1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY GUILLORY, No. 2:21-cv-0462 AC P 12 Plaintiff, 13 v. ORDER 14 TSHERING BHUTIA, et al., 15 Defendants. 16 17 Plaintiff, a former1 county jail inmate proceeding pro se, seeks relief pursuant to 42 U.S.C. 18 § 1983 and has requested authority pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis. 19 ECF Nos. 1, 5, 7. This proceeding was referred to this court by Local Rule 302 pursuant to 28 20 U.S.C. § 636(b)(1)(B). 21 For the reasons stated below, plaintiff’s motion to proceed in forma pauperis will be 22 granted. In addition, plaintiff will be given the choice either to proceed on the cognizable claims 23 identified herein or to file an amended complaint. 24 //// 25 //// 26

27 1 The court notes for the record that the docket for this action indicates that plaintiff has been paroled and is no longer in custody. See generally March 29, 2021, docket entries indicating 28 same and that court mail to plaintiff has been returned as undeliverable. 1 I. IN FORMA PAUPERIS APPLICATION 2 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 3 1915(a). See ECF Nos. 5, 7. Accordingly, the request to proceed in forma pauperis will be 4 granted. 5 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 6 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in 7 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 8 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 9 forward it to the Clerk of Court. Thereafter, plaintiff will be obligated for monthly payments of 10 twenty percent of the preceding month’s income credited to plaintiff’s prison trust account. 11 These payments will be forwarded by the appropriate agency to the Clerk of Court each time the 12 amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 13 1915(b)(2). 14 II. SCREENING REQUIREMENT 15 The court is required to screen complaints brought by prisoners seeking relief against a 16 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 17 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 18 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 19 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1)-(2). 20 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 21 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 22 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 23 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 24 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 25 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 26 Cir. 1989); Franklin, 745 F.2d at 1227. 27 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 28 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (brackets added) 1 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial 2 plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable 3 inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing 4 Twombly, 550 U.S. at 556). In reviewing a complaint under this standard, the court must accept 5 as true the allegations of the complaint in question, Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 6 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and 7 resolve all doubts in the plaintiff’s favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). 8 III. THE COMPLAINT 9 Plaintiff names psychiatrist Tshrering Bhutia and registered nurse Tiffany Flores, 10 employees at California Medical Facility – Vacaville (“CMF-Vacaville”), as defendants in this 11 action. See ECF No. 1 at 1-2. The complaint alleges as follows. On January 14, 2020, plaintiff’s 12 cell was extremely cold – 57 degrees – and its temperature was preventing him from being able to 13 sleep. See id. at 3. In order to get the attention of staff to alert them to the problem, plaintiff 14 “boarded up” the window to his cell. See id. In response, a correctional officer named Heath 15 opened plaintiff’s cell, handcuffed him, and took him to the prison dayroom. See id. 16 Defendant Bhutia “confronted” plaintiff in the dayroom. After plaintiff told Bhutia about 17 the cold temperature in his cell and his resulting inability to sleep, Bhutia, wrongfully determined 18 that plaintiff was “agitated,” and without further inquiry and without plaintiff’s consent, ordered 19 that he be injected with chlorpromazine – a psychotropic and heat risk medication – as well as 20 with Benadryl. See ECF No. 1 at 3, 6. Prior to this incident, plaintiff had no history of prescribed 21 psychiatric / anti-psychotic medication and there had never been a need or justification for 22 prescribing such medications to him. See id. at 6. 23 Almost immediately after being forcibly injected with the drugs, plaintiff began suffering 24 nausea, throbbing headaches, vomiting, diarrhea, pain in his left arm, blackouts, and other adverse 25 reactions. See ECF No. 1 at 6. Later that day, when plaintiff repeatedly complained to defendant 26 Flores about his symptoms, she falsified and/or improperly documented his records in her 27 progress notes, writing, “[Plaintiff has] [n]o physical complaints. No medication side effects 28 reported.” See id. (brackets added). 1 Plaintiff contends that the actions of defendants Bhutia and Flores constituted improper 2 medical care that threatened his safety, amounting to cruel and unusual punishment in violation of 3 his Eighth Amendment rights. See ECF No. 1 at 3, 7. He asserts that defendant Bhutia’s actions 4 were deliberate and were done with the intent to cause him harm. See id. at 7. He further asserts 5 that defendant Flores demonstrated deliberate indifference to his serious medical needs when she 6 actively “chose to obfuscate, misdocument [sic], falsify, and otherwise downplay [his] injuries, 7 by failing to accurately record the fact that [he] repeatedly informed her of his pain.” See 8 generally id. at 8 (brackets added). Plaintiff also makes a general claim that his rights to due 9 process and equal protection under the Fourteenth Amendment were violated as a result of 10 defendants’ actions. See id. 11 IV. DISCUSSION 12 A. Claims for Which a Response Will Be Required: Eighth Amendment 13 Plaintiff has stated cognizable Eighth Amendment deliberate indifference claims against 14 defendants Bhutia and Flores. Regarding defendant Bhutia’s alleged forced injection of plaintiff 15 with chlorpromazine and other medication that plaintiff did not want, “[a] difference of opinion 16 between a physician and a prisoner . . . concerning what medical care is appropriate does not 17 amount to deliberate indifference.” Colwell v. Bannister, 763 F.3d 1060, 1068 (9th Cir. 2014) 18 (brackets added) (citation omitted). However, the allegations here are that Dr. Bhutia ordered 19 involuntary psychotropic medication for an inmate who was not experiencing a mental health 20 crisis. Accordingly, plaintiff will be permitted to proceed on this claim against defendant Bhutia. 21 As for defendant Flores, it is well-settled that an inadvertent failure to provide adequate 22 medical care cannot be said to constitute an unnecessary and wanton infliction of pain. See 23 Estelle v. Gamble, 429 U.S. 97, at 105-106 (1976). However, medical treatment of a prisoner that 24 manifests a deliberate indifference is actionable. See, e.g., id. at 104-105, n.10 (finding deliberate 25 indifference may be demonstrated by prison doctors’ responses to prisoners’ needs; by prison 26 guards intentionally denying or delaying access to medical care, or by their intentional 27 interference with treatment once prescribed and providing examples). Indeed, “access to medical 28 //// 1 staff is meaningless unless that staff is competent and can render competent care.” Ortiz v. 2 Imperial, 884 F.2d 1312, 1314 (9th Cir. 1989) (citations omitted). 3 The allegation that Flores failed to document plaintiff’s severe adverse reactions to 4 medication, and prolonged his suffering, rises to the level of an Eighth Amendment violation. 5 Therefore, plaintiff will be permitted to proceed on this claim against defendant Flores as well. 6 B. Failure to State a Claim: Fourteenth Amendment 7 Plaintiff has not stated cognizable Fourteenth Amendment due process or equal protection 8 claims against Bhutia or Flores. Although he alleges in conclusory fashion that they both violated 9 these rights (see ECF No. 1 at 7-8), the complaint provides no supporting factual allegations. The 10 omnibus statement of facts in support of the complaint does not suggest any distinct Fourteenth 11 Amendment claim, as it neither specifically alleges the deprivation of any due process protection 12 to which plaintiff was entitled nor suggests that plaintiff was discriminated against. 13 A plaintiff must set forth specific facts with respect to each defendant’s role in an alleged 14 constitutional deprivation. See generally Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). 15 Vague and conclusory allegations concerning the involvement of official personnel in civil rights 16 violations are not sufficient. See Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982). For 17 these reasons, plaintiff’s claims of violation of right under the Fourteenth Amendment fail to state 18 claims upon which relief may be granted. Plaintiff will, however, be given the opportunity to 19 amend these claims, should he so choose. 20 V. OPTIONAL LEAVE TO AMEND 21 Plaintiff will be given the opportunity to amend the complaint, but only to the extent 22 identified herein. Plaintiff is not, however, obligated to do so. He may, instead, proceed on the 23 claims that the court has found are cognizable. Accordingly, he will be ordered to inform the 24 court whether he wishes to proceed on the viable claims or to amend the complaint by providing 25 more information about the currently deficient, yet potentially cognizable claims referenced 26 above. 27 If plaintiff chooses to file an amended complaint, it will take the place of plaintiff’s 28 original complaint. See Lacey v. Maricopa Cty., 693 F.3d 896, 925 (9th Cir. 2012) (stating 1 amended complaint supersedes original complaint). Any amended complaint filed should 2 observe the following: 3 An amended complaint must identify as a defendant only persons who personally 4 participated in a substantial way in depriving plaintiff of a federal constitutional right. Johnson v. 5 Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a 6 constitutional right if he does an act, participates in another's act or omits to perform an act he is 7 legally required to do that causes the alleged deprivation). 8 An amended complaint must also contain a caption including the names of all defendants. 9 Fed. R. Civ. P. 10(a). Plaintiff may not change the nature of this suit by alleging new, unrelated 10 claims. See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). 11 Any amended complaint must be written or typed so that it is complete in itself without 12 reference to any earlier filed complaint. See E.D. Cal. L.R. 220. This is because an amended 13 complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the 14 earlier filed complaint no longer serves any function in the case. See Loux v. Rhay, 375 F.2d 55, 15 57 (9th Cir. 1967) (“The amended complaint supersedes the original, the latter being treated 16 thereafter as non-existent.”), overruled on other grounds by Lacey v. Maricopa Cty., 693 F.3d 896 17 (2012). 18 VI. PLAIN LANGUAGE SUMMARY FOR PRO SE PLAINTIFF 19 Your complaint states a claim against both defendants for deliberate indifference to your 20 serious medical needs in violation of the Eighth Amendment, but you have not provided enough 21 facts to state a claim for any violation of your Fourteenth Amendment rights. You have a choice 22 to make. If you want to proceed on the medical claim only, and drop your Fourteenth 23 Amendment claim, just tell the court that you want to do that and the complaint will be served. In 24 the alternative, you may choose to delay service of the complaint and amend your Fourteenth 25 Amendment claim. Use the enclosed form to let the court know your choice. 26 CONCLUSION 27 Accordingly, IT IS HEREBY ORDERED that: 28 1. Plaintiff’s motion to proceed in forma pauperis (ECF No. 7) is GRANTED. ] 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 2 || is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 3 || 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 4 || appropriate agency filed concurrently herewith. 5 3. Within fourteen days of the date of this order, plaintiff shall inform the court in 6 || writing that either: 7 a. He wishes to proceed only on the cognizable claims identified herein, and he 8 | voluntarily dismisses any and all other defendants and claims in this action pursuant to Federal 9 || Rule of Civil Procedure 41(a)(1)(A)(i), or 10 b. He wishes to file a first amended complaint. 11 Failure to take one of these courses of action within the time allotted may result in the 12 || dismissal of this action for failure to prosecute. See Fed. R. Civ. P. 41(b); see also L.R. 110. 13 4. Should plaintiff opt to file a first amended complaint, he shall have thirty days from 14 || the date of this order within which to do so. 15 || DATED: April 13, 2021 . 16 Atter— Lhar—e_ 17 ALLISON CLAIRE

UNITED STATES MAGISTRATE JUDGE

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 ANTHONY GUILLORY, No. 2:21-cv-0462 AC P 12 Plaintiff, 13 v. PLAINTIFF’S NOTICE ON HOW TO

PROCEED

14 TSHERING BHUTIA, et al., 15 Defendants. 16

CHECK ONE:

17 Plaintiff would like to proceed immediately on his Eighth Amendment claims against 18 defendants Bhutia and Flores. By choosing to go forward without amending the complaint, 19 plaintiff: (1) consents to the dismissal without prejudice of the Fourteenth Amendment claims 20 raised against defendants Bhutia and Flores, and (2) chooses to forego any related and/or 21 potentially viable claims against them and any other potential, yet to be named defendants. 22 Plaintiff would like to amend the complaint. 23

DATED:

25 _______________________________

ANTHONY GUILLORY

26 Plaintiff Pro Se 27 28