Henry A. Jones Jr. v. C. Wu

Filing 47

MEMORANDUM AND ORDER DISMISSING AMENDED COMPLAINT WITH LEAVE TO AMEND by Magistrate Judge Suzanne H. Segal. The Amended Complaint is dismissed with leave to amend. If Plaintiff still wishes to pursue this action, he is granted thirty (30) days from the date of this memorandum and Order within which to file a Second Amended Complaint. Plaintiff is strongly encouraged to utilize the standard civil rights complaint form when filing any amended complaint, a copy of which is attached. Plaintiff is e xplicitly cautioned that failure to timely file a Second Amended Complaint, or failure to correct the deficiencies described above, will result in a recommendation that this action be dismissed with prejudice for failure to prosecute and obey Court o rders pursuant to Federal Rule of Civil Procedure 41(b). Plaintiff is further advised that if he no longer wishes to pursue this action he may voluntarily dismiss it by filing a Notice of Dismissal in accordance with Federal Rule of Civil Procedure 41(a)(1). A form Notice of Dismissal is attached for Plaintiff's convenience. (See document for further details) (Attachments: # 1 Notice of Dismissal Form, # 2 Civil Rights Complaint Form) (mr)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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HENRY A. JONES, JR.,

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Case No. CV 15-5884 DDP (SS)

Plaintiff,
MEMORANDUM AND ORDER

v.

DISMISSING AMENDED COMPLAINT

DR. C. WU,

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WITH LEAVE TO AMEND

Defendant.

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I.

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INTRODUCTION

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On

August

4,

2015,

Plaintiff

Henry

A.

Jones

Jr.

(“Plaintiff”), a California state prisoner proceeding pro se,
filed a civil rights complaint pursuant to 42
(“Complaint”).

(Dkt. No. 1).

dismissed

Complaint

the

Dismissal”).

with

(Dkt. No. 14).

U.S.C. § 1983

On November 30, 2015, the Court
leave

to

amend

(“Order

of

On December 30, 2015, Plaintiff

1

filed the now-operative amended civil rights complaint pursuant

2

to 42 U.S.C. § 1983 (“Amended Complaint”).1

(Dkt. No. 31).

3
4

Congress

mandates

that

the

court

screen,

as

soon

as

5

practicable, “a complaint in a civil action in which a prisoner

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seeks redress from a governmental entity or officer or employee

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of a governmental entity.”

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dismiss such a complaint, or any portion of it, before service of

9

process

if

the

court

28 U.S.C. § 1915A(a).

concludes

that

the

The court may

complaint

(1)

is

10

frivolous or malicious, (2) fails to state a claim upon which

11

relief

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defendant who is immune from such relief.

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For

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DISMISSED with leave to amend.2

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\\

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\\

can

the

be

granted,

reasons

or

discussed

(3)

seeks

below,

monetary

the

relief

from

a

28 U.S.C. § 1915A(b).
Amended

Complaint

is

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Because of a docketing error by the Clerk’s Office, the Amended
Complaint was docketed several months after it was filed.
1

Magistrate Judges may dismiss a complaint with leave to amend
without approval of the District Judge.
See McKeever v. Block,
932 F.2d 795, 798 (9th Cir. 1991).
2

The Court also notes that, on January 18, 2017, Plaintiff filed a
Notice of Appeal from an order denying a motion for a “writ of
mandate” that sought to expedite a decision in this case. (Dkt.
Nos. 44-46).
The Ninth Circuit has not issued a ruling in
Plaintiff’s appeal.
However, because the order denying
Plaintiff’s motion was not a final appealable order, the district
court retains jurisdiction to issue the instant Order.
See
Estate of Conners v. O’Connor, 6 F.3d 656, 658 (9th Cir. 1993)
(“Th[e] transfer of jurisdiction from the district court to the
court of appeals is not effected . . . if a litigant files a
notice of appeal from an unappealable order.”).
2

1

II.

2

ALLEGATIONS OF THE AMENDED COMPLAINT

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4

Plaintiff names Dr. Chengocong Wu, a physician at California

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State Prison, Los Angeles County, as the sole Defendant in this

6

action.

7

Dr.

8

capacities.

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deliberately indifferent to Plaintiff’s serious medical needs in

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Wu

(Amended Complaint at 1-3, 6-7, 9-10).
as

a

Defendant
(Id.

at

in

9).

both

his

Plaintiff

violation of the Eighth Amendment.

Plaintiff names

official
claims

and

that

individual
Dr.

Wu

was

(Id. at 15).

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12

Plaintiff

alleges

that,

in

January

2007,

he

had

a

13

defibrillator implanted because he “needed this device to stay

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alive.”

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believe that his defibrillator was subject to a recall and he

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filed grievances asking to have it removed.

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later

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[P]laintiff he no longer need[ed] the device any way.”

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(formatting altered)).

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removed the defibrillator “without fully knowing that it had been

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recalled or no longer the need for the device.”

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Plaintiff also claims that Dr. Pavel Petrik informed Plaintiff

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that the leads on the defibrillator “would have to come out,” but

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Dr. Wu ordered that they not be removed.

(Id. at 10).

discussed

his

However, Plaintiff subsequently came to

concerns

with

Dr.

(Id.).
Wu,

who

Plaintiff
“informed
(Id.

Plaintiff claims that Dr. Wu subsequently

(Id. at 12, 15).

(Id. at 15).

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Plaintiff claims that his family has a history of heart

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problems and that for the past six months he has “display[ed]

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signs

of

heart

complication

and
3

elevated

blood

pressure”

1

indicating that he needs a defibrillator.

2

alleges

that,

3

device,

he

4

altered)).

“if

will

CDCR

does

die.”

not

(Id.

at

re-install
10

(Id.).
him

(spelling

Plaintiff

with

and

another

formatting

5
6

Plaintiff also appears to allege that Dr. Wu temporarily

7

ordered

that

Plaintiff’s

heart

medication

be

crushed

“in

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retaliation” for unspecified actions, even though he knew that

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Plaintiff would not take the medications if they were crushed.

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(Id. at 12-13, 16, 55).

Finally, Plaintiff alleges that he

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requested to see a heart specialist on October 27, 2015, but

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Plaintiff had not seen a specialist by December 12, 2015, the

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date when the Amended Complaint was prepared.

14

16).

(See id. at 13,

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Plaintiff

seeks

an

injunction

requiring

prison

staff

to

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provide him with a new defibrillator, as well as compensatory and

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punitive damages.

(Id. at 16).

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III.

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DISCUSSION

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The Court must dismiss the Amended Complaint due to defects

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in pleading.

A pro se litigant in a civil rights case, however,

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must be given leave to amend his or her complaint unless “it is

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absolutely clear that the deficiencies of the complaint cannot be

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cured by amendment.”

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(9th Cir. 2012) (citation and internal quotation marks omitted).

See Akhtar v. Mesa, 698 F.3d 1202, 1212

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Accordingly, the Amended Complaint is dismissed with leave to

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amend.

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A.

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Plaintiff Fails To State A Claim Under 42 U.S.C. § 1983 For
Deliberate Indifference To Serious Medical Needs

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Plaintiff alleges that Dr. Wu was deliberately indifferent

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to his serious medical needs in violation of the Eighth Amendment

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by removing his defibrillator “without fully knowing that it had

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been

recalled

or

no

longer

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crushing his medication.

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However,

13

defective.

Plaintiff’s

the

need

for

the

device”

and

by

(Amended Complaint at 12-13, 15-16).

deliberate

indifference

allegations

are

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To maintain an Eighth Amendment claim based on a prisoner’s

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medical

treatment,

the

prisoner

must

demonstrate

that

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defendant was “deliberately indifferent” to his “serious medical

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needs.”

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establish a “serious medical need,” the prisoner must demonstrate

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that “‘failure to treat a prisoner’s condition could result in

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further

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infliction of pain.’”

Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006).

significant

injury

or

the

‘unnecessary

and

the

To

wanton

Id. at 1096 (citation omitted).

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To establish “deliberate indifference,” the prisoner must

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demonstrate “(a) a purposeful act or failure to respond to a

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prisoner’s pain or possible medical need and (b) harm caused by

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the indifference.”

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prison

officials

Id.
deny,

Deliberate indifference “may appear when
delay

or
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intentionally

interfere

with

1

medical treatment, or it may be shown by the way in which prison

2

physicians provide medical care.”

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defendant must have been subjectively aware of a serious risk of

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harm and must have consciously disregarded that risk.

5

v. Brennan, 511 U.S. 825, 839-40 (1994).

Id. (citations omitted).

The

See Farmer

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Mere malpractice or negligence in the provision of medical

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care does not establish a constitutional violation.

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Navajo

Cnty.

Ariz.,

609

F.3d

1011,

1019

(9th

Simmons v.
Cir.

2010).

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Additionally, a mere difference of opinion in the form or method

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of treatment does not amount to a deliberate indifference of

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plaintiff’s serious medical needs.

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1051, 1058 (9th Cir. 2004).

Toguchi v. Chung, 391 F.3d

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The Amended Complaint does not plausibly allege “deliberate

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indifference,” i.e., a purposeful act or failure to respond to an

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objectively

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plausibly allege that Dr. Wu was subjectively aware of a risk of

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harm to Plaintiff and consciously disregarded that risk.

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contrary, Plaintiff’s allegations appear to establish that Dr. Wu

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responded

to

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determined

that

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removed

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Plaintiff alleges that Dr. Wu acted “without fully knowing” the

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risks, which at most constitutes medical negligence and falls

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short of the “deliberate indifference” standard.

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609 F.3d at 1019; see also Wilhelm v. Rotman, 680 F.3d 1113, 1123

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(9th Cir. 2012) (a “negligent misdiagnosis” does not state a

serious

the

medical

Plaintiff’s
a

need.

concerns

defibrillator

defibrillator.

Particularly,

was

(See

6

about
no

his

longer

Amended

it

does

not

On the

defibrillator,
necessary,

Complaint

at

and
10).

See Simmons,

1

claim for deliberate indifference).

2

allege

3

treatment,” either between Plaintiff and Dr. Wu or between Dr.

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Petrik and Dr. Wu.

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deliberate indifference.

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Wilhelm, 680 F.3d at 1123 (a “disagreement” between a defendant

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physician

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deliberate indifference).

a

“difference

and

of

opinion

Plaintiff also appears to
in

the

form

or

method

of

These differences of opinion do not amount to

another

Toguchi, 391 F.3d at 1058; see also

physician

does

not

state

a

claim

for

9
10

In sum, the Amended Complaint acknowledges that Dr. Wu took

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some

affirmative

12

complaints

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deliberately indifferent to Plaintiff’s serious medical needs.

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Accordingly,

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dismissed with leave to amend.

and

steps
does

to

not

Plaintiff’s

investigate
plausibly

deliberate

and

remedy

allege

that

Plaintiff’s
Dr.

indifference

Wu

was

claims

are

with

the

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B.

The Amended Complaint Violates Rule 8

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The

Amended

Complaint

also

does

not

comply

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standards of Federal Rule of Civil Procedure 8.

See Fed. R. Civ.

21

P. 8.

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of the claim showing that the pleader is entitled to relief,’ in

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order to ‘give the defendant fair notice of what the . . . claim

24

is and the grounds upon which it rests.’”

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Twombly, 550 U.S. 544, 555 (2007).

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simple, concise, and direct.”

27

Knapp v. Hogan, 738 F.3d 1106, 1109 (9th Cir. 2013) (pleading may

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violate Rule 8 by saying “too little” or “too much”).

Rule 8(a)(2) “‘requires only a short and plain statement

Bell Atl. Corp. v.

“Each allegation must be

Fed. R. Civ. P. 8(d)(1); see also

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The Amended Complaint does not give Dr. Wu fair notice of

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what Plaintiff’s claims are and the grounds upon which they rest.

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The

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irrelevant disjointed factual assertions, often interspersed with

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legal

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addition, because Plaintiff is not required to provide evidence

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at this stage of the litigation, the exhibits attached to the

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Amended Complaint are unnecessary.

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Plaintiff intends to assert a claim against Dr. Wu for crushing

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his medication in “retaliation,” and Plaintiff does not discuss

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what actions Dr. Wu was retaliating against.

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allegations

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Plaintiff’s alleged inability to see a heart specialist between

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October and December 2015, and it is unclear whether Plaintiff

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intends to assert a claim on this basis.

Amended

Complaint

argument,

contains

rendering

associating

potentially

Plaintiff’s

Dr.

Wu,

claims

relevant

confusing.

and

In

It is also unclear whether

the

There are also no

sole

Defendant,

with

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Accordingly, the Amended Complaint fails to provide Dr. Wu

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with fair notice of the claims against him in a clear and concise

19

statement.

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Complaint is dismissed with leave to amend.

See Twombly, 550 U.S. at 555.

As such, the Amended

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C.

Any Claims for Money Damages Against Dr. Wu In His Official
Capacity Are Defective

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Plaintiff

sues

Dr.

Wu

in

his

official

and

individual

26

capacities and requests both money damages and injunctive relief.

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(Amended Complaint at 9, 16).

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what relief Plaintiff will seek against Dr. Wu in each capacity,

Although it is unclear exactly

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Plaintiff is advised that the Eleventh Amendment bars any claims

2

for money damages against Dr. Wu in his official capacity.

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4

Pursuant to the Eleventh Amendment, a state and its official

5

arms are immune from suit under section 1983.

See Howlett v.

6

Rose,

Cal.

7

Corrections, 554 F.3d 747, 752 (9th Cir. 2009) (“California has

8

not waived its Eleventh Amendment immunity with respect to claims

9

brought under § 1983 in federal court”).

496

U.S.

356,

365

(1990);

Brown

v.

Dept.

of

“A suit against a state

10

official in his or her official capacity . . . is no different

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from a suit against the State itself.”

12

F.3d 816, 824-25 (9th Cir. 2007) (citation omitted).3

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state officials sued for damages in their official capacity are

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generally entitled to immunity.

Flint v. Dennison, 488
Therefore,

Id. at 825.

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16

When state officials are sued in their official capacity for

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prospective injunctive relief under section 1983, they are not

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immune

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injunctive

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official capacity.

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money damages must be dismissed.

from

suit.
relief

Id.
may

be

Therefore,
maintained

Plaintiff’s
against

Dr.

claims

for

Wu

his

in

However, any official capacity claims for

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Because official capacity claims are “in all respects other
than name” suits against the government entity, Plaintiff’s
claims here against Defendants in their official capacity are
claims against the California Department of Corrections and
Rehabilitation, i.e., the California state government. Kentucky
v. Graham, 473 U.S. 159, 166 (1985).
3

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1

IV.

2

CONCLUSION

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4

For

the

reasons

stated

above,

the

Amended

Complaint

is

5

dismissed with leave to amend.

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pursue this action, he is granted thirty (30) days from the date

7

of

8

Amended Complaint.

9

cure the defects described above.

this

memorandum

and

Order

If Plaintiff still wishes to

within

which

to

file

a

Second

In any amended complaint, Plaintiff shall

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11

Furthermore, Plaintiff shall omit any claims, allegations or

12

parties that are not reasonably related to the claims asserted in

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the

14

deficiencies

15

Complaint, if any, shall be complete in itself and shall bear

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both

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number assigned to this action.

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to any prior complaint.

Amended

the

Complaint

but

addressed

designation

shall

instead

in

this

Order.

“Second

Amended

attempt
The

to

cure

Second

Complaint”

the

Amended

and

the

case

It shall not refer in any manner

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20

In

any

amended

complaint,

Plaintiff

should

confine

his

21

allegations to the operative facts supporting each of his claims.

22

Plaintiff

is

23

Procedure

8(a),

24

statement of the claim showing that the pleader is entitled to

25

relief.”

26

standard

27

complaint,

28

complaint, Plaintiff should identify the nature of each separate

advised
all

that
that

Plaintiff
civil
a

is

rights
copy

of

pursuant
is

required

strongly

complaint
which

to

is

10

Federal
is

a

encouraged

form

when

attached.

Rule

“short

to

filing
In

of

Civil

and

plain

utilize

the

any

amended

any

amended

1

legal

2

support his claims.

3

statements concise and to omit irrelevant details.

4

necessary

5

argument.

claim

and

for

make

clear

what

specific

factual

allegations

Plaintiff is strongly encouraged to keep his

Plaintiff

to

cite

case

law

or

It is not

include

legal

6
7

Plaintiff is explicitly cautioned that failure to timely

8

file

a

Second

9

deficiencies described above, will result in a recommendation
this

Amended

action

be

Complaint,

dismissed

or

with

failure

prejudice

to

for

correct

failure

the

10

that

to

11

prosecute and obey Court orders pursuant to Federal Rule of Civil

12

Procedure 41(b).

13

longer wishes to pursue this action he may voluntarily dismiss it

14

by filing a Notice of Dismissal in accordance with Federal Rule

15

of Civil Procedure 41(a)(1).

16

attached for Plaintiff’s convenience.

17

Court concludes that Plaintiff’s action is frivolous, malicious,

18

or fails to state a claim upon which relief may be granted, this

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action may constitute a “strike” and bar Plaintiff from future

20

actions.

Plaintiff is further advised that if he no

A form Notice of Dismissal is
Finally, in the event the

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DATED:

February 3, 2017

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/S/
__________
SUZANNE H. SEGAL
UNITED STATES MAGISTRATE JUDGE

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THIS DECISION IS NOT INTENDED FOR PUBLICATION IN LEXIS, WESTLAW
OR ANY OTHER LEGAL DATABASE.
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