(PC) Padilla v. Patel

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA

11 LARRY D. PADILLA, 1:19-cv-00837-NONE-GSA-PC 12 Plaintiff, SCREENING ORDER 13 vs. ORDER DISMISSING COMPLAINT FOR VIOLATION OF RULE 18, WITH DR. PATEL, et al., LEAVE TO AMEND 15 Defendants. ORDER FOR PLAINTIFF TO FILE A FIRST AMENDED COMPLAINT THIRTY-DAY DEADLINE I. BACKGROUND 20 Larry D. Padilla (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis with this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on June 14, 2019. (ECF No. 1.) The Complaint is now before the court for screening. 28 U.S.C. § 1915.

24 II. SCREENING REQUIREMENT 25 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).

2 “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that the action or appeal fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

5 A complaint is required to contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). To state a viable claim, Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). While factual allegations are accepted as true, legal conclusions are not. Id. The mere possibility of misconduct falls short of meeting this plausibility standard. Id. III. SUMMARY OF COMPLAINT 18 Plaintiff is presently incarcerated at Valley State Prison in Chowchilla, California. The events in the Complaint allegedly took place at Avenal State Prison in Avenal, California, when Plaintiff was incarcerated there in the custody of the California Department of Corrections and Rehabilitation. Plaintiff names as defendants Dr. Patel and P.A (Physician’s Assistant) Hitchman (collectively, “Defendants”).

23 Dr. Patel - Allegations 24 A summary of Plaintiff’s allegations follows: 25 On June 26, 2018, Plaintiff was seen by defendant Dr. Patel for about 90 seconds, just long enough to be told his eggcrate mattress would be taken away from him. Dr. Patel knew that Plaintiff needed his mattress but due to a 602 prison grievance filed by Plaintiff after R&R took the mattress in the first place, Dr. Patel took away Plaintiff’s right to have the mattress without any medical data to support his decision. Dr. Patel has a responsibility to review Plaintiff’s medical file to be alerted why Plaintiff was issued health care appliances and what sort of chronic conditions Plaintiff is being treated for. Dr. Patel took away Plaintiff’s eggcrate mattress knowing that Plaintiff suffers from chronic back and knee pain. Plaintiff alleges that his pain has increased.

6 Physician’s Assistant Hitchman - Allegations 7 On December 7, 2018, Plaintiff filed a staff complaint against defendant Physician’s Assistant Hitchman for violating Plaintiff’s Eighth Amendment rights. Two weeks later, when defendant Hitchman found out about the staff complaint, he acted in retaliation against Plaintiff arranging for custody staff to come and take Plaintiff’s orthopedic boots, which Plaintiff had paid for and were to be permanent. Plaintiff wore the boots to relieve severe pain in his knees and back. Plaintiff was retaliated against by defendant Hitchman because Plaintiff exercised his rights to file a staff complaint.

14 On December 17, 2018, Plaintiff was seen by defendant Hitchman. Plaintiff told Hitchman about the severe pain in his knee which would become really pronounced when Plaintiff’s knee moved side to side as Plaintiff walked from his building to the chow hall or to medical appointments. Defendant Hitchman, who is not qualified to make an orthopedic diagnosis, roughly grabbed Plaintiff’s leg forcing Plaintiff’s knee from side to side, causing Plaintiff to scream out in pain. Then, Plaintiff’s cane was taken away and he was told there was nothing wrong with his knee. He was also told that if he went “man down,” he would be written up for it.

22 Defendant Hitchman acted deliberately knowing that Plaintiff had a severe issue with knee pain, which was written in Plaintiff’s medical file. Hitchman knew he should have referred Plaintiff to the doctor for follow-up because Hitchman knew he was not qualified to diagnosis Plaintiff’s knee condition. Plaintiff was left without any form of support to take the weight off his knees and now suffers severe pain when he walks.

27 Relief Requested 28 As relief, Plaintiff requests monetary damages (compensatory and punitive), and reasonable attorney’s fees.

2 IV. PLAINTIFF’S CLAIMS 3 The Civil Rights Act under which this action was filed provides: 4 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to 5 be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities 6 secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .

8 42 U.S.C. § 1983.

9 “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see also Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los Angeles, 697 F.3d 13 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 2012); Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). “To the extent that the violation of a state law amounts to the deprivation of a state-created interest that reaches beyond that guaranteed by the federal Constitution, Section 1983 offers no redress.” Id. 17 To state a claim under § 1983, a plaintiff must allege that (1) the defendant acted under color of state law and (2) the defendant deprived him or her of rights secured by the Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); see also Marsh v. Cnty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing “under color of state law”). A person deprives another of a constitutional right, “within the meaning of § 1983, ‘if he does an affirmative act, participates in another’s affirmative act, or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made.’”

24 Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite causal connection may be established when an official sets in motion a ‘series of acts by others which the actor knows or reasonably should know would cause others to inflict’ constitutional harms.” Preschooler II, 479 F.3d at 1183 (quoting Johnson, 588 F.2d at 743). This standard of causation “closely resembles the standard ‘foreseeability’ formulation of proximate cause.” Arnold v. Int’l Bus. Mach. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981); see also Harper v. City of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008).

4 A. Violation of Rule 18 of the Federal Rules of Civil Procedure 5 Plaintiff alleges multiple claims in the Complaint that are largely unrelated. Plaintiff may not proceed in one action on a myriad of unrelated claims against different staff members. “The controlling principle appears in Fed. R. Civ. P. 18(a): ‘A party asserting a claim to relief as an original claim, counterclaim, cross-claim, or third-party claim, may join, either as independent or as alternate claims, as many claims, legal, equitable, or maritime, as the party has against an opposing party.’ Thus multiple claims against a single party are fine, but Claim A against Defendant 1 should not be joined with unrelated Claim B against Defendant 2. Unrelated claims against different defendants belong in different suits, not only to prevent the sort of morass [a multiple claim, multiple defendant] suit produce[s], but also to ensure that prisoners pay the required filing fees-for the Prison Litigation Reform Act limits to 3 the number of frivolous suits or appeals that any prisoner may file without prepayment of the required fees. 28 U.S.C. § 16 1915(g).” George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).

17 In this instance, Plaintiff’s Complaint describes two unrelated events: (1) In June 2018, Dr. Patel took away Plaintiff’s eggcrate mattress; and (2) In December 2018, Physician’s Assistant Hitchman took away Plaintiff’s cane and told him there was nothing wrong with his knees.

21 Claims are not related simply because they concern Plaintiff’s medical treatment or retaliation. Plaintiff will not be permitted to pursue unrelated claims in this single action.

23 Plaintiff shall be granted leave to amend the Complaint and choose to proceed on only one of his claims. In amending, Plaintiff should determine which of the claims he wishes to pursue and re- allege those claims only. Plaintiff must choose whether to proceed with his claims against Dr. Patel, or with his claims against P.A. Hitchman.

1 If Plaintiff wishes to proceed with both claims, he can file a new case addressing the claims that he does not bring in this case. If Plaintiff’s First Amended Complaint also violates Rule 18(a) despite this admonition, the Court will decide which claims shall proceed.

4 In the paragraphs that follow, the court shall set forth the legal standards for the claims it appears Plaintiff wishes to bring.

6 B Legal Standards 7 1. Medical Claim – Eighth Amendment Claim 8 “[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two-part test for deliberate indifference requires the plaintiff to show (1) “‘a serious medical need’ by demonstrating that ‘failure to treat a prisoner’s condition could result in further significant injury or the unnecessary and wanton infliction of pain,’” and (2) “the defendant’s response to the need was deliberately indifferent.” Jett, 439 F.3d at 1096 (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc) (internal quotations omitted)). Deliberate indifference is shown by “a purposeful act or failure to respond to a prisoner’s pain or possible medical need, and harm caused by the indifference.” Id. (citing McGuckin, 974 F.2d at 1060). Deliberate indifference may be manifested “when prison officials deny, delay or intentionally interfere with medical treatment, or it may be shown by the way in which prison physicians provide medical care.” Id. Where a prisoner is alleging a delay in receiving medical treatment, the delay must have led to further harm in order for the prisoner to make a claim of deliberate indifference to serious medical needs. Id. at 1060 (citing Shapely v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985)).

25 “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 v. Brennan, 511 U.S. 1 825, 837 (1970). “‘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. (quoting Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)). “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)).

7 “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 . . .

11 that they chose this course in conscious disregard of an excessive risk to plaintiff’s health.”

12 Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (internal citations omitted).

13 2. Retaliation – First Amendment Claim 14 Allegations of retaliation against a prisoner’s First Amendment rights to speech or to petition the government may support a 1983 claim. Rizzo v. Dawson, 778 F.2d 5527, 532 (9th Cir. 1985); see also Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989); Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995). “Within the prison context, a viable claim of First Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005); accord Watison v. Carter, 668 F.3d 1108, 1114-15 (9th Cir. 2012); Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009).

24 An allegation of retaliation against a prisoner’s First Amendment right to file a prison grievance is sufficient to support a claim under section 1983. Bruce v. Ylst, 351 F.3d 1283, 1288 (9th Cir. 2003). The Court must “‘afford appropriate deference and flexibility’ to prison officials in the evaluation of proffered legitimate penological reasons for conduct alleged to be retaliatory.” Pratt, 65 F.3d at 807 (9th Cir. 1995) (quoting Sandin v. Conner, 515 U.S. 472, 482 (1995)). The burden is on Plaintiff to demonstrate “that there were no legitimate correctional purposes motivating the actions he complains of.” Pratt, 65 F.3d at 808.

3 V. CONCLUSION AND ORDER 4 For the reasons set forth above, the court finds that Plaintiff’s Complaint violates Rule 18 of the Federal Rules of Civil Procedure. Under Rule 15(a) of the Federal Rules of Civil Procedure, “[t]he court should freely give leave to amend when justice so requires.” The court shall dismiss the Complaint for violation of Rule 18, with leave to amend.

8 Plaintiff is granted leave to file an amended complaint within thirty days. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). To cure the Rule 18 deficiency in the Complaint, Plaintiff must choose to proceed with only one of his unrelated claims: (1) against defendant Dr. Patel, or (2) against defendant Hitchman. Plaintiff may not proceed with unrelated claims in the amended complaint.

13 The amended complaint should be brief, Fed. R. Civ. P. 8(a), but must state what each named defendant did that led to the deprivation of Plaintiff’s constitutional or other federal rights, Iqbal, 556 U.S. at 678; Jones v. Williams, 297 F.3d. 930, 934 (9th Cir. 2002). Plaintiff must set forth “sufficient factual matter . . . to ‘state a claim that is plausible on its face.’” Iqbal at 678 (quoting Twombly, 550 U.S. at 555). There is no respondeat superior liability, and each defendant is only liable for his or her own misconduct. Iqbal, 556 U.S. at 677. Plaintiff must demonstrate that each defendant personally participated in the deprivation of his rights. Jones, 297 F.3d at 934 (emphasis added). Plaintiff should note that although he has been given the opportunity to amend, it is not for the purpose of adding new defendants for unrelated issues.

22 Plaintiff should also note that he has not been granted leave to add allegations of events occurring after the initiation of this suit on June 14, 2019.

24 Plaintiff is advised that an amended complaint supercedes the original complaint, Lacey v. Maricopa County, 693 F.3d 896, 907 n.1 (9th Cir. 2012), and it must be complete in itself without reference to the prior or superceded pleading. Local Rule 220. Once an amended complaint is filed, the original complaint 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. The amended complaint should be clearly and boldly titled “First Amended Complaint,” refer to the appropriate case number, and be an original signed under penalty of perjury.

4 Based on the foregoing, IT IS HEREBY ORDERED that: 5 1. Plaintiff’s Complaint, filed on June 14, 2019, is DISMISSED for violation of Rule 6 18, with leave to amend; 7 2. The Clerk’s Office shall send Plaintiff a civil rights complaint form; 8 3. Within thirty (30) days from the date of service of this order, Plaintiff shall file 9 a First Amended Complaint either against defendant Dr. Patel, or against 10 defendant Hitchman; 11 4. Plaintiff shall caption the amended complaint “First Amended Complaint” and 12 refer to the case number 1:19-cv-00837-NONE-GSA-PC; and 13 5. Plaintiff’s failure to comply with this order shall result in a recommendation that 14 this case be dismissed.

IT IS SO ORDERED.

17 Dated: August 21, 2020 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE