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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 HENRY A. JONES, JR., 12 13 14 Case No. CV 15-5884 DDP (SS) Plaintiff, MEMORANDUM AND ORDER v. DISMISSING AMENDED COMPLAINT DR. C. WU, 15 WITH LEAVE TO AMEND Defendant. 16 17 18 19 I. 20 INTRODUCTION 21 22 23 24 25 26 27 28 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 6 seeks redress from a governmental entity or officer or employee 7 of a governmental entity.” 8 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 12 defendant who is immune from such relief. 13 For 14 DISMISSED with leave to amend.2 15 \\ 16 \\ can the be granted, reasons or discussed (3) seeks below, monetary the relief from a 28 U.S.C. § 1915A(b). Amended Complaint is 17 18 19 20 21 22 23 24 25 26 27 28 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 3 4 Plaintiff names Dr. Chengocong Wu, a physician at California 5 State Prison, Los Angeles County, as the sole Defendant in this 6 action. 7 Dr. 8 capacities. 9 deliberately indifferent to Plaintiff’s serious medical needs in 10 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). 11 12 Plaintiff alleges that, in January 2007, he had a 13 defibrillator implanted because he “needed this device to stay 14 alive.” 15 believe that his defibrillator was subject to a recall and he 16 filed grievances asking to have it removed. 17 later 18 [P]laintiff he no longer need[ed] the device any way.” 19 (formatting altered)). 20 removed the defibrillator “without fully knowing that it had been 21 recalled or no longer the need for the device.” 22 Plaintiff also claims that Dr. Pavel Petrik informed Plaintiff 23 that the leads on the defibrillator “would have to come out,” but 24 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). 25 26 Plaintiff claims that his family has a history of heart 27 problems and that for the past six months he has “display[ed] 28 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 8 retaliation” for unspecified actions, even though he knew that 9 Plaintiff would not take the medications if they were crushed. 10 (Id. at 12-13, 16, 55). Finally, Plaintiff alleges that he 11 requested to see a heart specialist on October 27, 2015, but 12 Plaintiff had not seen a specialist by December 12, 2015, the 13 date when the Amended Complaint was prepared. 14 16). (See id. at 13, 15 16 Plaintiff seeks an injunction requiring prison staff to 17 provide him with a new defibrillator, as well as compensatory and 18 punitive damages. (Id. at 16). 19 20 III. 21 DISCUSSION 22 23 The Court must dismiss the Amended Complaint due to defects 24 in pleading. A pro se litigant in a civil rights case, however, 25 must be given leave to amend his or her complaint unless “it is 26 absolutely clear that the deficiencies of the complaint cannot be 27 cured by amendment.” 28 (9th Cir. 2012) (citation and internal quotation marks omitted). See Akhtar v. Mesa, 698 F.3d 1202, 1212 4 1 Accordingly, the Amended Complaint is dismissed with leave to 2 amend. 3 4 A. 5 Plaintiff Fails To State A Claim Under 42 U.S.C. § 1983 For Deliberate Indifference To Serious Medical Needs 6 7 Plaintiff alleges that Dr. Wu was deliberately indifferent 8 to his serious medical needs in violation of the Eighth Amendment 9 by removing his defibrillator “without fully knowing that it had 10 been recalled or no longer 11 crushing his medication. 12 However, 13 defective. Plaintiff’s the need for the device” and by (Amended Complaint at 12-13, 15-16). deliberate indifference allegations are 14 15 To maintain an Eighth Amendment claim based on a prisoner’s 16 medical treatment, the prisoner must demonstrate that 17 defendant was “deliberately indifferent” to his “serious medical 18 needs.” 19 establish a “serious medical need,” the prisoner must demonstrate 20 that “‘failure to treat a prisoner’s condition could result in 21 further 22 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). 23 24 To establish “deliberate indifference,” the prisoner must 25 demonstrate “(a) a purposeful act or failure to respond to a 26 prisoner’s pain or possible medical need and (b) harm caused by 27 the indifference.” 28 prison officials Id. deny, Deliberate indifference “may appear when delay or 5 intentionally interfere with 1 medical treatment, or it may be shown by the way in which prison 2 physicians provide medical care.” 3 defendant must have been subjectively aware of a serious risk of 4 harm and must have consciously disregarded that risk. 5 v. Brennan, 511 U.S. 825, 839-40 (1994). Id. (citations omitted). The See Farmer 6 7 Mere malpractice or negligence in the provision of medical 8 care does not establish a constitutional violation. 9 Navajo Cnty. Ariz., 609 F.3d 1011, 1019 (9th Simmons v. Cir. 2010). 10 Additionally, a mere difference of opinion in the form or method 11 of treatment does not amount to a deliberate indifference of 12 plaintiff’s serious medical needs. 13 1051, 1058 (9th Cir. 2004). Toguchi v. Chung, 391 F.3d 14 15 The Amended Complaint does not plausibly allege “deliberate 16 indifference,” i.e., a purposeful act or failure to respond to an 17 objectively 18 plausibly allege that Dr. Wu was subjectively aware of a risk of 19 harm to Plaintiff and consciously disregarded that risk. 20 contrary, Plaintiff’s allegations appear to establish that Dr. Wu 21 responded to 22 determined that 23 removed 24 Plaintiff alleges that Dr. Wu acted “without fully knowing” the 25 risks, which at most constitutes medical negligence and falls 26 short of the “deliberate indifference” standard. 27 609 F.3d at 1019; see also Wilhelm v. Rotman, 680 F.3d 1113, 1123 28 (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. 4 Petrik and Dr. Wu. 5 deliberate indifference. 6 Wilhelm, 680 F.3d at 1123 (a “disagreement” between a defendant 7 physician 8 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 11 some affirmative 12 complaints 13 deliberately indifferent to Plaintiff’s serious medical needs. 14 Accordingly, 15 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 16 17 B. The Amended Complaint Violates Rule 8 18 19 The Amended Complaint also does not comply 20 standards of Federal Rule of Civil Procedure 8. See Fed. R. Civ. 21 P. 8. 22 of the claim showing that the pleader is entitled to relief,’ in 23 order to ‘give the defendant fair notice of what the . . . claim 24 is and the grounds upon which it rests.’” 25 Twombly, 550 U.S. 544, 555 (2007). 26 simple, concise, and direct.” 27 Knapp v. Hogan, 738 F.3d 1106, 1109 (9th Cir. 2013) (pleading may 28 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 7 1 The Amended Complaint does not give Dr. Wu fair notice of 2 what Plaintiff’s claims are and the grounds upon which they rest. 3 The 4 irrelevant disjointed factual assertions, often interspersed with 5 legal 6 addition, because Plaintiff is not required to provide evidence 7 at this stage of the litigation, the exhibits attached to the 8 Amended Complaint are unnecessary. 9 Plaintiff intends to assert a claim against Dr. Wu for crushing 10 his medication in “retaliation,” and Plaintiff does not discuss 11 what actions Dr. Wu was retaliating against. 12 allegations 13 Plaintiff’s alleged inability to see a heart specialist between 14 October and December 2015, and it is unclear whether Plaintiff 15 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 16 17 Accordingly, the Amended Complaint fails to provide Dr. Wu 18 with fair notice of the claims against him in a clear and concise 19 statement. 20 Complaint is dismissed with leave to amend. See Twombly, 550 U.S. at 555. As such, the Amended 21 22 23 C. Any Claims for Money Damages Against Dr. Wu In His Official Capacity Are Defective 24 25 Plaintiff sues Dr. Wu in his official and individual 26 capacities and requests both money damages and injunctive relief. 27 (Amended Complaint at 9, 16). 28 what relief Plaintiff will seek against Dr. Wu in each capacity, Although it is unclear exactly 8 1 Plaintiff is advised that the Eleventh Amendment bars any claims 2 for money damages against Dr. Wu in his official capacity. 3 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 11 from a suit against the State itself.” 12 F.3d 816, 824-25 (9th Cir. 2007) (citation omitted).3 13 state officials sued for damages in their official capacity are 14 generally entitled to immunity. Flint v. Dennison, 488 Therefore, Id. at 825. 15 16 When state officials are sued in their official capacity for 17 prospective injunctive relief under section 1983, they are not 18 immune 19 injunctive 20 official capacity. 21 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 22 23 \\ 24 \\ 25 26 27 28 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 9 1 IV. 2 CONCLUSION 3 4 For the reasons stated above, the Amended Complaint is 5 dismissed with leave to amend. 6 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 10 11 Furthermore, Plaintiff shall omit any claims, allegations or 12 parties that are not reasonably related to the claims asserted in 13 the 14 deficiencies 15 Complaint, if any, shall be complete in itself and shall bear 16 both 17 number assigned to this action. 18 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 19 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 19 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 21 22 DATED: February 3, 2017 23 /S/ __________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 THIS DECISION IS NOT INTENDED FOR PUBLICATION IN LEXIS, WESTLAW OR ANY OTHER LEGAL DATABASE. 11

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