(PC) Jacques v. Weiss

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 MICHAEL E. JACQUES, No. 2:23-cv-00346 DB P

12 Plaintiff,

13 v. ORDER

14 R. Weiss,

15 Defendant.

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17 Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42

18 U.S.C. § 1983. Plaintiff claims that defendant was deliberately indifferent to her medical needs.

19 (ECF No. 10.) Presently before the court is plaintiff’s first amended complaint (ECF No. 10) for

20 screening. For the reasons set forth below, the court will dismiss the first amended complaint

21 with leave to amend.

22 SCREENING

23 I. Legal Standards

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

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

26 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims

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

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

3 U.S.C. § 1915A(b)(1) & (2).

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

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

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

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

8 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

9 pleaded, has an arguable legal and factual basis. See Franklin, 745 F.2d at 1227.

10 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain

11 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the

12 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell

13 AtlanticCorp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47

14 (1957)).

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

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

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

18 550 U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the

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

20 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all

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

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

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

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

24 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,

25 or other proper proceeding for redress.

26 42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the

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

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

1 (1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the

2 meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or

3 omits to perform an act which he is legally required to do that causes the deprivation of which

4 complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

5 Moreover, supervisory personnel are generally not liable under § 1983 for the actions of

6 their employees under a theory of respondeat superior and, therefore, when a named defendant

7 holds a supervisorial position, the causal link between him and the claimed constitutional

8 violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979);

9 Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations

10 concerning the involvement of official personnel in civil rights violations are not sufficient. See

11 Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

12 II. Allegations in the First Amended Complaint

13 Plaintiff states that the events giving rise to the claim occurred while she was incarcerated

14 at Mule Creek State Prison (“MCSP”). (ECF No. 10 at 1.) In the First Amended Complaint

15 plaintiff has identified as the defendant, R. Weiss a physician and surgeon at MCSP. (Id. at 2.)

16 Plaintiff states she was seen by defendant. (Id. at 8.) At the appointment plaintiff alleges

17 defendant reviewed her entire medical file, and acknowledged plaintiff has several chronic

18 injuries that required medical appliances and chronos. (Id. at 9) At the meeting defendant

19 acknowledged her prior injuries and the substantial risk of harm that could occur should plaintiff

20 not receive proper treatment. (Id.) Plaintiff states she informed defendant she was in need of her

21 ankle and knee braces and without the devices she was under a substantial risk of serious harm.

22 (Id.) Defendant then examined plaintiff’s ankle and plaintiff showed him other injuries sustained

23 from attempts to climb into the upper bunk. (Id.) Defendant stated “’your young. Stop

24 complaining. Your injuries won’t kill you. . . .” (Id. at 10.) Plaintiff then asserts that defendant

25 knew the risk she was at without her devices and without restrictions. (Id.)

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1 III. Does Plaintiff State a Claim under § 1983?

2 A. Medical Care

3 1. Legal Standards

4 The Eighth Amendment prohibits the infliction of “cruel and unusual punishments.” U.S.

5 Const. amend. VIII. The unnecessary and wanton infliction of pain constitutes cruel and unusual

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

7 Ingraham v. Wright, 430 U.S. 651, 670 (1977); Estelle v. Gamble, 429 U.S. 97, 105-06 (1976).

8 Neither accident nor negligence constitutes cruel and unusual punishment, as “[i]t is obduracy

9 and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited

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

11 If a prisoner’s Eighth Amendment claim arises in the context of medical care, the prisoner

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

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

14 two elements: “the seriousness of the prisoner’s medical need and the nature of the defendant’s

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

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

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

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

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

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

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

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

23 825, 834 (1994).

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

25 prisoner officials responded to the serious medical need with deliberate indifference. See Id. at

26 834. In general, deliberate indifference may be shown when prison officials deny, delay, or

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1 intentionally interfere with medical treatment, or may be shown by the way in which prison

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

3 1988).

4 Before it can be said that a prisoner’s civil rights have been abridged with regard to

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

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

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

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

9 diagnosing or treating a medical condition, without more, does not violate a prisoner’s Eighth

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

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

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

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

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

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

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

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

18 200 (9th Cir. 1989); Shapley v. Nevada Bd. Of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir.

19 1985). In this regard, “[a] prisoner need not show his harm was substantial; however, such would

20 provide additional support for the inmate’s claim that the defendant was deliberately indifferent to

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

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

23 between medical professionals as to the proper course of treatment for a medical condition do not

24 give rise to a § 1983 claim. See Toguchi, 391 F.3d at 1058; Jackson v. McIntosh, 90 F.3d 330,

25 332 (9th Cir. 1996); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); Franklin v. Oregon, 662

26 F.2d 1337, 1344 (9th Cir. 1981).

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1 A. Analysis

2 Plaintiff states that she has chondromalacia, thickening of her lateral ankle ligament, and a

3 bullet embedded in her lower extremities, which cause her pain and makes her more susceptible

4 to falls. (ECF No. 10 at 8-9.) Plaintiff asserts throughout the complaint that her medical record

5 reflects chronic injuries she asserts require braces and restrictions. (Id. at 8, 9.) However,

6 defendant after examination declined to prescribe the braces and medical restrictions requested by

7 Plaintiff. (Id. at 9-10.) Plaintiff reports a nurse prescribed the requested medical restriction after

8 her appointment with defendant. (Id. at 10.) This restriction was granted after she injured

9 herself when climbing into an upper bunk. (Id.) However, it is unclear if she ever received the

10 braces, she asserts were medically necessary. (Id.)

11 Here, defendant’s denial of a lower bunk chrono and braces, in the face of plaintiff’s

12 disagreement, shows only a difference of medical opinion. “A difference of opinion between a

13 physician and the prisoner—or between medical professionals—concerning what medical care is

14 appropriate does not amount to deliberate indifference.” Snow v. Daniel, 681 F.3d 978, 988 (9th

15 Cir. 2012), overruled in part on other grounds by Peralta v. Dillard, 744 F.3d 1076 (9th Cir.

16 2014) (en banc). To state a cognizable claim, plaintiff must allege facts showing that defendant’s

17 denial was medically unacceptable under the circumstances and chosen in conscious disregard of

18 an excessive risk to plaintiff’s health. Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004).

19 For these reasons, the complaint does not state a cognizable Eighth Amendment claim

20 against defendant. Plaintiff will be granted leave to file a second amended complaint.

21 AMENDING THE COMPLAINT

22 As set forth above, the complaint fails to state a claim. However, plaintiff will be given

23 the opportunity to amend the complaint. Plaintiff is advised that in an amended complaint, she

24 must clearly identify each defendant and the action that defendant took that violated her

25 constitutional rights. The court is not required to review exhibits to determine what plaintiff’s

26 charging allegations are as to each named defendant. The charging allegations must be set forth

27 in the amended complaint, so defendants have fair notice of the claims plaintiff is presenting.

28 That said, plaintiff need not provide every detailed fact in support of her claims. Rather, plaintiff

1 should provide a short, plain statement of each claim. See Fed. R. Civ. P. 8(a).

2 Any amended complaint must show the federal court has jurisdiction, the action is brought

3 in the right place, and plaintiff is entitled to relief if plaintiff’s allegations are true. It must

4 contain a request for particular relief. Plaintiff must identify as a defendant only persons who

5 personally participated in a substantial way in depriving plaintiff of a federal constitutional right.

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

7 of a constitutional right if he does an act, participates in another’s act or omits to perform an act

8 he is legally required to do that causes the alleged deprivation).

9 In an amended complaint, the allegations must be set forth in numbered paragraphs. Fed.

10 R. Civ. P. 10(b). Plaintiff may join multiple claims if they are all against a single defendant. Fed.

11 R. Civ. P. 18(a). If plaintiff has more than one claim based upon separate transactions or

12 occurrences, the claims must be set forth in separate paragraphs. Fed. R. Civ. P. 10(b).

13 The federal rules contemplate brevity. See Galbraith v. County of Santa Clara, 307 F.3d

14 1119, 1125 (9th Cir. 2002) (noting that “nearly all of the circuits have now disapproved any

15 heightened pleading standard in cases other than those governed by Rule 9(b)”); Fed. R. Civ. P.

16 84; cf. Rule 9(b) (setting forth rare exceptions to simplified pleading). Plaintiff’s claims must be

17 set forth in short and plain terms, simply, concisely and directly. See Swierkiewicz v. Sorema

18 N.A., 534 U.S. 506, 514 (2002) (“Rule 8(a) is the starting point of a simplified pleading system,

19 which was adopted to focus litigation on the merits of a claim.”); Fed. R. Civ. P. 8.

20 An amended complaint must be complete in itself without reference to any prior pleading.

21 E.D. Cal. R. 220. Once plaintiff files an amended complaint, all prior pleadings are superseded.

22 Any amended complaint should contain all of the allegations related to her claim in this action. If

23 plaintiff wishes to pursue her claims against the defendant, they must be set forth in the amended

24 complaint.

25 By signing an amended complaint, plaintiff certifies she has made reasonable inquiry and

26 has evidentiary support for her allegations, and for violation of this rule the court may impose

27 sanctions sufficient to deter repetition by plaintiff or others. Fed. R. Civ. P. 11.

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1 CONCLUSION

2 For the reasons set forth above, IT IS HEREBY ORDERED that:

3 1. Plaintiffs First Amended Complaint (ECF No. 10) is dismissed with leave to amend.

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

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

6 Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint

7 must bear the docket number assigned to this case and must be labeled “Second

8 Amended Complaint.”

9 3. Failure to comply with this order will result in a recommendation that this action be

10 dismissed.

11 | Dated: May 20, 2024

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14 ORAH BARNES

UNITED STATES MAGISTRATE JUDGE

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