermore, a claim upon which the court can grant relief must have facial plausibility.
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.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a
25 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v.
26 Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the
27 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
28 /////
1 Screening Order
2 Plaintiff’s complaint (ECF No. 1) alleges the following: On February 12, 2020, plaintiff
3 slipped and fell on “food spillage” while working in the facility-A culinary at Mule Creek State
4 Prison. Id. at 12. Plaintiff injured his hip and lower back. Id. Plaintiff reported the incident to
5 defendants Moreno and LaMott. Id. LaMott contacted Kirkendall, the on-duty licensed
6 vocational nurse. Id. Kirkendall informed plaintiff that no doctor was on-duty and that his
7 injuries did not require immediate medical attention. Id. Kirkendall issued plaintiff two Tylenols
8 and sent plaintiff back to his assigned housing unit. Id. at 13. Kirkendall did not document the
9 accident “to secure an accurate record of [the] event.” Id.
10 Plaintiff’s first claim alleges a “personal safety violation.” Id. at 13-14. Specifically,
11 plaintiff claims that defendants Covello, Holmes, and Roy knew that this high traffic area got
12 slippery and had previously caused numerous accidents. Id. Plaintiff claims the defendants failed
13 to take any safety precautions to prevent future falls, such as slip-proof mats. Id. Plaintiff’s
14 second claim is that defendants Moreno, LaMott, and Kirkendall failed to ensure adequate
15 medical treatment and documentation of the incident following the workplace injury. See id. at
16 14-15. Plaintiff’s last claim is that defendants caused him to lose his workers’ compensation
17 claim because of their “failure to provide medical records and documentation of [the] incident
18 and injury reports.” Id. at 15-18.
19 For the reasons discussed below, plaintiff’s complaint cannot survive screening.
20 I. Personal Safety Violation
21 Plaintiff’s claim that his right to personal safety was violated fails to plead facts sufficient
22 to state a claim cognizable under the Eighth Amendment. Under the Eighth Amendment,
23 “slippery prison floors . . . do not state even an arguable claim for cruel and unusual punishment.”
24 LeMaire v. Maass, 12 F.3d 1444, 1457 (9th Cir. 1993) (quotation omitted). Where the condition
25 complained of – such as a slippery floor – is not objectively inhumane in violation of the Eighth
26 Amendment, the prisoner must show that there were exacerbating conditions causing the slippery
27 floor to pose a serious, unavoidable threat to plaintiff's safety. See Osolinski v. Kane, 92 F.3d
28 934, 938 (9th Cir. 1996) (citing Hoptowit v. Spellman, 753 F.2d 779, 784 (9th Cir. 1985)). Here,
1 there are no exacerbating circumstances that could elevate this standard negligence claim into a
2 federal cause of action. See, e.g., Mancinas v. Brown, No. 2:16-cv-2806-EFB P, 2018 U.S. Dist.
3 LEXIS 33781 at *6 (E.D. Cal. Mar. 1, 2018) (dismissing prisoner’s § 1983 claim that known,
4 ongoing leak caused puddle, resulting in slip and fall); Wallace v. Haythorne, No. 06-1697-MCE-
5 GGH P, 2007 U.S. Dist. LEXIS 76330 (E.D. Cal. Oct. 15, 2007) (no Eighth Amendment
6 violation when inmate fell after his foot slipped into a hole in the floor caused by a missing tile,
7 even if defendants knew that holes had caused others to trip). A showing of negligence, even
8 gross negligence, is insufficient to establish a constitutional deprivation under the Eighth
9 Amendment. Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004). Thus, plaintiff fails to
10 state a cognizable Eighth Amendment conditions of confinement claim against any of the
11 defendants arising out of his slip and fall.
12 II. Failure to Provide Medical Treatment
13 Plaintiff’s second claim appears to be based on plaintiff’s position that no defendant
14 properly documented his injury for purposes of his anticipated workers’ compensation claim.1
15 These allegations do not give rise to a deliberate indifference to medical needs claim under the
16 Eighth Amendment. Deliberate indifference requires a showing that the defendant, acting with a
17 state of mind more blameworthy than negligence, denied, delayed, or interfered with the
18 treatment of plaintiff’s serious medical needs. Farmer v. Brennan, 511 U.S. 825, 835 (1994);
19 Estelle v. Gamble, 429 U.S. 97, 106 (1976). In this case, plaintiff alleges that correctional officer
20 LaMott summoned help for plaintiff from Kirkendall, the on-duty licensed vocational nurse. ECF
21 No. 1 at 13. Kirkendall determined that plaintiff’s injury was not serious and gave plaintiff
22 Tylenol. Id. at 12-13. None of these actions demonstrate deliberate indifference.2 Even if they
23 did, plaintiff fails to establish that their actions harmed him. See Hallett v. Morgan, 296 F.3d
24 732, 746 (9th Cir. 2002) (delays in medical treatment do not constitute deliberate indifference in
25 1 See also infra, the discussion of plaintiff’s third claim regarding the denial of his
26 workers’ compensation claim.
27 2 If plaintiff means to allege that Kirkendall actually thought plaintiff’s injuries were
serious, yet refused to render or summon adequate medical care, plaintiff may say so in an
28 amended complaint.
1 violation of the Eighth Amendment unless the delay led to further injury). Once again, the court
2 notes that mere malpractice, or even gross negligence does not constitute cruel and unusual
3 punishment. Estelle, 429 U.S. at 106.
4 III. Workers’ Compensation Claim
5 Plaintiff’s third claim alleges that poor record keeping caused him to be denied workers’
6 compensation benefits. In California, the Workers’ Compensation Act grants the Workers’
7 Compensation Appeals Board exclusive authority to hear claims “[f]or the recovery of [workers’]
8 compensation, or concerning any right or liability arising out of or incidental thereto.” Cal. Labor
9 Code § 5300(a); see also U.S. Fid. & Guar. Co. v. Lee Invs. LLC, 641 F.3d 1126, 1134 (9th Cir.
10 2011). The statute establishes “exclusive jurisdiction within the workers’ compensation system for
11 ‘all disputes over coverage and payment.’” Mitchell v. Scott Wetzel Servs., Inc., 227 Cal. App. 3d
12 1474, 1480 (1991). Because exclusive jurisdiction is vested in the California workers’ compensation
13 system, this court lacks jurisdiction over any claim pertaining to workers’ compensation.
14 The availability of a remedy under state workers’ compensation law does not preclude a §
15 1983 claim. See Jensen v. City of Oxnard, 145 F.3d 1078, 1084 n.3 (9th Cir. 1998). To succeed on
16 such a claim, plaintiff must allege facts suggesting that defendants acted in an arbitrary or
17 conscience shocking manner. See Wilson v. Ayers, No. 2:07-cv-0283-LRH-LRL, 2010 U.S. Dist.
18 LEXIS 2995, *7-8 (D. Nev. Jan 14, 2010), aff’d, 470 F. App'x. 654, 655 (9th Cir. 2012) (dismissing §
19 1983 substantive due process claims premised on denial of worker’s compensation benefits). To the
20 extent plaintiff is alleging that a defendant’s failure to document his slip and fall violated his
21 substantive due process rights, he fails to state a claim, as “[t]here is no general liberty interest in
22 being free from capricious government action.” Nunez v. City of Los Angeles, 147 F.3d 867, 873 (9th
23 Cir. 1998); see also Pfeiffer v. Clay, No. 1:07-cv-1604-OWWW-SMS PC, 2009 U.S. Dist. LEXIS
24 69701, *8 (E.D. Cal. Aug. 10, 2009) (“Defendant[’s] failure to fill out worker’s compensation forms
25 for Plaintiff does not support a claim for violation of Plaintiff's constitutional rights.”).
26 Leave to Amend
27 Plaintiff’s complaint is dismissed with leave to amend. If plaintiff chooses to file an
28 amended complaint it should observe the following:
1 Any amended complaint must identify as a defendant only persons who personally
2 participated in a substantial way in depriving him of a federal constitutional right. Johnson v.
3 Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a
4 constitutional right if he does an act, participates in another’s act or omits to perform an act he is
5 legally required to do that causes the alleged deprivation). The complaint should also describe,
6 in sufficient detail, how each defendant personally violated or participated in the violation of his
7 rights. The court will not infer the existence of allegations that have not been explicitly set forth
8 in the amended complaint.
9 The amended complaint must contain a caption including the names of all defendants.
10 Fed. R. Civ. P. 10(a).
11 Plaintiff may not change the nature of this suit by alleging new, unrelated claims. See
12 George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).
13 Any amended complaint must be written or typed so that it so that it is complete in itself
14 without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended
15 complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the
16 earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114
17 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter
18 being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.
19 1967)).
20 Finally, the court notes that any amended complaint should be as concise as possible in
21 fulfilling the above requirements. Fed. R. Civ. P. 8(a). Plaintiff should avoid the inclusion of
22 procedural or factual background which has no bearing on his legal claims.
23 Conclusion
24 Accordingly, IT IS HEREBY ORDERED that:
25 1. Plaintiff’s request to proceed in forma pauperis (ECF Nos. 5, 7 & 8) is GRANTED;
26 2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected in
27 accordance with the notice to the California Department of Corrections and
28 Rehabilitation filed concurrently herewith;
] 3. Plaintiff's complaint (ECF No. 1) is DISMISSED with leave to amend within 30
2 days of service of this order; and
3 4. Failure to comply with this order may result in dismissal of this action for the
4 reasons stated herein.
5 | Dated: March 24, 2022.
>
6 / EDMUND F. BRENNAN
7 UNITED STATES MAGISTRATE JUDGE
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