(PC) Colbourn v. Done

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA ORRIN TYLER COLBOURN, No. 2:19-cv-2308 JAM KJN P 12 Plaintiff, 13 v. ORDER DONE, et al., 15 Defendant.

17 I. Introduction 18 Plaintiff is a state prisoner, proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983, and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

21 On January 15, 2020, plaintiff provided a certified copy of his inmate trust account statement. Plaintiff’s declaration makes the showing required by 28 U.S.C. § 1915(a).

23 Accordingly, the request to proceed in forma pauperis is granted.

24 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated to make monthly payments of twenty percent of the preceding month’s income credited to plaintiff’s trust account.

2 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).

5 As discussed below, plaintiff’s complaint is dismissed, and plaintiff is granted leave to file an amended complaint.

7 II. Screening Standards 8 The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 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.

14 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at 22 1227.

23 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

27 In order to survive dismissal for failure to state a claim, a complaint must contain more than “a formulaic recitation of the elements of a cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550 U.S. at 555.

2 However, “[s]pecific facts are not necessary; the statement [of facts] need only ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal quotations marks omitted). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Erickson, 551 U.S. at 93, and construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984).

9 III. Plaintiff’s Complaint 10 Plaintiff alleges that Butte County Jail kitchen and Sheriff’s Department are poisoning his foot with snake venom, “injecting poison into his food, fruit and food trays, and now plaintiff is “pissing blood and throwing up poisonous chemicals.” (ECF No. 1 at 3.) Plaintiff also claims he is being denied medical care. Plaintiff names at least 16 defendants, but fails to include charging allegations as to each named defendant. Rather, plaintiff appended a laundry list of individuals named as defendants. (ECF No. 1 at 7.)

16 IV. Discussion 17 Plaintiff was previously informed that his allegations that Butte County jail staff are poisoning his food and food trays with snake venom are implausible and far-fetched (ECF No. 11 at 4), and therefore should not be included in any amended complaint. That said, if jail staff are refusing to provide plaintiff with medical care for his serious medical needs, plaintiff is advised of the following standards governing such claims.

22 A. Pretrial Detainees 23 If plaintiff is a pretrial detainee awaiting trial, the following standards govern: 24 A claim of inadequate medical attention by a detainee is based on the Fourteenth Amendment and evaluated under the deliberate indifference standard. See City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983). Courts analyze inadequate medical care claims like other conditions-of-confinement claims, including failure to protect. Gordon v. County of Orange, 888 F.3d 1118, 1123-24 (9th Cir. 2018). The Court of Appeals for the Ninth Circuit identifies the “elements of a pretrial detainee’s Fourteenth Amendment failure-to-protect claim against an individual officer” as follows: 3 (1) The defendant made an intentional decision with respect to the conditions under which the plaintiff was confined; (2) Those conditions put the plaintiff at substantial risk of suffering 5 serious harm; 6 (3) The defendant did not take reasonable available measures to abate that risk, even though a reasonable officer in the circumstances 7 would have appreciated the high degree of risk involved -- making the consequences of the defendant’s conduct obvious; and (4) By not taking such measures, the defendant caused the plaintiff’s 9 injuries.

10 Castro v. County of Los Angeles, 833 F.3d 1060, 1071 (9th Cir. 2016). In addition, “[w]ith respect to the third element, the defendant’s conduct must be objectively unreasonable, a test that will necessarily turn on the ‘facts and circumstances of each particular case.’” Id., citing Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015) (quoting Graham v. Connor, 490 U.S. 14 386, 396 (1989). Pretrial detainees do not have to prove that prison officials who allegedly administered subpar medical treatment were subjectively aware of the medical risk; instead, plaintiffs need only show that the misconduct was objectively unreasonable. Id.; Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473-74 (2015). However, a plaintiff must prove more than mere negligence, or the lack of due care, to prove an intentional deprivation under this standard.

19 Daniels v. Williams, 474 U.S. 327, 330-31 (1986).

20 B. Convicted Prisoner 21 If plaintiff has been convicted, the following standards govern a medical Eighth Amendment claim.

23 In order to state a claim under the Eighth Amendment regarding medical care, plaintiff must allege and prove that he suffered a sufficiently serious deprivation (the objective prong of the claim) and that officials acted with deliberate indifference in allowing or causing the deprivation to occur (the subjective prong of the claim). Wilson v. Seiter, 501 U.S. 294, 298-99 (1991). Thus, when a prisoner’s Eighth Amendment claim arises in the context of medical care, the prisoner must allege and prove “acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976).

2 A viable Eighth Amendment medical claim states two elements: “the seriousness of the prisoner’s medical need and the nature of the defendant’s response to that need.” McGuckin v. 4 Smith, 974 F.2d 1050, 1059 (9th Cir. 1991), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc). A medical need is serious “if the failure to treat the prisoner’s condition could result in further significant injury or the ‘unnecessary and wanton infliction of pain.’” McGuckin, 974 F.2d at 1059 (quoting Estelle, 429 U.S. at 104). Indications of a serious medical need include “the presence of a medical condition that significantly affects an individual’s daily activities.” Id. at 1059-60. By establishing the existence of a serious medical need, a prisoner satisfies the objective requirement for proving an Eighth Amendment violation. Farmer v. Brennan, 511 U.S. 825, 834 (1994). If a prisoner establishes the existence of a serious medical need, he must then show that prison officials responded to it with deliberate indifference. Farmer, 511 U.S. at 834. In general, a prisoner may show deliberate indifference with evidence that officials denied, delayed, or intentionally interfered with medical treatment, or he may show it by the way in which prison officials actively provided medical care. Hutchinson v. United States, 838 F.2d 390, 393-94 (9th Cir. 1988).

17 “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). “Under this standard, the prison official must not only ‘be aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists,’ but that person ‘must also draw the inference.’” Id. at 1057 (quoting Farmer, 511 U.S. at 837). “‘If a prison official should have been aware of the risk, but was not, then the official has not violated the Eighth Amendment, no matter how severe the risk.’” Id. (quotation omitted). “A showing of medical malpractice or negligence is insufficient to establish a constitutional deprivation under the Eighth Amendment.” Id. at 1060. “[E]ven gross negligence is insufficient to establish a constitutional violation.” Id. (citing Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990)).

26 “A difference of opinion between a prisoner-patient and prison medical authorities regarding treatment does not give rise to a § 1983 claim.” Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981) (internal citation omitted). To prevail, a plaintiff “must show that the course of treatment the doctors chose was medically unacceptable under the circumstances . . . and . . . that they chose this course in conscious disregard of an excessive risk to plaintiff’s health.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (internal citations omitted).

4 C. Naming Defendants 5 The Civil Rights Act under which this action was filed provides as follows: 6 Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation 7 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, 8 or other proper proceeding for redress.

9 42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See Monell v. Department of Social Servs., 436 U.S. 658 (1978) (“Congress did not intend § 1983 liability to attach where . . . causation [is] absent.”); Rizzo v. Goode, 423 U.S. 362 (1976) (no affirmative link between the incidents of police misconduct and the adoption of any plan or policy demonstrating their authorization or approval of such misconduct). “A person ‘subjects’ another to the deprivation of a constitutional right, within the meaning of § 1983, if he does an affirmative act, participates in another’s affirmative acts or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 18 F.2d 740, 743 (9th Cir. 1978).

19 Moreover, supervisory personnel are generally not liable under § 1983 for the actions of their employees under a theory of respondeat superior and, therefore, when a named defendant holds a supervisorial position, the causal link between him and the claimed constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979) (no liability where there is no allegation of personal participation); Mosher v. Saalfeld, 589 F.2d 24 438, 441 (9th Cir. 1978) (no liability where there is no evidence of personal participation), cert. denied, 442 U.S. 941 (1979). Vague and conclusory allegations concerning the involvement of official personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 27 F.2d 266, 268 (9th Cir. 1982) (complaint devoid of specific factual allegations of personal participation is insufficient).

1 Plaintiff is cautioned that he must include charging allegation as to each individual named as a defendant, but should only include individuals who are directly linked or connected to the constitutional violation alleged.

4 V. Leave to Amend 5 The court finds the allegations in plaintiff’s complaint so vague and conclusory that it is unable to determine whether the current action is frivolous or fails to state a claim for relief. The court has determined that the complaint does not contain a short and plain statement as required by Fed. R. Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible pleading policy, a complaint must give fair notice and state the elements of the claim plainly and succinctly. Jones v. Cmty. Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least some degree of particularity overt acts which defendants engaged in that support plaintiff's claim.

12 Id. Because plaintiff has failed to comply with the requirements of Fed. R. Civ. P. 8(a)(2), the complaint must be dismissed. The court will, however, grant leave to file an amended complaint.

14 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions about which he complains resulted in a deprivation of plaintiff’s constitutional rights. See e.g., West v. Atkins, 487 U.S. 42, 48 (1988). Also, the complaint must allege in specific terms how each named defendant is involved. Rizzo v. Goode, 423 U.S. 362, 371 (1976). There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a defendant’s actions and the claimed deprivation. Rizzo, 423 U.S. at 371; May v. Enomoto, 633 20 F.2d 164, 167 (9th Cir. 1980). Furthermore, vague and conclusory allegations of official participation in civil rights violations are not sufficient. Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

23 In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended complaint be complete in itself without reference to any prior pleading. This requirement exists because, as a general rule, an amended complaint supersedes the original complaint. See Ramirez v. County of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) (“an ‘amended complaint supersedes the original, the latter being treated thereafter as non-existent.’” (internal citation | omitted)). Once plaintiff files an amended complaint, the original pleading no longer serves any | function in the case. Therefore, in an amended complaint, as in an original complaint, each claim | and the involvement of each defendant must be sufficiently alleged.

4 In accordance with the above, IT IS HEREBY ORDERED that: 5 1. Plaintiffs request for leave to proceed in forma pauperis is granted.

6 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff | is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. | § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the | Sheriff of Butte County filed concurrently herewith.

11 3. Plaintiff's complaint is dismissed.

12 4. Within thirty days from the date of this order, plaintiff shall complete the attached | Notice of Amendment and submit the following documents to the court: 14 a. The completed Notice of Amendment; and 15 b. An original and one copy of the Amended Complaint.

16 | Plaintiff's amended complaint shall comply with the requirements of the Civil Rights Act, the | Federal Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint must | also bear the docket number assigned to this case and must be labeled “Amended Complaint.”

19 Failure to file an amended complaint in accordance with this order may result in the | dismissal of this action.

21 | Dated: January 29, 2020 2 Aectl Aharon 23 KENDALL J. NE /eolb2308.14new.kjn UNITED STATES MAGISTRATE JUDGE 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA ORRIN TYLER COLBOURN, No. 2:19-cv-2308 JAM KJN P 12 Plaintiff, 13 v. NOTICE OF AMENDMENT DONE, et al., 15 Defendant.

17 Plaintiff hereby submits the following document in compliance with the court's order filed______________.

19 _____________ Amended Complaint DATED: 21 ________________________________ Plaintiff