SCREENING ORDER DISMISSING COMPLAINT, AS AMENDED, WITH LEAVE TO AMEND
(ECF Nos. 1, 14)
ORDER DENYING PLAINTIFF'S REQUEST FOR THE APPOINTMENT OF COUNSEL, WITHOUT PREJUDICE
(ECF No. 15)
BARBARA A. McAULIFFE, Magistrate Judge.
Plaintiff Antonio Martinez ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff has consented to the jurisdiction of a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). (ECF No. 11)
Plaintiff's complaint, filed on September 30, 2016, as amended on November 17, 2016, is currently before the court for screening.
Screening Requirement and Standard
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). Plaintiff's complaint, or any portion thereof, is subject to dismissal if it is frivolous or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2); 28 U.S.C. § 1915(e)(2)(B)(ii).
A complaint 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). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice."
Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally construed and to have any doubt resolved in their favor.
Plaintiff is currently incarcerated at Pleasant Valley State Prison ("PVSP") in Coalinga, California. The events in the complaint are alleged to have occurred at PVSP. Plaintiff names the following Defendants: (1-3) three transportation guards of California Department of Corrections and Rehabilitation ("CDCR") and (4) CDCR. Plaintiff alleges as follows:
On May 16, 2016 Plaintiff arrived by bus at PVSP. The bus was parked in front of the Receiving and Release building. While Plaintiff and another inmate were being led off the bus, the bus moved forward, causing Plaintiff, the other inmate, and an unknown guard to be thrown off their feet. The Plaintiff was wearing handcuffs, belly chains, and feet shackles at the time. Plaintiff sustained multiple injuries, including a re-injury to his recently operated-on right Achilles tendon. His injuries were documented within ten minutes of the accident. These transportation guards failed to communicate and did not follow procedures while Plaintiff was being escorted down the aisle of the bus. The guards failed to provide a reasonable amount of safety.
Plaintiff was injured while being escorted off of the bus. Because of his recent surgery, and the abrupt fall while being incapacitated with handcuffs, belly chains and ankle shackles, Plaintiff immediately recognized the extreme pain and re-injury to his Achilles tendon. Although Plaintiff suffered several cuts and abrasions, his primary concern was the re-injury. Plaintiff stated this to the guards while they were arguing over miscommunication. Plaintiff asked to be attended to by medical staff immediately. Plaintiff's pleas were ignored. After sustaining a severe re-injury and multiple other injuries, these two unknown guards lifted Plaintiff up and moved him against his will. The guards without any medical training allegedly violated Plaintiff's right to medical care by lifting him up and moving him.
Upon arrival inside Receiving and Release, Plaintiff was sent to an examination room. As his attending nurse was documenting his outward injuries, and was inquiring about his fall on the bus and recent surgery, "unknown guard `c' intimidated the nurse to quit asking questions and process [Plaintiff] immediately[,] thereby denying [Plaintiff's] right to reasonable medical care."
Plaintiff requests $250,000 in compensation. Plaintiff also wants the three unknown guards to never be able to "treat another prisoner this way." Plaintiff wants CDCR to increase training on transportation and on the movement of injured prisoners.
Deficiencies of Claims
A. Failure to Protect
Plaintiff alleges that he was injured when he fell on a prisoner transportation bus began moving while he was being escorted down the bus's aisle.
The Eighth Amendment protects prisoners from inhumane methods of punishment and from inhumane conditions of confinement.
To establish a violation of this duty, the prisoner must establish that prison officials were "deliberately indifferent to a serious threat to the inmate's safety."
Plaintiff has not stated a cognizable claim against any guards based on his fall while being escorted off the bus. Plaintiff alleges that he fell because the bus began moving due to a miscommunication or failure to communicate between the guards. This does not allege that the guards were aware of a serious risk and then ignored the risk. Rather, at most Plaintiff has pleaded that the guards were aware of a need to escort the inmates off of the bus safely, but were negligent. Negligence is not a violation of the Eighth Amendment.
Furthermore, while the premature movement of a vehicle poses some risk of harm to its occupants, it does not generally pose a "substantial risk of serious harm."
B. Deliberate Indifference to Serious Medical Needs
Plaintiff also complains that the three unknown guards failed to provide reasonable medical care in violation of the Eighth Amendment. "[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate must show `deliberate indifference to serious medical needs.'"
Deliberate indifference is shown where the official is aware of a serious medical need and fails to adequately respond.
1. Deliberate Indifference for Picking up and Moving Plaintiff
Plaintiff claims that after falling on the bus and injuring his Achilles tendon, he informed the two guards of his injury, and asked to be attended to by medical staff. The guards ignored his request, lifted him up, and moved him to Receiving and Release, where he was sent to an examination room and was attended to by a nurse.
Liberally construed, Plaintiff's allegations that his fall had re-injured his Achilles tendon and caused him extreme pain, are sufficient to show a serious medical need. However, Plaintiff has not alleged facts showing that the guards were aware of facts showing a substantial risk of serious harm by moving Plaintiff, or that the guards made that inference and disregarded it. Plaintiff alleges that the guards picked Plaintiff up in order to move him to Receiving and Release, where he was then sent to an examination room to be attended to. This instead infers an attempt by the guards to address Plaintiff's medical needs. Plaintiff will be permitted leave to amend these claims, to the extent he may do so in good faith.
2. Deliberate Indifference for Intimidating Plaintiff's Nurse
Plaintiff has also failed to state a cognizable claim against the guard he identifies as Unknown Guard "C". Plaintiff alleges that when a nurse documented his injuries and was inquiring about the fall, Unknown Guard C "intimidated the nurse to quit asking questions and process [Plaintiff] immediately." Even taking Plaintiff's allegations as true, he has not sufficiently alleged any harm from the guard's intimidation. Plaintiff has not alleged facts showing that the guard's acts prevented the nurse from treating Plaintiff's injuries. Plaintiff will be permitted an opportunity to amend this claim to the extent he may do so in good faith.
C. Claims against CDCR
Plaintiff has named CDCR as a Defendant. The Eleventh Amendment of the United States Constitution prohibits federal courts from hearing suits brought against a state by its own citizens or citizens of other states.
Defendant CDCR is a state agency, and thus it has immunity from suit under the Eleventh Amendment. Here, Plaintiff specifically seeks prospective, or future, injunctive relief against CDCR in the form of additional training of the defendant guards. A plaintiff may name a state official to obtain prospective, injunctive relief. "A plaintiff seeking injunctive relief against the State is not required to allege a named official's personal involvement in the acts or omissions constituting the alleged constitutional violation."
In this case, Plaintiff has not identified any policy or custom that caused a violation of his Constitutional rights, nor has he named a state official who can appropriately respond to injunctive relief. Plaintiff will be granted leave to amend this claim, and must name an appropriate defendant.
D. Doe Defendants
Plaintiff names three unknown guards as Doe Defendants. "As a general rule, the use of `John Doe' to identify a defendant is not favored."
E. Exhaustion of Administrative Remedies
In the section of Plaintiff's complaint discussing the exhaustion of administrative remedies, Plaintiff states that his appeal was cancelled because of a 30-day time limit, that he appealed that decision, and that the appeal was denied.
Pursuant to the Prison Litigation Reform Act (PLRA) of 1996, "[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). Prisoners are required to exhaust the available administrative remedies prior to filing suit.
In California, a prison inmate satisfies the administrative exhaustion requirement by following the procedures set forth in sections 3084.1 through 3084.8 of Title 15 of the California Code of Regulations. An inmate "may appeal any policy, decision, action, condition, or omission by the department or its staff that the inmate . . . can demonstrate as having a material adverse effect upon his or her health, safety, or welfare." Cal. Code Regs. tit. 15, § 3084.1(a). The regulations require the prisoner to proceed through all three levels of review.
Although the "failure to exhaust is an affirmative defense under the PLRA," a prisoner's complaint may be subject to dismissal for failure to state a claim when an affirmative defense appears on its face.
From the face of the complaint, it appears Plaintiff has failed to exhaust his administrative remedies because his appeal was cancelled for failure to comply with the applicable time limit. If Plaintiff chooses to amend, he must allege facts to show that he has in fact exhausted administrative remedies, or that his failure to exhaust should be excused because administrative remedies were effectively unavailable to him, to the extent he can do so in good faith. Otherwise, his complaint is subject to dismissal, without prejudice, for the failure to exhaust available administrative remedies.
Appointment of Counsel
By a separate motion filed shortly after Plaintiff amended his complaint, Plaintiff has requested appointment of counsel to assist him in pursuing his claims. (ECF No. 15.)
"There is no constitutional right to appointed counsel in a section 1983 action."
However, in exceptional circumstances, counsel may be appointed for "indigent civil litigants".
As explained above, Plaintiff's complaint fails to state a cognizable claim against any of the Defendants, and it is being dismissed with leave to amend. Therefore, the Court cannot find any likelihood of success on the merits at this early stage, and the case does not yet proceed on any cognizable claims. Nevertheless, the record reflects that Plaintiff is able to reasonably articulate himself in his filings, and Plaintiff's motion for appointment of counsel was also understandable and supported by relevant legal citations. Furthermore, the legal issues of this case are not significantly complex or unique. Therefore, Plaintiff's request for counsel is denied, without prejudice.
CONCLUSION AND ORDER
The Court finds that Plaintiff's complaint, as amended, has not stated any cognizable claims. The Court will grant Plaintiff an opportunity to file a second amended complaint to attempt to cure the deficiencies identified above which Plaintiff believes, in good faith, are curable.
Plaintiff's second amended complaint must be filed within thirty (30) days of the date of service of this order. Plaintiff may not change the nature of this suit by adding new, unrelated claims in his amended complaint.
Plaintiff's second amended complaint should be brief, Fed. R. Civ. P. 8(a), but it must also state what each named defendant did that led to the deprivation of Plaintiff's constitutional rights,
Plaintiff is also reminded that an amended complaint supersedes all prior complaints.
Based on the foregoing, it is HEREBY ORDERED that:
IT IS SO ORDERED.
If Plaintiff elects to amend his complaint, he should specify which guards are the defendants using their names so that his allegations are clear. To the extent he does not know their names, he may use an identifying term, such as "Unknown Guard 1, Unknown Guard 2," et cetera.