Aron Miron v. J. Beard et al

Filing 15

ORDER TO SHOW CAUSE Re: Lack of Prosecution by Magistrate Judge Alka Sagar.Plaintiff is ORDERED TO SHOW CAUSE, in writing, no later than February 21, 2017, why this action should not be dismissed with prejudice for failure to prosecute. (See Order for complete details) (Attachments: # 1 Court's September 29, 2016 Order, # 2 Notice of Dismissal (Blank)) (afe)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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ARON MIRON,
Plaintiff,

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)
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v.
J. BEARD, et al.,
Defendants.

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NO. EDCV 16-0463 JVS (AS)

ORDER DISMISSING FIRST AMENDED
COMPLAINT WITH LEAVE TO AMEND

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On

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March

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2016,

California

state

prisoner

Aron

Miron

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(“Plaintiff”) filed a pro se Complaint pursuant to 42 U.S.C. § 1983.

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(Dkt. No. 1).

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leave to amend.

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a First Amended Complaint (“FAC”) pursuant to Section 1983.

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10).

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leave to amend.

On July 26, 2016, the Court dismissed the Complaint with
(Dkt. No. 7).

On September 12, 2016, Plaintiff filed
(Dkt. No.

For the reasons set forth below, the FAC must be dismissed with

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PLAINTIFF’S ALLEGATIONS

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The FAC names as defendants: former Secretary of the California

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Department of Corrections and Rehabilitation (“CDCR”) Jeffrey Beard, J.

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Coulton, M.D., the Chief Medical Officer (“CMO”) of Ironwood State

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Prison (“ISP”) in Blythe, California, and R. Lewis, M.D., a physician

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at ISP.

(FAC at 1).

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Plaintiff alleges that on September 8, 2009, he was transferred to

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Palo Verde Hospital (“PVH”) in Blythe, California, where, at the behest

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of the CDCR, his gallbladder was removed without cause and without his

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consent.

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2009, and January 13, 2010, he received chemotherapy treatments at

(FAC at 2).

Community

Plaintiff also claims that between November 8,

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Riverside

Regional

Medical

Center

(“RCRMC”).

(Id.).

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However, his treatment was not completed due to a lack of approval.

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(Id.).

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remove his gallbladder and cease cancer treatment.

Plaintiff “assume[s]” the Defendants made the decisions to
(Id.).

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Plaintiff next asserts that on March 8, 2010, he was transferred

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from the CDCR to RCRMC, where he underwent surgery to treat three

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bulging discs.

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operated on due to a lack of CDCR approval.

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alleges that a doctor told him his spinal damage would not have been as

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severe if he had received the operation sooner.

(FAC at 2).

Plaintiff complains that only 2 discs were
(Id.).

Plaintiff also

(Id.).

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Plaintiff further claims that on April 7, 2010, he was taken to

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PVH, where he underwent hemorrhoid surgery.

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states he has had numerous rectal problems postoperatively, including

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bleeding and incontinence, he now takes 17 pills each day, he can only

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lift 10 pounds, and he “feel[s] horrible” and is constantly in “much

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pain.”

(Id. at 3).

(FAC at 2-3).

Plaintiff

Plaintiff indicates he has been repeatedly told

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that if he had received treatment for his conditions sooner, he would

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not have the problems he is experiencing today.

(Id.).

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Based on these allegations, Plaintiff alleges Defendants were

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deliberately indifferent to his serious medical needs.

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Plaintiff seeks compensatory damages.

(FAC at 3-5).

(Id. at 5).

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STANDARD OF REVIEW

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Under the provisions of the Prison Litigation Reform Act of 1995,

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Plaintiff’s FAC is subject to sua sponte review and must be dismissed

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if it is:

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which relief may be granted; or (3) seeks monetary relief from a

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defendant immune from such relief.

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1915A; Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000); Lopez v.

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Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc).

(1) frivolous or malicious; (2) fails to state a claim upon

See 28 U.S.C. §§ 1915(e)(2)(B),

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Dismissal for failure to state a claim is appropriate if Plaintiff

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fails to proffer “enough facts to state a claim to relief that is

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plausible on its face.”

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(2007); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

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facial plausibility when the plaintiff pleads factual content that

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allows the court to draw the reasonable inference that the defendant is

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liable for the misconduct alleged.”

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v. Cal. Dep’t of Corr. & Rehab., 707 F.3d 1114, 1122 (9th Cir. 2013).

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Although Plaintiff must provide “more than labels and conclusions, and

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a formulaic recitation of the elements of a cause of action will not

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do,” Twombly, 550 U.S. at 555; Iqbal, 556 U.S. at 678, “[s]pecific

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

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“A claim has

Iqbal, 556 U.S. at 678; Hartmann

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facts

are

not

necessary;

the

[complaint]

need

only

give

the

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[Defendants] fair notice of what the . . . claim is and the grounds

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upon which it rests.”

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curiam) (citations and internal quotation marks omitted); Twombly, 550

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U.S. at 555.

Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per

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In considering whether to dismiss a complaint, the Court must

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accept the factual allegations of the complaint as true, Wood v. Moss,

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134 S. Ct. 2056, 2065 (2014); Erickson, 551 U.S. at 93-94, construe the

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pleading in the light most favorable to the pleading party, and resolve

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all doubts in the pleader’s favor. Jenkins v. McKeithen, 395 U.S. 411,

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421 (1969); Berg v. Popham, 412 F.3d 1122, 1125 (9th Cir. 2005).

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se pleadings are “to be liberally construed” and are held to a less

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stringent standard than those drafted by a lawyer.

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at 94; Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); see

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also Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (“Iqbal

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incorporated the Twombly pleading standard and Twombly did not alter

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courts’ treatment of pro se filings; accordingly, we continue to

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construe pro se filings liberally when evaluating them under Iqbal.”).

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Dismissal for failure to state a claim can be warranted based on either

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the lack of a cognizable legal theory or the absence of factual support

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for a cognizable legal theory.

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Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008).

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dismissed for failure to state a claim if it discloses some fact or

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complete defense that will necessarily defeat the claim.

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Murphy, 745 F.2d 1221, 1228-29 (9th Cir. 1984).

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\\

Pro

Erickson, 551 U.S.

See Mendiondo v. Centinela Hosp. Med.

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A complaint may also be

Franklin v.

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DISCUSSION

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The Court has reviewed Plaintiff’s FAC under the aforementioned

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standards and has concluded the FAC is deficient and must be dismissed

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with leave to amend.

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Plaintiff alleges that Defendants were deliberately indifferent to

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his serious medical needs.

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“alleging

deliberate

(FAC at 3-5).

indifference

must

However, a plaintiff

also

demonstrate

that

the

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defendants’ actions were both an actual and proximate cause of their

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injuries.”

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1074 (9th Cir. 2013); see also Baker v. McCollan, 443 U.S. 137, 142

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(1979) (“A public official is liable under § 1983 only ‘if he causes

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the plaintiff to be subjected to a deprivation of his constitutional

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rights.’” (citation omitted; emphasis in original)). Here, among other

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deficiencies, Plaintiff’s FAC completely fails to allege facts showing

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how the named Defendants were the actual and proximate cause of

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Plaintiff’s alleged injuries. There is absolutely no suggestion in the

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FAC

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condition, let alone that any Defendant’s action or inaction impacted

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Plaintiff’s health in any way.

that

Lemire v. Cal. Dep’t of Corrs. & Rehab., 726 F.3d 1062,

any

named

Defendant

was

aware

of

Plaintiff’s

medical

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Moreover, it appears that most, if not all, of Plaintiff’s claims

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are untimely. “California’s statute of limitations for personal injury

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actions governs claims brought pursuant to 42 U.S.C. § 1983.”

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Cove Props., LLC v. City of Carson, 640 F.3d 948, 956 (9th Cir. 2011);

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Wilson v. Garcia, 471 U.S. 261, 269, 276 (1985).

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personal injury claims that accrued after January 1, 2003, are subject
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Colony

“In California,

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to a two-year statute of limitations.”

Colony Cove Props., LLC, 640

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F.3d at 956; Cal. Civ. Proc. Code § 335.1; Jackson v. Barnes, 749 F.3d

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755, 761 (9th Cir. 2014), cert. denied, 135 S. Ct. 980 (2015).

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law determines when a cause of action accrues and the statute of

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limitations period begins to run.

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(2007); Bradford v. Scherschligt, 803 F.3d 382, 386 (9th Cir. 2015).

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Under federal law, “a claim accrues when the plaintiff knows or has

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reason to know of the injury that forms the basis of his cause of

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action.”

Federal

Wallace v. Kato, 549 U.S. 384, 387

Bradford, 803 F.3d at 386; Belanus v. Clark, 796 F.3d 1021,

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1025 (9th Cir. 2015), pet. for cert. filed, (Apr. 22, 2016).

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Plaintiff complains about events occurring while he was imprisoned at

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ISP in 2009 and 2010 – long before he filed his initial Complaint in

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this matter.1 For instance, Plaintiff alleges that on November 8, 2009,

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his gallbladder was removed without his informed consent.

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Yet, Plaintiff would certainly have been aware of both the surgery and

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his

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Tworivers v. Lewis, 174 F.3d 987, 992 (9th Cir. 1999).

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claim appears time barred.

lack

of

informed

consent

at

the

time

the

Here,

(FAC at 2).

surgery

occurred.
Thus, this

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ORDER

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Plaintiff’s First Amended Complaint (Docket No. 10) is DISMISSED

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WITH LEAVE TO AMEND.

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he shall file a Second Amended Complaint within thirty (30) days, or no

If Plaintiff still wishes to pursue this action,

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Plaintiff is no longer confined at ISP, but is now incarcerated
at the California Health Care Facility in Stockton, California. (See,
e.g., Dkt. No. 1 at 1; Dkt. No. 8).
However, Plaintiff has not
indicated when he was transferred from ISP.
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later than October 31, 2016, which cures the pleading defects discussed

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herein.

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without reference to the original Complaint or any other document. See

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Local Rule 15-2 (“Every amended pleading filed as a matter of right or

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allowed by order of the Court shall be complete including exhibits.

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The

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pleading.”).

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file a Second Amended Complaint, or failure to correct the deficiencies

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described herein, may result in a recommendation that this action be

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dismissed for failure to prosecute and/or failure to comply with a

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court order.

The Second Amended Complaint shall be complete in itself

amended

pleading

shall

not

refer

to

the

prior,

superseded

Plaintiff is explicitly cautioned that failure to timely

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DATED: September 29, 2016

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/s/
ALKA SAGAR
UNITED STATES MAGISTRATE JUDGE

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