David Sinohuiz Jr. v. Los Angeles County Jail et al

Filing 6

MINUTE ORDER TO SHOW CAUSE RE: LACK OF PROSECUTION by Magistrate Judge Alka Sagar. Plaintiff is ORDERED TO SHOW CAUSE, in writing, no later than May 12, 2017, why this action should not be dismissed with prejudice for failure to prosecute. (Attachments: # 1 January 27, 2017 Order, # 2 Notice of Dismissal Form, # 3 Civil Rights Complaint Form) (mz)

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UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

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11

DAVID SINOHUIZ, JR.,

12

v.

13
14
15

Plaintiff,

LOS ANGELES COUNTY JAIL AND
LOS ANGELES COUNTY MEDICAL
CENTER,
Defendants.

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17

) No. CV-17-0351-DOC (AS)
)
) ORDER DISMISSING COMPLAINT
)
) WITH LEAVE TO AMEND
)
)
)
)
)

INTRODUCTION

18
19
20
21

On

January

17,

2017,

David

Sinohuiz,

Jr.

(“Plaintiff”),

an

inmate at the Los Angeles County Jail proceeding pro se, filed a
complaint pursuant to 42 U.S.C. § 1983 (“Complaint”).

22

No. 1).

23

U.S.C. § 1915A(b) and § 1915(e)(2)(B).

24

(Docket Entry

below, the Complaint is DISMISSED with leave to amend.1

The Court has screened the Complaint as prescribed by 28
For the reasons discussed

25
26
27
28

1

A Magistrate Judge may dismiss a complaint with leave to
amend without the approval of a District Judge.
See McKeever v.
Block, 932 F.2d 795, 798 (9th Cir. 1991).
1

1
2

ALLEGATIONS OF THE COMPLAINT

3
4

The Complaint, construed liberally, appears to allege claims for

5

failure to protect, deliberate indifference to serious medical needs,

6

negligence, and denial of access to a law library.

7

4).

8

and the Los Angeles County Medical Center (“County Medical Center”)

9

as defendants.

(Complaint at 3-

The Complaint names the Los Angeles County Jail (“County Jail”)

(Id. at 1).

defendant,

10

“Doe”

11

Medical Center in its individual and official capacity and notes that

12

the Medical Center’s “position and title, if any,” is “surgeon that

13

performed

14

Plaintiff may have intended to sue both the County Medical Center and

15

the surgeon who performed Plaintiff’s surgery.

surgery

Plaintiff

Although the Complaint does not name a

on

alleges

me.”

(Id.

at

that

he

3).

is

Thus,

suing

it

the

County

appears

that

16
17

The Complaint seeks damages and the injunctive relief of surgery

18

to repair injury to Plaintiff’s back, surgery to remove the glove

19

left

20

treatment.

inside

Plaintiff

during

a

prior

surgery,

and

psychiatric

(Id. at 6).

21
22

The Complaint alleges the following facts in support of the

23

claims asserted: First, Plaintiff alleges that the County Jail failed

24

to protect him “with gross negligence while under the care of Los

25

Angeles County.”

26

violated his right to be protected while under its care “[b]y not

27

properly supervising [Plaintiff’s housing unit [and] not performing

28

proper contraban[d] s[ea]rches,” which “led to a savage attack on

(Id. at 3).

Plaintiff claims that the County Jail

2

1

[Plaintiff]” and resulted in Plaintiff suffering broken ribs, a spine

2

injury, a collapsed lung, and mental anguish.

3

(Id. at 5).

Second, Plaintiff alleges that the County Medical Center and the

4

surgeon who performed Plaintiff’s surgery committed negligence.

5

at 3, 6).

6

inside Plaintiff during surgery.

(Id.

The surgeon misplaced a finger of her glove and left it
(Id. at 6).

7
8

Third, Plaintiff alleges that the County Jail denied Plaintiff

9

access to the law library in violation of his right to due process.

10

(Id. at 3).

Plaintiff made multiple attempts to gain access to the

11

law library, but was denied each time.

(Id. at 7).

12
13

Fourth, Plaintiff alleges that the County Jail denied Plaintiff

14

proper medical care for his injuries of broken ribs, spinal injury,

15

collapsed

16

(Id. at 4, 8).

lung,

and

metal

stress/post-traumatic

stress

disorder.

17
18

STANDARD OF REVIEW

19
20

Congress mandates that district courts initially screen civil

21

complaints

filed

22

entities or employees and plaintiffs proceeding in forma pauperis.

23

28 U.S.C. §§ 1915A(b), 1915(e)(2)(B).

24

complaint, or any portion thereof, before service of process, if the

25

court concludes that the complaint: (1) is frivolous or malicious;

26

(2) fails to state a claim upon which relief can be granted; or (3)

27

seeks

28

relief.

monetary

by

relief

prisoners

from

a

seeking

redress

from

governmental

A court may dismiss such a

defendant

who

is

immune

from

such

28 U.S.C. §§ 1915A(b)(1)–(2), 1915(e)(2)(B); see also Lopez

v. Smith, 203 F.3d 1122, 1126–27 & n.7 (9th Cir. 2000) (en banc).
3

1

To state a claim for which relief may be granted, a complaint

2
3

must

contain

4

plausible on its face.”

5

570 (2007).

6

pleads factual content that allows the court to draw the reasonable

7

inference that the defendant is liable for the misconduct alleged.”

8

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

9

must interpret a pro se complaint liberally and construe all material

10

allegations of fact in the light most favorable to the plaintiff.

11

See

12

complaint

[filed

13

stringent

standards

14

(quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)).

15

However,

16

conclusions.

See Iqbal, 556 U.S. at 678 (“Threadbare recitals of the

17

elements

a

18

statements,

19

interpretation

20

essential elements of a claim that were not initially pled.

21

Gardner, 976 F.2d 469, 471−72 (9th Cir. 1992).

Hebbe

“enough

facts

to

state

a

claim

to

relief

that

is

Bell Atl. Corp. v. Twombly, 550 U.S. 544,

“A claim has facial plausibility when the plaintiff

v.

a

Pliler,
by

court

of

do

a

does

not

F.3d

pro

than

cause

to

627

se

338,

prisoner]

formal

not

of

have

action,

pro

se

to

(9th

be

drafted

accept

as

supported

a

held
by

mere

in

court

2010)

true

by

Furthermore,

complaint,

Cir.

‘must

pleadings

suffice.”).
a

342

In addition, a court

to

less

lawyers.’”)

mere

legal

conclusory

giving
may

(“[A]

not

liberal
supply
Pena v.

22

DISCUSSION

23
24
25

A.

The Complaint Fails To Satisfy Federal Rule Of Civil Procedure 8

26
27
28

Federal

Rule

of

Civil

Procedure

8(a)(2)

requires

that

a

complaint contain “‘a short and plain statement of the claim showing

4

1

that

2

defendant fair notice of what the . . . claim is and the grounds upon

3

which it rests.’”

4

(2007).

5

Hogan, 738 F.3d 1106, 1109 (9th Cir. 2013).

6
7

the

pleader

is

entitled

to

relief,’

in

order

to

‘give

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555

A pleading can violate Rule 8 in “multiple ways.”

violation

is

the

when

a

pleading

says

too

Knapp v.

“One well-known type of
little.”

Id.

(citation

omitted).

8
9
10
11
12
13
14

Here,

each

of

the

claims

are

conclusory sentences or clauses.

supported

by,

at

most,

a

few

For example, the only facts alleged

in support of Plaintiff’s failure to protect claim are the conclusory
statements

that

the

County

Jail

failed

properly

to

supervise

Plaintiff’s housing unit and to conduct contraband searches and that

15

these failures caused Plaintiff to be attacked.

(Complaint at 5).

16

Similarly,

claim

17

conclusory form only that the County denied Plaintiff proper medical

18

care for his injuries.

Plaintiff’s

inadequate

medical

care

alleges

in

19
20

The Complaint’s sparse, vague, and conclusory allegations say

21

“far too little,” Knapp, 738 F.3d at 1109, and are not sufficient to

22

provide Defendants with fair notice of the claims against them in a

23

short, clear and concise statement.

24

Accordingly, the Complaint must be DISMISSED with leave to amend for

25

failure to comply with Rule 8.

26
27
28

5

Cf. Twombly, 550 U.S. at 555.

1

B.

2

The County Jail and Medical Center Are Not “Persons” Subject to
Suit Under § 1983

3
4

Plaintiff alleges claims for failure to protect, denial of law

5

library access, and inadequate medical care under 42 U.S.C. section

6

1983.

7

“persons”

8

governmental unit or municipality can be sued as a “person” under

9

section 1983, Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690

10

(1978), municipal departments and sub-units of local governments are

11

generally not considered “persons” under the act.

12

Cahill,

13

department is not a “person” within the meaning of section 1983);

14

Vance v. County of Santa Clara, 928 F. Supp. 993, 995-96 (N.D. Cal.

15

1996)

16

appropriate

17

municipality”; Santa Clara Department of Corrections is not a proper

18

defendant under section 1983); Villatoro v. Brown, No. 11-CV-0971-GBC

19

(PC),

20

departments at prisons are not “persons” subject to suit under §

21

1983).

(Complaint at 1, 3-4).
acting

474

F.2d

(“Naming

2012

a

means

WL

under

991,

color

992

municipal
of

3288181,

Section 1983 applies to the actions of
of

(3d

Cir.

a

(E.D.

law.

1992)

department

pleading

*3

state

as
§

Cal.

a

1983

Aug.

While

(a

a

local

See Fischer v.
prison's

defendant
action

10,

is

medical

not

an

against

a

2012)

(medical

22

Plaintiff alleges his section 1983 claims against the County

23
24

Jail and County Medical Center.

(Complaint at 3-4).

These units of

25

Los Angeles County, however, are improper defendants under section

26

1983.

27

protect, denial of access to a law library, and inadequate medical

28

care against these named defendants must be DISMISSED.

Accordingly, Plaintiff’s section 1983 claims for failure to

6

1

Even if Plaintiff had named the County of Los Angeles as a

2

defendant in his Complaint, these municipal claims would still fail.

3

A local government entity “may not be sued under § 1983 for an injury

4

inflicted solely by its employees or agents.

5

execution of a government’s policy or custom . . . inflicts the

6

injury that the government as an entity is responsible under § 1983.”

7

Monell v. Dep’t of Social Serv. Of New York, 436 U.S. 658, 694

8

(1978).

9

to

be

Instead, it is when

A plaintiff must establish that “the action that is alleged
unconstitutional

implements

or

executes

a

policy

.

.

.

10

ordinance, regulation, or decision officially adopted and promulgated

11

by “the municipality, or that the action was “visited pursuant to a

12

governmental ‘custom.’”

13

must show that “deliberate action[,] attributable to the municipality

14

itself[,] is the ‘moving force’ behind the plaintiff’s deprivation of

15

federal rights.”

16

520 U.S. 397, 400 (1997).2

Id. at 690-91.

In other words, a plaintiff

Board of County Comm’rs of Bryan County v. Brown,

17
18
19
20
21
22
23
24
25
26
27
28

Plaintiff has not identified any policy, ordinance, or
custom that led to the deprivation of Plaintiff’s constitutional
rights. The Complaint merely alleges that (1) the County Jail failed
to protect Plaintiff, supervise his housing unit, and perform proper
contraband searches; (2) Plaintiff’s surgeon and the County Medical
Center were negligent; (3) the County Jail on multiple occasions
denied Plaintiff access to the law library; and (4) the County Jail
denied Plaintiff proper medical care. These allegations do not state
a viable Monell claim against the county. Isolated incidents do not
suffice to state a claim for an unconstitutional policy or practice.
Cf. Thompson v. City of Los Angeles, 885 F.2d 1439, 1444 (9th Cir.
1989) (“proof of random acts or isolated events are insufficient to
establish a custom” within the meaning of Monell), overruled on other
grounds by Bull v. City and Cnty. of San Francisco, 595 F.3d 964 (9th
Cir. 2010).
2

7

1

C.

The Complaint Fails To State a Claim For Failure To Protect

2

The Complaint alleges that the County Jail failed to protect

3
4

him.

(Complaint at 3, 5).

5

Plaintiff was a pre-trial detainee or prisoner at the time of the

6

events giving rise to his claim.

7

protect claim arises under the Due Process Clause of the Fourteenth

8

Amendment,

9

Punishment Clause.

rather

than

the

The Complaint does not allege whether

A pretrial detainee’s failure to

Eighth

Amendment’s

Cruel

and

Unusual

Kingsley v. Hendrickson, 135 S. Ct. 2466, 2475

10

(2015); Castro v. County of Los Angeles, 833 F.3d 1060, 1169-70 (9th

11

Cir. 2016) (en banc), cert. denied, No. 16-655, 2017 WL 276190 (Jan.

12

23, 2017).

13

state a claim upon which relief may be granted.

Under either standard, however, the Complaint fails to

14
15
16

The

elements

of

a

pretrial

detainee’s

Fourteenth

Amendment

failure to protect claim against an individual officer are

17
18
19
20
21
22
23
24
25

(1) The defendant made an intentional decision
with respect to the conditions under which the
plaintiff was confined; (2) Those conditions put
the plaintiff at substantial risk of suffering
serious harm; (3) The defendant did not take
reasonable available measures to abate that risk,
even
though
a
reasonable
officer
in
the
circumstances would have appreciated the high
degree of risk involved—making the consequences
of the defendant’s conduct obvious; and (4) By
not taking such measures, the defendant caused
the plaintiff’s injuries.

26

Castro, 833 F.3d at 1171.

27

defendant’s conduct must be objectively unreasonable, a test that

With respect to the third element, the

28

8

1

will necessarily “turn[ ] on the ‘facts and circumstances of each

2

particular case.’”

Id. (quoting Kingsley, 135 S. Ct. at 2473).

3

To

4

support

an

Eighth

“‘objectively

failure

show

something

“sufficiently

7

Corrections

8

2013(quoting Foster v. Runnels, 554 F.3d 807, 812 (9th Cir. 2009);

9

Farmer, 511 U.S. at 834).

Rehabilitation,

726

F.3d

1062,

deprived

a

6

v.

was

claim,

first

Lemire

he

protect

plaintiff

serious”.’”

that

to

5

&

must

Amendment

Cal.
1074

Dep’t
(9th

of
of

Cir.

“‘A deprivation is sufficiently serious

10

when the prison official’s act or omission results “in the denial of

11

the minimal civilized measure of life’s necessities.”’”

12

Foster, 554 F.3d at 812; Farmer, 511 U.S. at 834).

A plaintiff also

13

must

with

14

indifference to the plaintiff’s safety.

15

Lemire v. Cal. Dep’t of Corrections & Rehabilitation, 726 F.3d 1062,

16

1074 (9th Cir. 2013).

17

excessive risk to inmate health or safety – i.e., must both be aware

18

of facts from which the inference could be drawn that a substantial

19

risk of serious harm exists and also draw the inference.

20

U.S. at 837.

21

harm to befall the inmate; ‘it is enough that the official acted or

22

failed to act despite his knowledge of a substantial risk of serious

23

harm.’”

24

A plaintiff in addition must plausibly allege that the official’s

25

actions

26

injuries.

allege

that

the

prison

official

acted

Id. (quoting

deliberate

Farmer, 511 U.S. at 834;

The official must know of, and disregard, an

Farmer, 511

However, “[t]he official need not have intended any

Lemire, 726 F.3d at 1074 (quoting Farmer, 511 U.S. at 837).

were

an

actual

and

proximate

cause

of

the

plaintiff’s

Id. (citation omitted).

27
28

Plaintiff alleges only that the County Jail failed to protect
him by not properly supervising his housing unit and not performing
9

1

proper contraband searches.

Plaintiff asserts that these omissions

2

caused Plaintiff to be attacked.

(Complaint at 5).

3
4

Plaintiff has failed to state a failure to protect claim under

5

the Fourteenth Amendment of the Eighth Amendment. If Plaintiff was a

6

pretrial detainee at the time of the complained of events, Plaintiff

7

has not alleged facts establishing that any jail official made an

8

intentional

9

unit or the manner in which contraband searches would be conducted.

decision

regarding

supervision

of

Plaintiff’s

housing

10

Cf. Castro, 833 F.3d at 1171.

11

that

12

substantial risk of serious harm.

13

that any jail official failed to take reasonable measures to abate

14

the risk or facts suggesting that a reasonable officer would have

15

appreciated the high degree of risk.

16

has not alleged facts establishing causation.

17

was a prisoner at the time of the relevant events, Plaintiff has

18

alleged

19

subjectively

20

the

conditions

no

facts

Plaintiff has also failed to allege

resulting

from

that

Cf. id.

Cf. id.

suggesting

knew

of,

and

disregarded,

Plaintiff’s

health

or

safety

21

Plaintiff’s

housing

22

Plaintiff

23

proximate causation.

24

claim must be DISMISSED with leave to amend.

25

//

26

//

27

//

alleged

or

the

conduct

an

contraband
facts

him

at

to

Moreover, Plaintiff
Cf. id. If Plaintiff

that

refusing

necessary

put

Nor has Plaintiff alleged

plausibly

by

decision

any

jail

excessive

properly

to

searches.
establish

official
risk

to

supervise
Nor

has

actual

and

Accordingly, Plaintiff’s failure to protect

28

10

1

D.

2

The

Complaint

Fails

to

Allege

Compliance

with

the

CTCA’s

claim

for

“gross

Presentation Requirement

3

The

4

Complaint

alleges

a

state

law

tort

5

negligence” against the County Medical Center and unnamed surgeon who

6

operated on Plaintiff.

7

California Tort Claims Act (“CTCA”), a plaintiff may not bring an

8

action for damages against a public entity or employee unless he

9

first presents a written claim to the local entity within six months

(Complaint at 3, 6).

However, under the

10

of the accrual of the action.

11

F.3d

12

presentation of a written claim and the rejection of the claim in

13

whole or in part” as a condition precedent to filing suit); see also

14

Cal. Gov’t Code § 945.4 (“[N]o suit for money or damages may be

15

brought against a [local] public entity . . . until a written claim

16

therefor

17

Furthermore, a plaintiff must affirmatively allege or demonstrate

18

compliance with the CTCA’s claim presentation requirement, Mangold v.

19

Cal. Pub. Utils. Comm’n, 67 F.3d 1470, 1477 (9th Cir. 1995) (“Where

20

compliance with the [California] Tort Claims Act is required, the

21

plaintiff

22

compliance,

23

(internal

24

applicability of a recognized exception or excuse for noncompliance,

25

State v. Superior Court (Bodde), 32 Cal. 4th 1234, 1239 (2004).

1101,

1111

has

been

must
or

(9th

Cir.

presented

allege
the

quotation

2001)

to

(CTCA

the

compliance

complaint
marks

See Mabe v. San Bernardino County, 237

is

public

or

or

the

entity

to

allege

general
facts

“timely

. . . .”).

circumstances

subject

omitted),

requires

excusing

demurrer.”)
showing

the

26
27

The Complaint does not allege that Plaintiff presented his state

28

law tort claims to the county or otherwise complied with the CTCA.

11

1

Accordingly,

Plaintiff’s

state

2

law

claim

for

negligence

must

be

DISMISSED with leave to amend.

3
4

E.

5

The Complaint Fails to State a Claim for Denial of Law Library
Access

6
7

The

Complaint

alleges

that

the

County Jail denied Plaintiff

8

access to a law library on multiple occasions.

9

Access to a law library or to legal assistance are not ends in

(Complaint at 3, 7).

10

themselves.

They are only relevant if pertinent to Plaintiff’s right

11

to

“reasonably

12

violations of constitutional rights to the courts,” i.e., have access

13

to the courts.

14

Bounds v. Smith, 430 U.S. 817, 825 (1977)).

In other words, the

15

Constitution

be

16

generalized research, but only that they be able to “present” their

17

grievances to the courts.

18

v. Donovan, 51 F.3d 894, 898 (9th Cir. 1995) (right of access to

19

courts requires a state to provide a law library or legal assistance

20

only during the pleading stage of a habeas or civil rights action).

have

a

adequate

opportunity

to

present

claimed

Lewis v. Casey, 518 U.S. 343, 350-51 (1996) (quoting

does

not

require

that

inmates

able

to

conduct

Lewis, 518 U.S. at 359; see also Cornett

21
22

To establish a violation of the right of access to the courts,

23

an

24

injury, a jurisdictional requirement that flows from the standing

25

doctrine and may not be waived.

26

Gomez, 190 F.3d 990, 996 (9th Cir. 1999).

27

“actual

inmate

must

establish

prejudice

with

that

he

or

she

has

suffered

an

actual

Lewis, 518 U.S. at 349; Madrid v.

respect

28

12

to

An “actual injury” is

contemplated

or

existing

1

litigation, such as the inability to meet a filing deadline or to

2

present a claim.”

Lewis, 518 U.S. at 348.

3

Plaintiff has not alleged facts establishing that the denial of

4
5

access

to

a

6

contemplated or existing legal claims.

7

alleged

8

denial of library access claim must be DISMISSED with leave to amend.

the

law

library

requisite

infringed

“actual

his

right

to

present

any

Plaintiff therefore has not

injury.”

Accordingly,

Plaintiff’s

9
10
11

F.

The Complaint Fails To State a Claim For Deliberate Indifference
To Serious Medical Needs

12
13

The

Complaint

alleges

that

the

County

Jail

denied

14

adequate medical care for treatment of his injuries.

15

Amendment’s

16

violated

17

serious medical needs of convicted prisoners.3

18

Plaintiff

429 U.S. 97, 104 (1976).

proscription

when

officials

against
remain

cruel

and

unusual

deliberately

The Eighth

punishment

indifferent

to

is
the

See Estelle v. Gamble,

19
20

A defendant is liable for the delay or denial of an inmate’s

21

medical

22

rights of pretrial detainees to receive medical
treatment arise under the Due Process Clause of the Fourteenth
Amendment. See Revere v. Massachusetts General Hosp., 463 U.S. 239,
244 (1983).
However, “the eighth amendment guarantees provide a
minimum standard of care for determining [a prisoner’s] rights as a
pretrial detainee, including [the prisoner’s] rights ... to medical
care.”
Jones v. Johnson, 781 F.2d 769, 771 (9th Cir. 1986),
overruled on other grounds by Peralta v. Dillard, 744 F.3d 1076 (9th
Cir. 2014).

23
24
25
26
27

3

care

only

when

deliberately

The

28

13

indifferent

to

known

serious

1

medical needs.

2

Estelle v. Gamble, 429 U.S. 97, 104 (1976).

3

that the deprivation suffered was “objectively, sufficiently serious”

4

and that prison officials were deliberately indifferent to his safety

5

in allowing the deprivation to take place.

6
7
8
9
10
11
12
13
14

F.3d

1041,

objective

Farmer v. Brennan, 511 U.S. 825, 834 (1994); see also

1045

(9th

component

Cir.

of

the

2006).

A

A plaintiff must show

Morgan v. Morgensen, 465

plaintiff

deliberate

can

indifference

satisfy

the

standard

by

demonstrating that a failure to treat the plaintiff’s condition could
result in further significant injury or the unnecessary and wanton
infliction of pain.

Colwell v. Bannister, 763 F.3d 1060, 1066 (9th

Cir. 2014) (citation omitted); accord McGuckin v. Smith, 974 F.2d
1050, 1059 (9th Cir. 1992), overruled on other grounds by WMX Techs.,
Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997); see also Lopez v.

15

Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en banc) (examples of

16

“serious

17

significantly

18

existence of chronic and substantial pain”) (citation and internal

19

quotation marks omitted).

medical

needs”

affects

an

include

“a

individual’s

medical

daily

condition

activities”

and

that
“the

20
21

A prison official acts with deliberate indifference, thereby

22

satisfying the subjective component of the standard, “only if the

23

[official] knows of and disregards an excessive risk to inmate health

24

and safety.”

25
26
27
28

Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004);

see also Farmer, 511 U.S. at 837 (A jail official must “both be aware
of facts from which the inference could be drawn that a substantial
risk of serious harm exists, and he must also draw the inference.”).
“[A]n official’s failure to alleviate a significant risk that he
14

1

should have perceived but did not, while no cause for commendation,

2

cannot . . . be condemned as the infliction of punishment.”

3

838; see also Estelle, 429 U.S. at 105-06 (inadequate treatment due

4

to

5

violation).

6
7
8
9
10
11
12
13
14

mistake

or

negligence

The

does

defendant

not

must

have

amount

to

a

“purposefully

Id. at

constitutional
ignore[d]

or

fail[ed] to respond to a prisoner’s pain or possible medical needs in
order

for

deliberate

indifference

to

be

established.”

May

v.

Baldwin, 109 F.3d 557, 566 (9th Cir. 1997) (internal quotation marks
omitted).
provision

“[M]ere malpractice, or even gross negligence,” in the
of

violation.

medical

care

does

not

establish

a

constitutional

Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990);

see also Estelle, 429 U.S. at 105-06 (“[A] complaint that a physician
has been negligent in diagnosing or treating a medical condition does

15

not state a valid claim of medical mistreatment under the Eighth

16

Amendment.”).

17
18

Plaintiff alleges only that the County Jail denied him proper

19

care for his injures of broken ribs, spinal injury, collapsed lung,

20

and mental stress/post-traumatic stress disorder. While Plaintiff’s

21

physical injuries appear to satisfy the objective component of the

22

deliberate

23

conclusory facts that satisfy the subjective component.

indifference

standard,

Plaintiff

has

not

alleged

non-

24
25
26
27
28

Plaintiff’s allegation that the County Jail denied him proper
care for his injures does not establish that any prison official
acted

with

conclusory

the

requisite

statement

that

deliberate
a

prison
15

indifference.
official

First,

delivered

the

improper

1

medical care is not sufficient to state a plausible claim absent

2

factual support.

3

the elements of a cause of action, supported by mere conclusory

4

statements, do not suffice.”).

Cf. Iqbal, 556 U.S. at 678 (“Threadbare recitals of

5
6
7
8
9
10
11
12
13
14

Second, improper medical care alone does not rise to the level
of

a

constitutional

violation.

To

the

negligence does not offend the Constitution.
see also Estelle, 429 U.S. at 105-06.
facts

demonstrating

that

an

official

contrary,

even

gross

Wood, 900 F.2d at 1334;

Rather, Plaintiff must allege
knew

of

and

disregarded

an

excessive risk to his health and safety.

Cf. Toguchi, 391 F.3d at

1057; see also Farmer, 511 U.S. at 837.

The defendant must have

“purposefully ignore[d] or fail[ed] to respond to a prisoner’s pain

15

or possible medical needs in order for deliberate indifference to be

16

established.”

17

(internal quotation marks omitted).

May v. Baldwin, 109 F.3d 557, 566 (9th Cir. 1997)

18
19

Plaintiff

has

not

alleged

facts

20

standard.

21

that

satisfy

this

stringent

Accordingly, Plaintiff’s inadequate medical care claim

must be DISMISSED with leave to amend.4

22
23
24
25
26
27
28

4

To the extent Plaintiff also intended to assert a
deliberate indifference to serious medical needs claim premised on
the surgeon leaving a portion of her glove inside Plaintiff during
surgery, this claim likewise fails. Even “gross negligence,” such as
that alleged by Plaintiff, does not rise to the level of a
constitutional violation. Wood, 900 F.2d at 1334; see also Estelle,
429 U.S. at 105-06.

16

1

ORDER

2
3

For the reasons stated above, Plaintiff’s Complaint is DISMISSED

4

with leave to amend.

5

claims

6

Complaint no later than 30 days from the date of this Order.

7

First

Amended

8

above

and

9

original Complaint.

dismissed

in

If Plaintiff wishes to further pursue the
this

Complaint

shall

be

action,

must

complete

he

cure
in

must

the

file

a

First

Amended
The

pleading defects discussed

itself

without

reference

to

the

See L.R. 15-2 (“Every amended pleading filed as

10

a matter of right or allowed by order of the Court shall be complete

11

including exhibits.

12

prior,

13

allege and plead any viable claims in the original Complaint again.

superseding

The amended pleading shall not refer to the
pleading.”).

This

means

that

Plaintiff

must

14
15

In any amended complaint, Plaintiff should identify the nature

16

of each separate legal claim, identify the defendant(s) against whom

17

he brings the claim, and confine his allegations to those operative

18

facts supporting each of his claims.

19

Civil Procedure 8(a), all that is required is a “short and plain

20

statement

of

21

relief.”

However, Plaintiff is advised that the allegations in the

22

First Amended Complaint should be consistent with the authorities

23

discussed above.

24

include

25

allegations

26

Plaintiff shall indicate in what capacity he sues any defendant(s).

27

Plaintiff is strongly encouraged to utilize the standard civil rights

28

complaint form when filing any amended complaint, a copy of which is

new

the

claim

that

the

pleader

is

entitled

to

In addition, the First Amended Complaint may not

Defendants
in

showing

Pursuant to Federal Rule of

the

or

claims

previously

not

filed

attached.
17

reasonably
complaints.

related

to

the

Furthermore,

1
2

Plaintiff is explicitly cautioned that failure to timely file a

3

First

4

described above, may result in a recommendation that this action, or

5

portions

6

prosecute and/or failure to comply with court orders.

7

Civ. P. 41(b).

Amended

Complaint,

thereof,

be

or

failure

dismissed

to

with

correct

prejudice

the

for

deficiencies

failure

to

See Fed. R.

8
9

Plaintiff is further advised that if he no longer wishes to

10

pursue this action in its entirety or with respect to particular

11

Defendants or claims, he may voluntarily dismiss all or any part of

12

this

13

Federal Rule of Civil Procedure 41(a)(1).

14

is attached for Plaintiff’s convenience.

action

by

filing

a

Notice

of

Dismissal

in

accordance

A form Notice of Dismissal

15
16

IT IS SO ORDERED.

17
18

Dated: January 27, 2017.

19
20
21

_____________/s/_____________
ALKA SAGAR
United States Magistrate Judge

22
23
24
25
26
27
28

18

with