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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 DAVID SINOHUIZ, JR., 12 v. 13 14 15 Plaintiff, LOS ANGELES COUNTY JAIL AND LOS ANGELES COUNTY MEDICAL CENTER, Defendants. 16 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

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