United States District Court, W.D. Washington, Tacoma
ORDER TO SHOW CAUSE OR AMEND THE COMPLAINT
THERESA L. FRICKE UNITED STATES MAGISTRATE JUDGE.
Larry Lloyd, proceeding pro se and in forma pauperis, filed a
proposed civil rights complaint. The Court declines to serve
the complaint because plaintiff has failed to state a claim
for relief under 42 U.S.C. § 1983. However, the Court
will give plaintiff an opportunity to show cause why his
complaint should not be dismissed or to file an amended
complaint to cure, if possible, the deficiencies noted
herein, on or before October 20, 2017.
Additionally, Plaintiff filed a motion for a copy of his
original complaint on August 24, 2017. Dkt. 7.
Plaintiff's motion is GRANTED. However,
to receive any future copies from the Court, plaintiff must
pay $0.50 per page.
is incarcerated at Kitsap County Jail (KCJ). He sues Mark
Rufener, KCJ Chief; ConMed Healthcare Management, Inc.; and
“Nurse Senovia, ” purportedly a contract employee
with ConMed who provides healthcare services at the KCJ
Medical Facility. Plaintiff makes three overarching claims.
First, plaintiff alleges that Mr. Rufener has
“cultivated a policy or custom” that chills his
right to file grievances. Dkt. 9, at 28. Second, plaintiff
alleges that Nurse Senovia demonstrated deliberate
indifference to his medical needs. Dkt. 9, at 20. Third,
plaintiff alleges that Nurse Senovia withheld pain medication
from him as retaliation for filing grievances. Dkt. 9, at 21.
More specifically, plaintiff states that prior to
incarceration, orthopedic surgeon Dr. James Allen prescribed
him pain medication for a leg injury. Dkt. 9, at 15.
Plaintiff alleges that when he arrived at KCJ in April 2017,
he requested ice and a blanket to help with the swelling in
his leg. Id. When Nurse Senovia did not respond to
his request for several weeks, plaintiff filed another
grievance. Dkt. 9, at 16. Plaintiff further alleges that
Nurse Senovia withheld his pain medication following the
grievance, only reinstating it four days later. Dkt. 9, at
18. Plaintiff states that this happened on several instances.
Dkt. 9, at 22. Plaintiff further states that he filed two
grievances that are still pending. Dkt. 9, at 28.
Court declines to serve the complaint because it contains
fatal deficiencies that, if not addressed, might lead to a
recommendation of dismissal of the entire action for failure
to state a claim upon which relief may be granted. 28 U.S.C.
§§ 1915(e)(2)(b)(ii), 1915A(b)(1).
complaint is brought under § 1983. To state a claim
under § 1983, a plaintiff must allege facts showing (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). In addition, to state a valid § 1983 claim,
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).
complaint fails to state a cognizable claim against Mr.
Rufener and against ConMed Healthcare. To state a claim under
42 U.S.C. § 1983, plaintiff must allege facts showing
how a defendant caused or personally participated in causing
the harm alleged in the complaint. Leer v. Murphy,
844 F.2d 628, 633 (9th Cir. 1988). A person subjects another
to a deprivation of a constitutional right when committing an
affirmative act, participating in another's affirmative
act, or omitting to perform an act which is legally required.
Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
Sweeping conclusory allegations against an official are
insufficient to state a claim for relief. Leer, 844
F.2d at 633. Further, a § 1983 suit cannot be based on
vicarious liability alone, but must allege the
defendant's own conduct violated the plaintiff's
civil rights. City of Canton v. Harris, 489 U.S.
378, 385-90 (1989).
names Mark Rufener, Chief of the Kitsap County Jail, and
alleges generally that Mr. Rufener has “cultivated a
policy or custom” that chills his right to file
grievances. Dkt. 9, at 28. He also names ConMed Healthcare
presumably because Nurse Senovia is employed by this company.
Id. Plaintiff fails to clearly state the alleged
wrong-doing of each of these defendants. For instance,
plaintiff presents no facts regarding Mr. Rufener's
alleged “policy or custom” and fails to describe
what the policy entails or how it chills his ability to file
grievances. Rather, his complaint demonstrates the opposite:
in his complaint, he states that he has in fact filed a vast
number of grievances. Furthermore, plaintiff cannot bring
§ 1983 action against a supervisor on a theory that the
supervisor is liable for the acts of his or her subordinates.
See Polk County v. Dodson, 454 U.S. 312, 325 (1981).
Plaintiff must describe who violated his rights, when they
violated his rights, and how this violation caused him harm.
Absent such allegations, the individuals named in the
complaint will be dismissed.
makes two claims against Nurse Senovia. First, plaintiff
alleges that Nurse Senovia was deliberately indifferent to
his medical needs by not providing him with ice and a blanket
for his leg, as well as delaying his pain medication. Dkt. 9,
at 20. Second, plaintiff alleges that Nurse Senovia
retaliated against him by withholding his pain medication for
several days each time he has filed a grievance. Dkt. 9, at
18. Plaintiff's retaliation allegation states a
cognizable claim; however, the deliberate indifference claim
has failed to state a § 1983 claim for a constitutional
violation based on the lack of medical care. “[T]o
maintain an Eighth Amendment claim based on prison medical
treatment, an inmate must show ‘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, 106 (1976)). The two
prong test for deliberate indifference requires the plaintiff
to show (1) “‘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, '” and
(2) “the defendant's response to the need was
deliberately indifferent.” Jett, 439 F.3d at
1096 (quoting McGuckin v. Smith, 974 F.2d 1050, 1059
(9th Cir.1992)). Deliberate indifference is 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
(citing McGuckin, 974 F.2d at ...