(PC) Jones v. Shute

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA MARCELL JONES, No. 2:22-cv-1384 DB P 12 Plaintiff, 13 v. ORDER MICHELLE SHUTE, et al., 15 Defendants.

17 Plaintiff, a state prisoner proceeding pro se, has filed a civil rights action under 42 U.S.C. § 1983. Before the court are plaintiff’s complaint for screening and plaintiff’s motion to proceed in forma pauperis. For the reasons set forth below, this court grants plaintiff’s motion to proceed in forma pauperis and finds plaintiff states no cognizable claims for relief. The complaint will be dismissed with leave to file an amended complaint.

22 IN FORMA PAUPERIS 23 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. §1915(a). Accordingly, the request to proceed in forma pauperis will be granted.

25 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 for monthly payments of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account.

3 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. § 5 1915(b)(2).

6 SCREENING I. Legal Standards 8 The court is required to screen complaints brought by parties proceeding in forma pauperis. See 28 U.S.C. § 1915(e)(2); see also Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc). The court must dismiss a complaint or portion thereof if the party 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. See 28 13 U.S.C. § 1915(e)(2).

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

15 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 where 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 Franklin, 745 F.2d at 1227. 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. 23 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

24 However, 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. In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 1 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

3 II. Analysis 4 A. Plaintiff’s Allegations 5 Plaintiff is incarcerated at the California Medical Facility (“CMF”). He complains of conduct that occurred there starting in 2019. Plaintiff identifies three defendants: Michelle Shute, a primary care provider; Traci Patterson, “CCHP Chief Executive Officer;” and “CDCR Healthcare Admin, Healthcare Oversight.”

9 Plaintiff alleges the following. In October 2019 he suffered a severe back injury that caused temporary paralysis and a “subsequent knee injury from the fall.” For the next two years, plaintiff complained, apparently to defendant Shute, about progressing pain, numbness and lack of mobility. However, Shute only treated plaintiff’s “non-emergency” knee injury.

13 In August 2021, plaintiff again experienced temporary paralysis from the back injury. An MRI showed several issues which required emergency surgery. Plaintiff is now going through physical rehabilitation and requires a walker. Plaintiff alleges he had complained to CCHP and Healthcare Administration but neither took action to help him.

17 Plaintiff contends the delay in treatment caused his back injury to worsen, requiring surgery.

19 B. Does Plaintiff State Claims for Relief?

20 Several of plaintiff’s allegations may, with more information, state claims under the Civil Rights Act, 42 U.S.C. § 1983. The Civil Rights Act provides as follows: 22 Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation 23 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, 24 or other proper proceeding for redress.

25 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. Dept. of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). “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.”

3 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

4 Plaintiff may be able to state a claim that defendants Shute and Patterson were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment. To state that claim, plaintiff must allege specific facts showing that he had a serious medical need and that each defendant responded to that need with deliberate indifference. 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 (9th Cir. 1997) (en banc).

10 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. 16 825, 834 (1994).

17 If a prisoner establishes the existence of a serious medical need, he must then show that prison officials responded to the serious medical need with deliberate indifference. See Farmer, 511 U.S. at 834. In general, deliberate indifference may be shown when prison officials deny, delay, or intentionally interfere with medical treatment, or may be shown by the way in which prison officials provide medical care. Hutchinson v. United States, 838 F.2d 390, 393-94 (9th Cir. 1988).

23 Delays in providing medical care may manifest deliberate indifference. Estelle, 429 U.S. 24 at 104-05. To establish a claim of deliberate indifference arising from delay in providing care, a plaintiff must show that the delay was harmful. See Hallett v. Morgan, 296 F.3d 732, 745-46 (9th Cir. 2002); Berry v. Bunnell, 39 F.3d 1056, 1057 (9th Cir. 1994); McGuckin, 974 F.2d at 1059; Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir. 1990); Hunt v. Dental Dep't, 865 F.2d 198, 200 (9th Cir. 1989); Shapley v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985). In this regard, “[a] prisoner need not show his harm was substantial; however, such would provide additional support for the inmate's claim that the defendant was deliberately indifferent to his needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006).

4 In his complaint, plaintiff fails to specifically allege what Shute and Patterson knew and did or did not do. Rather, plaintiff generally states that defendant Shute failed to treat his complaints of back pain and defendant Patterson was made aware of plaintiff’s complaints but failed to do anything to help him. Plaintiff must show allege facts showing just how Shute knew about plaintiff’s back problems, when plaintiff was treated by Shute, and what Shute said or did regarding plaintiff’s complaints about his back.

10 With respect to defendant Patterson, plaintiff must explain how Patterson was made aware of plaintiff’s back problems and of Shute’s failure to address them. Plaintiff must then explain how Patterson could have helped him. If plaintiff is alleging Patterson denied plaintiff’s administrative appeals, plaintiff is advised that, generally, denying a prisoner’s administrative appeal does not cause or contribute to the underlying violation. See George v. Smith, 507 F.3d 15 605, 609 (7th Cir. 2007); Hernandez v. Cate, 918 F. Supp. 2d 987, 1018 (C.D. Cal. 2013). A defendant who reviewed plaintiff’s appeals is only liable if plaintiff demonstrates that the defendant denying the appeal had the ability to help plaintiff and that denial of the appeal caused him further injury.

19 Finally, the California Department of Corrections and Rehabilitation’s “Health Care Administration” is not an appropriate defendant. The Health Care Administration is not a person.

21 The Civil Rights Act under which this action was filed provides for suit only against a “person” acting “under color of” state law. 42 U.S.C. § 1983; see also Chudacoff v. Univ. Med. Ctr. of S. 23 Nev., 649 F.3d 1143, 1149-50 (9th Cir. 2011) Plaintiff must identify a person in the Health Care Administration who took actions, or failed to take actions, that violated his Eighth Amendment rights.

26 CONCLUSION 27 Above, this court finds plaintiff fails to state any claims for relief. Plaintiff will be given an opportunity to amend the complaint.

1 In an amended complaint, plaintiff must address the problems with his complaint that are explained above. Plaintiff is advised that in an amended complaint he must clearly identify each defendant and the action that defendant took that violated plaintiff’s constitutional rights. The court is not required to review exhibits or other filings to determine what plaintiff’s charging allegations are as to each named defendant. Plaintiff must include ALL claims he wishes to pursue in one amended complaint. In the present order, as a one-time courtesy to plaintiff, this court has reviewed all of plaintiff’s filings to attempt to determine his claims. The court is not required to do so and this court will only consider the amended complaint next time.

9 Plaintiff must identify as a defendant only persons who personally participated in a substantial way in depriving plaintiff of a federal constitutional right. Johnson v. Duffy, 588 F.2d 11 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a constitutional right if he does an act, participates in another’s act or omits to perform an act he is legally required to do that causes the alleged deprivation). “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) (citations omitted).

16 In an amended complaint, the allegations must be set forth in numbered paragraphs. Fed. R. Civ. P. 10(b). Plaintiff may join multiple claims if they are all against a single defendant. Fed. R. Civ. P. 18(a). If plaintiff has more than one claim based upon separate transactions or occurrences, the claims must be set forth in separate paragraphs. Fed. R. Civ. P. 10(b).

20 Plaintiff may not bring claims against different defendants that are not related to each other. Fed. R. Civ. P. 20(a)(2). “[M]ultiple 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.” George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (citing 28 U.S.C. § 1915(g)). Simply alleging a “conspiracy” does not transform unrelated claims into related claims.

26 The federal rules require a simple description of a party’s claims. Plaintiff’s claims must be set forth in short and plain terms, simply, concisely and directly. See Swierkiewicz v. Sorema //// | N.A., 534 US. 506, 514 (2002) (“Rule 8(a) is the starting point of a simplified pleading system, | which was adopted to focus litigation on the merits of a claim.”); Fed. R. Civ. P. 8.

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

4 | E.D. Cal. R. 220. Once plaintiff files an amended complaint, the original pleading is superseded.

5 | By signing an amended complaint, plaintiff certifies he has made reasonable inquiry and has | evidentiary support for his allegations, and for violation of this rule the court may impose | sanctions sufficient to deter repetition by plaintiff or others. Fed. R. Civ. P. 11.

8 For the foregoing reasons, and good cause appearing, IT IS HEREBY ORDERED as | follows: 10 1. Plaintiffs motion to proceed in forma pauperis (ECF No. 2) is granted.

11 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. 13 § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the | Director of the California Department of Corrections and Rehabilitation filed concurrently | herewith.

16 3. Plaintiff's complaint (ECF No. 1) is dismissed with leave to amend.

17 4. Plaintiff is granted sixty days from the date of service of this order to file an amended | complaint that complies with the requirements of the Federal Rules of Civil Procedure and the | Local Rules of Practice. The amended complaint must bear the docket number assigned this case | and must be labeled “First Amended Complaint.” Failure to file an amended complaint in | accordance with this order may result in a recommendation that this action be dismissed.

22 5. The Clerk of the Court is directed to send plaintiff a copy of the prisoner complaint | form used in this district.

24 | Dated: August 30, 2022 || DLB:9/DB prisoner inbox/civil rights/S/jone1384.scrn LTA □□ □□ ea the nPAGISTRATE TUDGE