November 18, 2013
Leonard Bean, Plaintiff,
Gale Steinhauser, et al., Defendants.
DAVID G. CAMPBELL, District Judge.
Plaintiff Leonard Bean, who is confined in the Arizona State Prison Complex-Florence in Florence, Arizona, has filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1) and an Application to Proceed In Forma Pauperis (Doc. 2). The Court will dismiss the Complaint with leave to amend.
I. Application to Proceed In Forma Pauperis and Filing Fee
Plaintiff's Application to Proceed In Forma Pauperis will be granted. 28 U.S.C. § 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. § 1915(b)(1). The Court will not assess an initial partial filing fee. Id. The statutory filing fee will be collected monthly in payments of 20% of the previous month's income each time the amount in the account exceeds $10.00. 28 U.S.C. § 1915(b)(2). The Court will enter a separate Order requiring the appropriate government agency to collect and forward the fees according to the statutory formula.
II. 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 Complaint will be dismissed failure to state a claim, but because it may possibly be amended to state a claim, the Court will dismiss it with leave to amend.
Plaintiff alleges three counts of denial of constitutionally adequate medical care. In Count I, Plaintiff alleges that prison officials "have acted with deliberate indifference that a substantial risk of serious harm exists." In Count II, Plaintiff alleges that he has been "denied medically appropriate oral medications for his hepatitis disease." In Count III, Plaintiff alleges that he has been denied treatment under the Hepatitis-C protocol because the Arizona Department of Corrections (ADOC) "think[s] [Plaintiff] has a shorter sentence." Plaintiff names as Defendants Dr. Gale Steinhauser and Dr. Michael Lesac, whom Plaintiff identifies as Primary Health Care Providers for ADOC. Plaintiff seeks testing and treatment for Hepatitis-C and damages.
It is difficult to distill the actual factual allegations in Plaintiff's Complaint because they are scattered throughout the twenty-page document, which contains numerous recitations of legal standards, citations to cases and statutes, and other conclusory statements. To the extent they are discernible, Plaintiff alleges the following: Plaintiff is serving a "life sentence 25-years flat from the State of Florida prison" for first-degree murder and has been in ADOC custody since 2005. Plaintiff has Hepatitis-C, which has "been poorly controlled since 2005." Plaintiff states that he "never received any antiviral treatment or medications prescribed for him" and "has never been prescribed the correct medications to protect" him from viruses that attack the liver. In addition, Plaintiff has not been tested "to determine the particular virus genotype." Plaintiff "has never been giv[en] adequate care to treat his liver function and never been refer[ed] to an outside consultant on a yearly basis for his Hepatitis C and HCV genotype."
Plaintiff was sent to St. Mary's Hospital in September 2010, where a blood screen indicated he had "elevated levels of AST, ALT and bilirubin, and a decrease in blood platelets. These results were consistent with a diagnosis of liver disease [as] well as HCV." At some point later, "ADOC Program Evaluation Administrator Health Services Contract Monitoring Bureau advised [Plaintiff that] the results were once again abnormal and consistent with liver disease and HCV." On November 8, 2010, "the staff physician at Central Office indicated to Bean that he had tested positive for HCV; the doctor also confi[r]med that [Plaintiff's] minimum sentence extended through June 2011. This... would have allowed enough time for at least the 24-week treatment protocol if [Plaintiff's] HCV were genotype II or III. However, the doctor did no genotype testing to determine if Bean was an appropriate candidate for the 24-week treatment regimen." Instead, Plaintiff "was told again he was assigned to the chronic care clinic, " which he states is palliative rather than curative care.
In late 2010 and early 2011, Plaintiff "requested and was denied HCV treatment on several more occasions. The (HNRs) submitted w[ere] never logged in the Central Office Health Unit records." Plaintiff filed formal grievance appeals "requesting to be genotype scree[n]ed and treated, " but "the responses always stated that Plaintiff[s] minimum sentence remaining was less than a year, which made him ineligible for treatment and genotype testing." According to Plaintiff, ADOC's Hepatitis-C protocol "denies those  like Plaintiff and other prisoners with sentence[s] longer than 12 months and those prisoners with sentences longer than 18 months with genotype I or IV, the type of individualized treatment normally associated with the provision of adequate medical care."
Plaintiff does not say when, but he "started to complain of many of the common physical symptoms of HCV such as right quadrant pain and fatigue." However, "he was still refused treatment." He "repeatedly appealed the denial [of] treatment and each time was told that his remaining sentence did not fit the HCV protocol criteria." When Plaintiff's minimum sentence date of July 2011 passed, Plaintiff "saw the doctor and again complained of right upper quadrant pain." The doctor did not order treatment or genotype screening but told Plaintiff he would be returned to the chronic care clinic. In October 2011, the Board of Probation and Parole denied parole for Plaintiff and ordered him to serve out his maximum sentence, with a new release date of December 28, 2014. Plaintiff believed the "math was now in [his] favor to receive HCV treatment and genotype screening." However, he was again denied HCV treatment and genotype testing in the spring of 2012. A nurse supervisor responded to one of his grievances in June 2012 and stated that "given that you are past your minimum sentence and eligible for parole you do not have the required 12-18 months of time on your sentence for treatment completion." Plaintiff asserts that "hypothetically, state prison officials can deny HCV treatment indefinitely once a prisoner passes his or her minimum eligib[ility] for a parole hearing, [but that] doesn't necessary[il]y mean that parole will be granted, however." Plaintiff continued to request treatment for the remainder of 2012 and was denied. Plaintiff states that the responses were always the same: "you are past your minimum time and eligible for parole and do not have the required 12-18 months of time on your sentence for treatment completion." In August 2012, the Chief Grievance Officer offered Plaintiff "a deal if he deferred his parole until treatment was completed. The response indicated that if he didn't take the deal, then HCV treatment would be denied." Apparently, Plaintiff refused the offer.
Plaintiff argues that "[w]hile the ADOC is reducing prison healthcare costs by denying treatment to the [P]laintiff and other prisoners with HCV based on the Department's current treatment protocol, a ten-fold increase in medical expenses for untreated prisoners who are released will be passed to other government agencies and ultimately the taxpaying public." Plaintiff contends that "[t]here is evidence showing that [D]efendants Steinhauser and Lesac acted or failed to take action with deliberate indifference to [P]laintiff's Hepatitis-C conditions." Plaintiff asserts that he has attempted to grieve his situation, but his "grievance appeals have gone unanswered, unprocessed or defendants have denied ever receiv[ing] any grievance appeals." In some instances, Plaintiff has attempted to use the grievance process, but his efforts "have been frustrated because of defendants willful and deliberate actions to block Plaintiff from exhausting the process."
IV. 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).
Moreover, 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. Steinhauser and Lesac
Plaintiff names Steinhauser and Lesac as Defendants, yet the only assertion he makes against them is that "[t]here is evidence showing that [D]efendants Steinhauser and Lesac acted or failed to take action with deliberate indifference to [P]laintiff's Hepatitis-C conditions." Other than this one conclusory statement, Plaintiff fails to allege how Steinhauser and Lesac were personally involved in the deprivation of his civil rights. Plaintiff fails to allege that they acted as a result of a policy, practice, or custom, that they participated in or directed the alleged violations of Plaintiff's constitutional rights, or that they knew of the violations and failed to act to prevent them. 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. Accordingly, Plaintiff fails to state a claim against Steinhauser and Lesac and they will be dismissed.
B. Medical Care
Plaintiff alleges that he has been denied constitutionally adequate medical care. 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. Id. 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 Corr., 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, 439 F.3d at 1096 (quotations omitted).
Plaintiff has failed to allege facts to support that any identifiable Defendant was deliberately indifferent to a serious medical need. First, it is unclear whether Plaintiff has actually been diagnosed with Hepatitis-C or whether his blood work merely indicates he may have HCV and further testing is needed. He appears to allege both. In one instance he alleges that he has Hepatitis-C and that it has "been poorly controlled since 2005." Later in his Complaint, Plaintiff alleges that in 2010 a blood screen indicated he had "elevated levels of AST, ALT and bilirubin, and a decrease in blood platelets, " which are "consistent with a diagnosis of liver disease [as] well as HCV." If Plaintiff was actually diagnosed with Hepatitis-C, he needs to state when he was diagnosed, by whom, what treatment, if any, has been recommended and by whom, and who, if anyone, refused such treatment. It is also unclear whether Plaintiff has actually been prescribed treatment or medications because he states at one point that he "never received any antiviral treatment or medications prescribed for him, " but later alleges that he "has never been prescribed the correct medications to protect" him from viruses that attack the liver and he has not been tested "to determine the particular virus genotype." Plaintiff also alleges that he has requested treatment for HCV and his requests have been denied, but he fails to provide specifics to support these allegations such as when he requested treatment, to whom he submitted these requests, how, and who denied these requests. He also fails to provide any specific information regarding the grievances and grievance appeals he submitted such as the dates he submitted them, to whom, and what response(s) he received, if any, and from whom. Absent additional facts, Plaintiff fails to state a claim for the denial of constitutionally adequate medical care and Counts I, II and III will be dismissed.
V. Leave to Amend
For the foregoing reasons, Plaintiff's Complaint will be dismissed for failure to state a claim upon which relief may be granted. Within 30 days, Plaintiff may submit a first amended complaint to cure the deficiencies outlined above. The Clerk of Court will mail Plaintiff a court-approved form to use for filing a first amended complaint. If Plaintiff fails to use the court-approved form, the Court may strike the 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.
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 "First Amended Complaint." The first amended complaint must be retyped or rewritten in its entirety on the court-approved form and may not incorporate any part of the original Complaint by reference. Plaintiff may include only one claim per count. However, it is not necessary for Plaintiff to separate the various aspects of his medical claim into multiple counts. Also, Plaintiff should follow all instructions on the court-approved form, including the instruction to "state the facts clearly in your own words without citing legal authority or arguments."
A first amended complaint supersedes the original complaint. 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 an original complaint as nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised in the original complaint and that was voluntarily dismissed or was dismissed without prejudice is waived if it is not alleged in a first amended complaint. Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc).
Plaintiff must pay the unpaid balance of the filing fee within 120 days of his release. Also, within 30 days of his release, he must either (1) notify the Court that he intends to pay the balance or (2) show good cause, in writing, why he cannot. Failure to comply may result in dismissal of this action.
B. 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.
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.
D. Possible "Strike"
Because the Complaint has been dismissed for failure to state a claim, if Plaintiff fails to file an 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).
E. 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).
IT IS ORDERED:
(1) Plaintiff's Application to Proceed In Forma Pauperis (Doc. 2) is granted.
(2) As required by the accompanying Order to the appropriate government agency, Plaintiff must pay the $350.00 filing fee and is not assessed an initial partial filing fee.
(3) The Complaint (Doc. 1) is dismissed for failure to state a claim. Plaintiff has 30 days from the date this Order is filed to file a first amended complaint in compliance with this Order.
(4) If Plaintiff fails to file an 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).
(5) The Clerk of Court must mail Plaintiff a court-approved form for filing a civil rights complaint by a prisoner.