Opinion
3:21-cv-00204-MMD-WGC
09-07-2021
DWANVAE PEARSON, Plaintiff, v. G. CARPENTER, et al., Defendants.
ORDER
MIRANDA M. DU, CHIEF UNITED STATES DISTRICT JUDGE
Plaintiff Dwanvae Pearson, who is incarcerated in the custody of the Nevada Department of Corrections (“NDOC”), has submitted a civil rights complaint pursuant to 42 U.S.C. § 1983 and has filed an application to proceed in forma pauperis. (ECF Nos. 1, 1-1.) Pearson also has filed a motion for a preliminary injunction or temporary restraining order. (ECF No. 1-2.) The matter of the filing fee will be temporarily deferred. The Court now screens Pearson's civil rights complaint under 28 U.S.C. § 1915A and addresses the motion for a preliminary injunction or temporary restraining order.
I. SCREENING STANDARD
Federal courts must conduct a preliminary screening in any case in which an incarcerated person seeks redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). In its review, the Court must identify any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. See Id. §§ 1915A(b)(1), (2). Pro se pleadings, however, must be liberally construed. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) the violation of a right secured by the Constitution or laws of the United
States; and (2) that the alleged violation was committed by a person acting under color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).
In addition to the screening requirements under § 1915A, under the Prison Litigation Reform Act (“PLRA”), a federal court must dismiss an incarcerated person's claim if “the allegation of poverty is untrue” or if the action “is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2). Dismissal of a complaint for failure to state a claim upon which relief can be granted is provided for in Federal Rule of Civil Procedure 12(b)(6), and the Court applies the same standard under § 1915 when reviewing the adequacy of a complaint or an amended complaint. When a court dismisses a complaint under § 1915(e), the plaintiff should be given leave to amend the complaint with directions as to curing its deficiencies, unless it is clear from the face of the complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).
Review under Rule 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Lab. Corp. of Am., 232 F.3d 719, 723 (9th Cir. 2000). Dismissal for failure to state a claim is proper only if it is clear that the plaintiff cannot prove any set of facts in support of the claim that would entitle him or her to relief. See Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 1999). In making this determination, the Court takes as true all allegations of material fact stated in the complaint, and the Court construes them in the light most favorable to the plaintiff. See Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th Cir. 1996). Allegations of a pro se complainant are held to less stringent standards than formal pleadings drafted by lawyers. See Hughes v. Rowe, 449 U.S. 5, 9 (1980). While the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must provide more than mere labels and conclusions. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A formulaic recitation of the elements of a cause of action is insufficient. See id. ///
Additionally, a reviewing court should “begin by identifying pleadings [allegations] that, because they are no more than mere conclusions, are not entitled to the assumption of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “While legal conclusions can provide the framework of a complaint, they must be supported with factual allegations.” Id. “When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” 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.
Finally, all or part of a complaint filed by an incarcerated person may be dismissed sua sponte if that person's claims lack an arguable basis either in law or in fact. This includes claims based on legal conclusions that are untenable (e.g., claims against defendants who are immune from suit or claims of infringement of a legal interest which clearly does not exist), as well as claims based on fanciful factual allegations (e.g., fantastic or delusional scenarios). See Neitzke v. Williams, 490 U.S. 319, 327-28 (1989); see also McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991).
II. SCREENING OF COMPLAINT
In his Complaint, Perason sues multiple Defendants for events that allegedly took place while he was incarcerated at Ely State Prison (“ESP”). (ECF No. 1-1 at 1.) Pearson sues Defendants G. Carpenter, D. Jones, M. Minev, S. Ray, Warden Brian Williams, and Warden William Gittere. (Id. at 1-3.) He also lists a John Doe Doctor and a John Doe NDOC Director as defendants. (Id. at 1, 3.) Pearson brings two claims and seeks monetary damages, declaratory relief, and injunctive relief. (Id. at 7, 12.)
The Court notes that a complaint cannot be served on an unnamed person, and a case may not proceed against a person, including preliminary injunction proceedings, unless that person is served with the complaint. Furthermore, as a general rule, the use of “Doe” pleading to identify a defendant is not favored. See Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). However, the Court recognizes that there are situations “where the identity of alleged defendants will not be known prior to the filing of a complaint.” Id. If a plaintiff states a colorable claim against a particular Doe defendant, the Court later may provide the plaintiff with an opportunity at the appropriate time to identify that particular unknown defendant through discovery, unless it is clear that discovery would not uncover that person's identity or that the complaint would be dismissed on other grounds. Id. To proceed with an action against that person, the plaintiff then would have to amend the complaint to state a colorable claim against that person using that person's true name.
Count I alleges the following. Pearson has cholinergic urticaria (hives) due to a substance in his body that transmits nerve impulses (the neurotransmitter acetylcholine). (ECF No. 1-1 at 5.) This medical condition is well documented in Pearson's medical files and is well known to the NDOC and their medical staff. (Id.) When not treated, Pearson experiences extreme pain. (Id.) Pearson discussed this with John Doe Doctor on numerous occasions and has submitted kites to G. Carpenter, D. Jones, S. Ray, and M. Minev. (Id.) His daily pain and suffering was communicated to all Defendants in kites and grievances. (Id.) His rashes, hives, and dryness, as well as his diagnosis and treatment was known to Medical and they allowed this condition to go “untreated” between April of 2020 until June of 2020. (Id.) Medical knew medication controlled the condition and pain and that without medication or treatment the condition would endanger Pearson's immune system, which has been damaged. (Id.)
Based on these allegations, Pearson concludes that his Fourteenth Amendment right to equal protection, his First Amendment rights, and his Eighth Amendment rights have been violated. (Id. at 5.)
Count II alleges the following. Pearson has had his “chronic care issue” since May of 2015. (ECF No. 1-1 at 7.) He has spent over six years in the NDOC system dealing with this “chronic care issue going untreated and being improperly diagnosed, leaving Pearson to deal with the extreme pain on his own in the care of the NDOC medical care system.” (Id.) Pearson asserts that the NDOC medical care system is deliberately indifferent because it lacks communication, is short on staff, hires incompetent staff to examine and diagnose prisoners, and has a dysfunctional medical kite system. (Id.) He further asserts that the NDOC medical care system as a whole is deliberately indifferent and he is living in a dysfunctional medical care system. (Id.) His medical condition is well known and documented and, when not treated, causes plaintiff to suffer in daily pain, damaging his immune system. (Id.) Pearson fears for his health and his life every day as he is living in a deadly time with COVID-19 and he believes that he is at higher risk to die from COVID-19 if he gets infected with it because his immune system has been damaged from years of having his condition go untreated. (Id. at 8.) He has clearly communicated through the grievance system asking for help with his condition. (Id.) Pearson wrote to Medical asking for his antihistamines, which allow him to feel comfortable, but he has not received them, leaving him with painful rashes. (Id.) Although it is not entirely clear, based on part of the exhibit Pearson has attached to the Complaint, it appears that Pearson is referring to communications with Defendants D. Jones and Warden Gittere. (Id. at 35-36.) Based on these allegations, Pearson concludes that his Fourteenth Amendment right to equal protection, his First Amendment right against retaliation, and his Eighth Amendment rights have been violated. (Id. at 7.)
A. First Amendment Claims
Pearson alleges that his First Amendment right against retaliation was violated. The Court cannot discern any basis for Pearson invoking the First Amendment based on the allegations in the Complaint. He has not alleged any facts at all that could show that any Defendant engaged in any adverse conduct because of speech that provided that defendant with a retaliatory motive. See Pratt v. Rowland, 65 F.3d 802, 808-09 (9th Cir. 1995) (recognizing that, to prevail on a retaliation claim, a plaintiff must do more than speculate and must show that the defendant had a retaliatory motive and engaged in adverse conduct because of the retaliatory motive created by the protected speech). It appears that Pearson believes that, because he sent kites or filed grievances and he did not receive responses or responses that he liked, his First Amendment rights have been violated. He is incorrect. The mere denial of a grievance in response to that grievance does not constitute retaliation. See Allen v. Kernan, No. 316CV01923CABJMA, 2017 WL 4518489, at *9 (S.D. Cal. Oct. 10, 2017). Therefore, Pearson does not and cannot state a claim on such a theory, and those claims are dismissed with prejudice, as amendment would be futile.
B. Eighth Amendment Claims
The Eighth Amendment prohibits the imposition of cruel and unusual punishment and “embodies ‘broad and idealistic concepts of dignity, civilized standards, humanity, and decency.'” Estelle v. Gamble, 429 U.S. 97, 102 (1976). A prison official violates the Eighth Amendment when he acts with “deliberate indifference” to the serious medical needs of an inmate. Farmer v. Brennan, 511 U.S. 825, 828 (1994). “To establish an Eighth Amendment violation, a plaintiff must satisfy both an objective standard-that the deprivation was serious enough to constitute cruel and unusual punishment-and a subjective standard-deliberate indifference.” Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012).
To establish the first prong, “the plaintiff must show a serious medical need by demonstrating that failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (internal quotations omitted).
To prove deliberate indifference, a plaintiff must prove that the prison official “knows of and disregards an excessive risk to inmate health or safety; 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, 511 U.S. at 837; see also Peralta v. Dillard, 744 F.3d 1076, 1086 (9th Cir. 2014) (en banc). Thus, “a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner.” Estelle, 429 U.S. at 106. Even gross negligence is insufficient to establish deliberate indifference to serious medical needs. See Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). It is not enough that the official objectively should have recognized the risk but did not. See Jeffers v. Gomez, 267 F.3d 895, 914 (9th Cir. 2001). Additionally, a difference of opinion between a prisoner-patient and prison medical authorities regarding treatment is not sufficient to state an Eighth Amendment claim. See Franklin v. State of Or., State Welfare Div., 662 F.2d 1337, 1344 (9th Cir. 1981). To establish that a disagreement about a course of medical treatment amounted to deliberate indifference, the prisoner “must show that the course of treatment the doctors chose was medically unacceptable under the circumstances” and “that they chose this course in conscious disregard of an excessive risk to [the prisoner's] health.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (emphasis added).
To satisfy the deliberate indifference prong, a plaintiff must show “(a) a purposeful act or failure to respond to a prisoner's pain or possible medical need and (b) harm caused by the indifference.” Jett, 439 F.3d at 1096.
In addition, prison officials who know of a substantial risk to an inmate's health and safety are liable only if they responded unreasonably to the risk, even if the harm ultimately was not averted. See Farmer, 511 U.S. at 844. What is reasonable depends on the circumstances, including the defendant's authority, resources, expertise, and capabilities. See Peralta, 744 F.3d at 1084, 1087 (holding that it was not deliberate indifference for an official without medical expertise to defer to the decisions of a medical provider who did have relevant medical expertise). Thus, when a prison official places a prisoner patient on a waiting list for treatment, that does not necessarily demonstrate deliberate indifference by that official if the official believes there are patients with greater needs or if that official lacks the ability to expand resources to address everyone's needs on a timely basis. See Id. at 1086.
Furthermore, a defendant is liable under 42 U.S.C. § 1983 “only upon a showing of personal participation by the defendant.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). “Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Thus, when a supervisor is found liable based on deliberate indifference, the supervisor is being held liable for his or her deliberate indifference, not for the subordinate's deliberate indifference. See Starr v. Baca, 652 F.3d 1202, 1206-07 (9th Cir. 2011).
Here, Pearson does allege a serious medical need: his cholinergic urticaria. But to the extent Pearson is attempting to state a claim based on broad allegations that the NDOC medical care system as a whole is dysfunctional because it has problems such as staff issues or kiting problems, Pearson fails to state a colorable claim. As discussed above, a plaintiff must allege facts sufficient to show that a particular defendant was deliberately indifferent to the plaintiff's specified serious medical need and caused the plaintiff specified harm. Moreover, to the extent Pearson is alleging that he has received no treatment at all, the Court cannot accept such an allegation as true because the Complaint clearly indicates that he did receive some treatment. Vague and conclusory allegations of deliberate indifference to serious medical needs or denial of care for serious medical needs similarly fail to state a colorable claim.
However, to the extent Pearson alleges that there have been periods where he has not received the medications prescribed for his cholinergic urticaria, the Court finds that Pearson states colorable claims against Defendants G. Carpenter, D. Jones, S. Ray, M. Minev, and Warden Gittere. The Complaint adequately alleges that Pearson needs this medication to treat his cholinergic urticaria. In addition, liberally construed, the Complaint alleges that Pearson informed these defendants that he did not have his prescribed medication, but they did not remedy the situation, resulting in Pearson experiencing pain. This is sufficient to allege deliberate indifference by these Defendants. Therefore, these Eighth Amendment claims may proceed against G. Carpenter, D. Jones, S. Ray, M. Minev, and Warden Gittere.
Pearson alleges that his diagnosis is well known but also alleges that he was misdiagnosed. To the extent that Pearson disagrees with the medical advice he has received or disagrees with a doctor's diagnosis and prescribed treatment, that is not sufficient to state a colorable claim as he does not allege any facts indicating that any defendant believed that the diagnosis was incorrect and thereby caused Pearson harm. As discussed above, negligence or a patient's disagreement with a patient's diagnosis is not sufficient to establish a claim for deliberate indifference to serious medical needs. The
Court therefore dismisses this portion of the Complaint without prejudice and with leave to amend. If Pearson chooses to amend this portion of the Complaint, he must allege true facts sufficient to show that a particular defendant knew that his or her diagnosis or prescribed treatment was incorrect but provided that diagnosis and treatment anyway. Vague, conclusory, and collective allegations also will not be sufficient. The Court must be able to tell which defendant engaged in which particular conduct regarding which particular medical need, and the allegations must be sufficient to show that the particular defendant was deliberately indifferent to that particular serious medical need, causing specified harm. Allegations that would establish negligence will not be sufficient. A disagreement with a defendant's diagnosis or medical advice will not be sufficient.
C. Fourteenth Amendment Claims
The Supreme Court has explicitly affirmed that the Equal Protection Clause may “give[] rise to a cause of action on behalf of a ‘class of one'” when a plaintiffs does not allege membership in a class or group. Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). A successful “class of one” claim is brought “where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” Id.; see also Engquist v. Oregon Dep't of Agr., 553 U.S. 591, 601 (2008) (recognizing that an equal protection claim may be maintained in some circumstances even if the plaintiff does not allege class-based discrimination, “but instead claims that she has been irrationally singled out as a so-called ‘class of one'”). “Similarly situated” persons are those “who are in all relevant respects alike.” Nordlinger v. Hahn, 505 U.S. 1, 10 (1992).
However, although the Supreme Court has acknowledged the class of one theory of equal protection, it has held that the theory does not apply when the state actions “by their nature involve discretionary decisionmaking based on a vast array of subjective, individualized assessments.” Engquist, 553 U.S. at 603. “[A]llowing a challenge based on the arbitrary singling out of a particular person would undermine the very discretion that such officials are entrusted to exercise.” Id. at 604. The Supreme Court has recognized that the problem with allowing class of one claims to go forward in a context where government officials are necessarily making subjective, individualized decisions is that the government will be forced to defend a multitude of such claims and courts will be obliged to go through them in search of the rare “needle in a haystack.” Id. at 608-09. Thus, a plaintiff cannot state an equal protection claim based merely on decisions regarding prison officials' treatment of medical conditions where such decisions are made on the basis of subjective, individualized assessments. See Schoenwandt v. Karan, No. CIV. 14-00398 HG-KSC, 2014 WL 5757339, at *6 (D. Haw. Oct. 16, 2014), report and recommendation adopted as modified, No. CIV. 14-00398 HG-KSC, 2014 WL 5768756 (D. Haw. Nov. 5, 2014).
Here, Pearson is challenging the way that prison officials responded to his medical condition. Such decisions, by their nature, require individualized and subjective assessments of each inmate. Pearson therefore does not and cannot state a Fourteenth Amendment equal protection claim, and any such claims are dismissed with prejudice, as amendment would be futile.
D. Leave to Amend
Pearson is granted leave to file an amended complaint to cure the deficiencies of the Complaint. If he chooses to file an amended complaint, Pearson is advised that an amended complaint supersedes (replaces) the original complaint and, thus, the amended complaint must be complete in itself. See Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (holding that “[t]he fact that a party was named in the original complaint is irrelevant; an amended pleading supersedes the original”); see also Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (holding that for claims dismissed with prejudice, a plaintiff is not required to reallege such claims in a subsequent amended complaint to preserve them for appeal). Pearson should file the amended complaint on this Court's approved prisoner civil rights form, and it must be entitled “First Amended Complaint.” For each Defendant, Pearson must allege facts sufficient to show that the particular Defendant violated Pearson's civil rights. The Court must be able to understand the particular factual basis for a claim against a particular defendant. Vague, conclusory, or collective allegations will not be sufficient. Pearson may not amend the complaint to add unrelated claims against other defendants.
The Court notes that, if Pearson chooses to file an amended complaint curing the deficiencies, as outlined in this order, Pearson must file the amended complaint within 30 days from the date of entry of this order. If Pearson does not timely file an amended complaint curing the stated deficiencies, this action will proceed against G. Carpenter, D. Jones, S. Ray, M. Minev, and Warden Gittere on the Eighth Amendment claim based on Pearson's alleged failure to receive his prescribed medication for his cholinergic urticaria.
III. MOTION FOR TRO AND PI
Pearson has also filed a motion for a temporary restraining order or preliminary injunction. (ECF No. 1-2.) He seeks an order for a “medically appropriate diagnosis, ” and appears to seek a consultation with a dermatologist to provide a plan of treatment. (Id. at 1, 4.)
Injunctive relief, whether temporary or permanent, is an “extraordinary remedy, never awarded as of right.” Winter v. Natural Res. Defense Council, 555 U.S. 7, 24 (2008). “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Am. Trucking Ass'ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009) (quoting Winter, 555 U.S. at 20). Furthermore, under the Prison Litigation Reform Act (“PLRA”), preliminary injunctive relief must be “narrowly drawn, ” must “extend no further than necessary to correct the harm the court finds requires preliminary relief, ” and must be “the least intrusive means necessary to correct that harm.” 18 U.S.C. § 3626(a)(2).
In addition, “there must be a relationship between the injury claimed in the motion for injunctive relief and the conduct asserted in the underlying complaint. This requires a sufficient nexus between the claims raised in a motion for injunctive relief and the claims set forth in the underlying complaint itself.” Pac. Radiation Oncology, LLC v. Queen's Med. Ctr., 810 F.3d 631, 635-36 (9th Cir. 2015).
As discussed above, Pearson has not stated a colorable claim with regard to his diagnosis and the Court has dismissed that claim. Therefore, Pearson's motion for a consultation with a dermatologist and for a medically appropriate diagnosis is denied without prejudice.
IV. CONCLUSION
It is therefore ordered that a decision on Pearson's application to proceed in forma pauperis (ECF No. 1) is deferred.
It is further ordered that the Clerk of the Court will file the Complaint (ECF No. 1-1) and will send Pearson a courtesy copy of the Complaint.
It is further ordered that the Eighth Amendment claims based on Pearson's alleged failure to receive his prescribed medication for his cholinergic urticaria may proceed against G. Carpenter, D. Jones, S. Ray, M. Minev, and Warden Gittere.
It is further ordered that the First Amendment claims, based on allegations that he did not receive a proper response to his kites or grievances, are dismissed with prejudice, as amendment would be futile.
It is further ordered that the Fourteenth Amendment equal protection claims are dismissed with prejudice, as amendment would be futile.
It is further ordered that, if Pearson chooses to file an amended complaint curing the deficiencies of his complaint, as outlined in this order, Pearson shall file the amended complaint within 30 days from the date of entry of this order.
It is further ordered that the Clerk of the Court shall send to Pearson the approved form for filing a § 1983 complaint and instructions for the same. If Pearson chooses to file an amended complaint, he should use the approved form and he must write the words “First Amended” above the words “Civil Rights Complaint” in the caption.
It is further ordered that, if Plaintiff fails to file a timely amended complaint curing the stated deficiencies of the complaint, this action shall proceed against G. Carpenter, D. Jones, S. Ray, M. Minev, and Warden Gittere on the Eighth Amendment claim based on Pearson's alleged failure to receive his prescribed medication for his cholinergic urticaria.
It is further ordered that the motion for a temporary restraining order or preliminary injunction (ECF No. 1-2) is denied without prejudice.