December 4, 2013
Craig Dominic Benacquisto, Plaintiff,
Corizon Health, et al., Defendants.
DAVID G. CAMPBELL, District Judge.
Plaintiff Craig Dominic Benacquisto, who is confined in the Maricopa County Lower Buckeye Jail, 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 grant the Application to Proceed and 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). 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) (citation omitted). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citation omitted).
"[A] complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Id. (citation omitted). 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. (citation omitted). "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 (citation omitted). 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). Here, Plaintiff fails to state a claim upon which relief can be granted in his Complaint, but it appears that the Complaint could be cured by allegations of other facts. Accordingly, Plaintiff's Complaint will be dismissed without prejudice and Plaintiff will be given an opportunity to amend.
In his Complaint, Plaintiff alleges three counts. Defendants are: (1) Corizon Health, Health Administrator for the Arizona Department of Corrections ("ADOC"); (2) Dr. Sandoval, M.D., doctor for the ADOC at the Arizona State Prison Complex, Aspen Unit, in Phoenix, Arizona; and (3) Dr. Winskie, "psych doctor" at the Arizona State Prison Complex in Tucson, Arizona.
In Count One, Plaintiff alleges that Defendants were deliberately indifferent to Plaintiff's serious medical needs in violation of the Eighth Amendment as follows: From March 2013 to July 2013, "Corizon Health/Dr. Sandoval" neglected Plaintiff's healthcare. When Plaintiff was admitted to the Aspen Medical Men's Treatment Unit, Dr. Sandoval, "with Corizon's knowledge, " discontinued a pain shot of Toradol, which had previously been prescribed to Plaintiff. Dr. Sandoval discontinued the shot of Toradol without evaluating Plaintiff and no pain medication was issued to Plaintiff until July 2013. As a result of the discontinuation of Toradol, Plaintiff "was subject to immense pain in [his] neck and back for four months." Dr. Sandoval threatened Plaintiff that if he "pressed the issue" he would be sent to a different location. Because Plaintiff "feared reprisal, " he did not put in a health needs request.
In Count Two, Plaintiff alleges that Defendants were deliberately indifferent to Plaintiff's serious medical needs in violation of the Eighth Amendment as follows: Dr. Winskie and Corizon abruptly discontinued Plaintiff's "psych medications" of Seroquel 600mg without stepping Plaintiff down or putting him on something else for several days. As a result, Plaintiff had numerous thoughts of suicide and severe clinical depression on his days without medication. "Corizon nurses did everything they could to stop the grievance process to include misplacing paperwork."
In Count Three, Plaintiff alleges that Defendants violated his right to access the grievance process without retaliation as follows: Corizon, Dr. Sandoval, and Dr. Winskie colluded to retaliate against Plaintiff if his grievances were to proceed to the highest level. Dr. Sandoval specifically threatened to move Plaintiff from the facility. As a result, Plaintiff was in a state of constant fear of being removed from the facility, which caused him anxiety, depression, and lingering thoughts of suicide.
Plaintiff seeks punitive and compensatory damages and injunctive relief.
IV. Failure to State a Claim
To prevail in a § 1983 claim, a plaintiff must show that (1) acts by the defendants (2) under color of state law (3) deprived him of federal rights, privileges or immunities and (4) caused him damage. Thornton v. City of St. Helens, 425 F.3d 1158, 1163-64 (9th Cir. 2005) (quoting Shoshone-Bannock Tribes v. Idaho Fish & Game Comm'n, 42 F.3d 1278, 1284 (9th Cir. 1994)). In addition, a plaintiff must 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, not every claim by a prisoner relating to inadequate medical treatment states a violation of the Eighth 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 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.
A. Defendant Corizon
To state a claim under § 1983 against a private entity performing a traditional public function, such as providing medical care to prisoners, a plaintiff must allege facts to support that his constitutional rights were violated as a result of a policy, decision, or custom promulgated or endorsed by the private entity. See Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138-39 (9th Cir. 2012); Buckner v. Toro, 116 F.3d 450, 452 (11th Cir. 1997).
Plaintiff's vague and conclusory allegations do not support a claim that his constitutional rights were violated by a policy, decision, or custom promulgated or endorsed by Defendant Corizon. Plaintiff does not allege that decisions regarding his medical care were made pursuant to a policy and, even if they were, he has failed to identify any specific policy or custom and how it violated his constitutional rights. Moreover, to the extent Plaintiff is asserting that Defendant Corizon neglected Plaintiff's healthcare and conspired against him, Plaintiff has not identified any actions that Defendant Corizon took to support these conclusory allegations. Finally, because there is no respondeat superior liability under § 1983, a private entity is not liable simply because it employed individuals who allegedly violated a plaintiff's constitutional rights. See Tsao, 698 F.3d at 1139. Accordingly, the Court will dismiss Defendant Corizon.
B. Dr. Sandoval and Dr. Winskie
Plaintiff fails to state a claim for deliberate indifference to serious medical needs against Dr. Sandoval and Dr. Winskie. Plaintiff alleges that Dr. Sandoval discontinued Plaintiff's pain shot of Toradol without examining him. Plaintiff alleges that Dr. Winskie abruptly discontinued Plaintiff's Seroquel without replacing the medication for several days. Plaintiff does not allege any facts to support these allegations, such as the reasons given by Dr. Sandoval and Dr. Winskie for discontinuing Plaintiff's medications, whether Plaintiff requested that he be given his medications and who he requested the medications from, and the response to such requests, if any. Indeed, none of Plaintiff's allegations demonstrate that Defendant Sandoval or Defendant Winskie knew of an excessive risk to Plaintiff's health and disregarded such a risk. Accordingly, Plaintiff has failed to state a claim for deliberate indifference to serious medical needs against Dr. Sandoval and Dr. Winskie.
Plaintiff also alleges that Dr. Sandoval, Dr. Winskie, and Corizon colluded to retaliate against Plaintiff if his grievances proceeded to the highest level and Dr. Sandoval threatened to remove Plaintiff from the facility if he filed a grievance. Prisoners have a First Amendment right to file prison grievances, Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2005), but "[t]here is no legitimate claim of entitlement to a grievance procedure, " Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988) (citations omitted), and the failure to follow grievance procedures does not give rise to a due process claim. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) ("inmates lack a separate constitutional entitlement to a specific prison grievance procedure") (citation omitted); Flournoy v. Fairman, 897 F.Supp. 350, 354 (N.D. Ill. 1995) (jail grievance procedures did not create a substantive right enforceable under § 1983); Spencer v. Moore, 638 F.Supp. 315, 316 (E.D. Mo. 1986) (violations of grievance system procedures do not deprive inmates of constitutional rights); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) ("[N]o constitutional right was violated by the defendants' failure, if any, to process all of the grievances [plaintiff] submitted for consideration.").
Plaintiff's allegations that Dr. Sandoval, Dr. Winskie, and Defendant Corizon colluded to retaliate against Plaintiff if his grievances proceeded to the highest level, and that Dr. Sandoval threatened to remove Plaintiff from the facility if he filed a grievance, are vague and conclusory and fail to state a claim upon which relief can be granted. 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.
Plaintiff fails to allege any facts that Sandoval, Winskie, and Corizon colluded to retaliate against him if he filed a grievance. Moreover, Plaintiff fails to plead facts supporting his assertion that Dr. Sandoval threatened him, such as the events surrounding the threat, when such a threat was made, what Dr. Sandoval said, or any facts showing that Dr. Sandoval threatened Plaintiff to prevent him from filing grievances. Plaintiff fails to state a claim based on threatened retaliation. Therefore, Defendants Sandoval and Winskie 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.
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.
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.
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.