1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CLYDE A. DUDLEY, II, No. 2:17-cv-2308 MCE AC P 12 Plaintiff, 13 v. ORDER 14 LORI KOHLER, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983 and 18 has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. 19 I. Application to Proceed In Forma Pauperis 20 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. 21 § 1915(a). ECF No. 2. Accordingly, the request to proceed in forma pauperis will be granted. 22 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. 23 §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in 24 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 25 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 26 forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments 27 of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account. 28 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time 1 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. 2 § 1915(b)(2). 3 II. Statutory Screening of Prisoner Complaints 4 The court is required to screen complaints brought by prisoners seeking relief against a 5 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 6 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 7 “frivolous, malicious, or fail[] to state a claim upon which relief may be granted,” or that “seek[] 8 monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b). 9 A claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.” 10 Neitzke v. Williams, 490 U.S. 319, 325 (1989). “[A] judge may dismiss . . . claims which are 11 ‘based on indisputably meritless legal theories’ or whose ‘factual contentions are clearly 12 baseless.’” Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989) (quoting Neitzke, 490 U.S. at 13 327), superseded by statute on other grounds as stated in Lopez v. Smith, 203 F.3d 1122, 1130 14 (9th Cir. 2000). The critical inquiry is whether a constitutional claim, however inartfully pleaded, 15 has an arguable legal and factual basis. Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 16 1984) (citations omitted), abrogated on other grounds by Neitzke, 490 U.S. at 323-24 & n.3 17 (holding that a complaint that fails to state a claim is not necessarily frivolous). 18 “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the 19 claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of 20 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 21 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957). 22 “Failure to state a claim under § 1915A incorporates the familiar standard applied in the context 23 of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Wilhelm v. Rotman, 24 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). In order to survive dismissal for failure 25 to state a claim, a complaint must contain more than “a formulaic recitation of the elements of a 26 cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the 27 speculative level.” Twombly, 550 U.S. at 555 (citations omitted). “‘[T]he pleading must contain 28 something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally 1 cognizable right of action.’” Id. (alteration in original) (quoting 5 Charles Alan Wright & Arthur 2 R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)). 3 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 4 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 5 Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual 6 content that allows the court to draw the reasonable inference that the defendant is liable for the 7 misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In reviewing a complaint under this 8 standard, the court must accept as true the allegations of the complaint in question, Hosp. Bldg. 9 Co. v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976) (citation omitted), as well as construe the 10 pleading in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, 11 Jenkins v. McKeithen, 395 U.S. 411, 421-22 (1969) (citations omitted). 12 III. Complaint 13 Plaintiff alleges in his complaint that defendants, doctors Kohler and Largoza and nurses 14 Lee and Baumert, violated his Eighth Amendment rights when they were deliberately indifferent 15 to his serious medical need. ECF No. 1. On April 30, 2015, after plaintiff tore his Achilles 16 tendon in a basketball tournament, Kohler visually inspected his ankle and instructed him to 17 report to radiology. Id. at 3-4. Plaintiff voiced his concern about his injury and the distance he 18 had to walk, and Kohler assured him he would be seen by another doctor after his x-rays were 19 completed. Id. at 4. However, upon completion, the x-ray technician told him no doctors were 20 available, and he would receive a pass if a follow up was required. Id. He further alleges that 21 Kohler failed to perform the standard “Thompson Test” during this initial visit, which would have 22 revealed his torn Achilles tendon, and that she failed to alleviate his pain by providing medication 23 or a walking aid. Id. at 4. 24 About a week later, plaintiff was visually inspected by Lee, who refused his request to see 25 a doctor. Id. at 4-5. Lee told him that there were no doctors there to see him, brought him pain 26 medication and a bag of ice, and wrote him two passes—one for more ice and one for the RN 27 Clinic three days later. Id. at 5. 28 //// 1 About two weeks later, plaintiff reiterated his pain and suffering to Baumert. Id. Baumert 2 told him there were no doctors in that day and that nothing could be done for him, that a referral 3 for an MRI had already been submitted, and that he would be seen by a doctor in a little over a 4 week—on May 28, 2015. Id. Baumert then told plaintiff to stay off his leg as much as possible 5 and to be patient. Id. However, on May 28, 2015, Kohler canceled his appointment despite being 6 aware at that point that plaintiff was suffering from a torn Achilles tendon. Id. at 6. 7 On June 5, 2015, plaintiff was finally officially diagnosed with a ruptured Achilles tendon 8 and was supposed to return to the hospital the next week for surgery. Id. at 6. However, by June 9 23, 2015, he had yet to be scheduled for surgery. Id. at 7. On July 10, 2015, more than a month 10 after his diagnosis and approximately two and a half months after the injury occurred, plaintiff’s 11 surgery was finally performed. Id. at 7. Plaintiff alleges that Largoza, as supervisor of all 12 physicians at Solano State Prison and the person responsible for approving plaintiff’s surgery, 13 was responsible for the delayed approval of surgery. Id. at 6-7. 14 IV. Deliberate Indifference 15 The Eighth Amendment prohibits “cruel and unusual punishments.” U.S. Const. amend. 16 VIII. “[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate 17 must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091, 18 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). This requires the 19 plaintiff to show (1) “a ‘serious medical need’” and (2) that “the defendant’s response to the need 20 was deliberately indifferent.” Id. (quoting McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 21 1991)). 22 A plaintiff shows “a ‘serious medical need’ by demonstrating that ‘failure to treat a 23 prisoner’s condition could result in further significant injury or the unnecessary and wanton 24 infliction of pain.’” Id. (some internal quotation marks omitted) (quoting McGuckin, 974 F.2d at 25 1059). “The existence of an injury that a reasonable doctor or patient would find important and 26 worthy of comment or treatment; the presence of a medical condition that significantly affects an 27 individual’s daily activities; or the existence of chronic and substantial pain are examples of 28 indications that a prisoner has a ‘serious’ need for medical treatment.” McGuckin, 974 F.2d at 1 1059-60 (citations omitted), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 2 1133, 1136 (9th Cir. 1997). 3 To satisfy the second requirement, a plaintiff must show “(a) a purposeful act or failure to 4 respond to a prisoner’s pain or possible medical need and (b) harm caused by the indifference.” 5 Jett, 439 F.3d at 1096 (citation omitted). Because “deliberate indifference” is a subjective 6 standard, it requires showing a defendant had actual knowledge of an excessive risk of serious 7 harm. Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004). Medical malpractice, simply 8 because the victim is a prisoner, is not a Constitutional violation. Estelle, 429 U.S. at 106. 9 Similarly, a difference of opinion between medical professionals regarding appropriate medical 10 diagnosis and treatment is not enough to establish deliberate indifference. Jackson v. McIntosh, 11 90 F.3d 330, 332 (9th Cir. 1996) (citing Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989)). 12 A. Claims That Will Require a Response 13 Plaintiff has sufficiently pled an Eighth Amendment claim against Kohler. He alleges that 14 Kohler failed to alleviate his pain by providing him pain medication or a walking device during 15 his initial visit on April 30, 2015, and also asserts that Kohler was aware of his torn Achilles on 16 May 28, 2015, but failed to address this serious medical need and instead cancelled his 17 appointment. ECF No. 1 at 3-4, 6. Thus, plaintiff’s allegations against Kohler are sufficient to 18 support the element of deliberate indifference and his claim against Kohler may proceed. 19 B. Claims That Fail to State a Claim for Relief 20 i. Lee 21 Although plaintiff alleges Lee’s “failure to alleviate plaintiff’s pain, as well as honor 22 plaintiff’s request to see a Doctor” was deliberately indifferent, he also alleges that his request to 23 see a doctor was denied because no doctor was available, and that Lee wrote him a pass to attend 24 the RN clinic three days later1 and provided pain medicine and ice. ECF No. 1 at 5. Lee’s 25 conduct, as alleged, does not demonstrate deliberate indifference because it shows that Lee 26 1 Review of the dates provided by plaintiff in the complaint show that he was seen by Lee on a 27 Friday and was written a pass for the clinic on the following Monday. ECF No. 1 at 5; Fed. R. Evid. 201(b)(2) (court may take judicial notice of facts that are capable of accurate determination 28 by sources whose accuracy cannot reasonably be questioned). 1 addressed plaintiff’s medical requests, even if it was not in the exact manner sought by plaintiff. 2 Furthermore, how Lee’s conduct contributed to the delay in plaintiff’s treatment is unclear. Thus, 3 plaintiff fails to state a viable claim against Lee. 4 ii. Baumert 5 Similarly, plaintiff alleges Baumert’s “failure to alleviate plaintiff’s pain, as well as deny 6 him to be seen by a doctor was deliberately indifferent” and contributed to the delay in his 7 treatment. Id. at 5-6. However, plaintiff also alleges that Baumert denied his request to see a 8 doctor because no doctor was available and plaintiff already had an upcoming appointment 9 scheduled. Id. at 5. There is no indication that Baumert would have had reason to believe that 10 plaintiff needed to see a doctor on a more urgent basis. Furthermore, plaintiff does not allege that 11 he requested and was denied treatment for his pain or otherwise explain how Baumert failed to 12 alleviate his pain. Nor does he explain how Baumert’s conduct contributed to the treatment 13 delay, as there is no indication that Baumert had anything to do with the cancellation of his 14 doctor’s appointment. Thus, plaintiff has failed to establish Baumert acted with deliberate 15 indifference, and accordingly, failed to assert a viable claim against Baumert. 16 iii. Largoza 17 Plaintiff alleges that Largoza, who was responsible for approving plaintiff’s surgery, was 18 deliberately indifferent by delaying his approval. Id. at 6-7. However, the complaint does not 19 clearly allege how Largoza contributed to the delay. Plaintiff fails to allege when Largoza 20 received the surgery request, when he approved it, or whether the timing of Largoza’s approval 21 deliberately impacted scheduling and available surgery appointment slots. Furthermore, the 22 response plaintiff references regarding the delay in scheduling indicates that the outside hospital 23 was responsible for the delay since the prison was still waiting for the surgeon to provide a 24 surgery date. Id. at 39. Without more information, plaintiff’s allegations are insufficient to 25 establish that Largoza caused the delay in surgery. Accordingly, plaintiff failed to assert a viable 26 claim against Largoza. 27 V. Leave to Amend 28 For the reasons set forth above, the court finds that the complaint does not state 1 cognizable claims against Lee, Baumert, and Largoza. However, it appears that plaintiff may be 2 able to allege facts to remedy this and he will be given the opportunity to amend the complaint if 3 he desires. 4 Plaintiff may either (1) proceed forthwith to serve defendant Kohler on his claim of 5 deliberate indifference, abandoning claims against other defendants, or (2) he may delay serving 6 any defendant and amend the complaint. 7 Plaintiff will be required to complete and return the attached notice advising the court how 8 he wishes to proceed. If plaintiff chooses to amend the complaint, he will be given thirty days to 9 file an amended complaint. If plaintiff elects to proceed on his claim against defendant Kohler 10 without amending the complaint, the court will proceed to serve the complaint. A decision to go 11 forward without amending the complaint will be considered a voluntarily dismissal without 12 prejudice of the claims against Lee, Baumert, and Largoza. 13 If plaintiff chooses to file an amended complaint, he must demonstrate how the conditions 14 about which he complains resulted in a deprivation of his constitutional rights. Rizzo v. Goode, 15 423 U.S. 362, 370-71 (1976). Also, the complaint must allege in specific terms how each named 16 defendant is involved. Arnold v. Int’l Bus. Machs. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981). 17 There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or 18 connection between a defendant’s actions and the claimed deprivation. Id.; Johnson v. Duffy, 19 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, “[v]ague and conclusory allegations of official 20 participation in civil rights violations are not sufficient.” Ivey v. Bd. of Regents, 673 F.2d 266, 21 268 (9th Cir. 1982) (citations omitted). 22 Plaintiff is also informed that the court cannot refer to a prior pleading in order to make 23 his amended complaint complete. Local Rule 220 requires that an amended complaint be 24 complete in itself without reference to any prior pleading. This is because, as a general rule, an 25 amended complaint supersedes the original complaint. Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 26 1967) (citations omitted), overruled in part by Lacey v. Maricopa County, 693 F.3d 896, 928 (9th 27 Cir. 2012) (claims dismissed with prejudice and without leave to amend do not have to be re-pled 28 in subsequent amended complaint to preserve appeal). Once plaintiff files an amended complaint, 1 the original complaint no longer serves any function in the case. Therefore, in an amended 2 complaint, as in an original complaint, each claim and the involvement of each defendant must be 3 sufficiently alleged. 4 VI. Plain Language Summary of this Order for a Pro Se Litigant 5 Your request to proceed in forma pauperis is granted and you are not required to pay the 6 entire filing fee immediately. 7 Some of the allegations in the complaint state claims against the defendants and some do 8 not. Your allegations against Kohler are enough to state a claim. Accordingly, Kohler will have 9 to answer the complaint and you may proceed with your claim against him. 10 Your allegations against Lee, Baumert, and Largoza are not enough to show they violated 11 your rights. To proceed against them, you must provide facts showing that these defendants knew 12 there was a risk to your health and ignored that risk. Just saying that they failed to alleviate your 13 pain or delayed your treatment is not enough. 14 You have a choice to make. You may either (1) proceed immediately on your deliberate 15 indifference claim against Kohler and voluntarily dismiss the other claims, or (2) try to amend the 16 complaint. If you want to go forward without amending the complaint, you will be voluntarily 17 dismissing without prejudice your claims of deliberate indifference against Lee, Baumert, and 18 Largoza. If you choose to amend your complaint, the amended complaint must include all of the 19 claims you want to make, including the ones that have already been found to state a claim, 20 because the court will not look at the claims or information in the original complaint. Any claims 21 and information not in the amended complaint will not be considered. You must complete 22 the attached notification showing what you want to do and return it to the court. Once the court 23 receives the notice, it will issue an order telling you what you need to do next (i.e. file an 24 amended complaint or wait for defendant to be served). 25 In accordance with the above, IT IS HEREBY ORDERED that: 26 1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 2) is granted. 27 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 28 is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. wOAOe 2 fF OU VEVUOUININS Ne MUI I ee OY YO A

1 | § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 2 || Director of the California Department of Corrections and Rehabilitation filed concurrently 3 | herewith. 4 3. Plaintiff's allegations against defendants Lee, Baumert, and Largoza do not state 5 || claims for which relief can be granted. 6 4. Plaintiff has the option to proceed immediately on his deliberate indifference claim 7 || against defendant Kohler as set forth in Section IV.A above, or to amend the complaint. 8 5. Within fourteen days of service of this order, plaintiff shall complete and return the 9 | attached form notifying the court whether he wants to proceed on the screened complaint or 10 || whether he wants to file a first amended complaint. If plaintiff does not return the form, the court 11 | will assume that he is choosing to proceed on the complaint as screened and will recommend 12 | dismissal without prejudice of the claims against Lee, Baumert, and Largoza. 13 | DATED: June 23, 2020 ~ 14 Chthien—Chare

ALLISON CLAIRE

15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 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 CLYDE A. DUDLEY, II, No. 2:17-cv-2308 MCE AC P 12 Plaintiff, 13 v. PLAINTIFF’S NOTICE ON HOW TO

PROCEED

14 LORI KOHLER, et al., 15 Defendants. 16 17 Check one: 18 _____ Plaintiff wants to proceed immediately on his deliberate indifference claim against 19 defendant Kohler without amending the complaint. Plaintiff understands that by going 20 forward without amending the complaint he is voluntarily dismissing without prejudice 21 his claims against defendants Lee, Baumert, and Largoza pursuant to Federal Rule of Civil 22 Procedure 41(a). 23 24 _____ Plaintiff wants to amend the complaint. 25 26 DATED:_______________________

27 Clyde A. Dudley, II Plaintiff pro se 28