1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL GADDY, No. 2:16-cv-2269 JAM AC P 12 Plaintiff, 13 v. ORDER 14 E. MOGHADDAM, et al., 15 Defendants. 16 17 I. Introduction 18 Plaintiff is a California inmate under the authority of the California Department of 19 Corrections and Rehabilitation (CDCR). Plaintiff proceeds pro se with a complaint filed pursuant 20 to 42 U.S.C. § 1983, and a request for leave to proceed in forma pauperis filed pursuant to 28 21 U.S.C. § 1915. The complaint challenges medical care that plaintiff received while incarcerated 22 at California State Prison - Sacramento.1 23 This action is referred to the undersigned United States Magistrate Judge pursuant to 28 24 U.S.C. § 636(b)(1)(B) and Local Rule 302(c). For the following reasons, plaintiff's request to 25 proceed in forma pauperis is granted. On screening pursuant to 28 U.S.C. § 1915A(a), the court 26 finds that plaintiff’s Claims One through Three (alleging deliberate indifference to plaintiff’s 27

28 1 Plaintiff is presently incarcerated at Pelican Bay State Prison. 1 broken hand by defendants Moghaddam, Spilman, Relano, Poppachan, Cho and Lim) adequate 2 for service, but that Claim Four fails to state a claim. Plaintiff will be given the choice of (1) 3 proceeding forthwith on Claims One through Three and dismissing Claim Four, or (2) amending 4 his complaint to attempt to state a claim against defendants Burnett, Lacy and Crum. 5 II. In Forma Pauperis Application 6 Plaintiff has submitted an affidavit and prison trust account statement that make the 7 showing required by 28 U.S.C. § 1915(a). See ECF No. 2. Accordingly, plaintiff's request to 8 proceed in forma pauperis will be granted. 9 Plaintiff must nevertheless pay the statutory filing fee of $350.00 for this action. 28 10 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee 11 in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will 12 direct the appropriate agency to collect the initial partial filing fee from plaintiff's trust account 13 and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated to make monthly 14 payments of twenty percent of the preceding month's income credited to plaintiff's trust account. 15 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time 16 the amount in plaintiff's account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 17 1915(b)(2). 18 III. Screening of the Complaint 19 A. Legal Standards for Screening Prisoner Civil Rights Complaints 20 The court is required to screen complaints brought by prisoners seeking relief against a 21 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 22 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 23 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 24 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 25 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. 26 Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 27 1984). 28 //// 1 Rule 8 of the Federal Rules of Civil Procedure “requires only ‘a short and plain statement 2 of the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair 3 notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic Corp. v. 4 Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). “T]he 5 pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it demands 6 more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 7 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). To survive dismissal for failure 8 to state a claim, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a 9 claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. 10 at 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows the 11 court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. 12 “A document filed pro se is ‘to be liberally construed,’ and ‘a pro se complaint, however 13 inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by 14 lawyers.’” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 15 106 (1976) (internal quotation marks omitted)). See also Fed. R. Civ. P. 8(e) (“Pleadings shall be 16 so construed as to do justice.”). Additionally, a pro se litigant is entitled to notice of the 17 deficiencies in the complaint and an opportunity to amend, unless the complaint’s deficiencies 18 cannot be cured by amendment. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987). 19 B. Plaintiff’s Allegations 20 Defendants Dr. Maghaddam and Nurses Spilman, Relano, Poppachan, Cho and Lim were 21 medical providers at CSP-SAC at the time of the events described in the complaint; Dr. 22 Maghaddam was plaintiff’s primary care physician. Plaintiff broke his hand on May 27, 2016, 23 when he fell from his bunk. The injury caused excruciating pain. An X-ray taken on June 2, 24 2016 revealed an acute and displaced fracture of the second metacarpal. Plaintiff was referred on 25 an “urgent” basis to see “ortho.” He was not taken to San Joaquin General Hospital to see 26 “ortho” until June 16, 2016. In the interim, Dr. Maghaddam and the nurse defendants ignored 27 plaintiff’s many requests for adequate pain relief and to be seen promptly by ortho. After 28 plaintiff’s return from the hospital, Dr. Maghaddam and the nurse defendants continued to ignore 1 plaintiff’s written and oral requests to for adequate pain relief, resulting in severe pain and 2 suffering. For approximately two months after his accident, plaintiff’s hand remained 3 “deformed” by the displaced broken bone, and he was unable to tie his shoes, exercise, or wash 4 his clothes. Following surgery on July 21, 2016, which involved the placement of a metal plate 5 and screws in his hand, plaintiff experienced finger numbness and continued extreme pain. 6 Defendants continued to ignore his complaints. Plaintiff’s pain was inadequately treated by the 7 defendants until August 25, 2016, when effective pain medication was finally prescribed by the 8 outside hospital. 9 Plaintiff alleges that defendants Burnett, Lacy and Crum, who were appeals coordinators, 10 failed to respond to two emergency grievances against Dr. Maghaddam and the nurse defendants. 11 Plaintiff contends that the appeals coordinators failed to investigate his claims, and retaliated 12 against him by interfering with the processing of his medical grievances. 13 C. Claims for Which a Response Will Be Required 14 Plaintiff’s first three claims allege that the doctor and nurse defendants were deliberately 15 indifferent to his serious medical need in violation of the Eighth Amendment. Claim One lies 16 against Dr. Maghaddam and sets forth the facts specific to him. Claim Two lies against Nurse 17 Spilman and sets forth the facts specific to her. Claim Three is based on plaintiff’s interactions 18 with nurses Relano, Poppachan, Cho and Lim. 19 “[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate 20 must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091, 21 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). This requires plaintiff 22 to show (1) “a ‘serious medical need’ by demonstrating that ‘failure to treat a prisoner’s condition 23 could result in further significant injury or the unnecessary and wanton infliction of pain,’” and 24 (2) “the defendant’s response to the need was deliberately indifferent.” Id. (some internal 25 quotation marks omitted) (quoting McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992)). 26 Deliberate indifference is established only where the defendant subjectively “knows of 27 and disregards an excessive risk to inmate health and safety.” Toguchi v. Chung, 391 F.3d 1051, 28 1057 (9th Cir. 2004) (emphasis added) (citation and internal quotation marks omitted). 1 Deliberate indifference can be established “by showing (a) a purposeful act or failure to respond 2 to a prisoner’s pain or possible medical need and (b) harm caused by the indifference.” Jett, 439 3 F.3d at 1096 (citation omitted). 4 Plaintiff’s allegations regarding the broken bone in his hand, and the extreme degree of 5 resulting pain, are sufficient to demonstrate a serious medical need. The complaint alleges as to 6 each defendant named in Claims One through Three that plaintiff had directly informed them of 7 the degree of his pain and the ineffectiveness of the medication which had been provided to him, 8 which at the screening stage is sufficient to support the allegations that each acted (or failed to 9 act) with knowledge of the suffering caused or perpetuated by their actions or inactions. 10 Accordingly, these allegations are sufficient at the screening stage to state claims for deliberate 11 indifference. 12 D. Failure to State a Claim 13 In Claim Four, plaintiff alleges that on June 9 and August 15, 2016, he submitted 14 emergency medical grievances regarding the failure of the doctor and nurse defendants to 15 properly treat his broken hand and related pain. As to both grievances, plaintiff alleges in 16 conclusory fashion that appeals coordinators Crum, Burnett and Lacy failed to respond, refused to 17 investigate, and interfered with the processing of the grievances. It is unclear what actions these 18 defendants took that plaintiff construes as interfering with the grievance process, other than 19 failing to provide the remedy plaintiff sought. See generally, ECF No. 1 at 18. 20 Prisoners do not have “a separate constitutional entitlement to a specific prison grievance 21 procedure.” Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (citing Mann v. Adams, 855 22 F.2d 639, 640 (9th Cir. 1988)). Accordingly, the prison grievance procedure does not confer any 23 substantive constitutional rights upon inmates and actions in reviewing and denying inmate 24 appeals generally do not serve as a basis for liability under § 1983. Id.; George v. Smith, 507 25 F.3d 605, 609 (7th Cir. 2007) (“Ruling against a prisoner on an administrative complaint does not 26 cause or contribute to the violation.”). As the Seventh Circuit has observed: 27 Only persons who cause or participate in the violations are responsible. Ruling against a prisoner on an administrative 28 complaint does not cause or contribute to the violation. A guard who 1 stands and watches while another guard beats a prisoner violates the Constitution; a guard who rejects an administrative complaint about 2 a completed act of misconduct does not. 3 George, 507 F.3d at 609-10. 4 Under these principles, plaintiff’s allegations that defendants failed to investigate and that 5 they interfered with the grievance process cannot state a claim for relief as a matter of law. 6 Claim Four also alleges “retaliation,” but does not include facts that would be relevant to a 7 retaliation claim. As a matter of constitutional law, retaliation claims involve violations of First 8 Amendment speech rights – for example, an inmate may bring a retaliation claim where prison 9 officials respond to his complaints about them by taking adverse action. See Rhodes v. Robinson, 10 408 F.3d 559, 567-68 (9th Cir. 2005). A viable First Amendment claim for retaliation must 11 establish the following five elements: (1) an assertion that a state actor took some adverse action 12 against an inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) 13 chilled the inmate's exercise of his First Amendment rights, and (5) the action did not reasonably 14 advance a legitimate correctional goal. Id. at 567-68. The facts set forth in this complaint do not 15 support a retaliation claim. 16 Although interference with or denial of an inmate grievance does not support a claim for 17 relief, the court notes that prison administrators cannot willfully turn a blind eye to constitutional 18 violations being committed by subordinates. See Jett, 439 F.3d at 1098 (prison administrators 19 “are liable for deliberate indifference when they knowingly fail to respond to an inmate’s requests 20 for help” (citations omitted)). Accordingly, under limited circumstances, an individual who 21 denies an inmate appeal and who had the authority and opportunity to prevent an ongoing 22 constitutional violation could potentially be subject to liability if the individual knew about an 23 existing or impending violation and failed to prevent it. 24 Claim Four does not contain facts that would support liability under this theory. The 25 exact role of defendants Crum, Burnett and Lacy is unclear. For example, the complaint does not 26 specify whether these individuals are medical professionals or whether they were in a position to 27 countermand the decisions of medical staff about what pain medication to prescribe and what 28 treatment to provide. 1 The undersigned does not have enough information to determine whether amendment of 2 this claim would be futile. Because it is conceivable that plaintiff could present additional facts 3 that would support a claim against these defendants (although not as to their failure to investigate 4 or interference with his grievances), he will be given the option to amend his complaint as to 5 Claim Four. Plaintiff should carefully consider the legal standards set forth above in determining 6 whether to attempt to state a claim against the appeals coordinators. 7 IV. Optional Leave to Amend 8 For the reasons set forth above, the court finds that the complaint does not state a 9 cognizable claim against defendants Crum, Burnett and Lacy. 10 Plaintiff may proceed forthwith to serve defendants Moghaddam, Spilman, Relano, 11 Poppachan, Cho and Lim, or he may delay serving any defendant and amend the complaint to 12 address the deficiencies in Claim Four. 13 Plaintiff will be required to complete and return the attached notice advising the court how 14 he wishes to proceed. If plaintiff chooses to amend the complaint, he will be given thirty days to 15 file an amended complaint. If plaintiff elects to proceed on his deliberate indifference claims 16 against defendants Moghaddam, Spilman, Relano, Poppachan, Cho and Lim (Claims One through 17 Three) without amending the complaint, the court will proceed to serve the complaint on those 18 defendants. A decision to go forward without amending the complaint will be considered a 19 voluntarily dismissal without prejudice of the claims against defendants Crum, Burnett and Lacy. 20 If plaintiff chooses to file an amended complaint, he must demonstrate how the matters 21 about which he complains resulted in a deprivation of his constitutional rights. Rizzo v. Goode, 22 423 U.S. 362, 370-71 (1976). Also, the complaint must allege in specific terms how each named 23 defendant is involved. Arnold v. Int’l Bus. Machs. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981). 24 There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or 25 connection between a defendant’s actions and the claimed deprivation. Id.; Johnson v. Duffy, 26 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, “[v]ague and conclusory allegations of official 27 participation in civil rights violations are not sufficient.” Ivey v. Bd. of Regents, 673 F.2d 266, 28 268 (9th Cir. 1982) (citations omitted). 1 Plaintiff is also informed that the court cannot refer to a prior pleading in order to make 2 his amended complaint complete. Local Rule 220 requires that an amended complaint be 3 complete in itself without reference to any prior pleading. This is because, as a general rule, an 4 amended complaint supersedes the original complaint. Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 5 1967) (citations omitted), overruled in part by Lacey v. Maricopa County, 693 F.3d 896, 928 (9th 6 Cir. 2012) (claims dismissed with prejudice and without leave to amend do not have to be re-pled 7 in subsequent amended complaint to preserve appeal). Once plaintiff files an amended complaint, 8 the original complaint no longer serves any function in the case. Therefore, in an amended 9 complaint, as in an original complaint, each claim and the involvement of each defendant must be 10 sufficiently alleged. 11 V. Plain Language Summary of this Order for a Pro Se Litigant 12 Your request to proceed in forma pauperis is granted and you are not required to pay the 13 entire filing fee immediately. 14 Some of the allegations in your complaint state claims and some do not. Your deliberate 15 indifference claims against Dr. Moghaddam (Claim One), Nurse Spilman (Claim Two), and 16 nurses Relano, Poppachan, Cho and Lim (Claim Three) state claims for relief and will require an 17 answer by those defendants. Claim Four, against appeals coordinators Crum, Burnett and Lacy, 18 does not state a claim for relief because the mishandling or wrongful denial of inmate grievances 19 does not violate constitutional rights. 20 You have a choice to make. You may either (1) proceed immediately on Claims One 21 through Three and voluntarily dismiss Claim Four, or (2) try to amend the complaint. If you 22 want to go forward without amending the complaint, you will be voluntarily dismissing Claim 23 Four (and defendants Crum, Burnett and Lacy) without prejudice. In that case the court will 24 promptly order service of the complaint on the defendants named in Claims One through Three. 25 If you choose to amend your complaint, the amended complaint must include all of the claims 26 you want to make, including the ones that have already been found to state a claim, because the 27 court will not look at the claims or information in the original complaint. Any claims and 28 //// 1 | information not in the amended complaint will not be considered. If you file an amended 2 || complaint, it will also be screened prior to service. 3 You must complete the attached form showing what you want to do, and return it to the 4 | court. Once the court receives the notice, it will issue an order telling you what you need to do 5 || next (.e. file an amended complaint or wait for service to be completed). 6 VI. Conclusion 7 In accordance with the above, IT IS HEREBY ORDERED that: 8 1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 2) is granted. 9 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 10 || is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 11 | §$ 1915(¢b)C1). All fees shall be collected and paid in accordance with this court’s order to the 12 || Director of the California Department of Corrections and Rehabilitation filed concurrently 13 | herewith. 14 3. Claim Four does not state a claim for which relief can be granted. 15 4. Plaintiff has the option to proceed immediately on Claims One through Three, or to 16 || amend the complaint. 17 5. Within fourteen days of service of this order, plaintiff shall complete and return the 18 || attached form notifying the court whether he wants to proceed on the screened complaint or 19 || whether he wants to file a first amended complaint. If plaintiff does not return the form, the court 20 || will assume that he is choosing to proceed on the complaint as screened and will recommend 21 || dismissal without prejudice of Claim Four. 22 || DATED: August 28, 2019 ~ 23 Attten— Lhor—e_

ALLISON CLAIRE

24 UNITED STATES MAGISTRATE JUDGE 25 26 27 28

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL GADDY, No. :16-cv-2269 JAM AC P 12 Plaintiff, 13 v. PLAINTIFF’S NOTICE ON HOW TO

PROCEED

14 E. MOGHADDAM, et al., 15 Defendants. 16 17 Check one: 18 _____ Plaintiff wants to proceed immediately on Claims One, Two and Three against defendants 19 Moghaddam, Spilman, Relano, Poppachan, Cho and Lim, without amending the 20 complaint. Plaintiff understands that by going forward without amending the complaint 21 he is voluntarily dismissing without prejudice Claim Four against defendants Burnett, 22 Lacy and Crum. 23 _____ Plaintiff wants to amend the complaint. 24 25 DATED:_______________________

26 Michael Gaddy Plaintiff pro se 27 28