Ricardo Rocha v. Orry Marciano et al

Filing 11

ORDER DISMISSING FIRST AMENDED COMPLAINT 10 WITH LEAVE TO AMEND by Magistrate Judge Paul L. Abrams. If plaintiff desires to pursue this action, he is ORDERED to file a Second Amended Complaint NO LATER THAN MARCH 17, 2017, remedying the deficienci es discussed below. Further, plaintiff is admonished that if he fails to timely file a Second Amended Complaint or fails to remedy the deficiencies of this pleading as discussed herein, the Court will recommend that the action be dismissed with prejudice. SEE ORDER FOR DETAILS. (Attachments: # 1 blank civil rights complaint form) (ch)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 12 RICARDO ROCHA, 13 14 15 16 17 Plaintiff, v. ORRY MARCIANO, et al., Defendants. ) ) ) ) ) ) ) ) ) ) No. ED CV 16-1802-AB (PLA) ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND 18 On August 22, 2016, plaintiff, a California state prisoner presently held at Chuckawalla 19 Valley State Prison (“CVSP”), in Blythe, California, filed a pro se civil rights action herein pursuant 20 to 42 U.S.C. § 1983. Plaintiff subsequently was granted leave to proceed without prepayment of 21 the full filing fee. In his Complaint, it appeared that plaintiff was purporting to raise one claim 22 alleging constitutionally inadequate medical care. Plaintiff named as defendants Orry Marciano, 23 a physician’s assistant at CVSP, and Dr. Santiago, an eye doctor at an outside clinic. Both 24 defendants were named in their official capacities only. (ECF No. 1 at 3). Plaintiff appeared to 25 be seeking only an investigation. (Id. at 6). 26 In accordance with the mandate of the Prison Litigation Reform Act of 1995 (“PLRA”), the 27 Court screened the Complaint prior to ordering service for the purpose of determining whether the 28 action is frivolous or malicious; or fails to state a claim on which relief may be granted; or seeks 1 monetary relief against a defendant who is immune from such relief. See 28 U.S.C. §§ 1915A, 2 1915(e)(2); 42 U.S.C. § 1997e. 3 After careful review of the Complaint, the Court found that plaintiff’s allegations appeared 4 insufficient to state a claim against any named defendant. Accordingly, the Complaint was 5 dismissed with leave to amend. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) (holding 6 that a pro se litigant must be given leave to amend his complaint unless it is absolutely clear that 7 the deficiencies of the complaint cannot be cured by amendment). Plaintiff was ordered, if he 8 desired to pursue this action, to file a First Amended Complaint no later than December 30, 2016, 9 remedying the deficiencies discussed in the Court’s Order. Further, plaintiff was admonished that, 10 if he failed to timely file a First Amended Complaint or failed to remedy the deficiencies of his 11 pleading as discussed therein, then the Court would recommend that the action be dismissed with 12 prejudice. 13 On December 23, 2016, plaintiff filed a First Amended Complaint (“FAC”). The FAC names 14 as defendants Orry Marciano, a physician’s assistant at CVSP; Dr. Santiago, an eye doctor with 15 an outside clinic; LVN Beatres, at CVSP; a “doe” doctor at the Riverside Hospital; and the Warden 16 of CVSP. Plaintiff names all defendants except the Warden in both their individual and official 17 capacities. (ECF No. 10 at 3-4). Plaintiff purports to raise one claim arising from inadequate 18 medical treatment and plaintiff’s “disability.” (Id. at 5). The FAC appears to be seeking an 19 investigation. (Id. at 6). The Court has once again screened the FAC prior to ordering service. 20 The Court’s screening of the pleading under the foregoing statutes is governed by the 21 following standards. A complaint may be dismissed as a matter of law for failure to state a claim 22 for two reasons: (1) lack of a cognizable legal theory; or (2) insufficient facts under a cognizable 23 legal theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990); see also Rosati 24 v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (in determining whether a complaint should be 25 dismissed under the PLRA, courts apply the standard of Fed. R. Civ. P. 12(b)(6)). Further, with 26 respect to a plaintiff’s pleading burden, the Supreme Court has held that: “a plaintiff’s obligation 27 to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, 28 2 1 and a formulaic recitation of the elements of a cause of action will not do. … Factual allegations 2 must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. 3 Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1964-65, 167 L. Ed. 2d 929 (2007) (internal 4 citations omitted, alteration in original); see also Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 5 1949, 173 L. Ed. 2d 868 (2009) (To avoid dismissal for failure to state a claim, “a complaint must 6 contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its 7 face.’ A claim has facial plausibility when the plaintiff pleads factual content that allows the court 8 to draw the reasonable inference that the defendant is liable for the misconduct alleged.” (internal 9 citation omitted)); Lazy Y Ranch LTD v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008) (“To survive 10 a motion to dismiss for failure to state a claim, the plaintiff must allege ‘enough facts to state a 11 claim to relief that is plausible on its face.’” (citing Twombly, 550 U.S. at 570)). Since plaintiff is 12 appearing pro se, the Court must construe the allegations of the pleading liberally and must afford 13 plaintiff the benefit of any doubt. See Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 14 623 (9th Cir. 1988). Finally, in determining whether a complaint states a claim on which relief may 15 be granted, allegations of material fact are taken as true and construed in the light most favorable 16 to plaintiff. Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). However, the “tenet that 17 a court must accept as true all of the allegations contained in a complaint is inapplicable to legal 18 conclusions.” Iqbal, 556 U.S. at 678. 19 After careful review of the FAC, the Court finds that plaintiff’s allegations once again appear 20 insufficient to state a claim against any named defendant. Accordingly, the FAC is dismissed with 21 leave to amend. If plaintiff desires to pursue this action, he is ORDERED to file a Second 22 Amended Complaint no later than March 17, 2017, remedying the deficiencies discussed 23 below. Further, plaintiff is admonished that if he fails to timely file a Second Amended 24 Complaint or fails to remedy the deficiencies of this pleading as discussed herein, the 25 Court will recommend that the action be dismissed with prejudice.1 26 27 28 1 Plaintiff is advised that this Court’s determination herein that the allegations in the First Amended Complaint are insufficient to state a particular claim should not be seen as dispositive of that claim. Accordingly, while this Court believes that you have failed to plead sufficient factual 3 1 2 DISCUSSION A. PLAINTIFF’S FAC FAILS TO SET FORTH A SHORT AND PLAIN STATEMENT IN COMPLIANCE WITH FEDERAL RULE OF CIVIL PROCEDURE 8. 3 4 5 6 Plaintiff’s FAC still fails to comply with Federal Rule of Civil Procedure 8(a) and 8(d). Fed. R. Civ. P. 8(a) states: 9 A pleading that states a claim for relief must contain: (1) a short and plain statement of the grounds for the court’s jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought, which may include relief in the alternative or different types of relief. 10 (Emphasis added). Rule 8(d)(1) provides: “Each allegation must be simple, concise, and 11 direct. No technical form is required.” (Emphasis added). Although the Court must construe a 12 pro se plaintiff’s pleadings liberally, a plaintiff nonetheless must allege a minimum factual and legal 13 basis for each claim that is sufficient to give each defendant fair notice of what plaintiff’s claims 14 are and the grounds upon which they rest. See, e.g., Brazil v. United States Department of the 15 Navy, 66 F.3d 193, 199 (9th Cir. 1995); McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991) 16 (complaint must give defendants fair notice of the claims against them). If a plaintiff fails to clearly 17 and concisely set forth allegations sufficient to provide defendants with notice of which defendant 18 is being sued on which theory and what relief is being sought against them, the complaint fails to 19 comply with Rule 8. See, e.g., McHenry v. Renne, 84 F.3d 1172, 1177-79 (9th Cir. 1996); Nevijel 20 v. Northcoast Life Ins. Co., 651 F.2d 671, 674 (9th Cir. 1981). Moreover, failure to comply with 21 Rule 8 constitutes an independent basis for dismissal of a complaint that applies even if the claims 22 in a complaint are not found to be wholly without merit. See McHenry, 84 F.3d at 1179; Nevijel, 23 651 F.2d at 673. 7 8 24 25 26 27 28 matter in your pleading, accepted as true, to state a claim to relief that is plausible on its face, you are not required to omit any claim or defendant in order to pursue this action. However, if you decide to pursue a claim in a Second Amended Complaint that this Court has found to be insufficient, then this Court, pursuant to the provisions of 28 U.S.C. § 636, ultimately will submit to the assigned district judge a recommendation that such claim be dismissed with prejudice for failure to state a claim, subject to your right at that time to file Objections with the district judge as provided in the Local Rules Governing Duties of Magistrate Judges. 4 1 First, the cover page of the FAC names only Marciano as a defendant, but the body of the 2 FAC lists several other defendants. Plaintiff once again is admonished that, irrespective of his pro 3 se status, he must comply with the Federal Rules of Civil Procedure and the Local Rules of the 4 United States District Court for the Central District of California. See, e.g., Briones v. Riviera Hotel 5 & Casino, 116 F.3d 379, 382 (9th Cir. 1997) (“pro se litigants are not excused from following court 6 rules”); L.R. 1-3. Pursuant to Fed. R. Civ. P. 10, the caption of the pleading must include all 7 defendants listed in the body of the pleading. 8 Additionally, plaintiff names most of the defendants in their official capacities. (ECF No. 10 9 at 3-4). It appears that defendants Marciano, Beatres, and the Warden are employees of the 10 California Department of Corrections and Rehabilitation (“CDCR”), which is a state agency. In Will 11 v. Michigan Department of State Police, 491 U.S. 58, 64-66, 109 S. Ct. 2304, 105 L. Ed. 2d 45 12 (1989), the Supreme Court held that states, state agencies, and state officials sued in their official 13 capacities are not persons subject to civil rights suits under 42 U.S.C. § 1983. In addition, the 14 Eleventh Amendment bars federal jurisdiction over suits by individuals against a State and its 15 instrumentalities, unless either the State consents to waive its sovereign immunity or Congress 16 abrogates it. Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 99-100, 104 S. Ct. 900, 17 79 L. Ed. 2d 67 (1984). To overcome this Eleventh Amendment bar, the State’s consent or 18 Congress’ intent must be “unequivocally expressed.” Pennhurst, 465 U.S. at 99. While California 19 has consented to be sued in its own courts pursuant to the California Tort Claims Act, such 20 consent does not constitute consent to suit in federal court. See BV Engineering v. Univ. of 21 California, 858 F.2d 1394, 1396 (9th Cir. 1988); see also Atascadero State Hospital v. Scanlon, 22 473 U.S. 234, 241, 105 S. Ct. 3142, 87 L. Ed. 2d 171 (1985) (holding that Art. III, § 5 of the 23 California Constitution does not constitute a waiver of California’s Eleventh Amendment immunity). 24 Finally, Congress has not repealed State sovereign immunity against suits under 42 U.S.C. § 25 1983. Plaintiff’s FAC does not appear to be seeking monetary damages, but, to the extent that 26 he wishes to seek monetary damages arising from any alleged civil rights violation from 27 defendants Marciano, Beatres, or the Warden, plaintiff may not maintain such claims against these 28 defendants in their official capacities. 5 1 Further, to the extent that plaintiff wishes to seek monetary damages from defendant Dr. 2 Santiago, or the “doe” doctor, these defendants appear to be employed by outside medical 3 facilities. However, the Supreme Court has held that an “official-capacity suit is, in all respects 4 other than name, to be treated as a suit against the entity.” Kentucky v. Graham, 473 U.S. 159, 5 166, 105 S. Ct. 3099, 87 L. Ed. 2d 114 (1985). Such a suit “is not a suit against the official 6 personally, for the real party in interest is the entity.” Graham, 473 U.S. at 166 (emphasis in 7 original). Accordingly, plaintiff’s claims against the outside doctors in their official capacities are 8 the same as a claim against their employers. To the extent that plaintiff may be purporting to state 9 a claim against an outside medical facility pursuant to Monell v. New York City Dep’t of Social 10 Servs., 436 U.S. 658, 694, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978), the Supreme Court in Monell 11 held that a local government entity “may not be sued under § 1983 for an injury inflicted solely by 12 its employees or agents. Instead, it is when execution of a government’s policy or custom, 13 whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent 14 official policy, inflicts the injury that the government as an entity is responsible under § 1983.” 15 Monell, 436 U.S. at 694; see also Connick v. Thompson, 563 U.S. 51, 131 S. Ct. 1350, 1359, 179 16 L. Ed. 2d 417 (2011) (“local governments are responsible only for their own illegal acts”). Here, 17 plaintiff fails to set forth any allegations that any specific policy or custom of an outside medical 18 facility was the “actionable cause” of a specific constitutional violation. See Tsao v. Desert Palace, 19 Inc., 698 F.3d 1128, 1146 (9th Cir. 2012) (“Under Monell, a plaintiff must also show that the policy 20 at issue was the ‘actionable cause’ of the constitutional violation, which requires showing both but 21 for and proximate causation.”). In addition, liability against a local government entity may not be 22 premised on an isolated or sporadic incident. See, e.g., Trevino v. Gates, 99 F.3d 911, 918 (9th 23 Cir. 1996) (“Liability for improper custom may not be predicated on isolated or sporadic incidents; 24 it must be founded upon practices of sufficient duration, frequency and consistency that the 25 conduct has become a traditional method of carrying out policy.”); Thompson v. Los Angeles, 885 26 F.2d 1439, 1443-44 (9th Cir. 1989) (“Consistent with the commonly understood meaning of 27 custom, proof of random acts or isolated events are insufficient to establish custom.”), overruled 28 on other grounds, Bull v. City & County of San Francisco, 595 F.3d 964, 981 (9th Cir. 2010) (en 6 1 banc). Here, plaintiff does not set forth factual allegations concerning any practice or custom that 2 he alleges was a “traditional method of carrying out policy.” 3 In addition, to the extent that plaintiff is purporting to raise a federal civil rights claim against 4 defendant Marciano for “negligence in prescribing drugs”; against LVN Beatres for “telling [him] 5 to stop complaining”; or against any defendant for treating him with “disrespect” (ECF No. 10 at 6 3, 5-6), such allegations simply fail to allege that a specific defendant deprived plaintiff of a specific 7 right guaranteed under the Constitution or a federal statute. See West v. Atkins, 487 U.S. 42, 48, 8 108 S. Ct. 2250, 101 L. Ed. 2d 40 (1988); Karim-Panahi, 839 F.2d at 624. “A person deprives 9 another ‘of a constitutional right, within the meaning of § 1983, if he does an affirmative act, 10 participates in another’s affirmative acts, or omits to perform an act which he is legally required 11 to do that causes the deprivation of which [the plaintiff complains].’” Leer v. Murphy, 844 F.2d 12 628, 633 (9th Cir. 1988), quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (emphasis 13 in original). General allegations that defendants acted negligently, failed to offer encouragement, 14 or disrespected plaintiff are insufficient to allege that a defendant took an affirmative act, 15 participated in another’s affirmative act, or omitted to perform an act that he was legally required 16 to do that allegedly caused a constitutional deprivation. 17 In addition, the FAC names the Warden of CVSP as a defendant, but plaintiff does not set 18 forth any factual allegations against the Warden. Supervisory personnel are not liable under 19 Section 1983 on a theory of respondeat superior. See, e.g., Redman v. County of San Diego, 942 20 F.2d 1435, 1446 (9th Cir. 1991) (en banc). In Iqbal, 556 U.S. at 676, the Supreme Court 21 reaffirmed that: “Government officials may not be held liable for the unconstitutional conduct of 22 their subordinates under a theory of respondeat superior.” The Ninth Circuit subsequently has 23 concluded that, at least in cases where the applicable standard is deliberate indifference (such as 24 for an Eighth Amendment claim), Iqbal does not foreclose a plaintiff from stating a claim for 25 supervisory liability based upon the “supervisor’s knowledge of and acquiescence in 26 unconstitutional conduct by his or her subordinates.” Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 27 2011). Here, plaintiff’s FAC does not set forth any factual allegations that the Warden knew of, 28 and failed to take any action in response to, any unconstitutional conduct of any subordinate. 7 1 Further, within plaintiff’s single “claim,” he raises allegations concerning “discrimination of 2 [his] disability,” delays in providing medical care, failure to enter into the “system” the information 3 that plaintiff is “totally blind” in one eye, prescribing medication for “TB” when plaintiff did not have 4 “TB,” problems with outside surgeries on his eye, and a denial of “equal protection.” (ECF No. 10 5 at 5-6). To the extent that plaintiff may be purporting to allege a claim pursuant to the Equal 6 Protection Clause of the Fourteenth Amendment, plaintiff must allege that a specific defendant 7 intentionally treated him differently than other similarly situated individuals with a purpose to 8 discriminate against him based on his membership in a protected class. See Washington v. Davis, 9 426 U.S. 229, 239-42, 96 S. Ct. 2040, 48 L. Ed. 2d 597 (1976); Freeman v. Arpaio, 125 F.3d 732, 10 737 (9th Cir. 1997) (to state an equal protection claim, “a plaintiff in a section 1983 claim must 11 show that officials intentionally acted in a discriminatory manner”). Plaintiff’s FAC fails to set forth 12 a short and plain statement of any claim pursuant to the Equal Protection Clause. 13 Accordingly, it is not clear to the Court how many federal civil rights claims plaintiff is 14 purporting to raise or what the legal or factual basis may be for each of plaintiff’s federal civil rights 15 claims against each defendant. The Court is mindful that, because plaintiff is appearing pro se, 16 the Court must construe the allegations of the FAC liberally and must afford plaintiff the benefit 17 of any doubt. See Karim-Panahi, 839 F.2d at 623. Additionally, it is particularly important in a civil 18 rights case filed by a pro se inmate to attempt to ascertain plaintiff’s claims to protect his access 19 to the courts. See Pouncil v. Tilton, 704 F.3d 568, 575-76 (9th Cir. 2012) (the rule of liberal 20 construction “protects the rights of pro se litigants to self-representation and meaningful access 21 to the courts”); Alvarez v. Hill, 518 F.3d 1152, 1158 (9th Cir. 2008) (because a prisoner was 22 proceeding pro se, “the district court was required to ‘afford [him] the benefit of any doubt’ in 23 ascertaining what claims he ‘raised in his complaint’”) (alteration in original). Further, the Court 24 may not dismiss a claim because a pro se plaintiff has failed to set forth a complete legal theory 25 supporting the claim alleged. See Johnson v. City of Shelby, 135 S. Ct. 346, 346, 190 L. Ed. 2d 26 309 (2014) (per curiam) (noting that the Fed. Rules of Civ. Proc. “do not countenance dismissal 27 of a complaint for imperfect statement of the legal theory supporting the claim asserted”). That 28 said, the Supreme Court has made it clear that the Court has “no obligation to act as counsel or 8 1 paralegal to pro se litigants.” Pliler v. Ford, 542 U.S. 225, 231, 124 S. Ct. 2441, 159 L. Ed. 2d 338 2 (2004); see also Noll, 809 F.2d at 1448 (“courts should not have to serve as advocates for pro se 3 litigants”). 4 Although plaintiff need not set forth detailed factual allegations, he must plead “factual 5 content that allows the court to draw the reasonable inference that the defendant is liable for the 6 misconduct alleged.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555-56). A pleading 7 that merely alleges “naked assertion[s] devoid of further factual enhancement” is insufficient. Id. 8 (alteration in original, internal quotation marks omitted). In its present format, it would be difficult 9 for each defendant to discern what specific facts or legal theories apply to which potential claims, 10 and, as a result, it would be extremely difficult to formulate applicable defenses. 11 Therefore, the Court finds that plaintiff’s FAC still fails to comply with Rule 8. 12 13 B. PLAINTIFF’S ALLEGATIONS ARE INSUFFICIENT TO STATE A CLAIM FOR INADEQUATE MEDICAL CARE PURSUANT TO THE EIGHTH AMENDMENT. 14 15 The Eighth Amendment’s proscription against cruel and unusual punishment also 16 encompasses the government’s obligation to provide adequate medical care to those whom it is 17 punishing by incarceration. See Estelle v. Gamble, 429 U.S. 97, 103, 97 S. Ct. 285, 50 L. Ed 2d 18 251 (1976). In order to establish a claim under the Eighth Amendment for inadequate medical 19 care, a prisoner must show that a specific defendant was deliberately indifferent to his serious 20 medical needs. See Helling v. McKinney, 509 U.S. 25, 32, 113 S. Ct. 2475, 125 L. Ed. 2d 22 21 (1993); Estelle, 429 U.S. at 106. “This includes both an objective standard -- that the deprivation 22 was serious enough to constitute cruel and unusual punishment -- and a subjective standard -- 23 deliberate indifference.” Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014) (internal 24 quotation marks omitted). 25 First, to meet the objective element of a deliberate indifference claim, “a prisoner must 26 demonstrate the existence of a serious medical need.” Colwell, 763 F.3d at 1066. “A medical 27 need is serious if failure to treat it will result in significant injury or the ‘unnecessary and wanton 28 infliction of pain.’” Peralta v. Dillard, 744 F.3d 1076, 1081 (9th Cir. 2014) (en banc), cert. denied, 9 1 135 S. Ct. 946 (2015) (internal quotation marks omitted). 2 Second, to meet the subjective element, a prisoner must “demonstrate that the prison 3 official acted with deliberate indifference.” Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004). 4 Deliberate indifference may be manifest by the intentional denial, delay or interference with a 5 plaintiff’s medical care. See Estelle, 429 U.S. at 104-05. The prison official, however, “must not 6 only ‘be aware of facts from which the inference could be drawn that a substantial risk of serious 7 harm exists,’ but that person ‘must also draw the inference.’” Toguchi, 391 F.3d at 1057 (quoting 8 Farmer v. Brennan, 511 U.S. 825, 837, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994)). Thus, an 9 inadvertent failure to provide adequate medical care, negligence, a mere delay in medical care 10 (without more), or a difference of opinion over proper medical treatment, are all insufficient to 11 constitute an Eighth Amendment violation. See Estelle, 429 U.S. at 105-07; Toguchi, 391 F.3d 12 at 1059-60; Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); Shapley v. Nevada Bd. of State 13 Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). Moreover, the Eighth Amendment does not 14 require optimal medical care or even medical care that comports with the community standard of 15 medical care. “[A] complaint that a physician has been negligent in diagnosing or treating a 16 medical condition does not state a valid claim of medical mistreatment under the Eighth 17 Amendment. Medical malpractice does not become a constitutional violation merely because the 18 victim is a prisoner.” Estelle, 429 U.S. at 106. Accordingly, even “gross negligence” is insufficient 19 to establish deliberate indifference. See Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 20 1990). 21 Here, construing plaintiff’s factual allegations liberally and affording plaintiff the benefit of 22 any doubt, it remains unclear to the Court what the factual basis may be for any Eighth 23 Amendment claim or claims that plaintiff intends to raise. Initially, plaintiff does not set forth any 24 factual allegations showing that, at the relevant time, he suffered from an objectively serious 25 medical condition. 26 Further, plaintiff appears to allege that defendant Marciano prescribed eye drops that made 27 plaintiff’s eye “worse” and denied plaintiff a vision test. (ECF No. 10 at 5). To the extent that 28 plaintiff is alleging that defendant Marciano’s choice of treatment for plaintiff’s eyes was 10 1 inappropriate, an inmate’s difference of opinion about what would have constituted the best course 2 of treatment for his medical condition is insufficient to show that a defendant acted with deliberate 3 indifference. See, e.g., Cano v. Taylor, 739 F.3d 1214, 1217 (9th Cir 2014) (prisoner’s difference 4 of opinion as to his medical treatment “is not actionable”); Toguchi, 391 F.3d at 1059-60. Rather, 5 “to prevail on a claim involving choices between alternative courses of treatment, a prisoner must 6 show that the chosen course of treatment ‘was medically unacceptable under the circumstances,’ 7 and was chosen ‘in conscious disregard of an excessive risk to [the prisoner’s] health.’” Toguchi, 8 391 F.3d at 1058 (alteration in original, citing Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 9 1996)). Here, plaintiff does not purport to allege that any course of treatment was medically 10 unacceptable. Moreover, to the extent that plaintiff may be alleging that any defendant was 11 negligent in prescribing medication (ECF No. 10 at 3, 6), he cannot state a federal civil rights claim 12 based on mere medical malpractice. The Eighth Amendment does not require optimal medical 13 care or even medical care that comports with the community standard of medical care. See 14 Estelle, 429 U.S. at 106; see also Anderson v. County of Kern, 45 F.3d 1310, 1316 (9th Cir. 1995) 15 (“a constitutional violation is not established by negligence”). 16 In addition, to the extent that plaintiff is purporting to allege an Eighth Amendment claim 17 against Dr. Santiago or the “doe” doctor, plaintiff fails to set forth any factual allegations as to what 18 actions each doctor took or failed to take on which dates that plaintiff alleges constituted deliberate 19 indifference to plaintiff’s serious medical needs. Plaintiff alleges that Dr. Santiago performed 20 surgery on plaintiff’s right eye that resulted in total blindness, but plaintiff does not set forth any 21 factual allegations regarding this surgery. (ECF No. 10 at 3, 5). Similarly, plaintiff alleges that 22 another “doctor in Riverside” “did my left eye but also not good [sic.].” (Id. at 5). Plaintiff does not 23 allege any details about what surgery was performed for what reason at what time. The factual 24 allegations in the FAC fail to raise a reasonable inference that any doctor was subjectively aware 25 of any facts from which the inference could have been drawn that a substantial risk of serious 26 harm to plaintiff existed with the treatment provided. In addition, as discussed above, to the extent 27 that plaintiff is alleging that a choice of treatment by either of these doctors was inappropriate, 28 plaintiff fails to set forth any factual allegations that the chosen course of treatment was medically 11 1 unacceptable under the circumstances. 2 Accordingly, the factual allegations in the FAC, even when accepted as true and construed 3 in the light most favorable to plaintiff, are insufficient to nudge any claim pursuant to the Eighth 4 Amendment “across the line from conceivable to plausible.” Twombly, 550 U.S. at 570. 5 ************ 6 If plaintiff desires to pursue this action, he must file a Second Amended Complaint 7 no later than March 17 , 2017; The Second Amended Complaint must bear the docket number 8 assigned in this case; be labeled “Second Amended Complaint”; and be complete in and of itself 9 without reference to the original Complaint, or any other pleading, attachment or document. 10 Further, if plaintiff chooses to proceed with this action, plaintiff must use the blank Central 11 District civil rights complaint form accompanying this order, must sign and date the form, must 12 completely and accurately fill out the form, and must use the space provided in the form to set 13 forth all of the claims that he wishes to assert in a Second Amended Complaint. 14 15 The Clerk is directed to provide plaintiff with a blank Central District civil rights complaint form. 16 Further, plaintiff is admonished that, if he fails to timely file a Second Amended 17 Complaint or fails to remedy the deficiencies of this pleading as discussed herein, the 18 Court will recommend that the action be dismissed with prejudice. 19 IT IS SO ORDERED. 20 21 DATED: February 17, 2017 PAUL L. ABRAMS UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 12

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