Keith M Petty v. Shojaei et al

Filing 6

MEMORANDUM AND ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND by Magistrate Judge Suzanne H. Segal; the 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 (October 6, 2012) to file a First Amended Complaint. See order for details. (Attachments: # 1 Civil Rights Complaint, # 2 Notice of Dismissal) (jy)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 KEITH M. PETTY, ) ) Plaintiff, ) ) v. ) ) PA-C SHOJAEI, PA-C MARCOS ARID, ) MEDICATION TECHNICIAN BLIER, ) MEDICATION TECHNICIAN ALMOND, ) and MEDICATION TECHNICIAN ) CHANEY, ) ) Defendants. ) ) NO. EDCV 12-1220 JAK (SS) MEMORANDUM AND ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND 18 19 I. 20 INTRODUCTION 21 22 On July 31, 2012, Keith M. Petty (“Plaintiff”), a federal prisoner 23 proceeding pro se, filed a civil rights complaint pursuant to Bivens v. 24 Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 25 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971) (the “Complaint”). 26 reasons stated below, the Complaint is dismissed with leave to amend.1 For the 27 28 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). 1 Congress mandates that district courts initially screen civil 2 complaints filed by a prisoner seeking redress from a governmental 3 entity or employee. 4 a complaint, or any portions thereof, before service of process if the 5 Court concludes that the complaint (1) is frivolous or malicious, 6 (2) fails to state a claim upon which relief can be granted, or 7 (3) seeks monetary relief from a defendant who is immune from such 8 relief. 9 1122, 1126-27 & n.7 (9th Cir. 2000) (en banc). 28 U.S.C. § 1915A(a). This Court may dismiss such 28 U.S.C. § 1915A(b)(1)-(2); see also Lopez v. Smith, 203 F.3d 10 11 II. 12 ALLEGATIONS OF THE COMPLAINT 13 14 Plaintiff names as defendants five Federal Bureau of Prisons 15 employees at the Federal Correctional Complex-Victorville (the “FCC”): 16 certified 17 technicians 18 Plaintiff sues all Defendants solely in their individual capacities. 19 (See id.). physician’s Blier, assistants Almond and Shojaei Chaney.2 and Arid, (See and Complaint medication at 2-3). 20 21 Plaintiff alleges that on July 17, 2010, he sustained a stab wound 22 to his face and nose for which he received approximately ten stitches at 23 Victor 24 (Complaint at 4). 25 returned to the custody of the FCC and placed in the Special Housing 26 Unit (the “SHU”). Valley Community Hospital, an outside medical facility. Upon discharge from the hospital, Plaintiff was (Id.). Plaintiff states that throughout the three 27 2 28 With the exception of Marcos Arid, the Complaint does not identify any Defendants by their first name. 2 1 months that he was housed in the SHU, he was “denied all Medical care, 2 medical attention, medical supplies and even medical advice[,] even 3 after [he] submitted numerous medical request[s] & spoke[] to numerous 4 medical staff/the defendants which are named in this complaint.” (Id.). 5 Due to the denial of care in the SHU, Plaintiff endured a “Painful & 6 Terrible” healing process and his injury became infected, which resulted 7 in a “permanent deformity.” (Id.). 8 9 Plaintiff seeks $650,000 in compensatory damages, punitive damages 10 “in the amount of three times the amount of compensatory damages 11 awarded,” and fees and costs. (Id. at 5). 12 13 III. 14 DISCUSSION 15 Pursuant 16 to 28 U.S.C. § 1915A(b), the Court must dismiss Pro se litigants in 17 Plaintiff’s Complaint due to defects in pleading. 18 civil 19 complaints unless it is absolutely clear that the deficiencies cannot be 20 cured by amendment. 21 Court grants Plaintiff leave to amend, as indicated below. rights cases, however, must be given leave See Lopez, 203 F.3d at 1128-29. to amend their Accordingly, the 22 23 24 A. Plaintiff Fails To State A Claim For Deliberate Indifference To Serious Medical Needs 25 26 Plaintiff claims that he suffered pain and permanent disability 27 when he was denied medical care for three months after receiving 28 stitches to his face and nose. (Complaint at 4). 3 Although Plaintiff 1 lists five individual Defendants in the caption and introduction to the 2 Complaint, he fails to allege any specific facts showing how each of 3 these Defendants personally violated Plaintiff’s constitutional rights.3 4 (Id. at 1-3). 5 deliberate indifference to serious medical needs and must be dismissed, 6 with leave to amend. Consequently, the Complaint fails to state a claim for 7 A defendant is liable for the denial or delay of a prisoner’s 8 9 medical care in violation of the Eighth Amendment only when the 10 defendant is deliberately indifferent to the prisoner’s known serious 11 medical needs. 12 also West v. Atkins, 487 U.S. 42, 49, 108 S. Ct. 2250, 101 L. Ed. 2d 40 13 (1988). 14 “objectively, sufficiently serious” and that prison officials were 15 deliberately indifferent to his safety in allowing the deprivation to 16 take place, resulting in harm to the plaintiff. Morgan v. Morgensen, 17 465 defendant 18 “purposefully ignore[d] or fail[ed] to respond to a prisoner’s pain or 19 possible medical needs in order for deliberate indifference to be 20 established.” 21 (internal quotation marks omitted). 22 negligence,” in the provision of medical care does not establish a F.3d Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); see A prisoner must show that the deprivation he suffered was 1041, 1045 (9th Cir. 2006). The must have May v. Baldwin, 109 F.3d 557, 566 (9th Cir. 1997) “[M]ere malpractice, or even gross 23 24 25 26 27 28 3 Exhibits to the Complaint include copies of Plaintiff’s administrative grievances, the prison’s responses, and Plaintiff’s written objections to the grievance denials. While the grievances assert the denial of medical care, they similarly do not explain how the individually-named Defendants were involved in the violation of Plaintiff’s constitutional rights. 4 1 constitutional violation. Wood v. Housewright, 900 F.2d 1332, 1334 (9th 2 Cir. 1990). 3 4 While Plaintiff generally alleges that he was denied medical care 5 for three months in the SHU, he fails to include any specific 6 allegations showing how each individual Defendant was directly and 7 personally involved in the alleged constitutional violations. 8 Plaintiff explain how each Defendant’s action or inaction caused the 9 harm suffered. Nor does Plaintiff must allege specific facts showing that each 10 individual Defendant knew of Plaintiff’s serious medical needs but 11 deliberately denied Plaintiff medical care despite that knowledge, and 12 explaining how each Defendant’s action or inaction directly caused 13 Plaintiff harm. 14 Accordingly, Plaintiff’s claim for deliberate indifference is dismissed, 15 with leave to amend. Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011). 16 17 18 B. The Complaint Fails To State A Claim To The Extent that Plaintiff Alleges A Right To A Particular Grievance Procedure Or Outcome 19 20 The majority of Plaintiff’s Complaint consists of exhibits relating 21 to his administrative grievances. It is unclear whether Plaintiff is 22 attempting to assert a claim based on the denial of these grievances. 23 Plaintiff is advised, however, that any such claim fails because a 24 prisoner has no right to a particular grievance procedure or outcome. 25 Even though a prisoner must “exhaust his administrative remedies before 26 filing a lawsuit concerning prison conditions,” Sapp v. Kimbrell, 623 27 F.3d 813, 821 (9th Cir. 2010) (citing 42 U.S.C. § 1997e(a)), the denial 28 of a grievance, without more, is insufficient to establish liability. 5 1 See Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999). 2 Additionally, there is no constitutional right to a particular grievance 3 process. 4 119, 130 n.6, 97 S. Ct. 2532, 53 L. Ed. 2d 620 (1977); Mann v. Adams, 5 855 F.2d 639 (9th Cir. 1988). Accordingly, to the extent that Plaintiff 6 is attempting to assert a claim based on the denial of his grievances, 7 the Complaint must be dismissed, with leave to amend. Plaintiff is 8 cautioned correct 9 deficiencies or omit the deficient claim. Jones v. North Carlina Prisoners’ Labor Union, Inc., 433 U.S. that in any Amended Complaint, he must any 10 11 IV. 12 CONCLUSION 13 14 For the reasons stated above, the Complaint is dismissed with leave 15 to amend. If Plaintiff still wishes to pursue this action, he is 16 granted thirty (30) days from the date of this Memorandum and Order to 17 file a First Amended Complaint. In any amended complaint, the Plaintiff 18 shall cure the defects described above. The First Amended Complaint, if 19 any, shall be complete in itself and shall bear both the designation 20 “First Amended Complaint” and the case number assigned to this action. 21 It shall not refer in any manner to the original Complaint. 22 shall limit his action only to those Defendants who are properly named 23 in such a complaint, by first and last name to the extent possible, 24 consistent with the authorities discussed above. Plaintiff 25 26 In any amended complaint, Plaintiff should confine his allegations 27 to those operative facts supporting each of his claims. 28 advised that pursuant to Federal Rule of Civil Procedure 8(a), all that 6 Plaintiff is 1 is required is a “short and plain statement of the claim showing that 2 the pleader is entitled to relief.” Plaintiff is strongly encouraged to 3 utilize the standard civil rights complaint form when filing any amended 4 complaint, a copy of which is attached. 5 Plaintiff should make clear the nature and grounds for each claim and 6 specifically identify the defendants he maintains are liable for that 7 claim. 8 legible and consecutively numbered. In any amended complaint, the In addition, each page of the First Amended Complaint must be 9 Plaintiff is explicitly cautioned that failure to timely file a 10 11 First Amended Complaint, or failure to correct the deficiencies 12 described above, will result in a recommendation that this action be 13 dismissed with prejudice for failure to prosecute and obey Court orders 14 pursuant to Federal Rule of Civil Procedure 41(b). Plaintiff is further 15 advised that if he no longer wishes to pursue this action, he may 16 voluntarily dismiss it by filing a Notice of Dismissal in accordance 17 with Federal Rule of Civil Procedure 41(a)(1). 18 Dismissal is attached for Plaintiff’s convenience. A form Notice of 19 20 21 DATED: September 6, 2012 22 /S/ _____________________________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 23 24 25 26 THIS MEMORANDUM IS NOT INTENDED FOR PUBLICATION NOR IS IT INTENDED TO BE 27 INCLUDED IN OR SUBMITTED TO ANY ONLINE SERVICE SUCH AS WESTLAW OR LEXIS. 28 7

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