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Ortiz v. Mascher

United States District Court, Ninth Circuit

November 8, 2013

Anthony Ortiz, Plaintiff,
Scott Mascher, et al., Defendants.


G. MURRAY SNOW, District Judge.

On April 22, 2013, Plaintiff Anthony Ortiz, who is confined in the Yavapai County Jail in Camp Verde, Arizona, filed a pro se civil rights Complaint. On April 25, 2013, Plaintiff filed a First Amended Complaint, which superseded the original Complaint. Plaintiff did not file an Application to Proceed In Forma Pauperis with either his original or First Amended Complaint. In an Order dated June 14, 2013, the Court required Plaintiff to either pay the $350.00 filing fee or file a complete Application to Proceed. Plaintiff paid the filing fee on July 11, 2013. In an Order dated August 14, 2013, the Court dismissed the First Amended Complaint because Plaintiff had failed to use the court-approved form. The Court gave Plaintiff 30 days to file an amended complaint on the court-approved form. On September 17, 2013, Plaintiff filed his Second Amended Complaint (Doc. 7). The Court will dismiss the Second Amended Complaint with leave to amend.

I. Statutory Screening of Prisoner Complaints

The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 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).

A pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2) (emphasis added). While Rule 8 does not demand detailed factual allegations, "it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.

"[A] complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "Determining whether a complaint states a plausible claim for relief [is]... a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679. Thus, although a plaintiff's specific factual allegations may be consistent with a constitutional claim, a court must assess whether there are other "more likely explanations" for a defendant's conduct. Id. at 681.

But as the United States Court of Appeals for the Ninth Circuit has instructed, courts must "continue to construe pro se filings liberally." Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A "complaint [filed by a pro se prisoner] must be held to less stringent standards than formal pleadings drafted by lawyers.'" Id. (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) ( per curiam )).

If the Court determines that a pleading could be cured by the allegation of other facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) ( en banc ). The Court should not, however, advise the litigant how to cure the defects. This type of advice "would undermine district judges' role as impartial decisionmakers." Pliler v. Ford, 542 U.S. 225, 231 (2004); see also Lopez, 203 F.3d at 1131 n.13 (declining to decide whether the court was required to inform a litigant of deficiencies). Plaintiff's Second Amended Complaint will be dismissed for failure to state a claim, but because it may be amended to state a claim, the Court will dismiss it with leave to amend.

II. Second Amended Complaint

Plaintiff asserts three claims for violations of his rights to constitutionally adequate medical care, due process and "participation in defense." He names the following Defendants: Yavapai County Sheriff Scott Mascher; attorney Alex Harris; John Doe Director of Wexford Health at the Yavapai County Jail; B. Payne, a Wexford Health nurse at the Yavapai County Jail; and the Yavapai County Board of Supervisors ("YCBOS"). He seeks declaratory relief as well as nominal, compensatory and punitive damages.

Plaintiff asserts the following facts in support of his Second Amended Complaint: Plaintiff has been a pre-trial detainee in the Yavapai County Jail since September 6, 2011. According to Plaintiff, jail policies are "designed by County Attorney Sheila Polk on behalf of the YCBOS and Sheriff Mas[c]her." Plaintiff has bad eyesight and wears prescription glasses. From September 6, 2011 until April 22, 2013, Plaintiff was told by Wexford Health that he could not get an eye exam until he went to prison. No one told Plaintiff how he should go about "getting it done" until April 22, 2013. Plaintiff asserts that he was "in unbearable pain" for nineteen months and that he was told he would "just have to use reading glasses." Plaintiff states that his attorney, Harris, who is employed by the YCBOS to represent him, "indicated that she does not have time for [his] problems and... pushed for [Plaintiff] to sign a plea." Plaintiff alleges that Harris, Mascher and Wexford Health "worked together" to violate his Eighth Amendment rights when they "promulgated a policy of deliberate indifference to [his] saf[e]ty and medical needs by denying [him] treatment for [his] eyes causing [him] extre[]me pain and preventing [him] from participating in his defense which led to Alex Harris being fired." As a result, Plaintiff claims he "was subjected to malicious and sadistic pain for 22 months [and] was unable to parti[c]ipate in [his] defense for 22 months without being punished, hindered and discouraged with malicious and sadistic pain."

III. Failure to State a Claim

To state a claim under § 1983, a plaintiff must allege facts supporting that (1) the conduct about which he complains was committed by a person acting under the color of state law and (2) the conduct deprived him of a federal constitutional or statutory right. Wood v. Ostrander, 879 F.2d 583, 587 (9th Cir. 1989). A plaintiff must also allege that he suffered a specific injury as a result of the conduct of a particular defendant and he must allege an affirmative link between the injury and the conduct of that defendant. Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976).

Further, a "plaintiff must allege facts, not simply conclusions, that show that an individual was personally involved in the deprivation of his civil rights." Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). For an individual to be liable in his official capacity, a plaintiff must allege that the official acted as a result of a policy, practice, or custom. See Cortez v. County of Los Angeles, 294 F.3d 1186, 1188 (9th Cir. 2001). Further, there is no respondeat superior liability under § 1983, so a defendant's position as the supervisor of someone who allegedly violated a plaintiff's constitutional rights does not make him liable. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). A supervisor in his individual capacity "is only liable for constitutional violations of his subordinates if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them." Taylor, 880 F.2d at 1045.

A. Mascher and the Yavapai County Board of Supervisors

Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 520-21 (1972), conclusory and vague allegations will not support a cause of action. Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Further, a liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled. Id.

In every count, Plaintiff makes the same allegations against Mascher and the YCBOS. That is, the county attorney designed jail policies on behalf of the YCBOS and Mascher and that his attorney was employed by YCBOS. He also alleges that Mascher, along with Harris and Wexford Health, worked together in promulgating a policy of deliberate indifference to Plaintiff's safety and medical needs by denying him treatment for his eyes. Such vague and conclusory assertions fail to state a claim, and Defendants Mascher and the YCBOS will be dismissed.

B. Wexford Director and Nurse B. Payne

Plaintiff names two Defendants who apparently work, or worked, for Wexford Health-an unnamed director and a nurse named B. Payne. However, Plaintiff fails to allege any facts against either the director or the nurse. Accordingly, the unnamed director of Wexford Health and Wexford nurse B. Payne are dismissed.

C. Harris

A prerequisite for any relief under § 1983 are allegations to support that a defendant acted under the color of state law. The "under color of state law" component is the equivalent of the "state action" requirement under the Constitution. Lugar v. Edmondson Oil Co, Inc., 457 U.S. 922, 928 (1982); Jensen v. Lane County, 222 F.3d 570, 574 (9th Cir. 2000) (citing Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982); West v. Atkins, 487 U.S. 42, 49 (1988)). "Acting under color of state law is a jurisdictional requisite for a § 1983 action.'" Gritchen v. Collier, 254 F.3d 807, 812 (9th Cir. 2001) (quoting West, 487 U.S. at 46). Whether an attorney representing a criminal defendant is privately retained, a public defender, or court-appointed counsel, he or she does not act under color of state law. See Polk County v. Dodson, 454 U.S. 312, 317-18 (1981); Miranda v. Clark County, Nevada, 319 F.3d 465, 468 (9th Cir. 2003) ( en banc ). For this reason, Plaintiff fails to state a claim against Harris and she will be dismissed.

D. Count I

Plaintiff designates Count I as a denial of medical care in violation of the Eighth Amendment. Not every claim by a prisoner relating to inadequate medical treatment states a violation of the Eighth or Fourteenth Amendment. To state a § 1983 medical claim, a plaintiff must show that the defendants acted with "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)). A plaintiff must show (1) a "serious medical need" by demonstrating that failure to treat the condition could result in further significant injury or the unnecessary and wanton infliction of pain and (2) the defendant's response was deliberately indifferent. Jett, 439 F.3d at 1096 (quotations omitted).

"Deliberate indifference is a high legal standard." Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). To act with deliberate indifference, a prison official must both know of and disregard an excessive risk to inmate health; "the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer v. Brennan, 511 U.S. 825, 837 (1994). Deliberate indifference in the medical context may be shown by a purposeful act or failure to respond to a prisoner's pain or possible medical need and harm caused by the indifference. Jett, 439 F.3d at 1096. Deliberate indifference may also be shown when a prison official intentionally denies, delays, or interferes with medical treatment or by the way prison doctors respond to the prisoner's medical needs. Estelle, 429 U.S. at 104-05; Jett, 439 F.3d at 1096.

Deliberate indifference is a higher standard than negligence or lack of ordinary due care for the prisoner's safety. Farmer, 511 U.S. at 835. "Neither negligence nor gross negligence will constitute deliberate indifference." Clement v. California Dep't of Corrections, 220 F.Supp.2d 1098, 1105 (N.D. Cal. 2002); see also Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980) (mere claims of "indifference, " "negligence, " or "medical malpractice" do not support a claim under § 1983). "A difference of opinion does not amount to deliberate indifference to [a plaintiff's] serious medical needs." Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). A mere delay in medical care, without more, is insufficient to state a claim against prison officials for deliberate indifference. See Shapley v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985). The indifference must be substantial. The action must rise to a level of "unnecessary and wanton infliction of pain." Estelle, 429 U.S. at 105.

Plaintiff has failed to state a claim for denial of constitutionally adequate medical care. First, Plaintiff has failed to allege facts demonstrating that he has a "serious medical need." Plaintiff has failed to provide any information about the condition of his eyes other than he has bad eyesight, wears prescription glasses, and that he was in extreme pain. Plaintiff does not explain what was causing the pain, what treatment he was seeking, and whether the failure to provide that treatment could result in further significant injury or the unnecessary and wanton infliction of pain. Further, Plaintiff fails to provide the names of who he spoke to about his need for an eye exam or other treatment, when, or their response(s). Finally, it is unclear whether Plaintiff's medical issues were resolved around April 22, 2013, or if that is simply the date he filed his original Complaint. Absent additional facts, Plaintiff fails to state a claim for denial of medical care and Count I will be dismissed.

E. Count II

Plaintiff designates Count II as a due process violation in violation of the Fourteenth Amendment. However, Plaintiff provides no information about what process he was denied. Accordingly, Count II is dismissed.

F. Count III

Plaintiff designates Count III as a Sixth Amendment violation and alleges that Defendants' actions have prevented him from participating in his defense. Plaintiff appears to be alleging that the denial of an eye exam caused him extreme pain, that his attorney "did not have time for [his] problems, " and so she pushed him to sign a plea. He also alleges that "medical indifference was being used to weaken my resolve so I will take a plea and wa[i]ve my rights." Plaintiff fails to state how the alleged denial of medical treatment prevented him from participating in his defense. Accordingly, Count III is dismissed.

IV. Leave to Amend

For the foregoing reasons, Plaintiff's Second Amended Complaint will be dismissed for failure to state a claim upon which relief may be granted. Within 30 days, Plaintiff may submit a third amended complaint to cure the deficiencies outlined above. The Clerk of Court will mail Plaintiff a court-approved form to use for filing a third amended complaint. If Plaintiff fails to use the court-approved form, the Court may strike the third amended complaint and dismiss this action without further notice to Plaintiff.

If Plaintiff files an amended complaint, Plaintiff must write short, plain statements telling the Court: (1) the constitutional right Plaintiff believes was violated; (2) the name of the Defendant who violated the right; (3) exactly what that Defendant did or failed to do; (4) how the action or inaction of that Defendant is connected to the violation of Plaintiff's constitutional right; and (5) what specific injury Plaintiff suffered because of that Defendant's conduct. See Rizzo, 423 U.S. at 371-72, 377.

Plaintiff must repeat this process for each person he names as a Defendant. If Plaintiff fails to affirmatively link the conduct of each named Defendant with the specific injury suffered by Plaintiff, the allegations against that Defendant will be dismissed for failure to state a claim. Conclusory allegations that a Defendant or group of Defendants has violated a constitutional right are not acceptable and will be dismissed.

Plaintiff must clearly designate on the face of the document that it is the "Third Amended Complaint." The third amended complaint must be retyped or rewritten in its entirety on the court-approved form and may not incorporate any part of the original, First Amended or Second Amended Complaints by reference. Plaintiff may include only one claim per count.

A third amended complaint supersedes all prior complaints. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the Court will treat the prior complaints as nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised in the prior complaints is waived if it is not raised in a third amended complaint. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).

V. Warnings

A. Address Changes

Plaintiff must file and serve a notice of a change of address in accordance with Rule 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other relief with a notice of change of address. Failure to comply may result in dismissal of this action.

B. Copies

Plaintiff must submit an additional copy of every filing for use by the Court. See LRCiv 5.4. Failure to comply may result in the filing being stricken without further notice to Plaintiff.

C. Possible "Strike"

Because the Second Amended Complaint has been dismissed for failure to state a claim, if Plaintiff fails to file a third amended complaint correcting the deficiencies identified in this Order, the dismissal may count as a "strike" under the "3-strikes" provision of 28 U.S.C. § 1915(g). Under the 3-strikes provision, a prisoner may not bring a civil action or appeal a civil judgment in forma pauperis under 28 U.S.C. § 1915 "if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury." 28 U.S.C. § 1915(g).

D. Possible Dismissal

If Plaintiff fails to timely comply with every provision of this Order, including these warnings, the Court may dismiss this action without further notice. See Ferdik, 963 F.2d at 1260-61 (a district court may dismiss an action for failure to comply with any order of the Court).


(1) The Second Amended Complaint (Doc. 7) is dismissed for failure to state a claim. Plaintiff has 30 days from the date this Order is filed to file a third amended complaint in compliance with this Order.

(2) If Plaintiff fails to file a third amended complaint within 30 days, the Clerk of Court must, without further notice, enter a judgment of dismissal of this action with prejudice that states that the dismissal may count as a "strike" under 28 U.S.C. § 1915(g).

(3) The Clerk of Court must mail Plaintiff a court-approved form for filing a civil rights complaint by a prisoner.

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