Kennedy v. Hayes

• Decision Date: 28 December 2010
• Docket Number: Case No.: 1:09-cv-01946 JLT (PC)
• Parties: STEPHEN PAULE KENNEDY, Plaintiff, v. P. HAYES, et al., Defendants.
• Court: U.S. District Court — Eastern District of California

STEPHEN PAULE KENNEDY, Plaintiff, v. P. HAYES, et al., Defendants.

Case No.: 1:09-cv-01946 JLT (PC)

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

December 28, 2010

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND

(Doc. 1)

Stephen Paule Kennedy ("Plaintiff") is a prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff asserts this action against P. Hayes, Ken Clark, Dr. O. Beregovskaya, D. James, California Department of Corrections and Rehabilitation Director ("CDCR Director"), Doe 1 (A-Yard medical supervisor), Doe 2 (direct supervisor of P. Hayes), and Does 3-6 (various staff), collectively, "Defendants." Plaintiff filed his Complaint against Defendants on November 9, 2010 (Doc. 1), which is now before the Court for screening.

I. Screening Requirement

Where a prisoner seeks relief against "a governmental entity or officer or employee of a governmental entity," the Court is required to review the complaint and identify "cognizable claims." 28 U.S.C § 1915(a)-(b). The Court must dismiss a complaint, or portion of the complaint, if it is "frivolous, malicious or fails to state a claim upon which relief may be granted; or . . . seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C. § 1915A(b); 28 U.S.C. § 1915(e)(2). A claim is frivolous "when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them." Denton v. Hernandez, 504 U.S. 25, 32-33 (1992). In determining whether a claim is malicious, the Court examines whether the claims are pled in good faith. Kinney v. Plymouth Rock Squab. Co., 236 U.S. 43, 46 (1915).

II. Pleading Standards

General rules for pleading complaints are governed by the Federal Rules of Civil Procedure. A pleading stating a claim for relief must include a statement affirming the court's jurisdiction, "a short and plain statement of the claim showing the pleader is entitled to relief; and...a demand for the relief sought, which may include relief in the alternative or different types of relief." Fed.R.Civ.P. 8(a). The Federal Rules adopt a flexible pleading policy, and pro se pleadings are held to "less stringent standards" than pleadings drafted by attorneys. Haines v. Kerner, 404 U.S. 519, 520-21 (1972).

A complaint must give fair notice and state the elements of the plaintiff's claim in a plain and succinct manner. Jones v. Cmty Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984). The purpose of the complaint is to give the defendant fair notice of the claims against him, and the grounds upon which the complaint stands. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). The Supreme Court noted,

Rule 8 does not require detailed factual allegations, but it demands more than an unadorned, the-defendant-unlawfully-harmed-me unlawfully accusation. A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement.

Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (internal quotation marks and citations omitted). Conclusory and vague allegations do not support a cause of action. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). The Court clarified further that,

[A] complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." [Citation]. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. [Citation]. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. [Citation]. Where a complaint pleads facts that are"merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of 'entitlement to relief.

Iqbal, 129 S.Ct. at 1949. Where the factual allegations are well-pled, a court should assume their truth and determine whether the facts would make the plaintiff entitled to relief; conclusions in the pleading are not entitled to the same assumption of truth. Id. If the Court determines the complaint fails to state a cognizable claim, the Court may grant leave to amend to the extent that deficiencies of the complaint can be cured by an amendment. Lopez v. Smith, 203 F.3d 1122, 1127-28 (9th Cir. 2000) (en banc).

III. § 1983 Claims

Section 1983 of title 42 of the United States Code does not provide for substantive rights; it is "a method for vindicating federal rights elsewhere conferred." Albright v. Oliver, 510 U.S. 266, 271 (1994). In pertinent part, Section 1983 states:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress...

42 U.S.C. § 1983. To plead a § 1983 violation, a plaintiff must allege facts from which it may be inferred (1) he was deprived of a federal right, and (2) a person who committed the alleged violation acted under color of state law. West v. Atkins, 487 U.S. 42, 28 (1988); Williams v. Gorton, 529 F.2d 668, 670 (9th Cir. 1976). In addition, a plaintiff must allege he suffered a specific injury, and show causal relationship between the defendant's conduct and the injury suffered by the plaintiff. See Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person deprives another of a federal right "if he does an affirmative act, participates in another's affirmative acts, or omits to perform an act which he is legally required to do so that it causes the deprivation of which complaint is made"). As with other complaints, conclusory allegations unsupported by facts are insufficient to state a civil rights claim under § 1983. Sherman v. Yakahi, 549 F.2d 1287, 1290 (9th Cir. 1977).

///

///

IV. Factual Allegations of Plaintiff

Plaintiff alleges he had surgery to repair an inguinal hernia and a liver biopsy on December 1, 2008. (Doc. 1 at 3). Plaintiff was ordered to receive two Vicodin every four hours as need for five days, bandage changes, and have the incision staples removed after twelve days. Id. On December 3, 2008, at approximately noon, Plaintiff retrieved his prison clothing that had been stored for him while he underwent his surgery at a neighboring prison. Id. Then he reported to the pill dispensary line to receive his pain medication. Id. When Hayes refused to provide the pain medication, Plaintiff requested his soiled bandages be changed, and informed Hayes he felt ill and light-headed. Id. However, defendant Hayes, a licensed vocational nurse, "refused to provide the prescribed Vocodin for pain relief . . ." for several reasons. Id.

Hayes refused to provide the medication because Plaintiff did not have a "CDCR identification card" which was in the possession of an off-duty correctional officer. (Doc. 1 at 4). Instead, he had a temporary photo identification card in lieu of his card . Id. Hayes criticized Plaintiff also because he was not on time for med call and Hayes noticed that Plaintiff was carrying his bag of clothing. Id. Thus, Hayes "criticized him for 'handling his clothing needs instead of getting his medication.'" Id. Hayes telephoned Plaintiff's cell block officer, Lopez. Id. at 5. Hayes told Plaintiff that Lopez reported that he saw Plaintiff with a bag of clothing heading toward the laundry room. Id. When he returned to the cell block, Lopez denied telling Hayes anything about Plaintiff carrying a bag of laundry. Id. at 6. Despite that Plaintiff asked Hayes to change his bandages "due to them being soiled, and informed L.V.N. Hayes that he was feeling ill and light headed," Hayes refused to treat Plaintiff. Id. at 5.

At approximately 1:40 pm on December 3, 2008, the correctional officer who had Plaintiff's identification card returned to work and gave Plaintiff his card. (Doc. 1 at 6). "With I.D. card in hand, Plaintiff once again attempted to receive treatment and medication," but it was refused. Id. About five minutes later, Plaintiff walked to the program office to attempt to gain assistance from a sergeant. Id. A sergeant attempted to escort Plaintiff back to the medical area but Plaintiff "lost consciousness and collapsed." Id. Hayes arrived at Plaintiff's location and found him in a "balled-up in a fetus position on the ground." Id. Hayes told other medical personal Plaintiff was faking it and ordered him to get up. Id.

When he refused, Plaintiff was transported via a stretcher to the medical building but Hayes "directed other staff to leave him alone (lying on the stretcher) because 'he's faking it.'" (Doc 1. at 7). Around 3 pm, Hayes observed Plaintiff to be moving around on the gurney and trying to sit up. Id. Hayes told Plaintiff "it would hurt less if you stopped moving around." Id. In response, Plaintiff "warned" Hayes that she should "watch how she treated people." Id. When Hayes asked it he was threatening her, he denied this but added, "God will take care of you." Id.

At about 4:00 p.m., Dr. Beregovskaya tended to Plaintiff. Id. at 7-8. He removed the bandage and observed that the surgical wound was "'infected' and 'pussing.'" Id. Dr. Beregovkaya placed Plaintiff on a course of antibiotics and ordered that he receive his pain medication. Id. at 8.

On December 5, 2008, Plaintiff was sent to a prison hospital to treat his "post surgical infection." (Doc. 1 at 8). There, "[t]he treating physician asked [Plaintiff] to...