Hoy Chan v. Orry Marciano et al

Filing 5

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 th is memorandum and Order within which to file a First Amended Complaint. Plaintiff is strongly encouraged to utilize the standard civil rights complaint form when filing any amended complaint, a copy of which is attached. Plaintiff is further advised that if he no longer wishes to pursue this action he may voluntarily dismiss it by filing a Notice of Dismissal in accordance with Federal Rule of Civil Procedure 41(a)(1). A form Notice of Dismissal is attached for Plaintiff's convenience. (See document for further details). (Attachments: # 1 Civil Rights Complaint Form, # 2 Notice of Dismissal Form) (mr)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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HOY CHAN,
Plaintiff,

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Case No. EDCV 16-2513 R (SS)
MEMORANDUM AND ORDER

v.

DISMISSING COMPLAINT WITH

ORRY MARCIANO, et al.,

LEAVE TO AMEND

Defendants.

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I.

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INTRODUCTION

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On December 6, 2016, Plaintiff Hoy Chan (“Plaintiff”), a state

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prisoner proceeding pro se, filed a civil rights complaint pursuant

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to 42 U.S.C. § 1983 and the Americans with Disabilities Act (“ADA”),

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42 U.S.C. § 12131 et seq. (the “Complaint”).

(Dkt. No. 1).

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Congress

mandates

that

the

court

screen,

as

soon

as

27

practicable, “a complaint in a civil action in which a prisoner

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seeks redress from a governmental entity or officer or employee of

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a governmental entity.”

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dismiss such a complaint, or any portion of it, before service of

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process if the court concludes that the complaint (1) is frivolous

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or malicious, (2) fails to state a claim upon which relief can be

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granted, or (3) seeks monetary relief from a defendant who is

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immune from such relief.

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

28 U.S.C. § 1915A(a).

28 U.S.C. § 1915A(b).

The court may

For the reasons

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II.

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ALLEGATIONS OF THE COMPLAINT

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Plaintiff names the following Chuckawalla Valley State Prison

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(“CVSP”) employees as defendants in their official and individual

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capacities: (1) physician’s assistant, Orry Marciano (“Marciano”);

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(2) Nurse Beatres; (3) Correctional Officer Anderson (“Anderson”);

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and (4) Correctional Officer Calvillo (“Calvillo”) (collectively

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“Defendants”).

(Compl. at 3-4).

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Plaintiff alleges that Marciano engaged in the “unauthorized

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practice

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without being a “real doctor” or making a diagnosis.

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5).

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“weak”

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Anderson

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Plaintiff.

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of

medicine”

by

prescribing

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to

Plaintiff
(Id. at 3,

As a result of Marciano’s treatment, Plaintiff has become
and

his

ignored

“breathing

problem”

Plaintiff’s

has

medical

deteriorated.

“needs”

and

Nurse

yelled

at

(Id. at 3).

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).
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medication

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Plaintiff allegedly made a work accommodation request to

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Anderson and Calvillo in order to avoid working with chemicals

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because

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Plaintiff informed Calvillo that he uses “a breathing machine and

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the chemicals are killing me.”

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did not follow the “operational procedure” or restrict Plaintiff’s

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exposure to chemicals.

of

Plaintiff’s

respiratory

disability.

(Id. at 4).

(Id.

at

4).

Anderson and Cavillo

(Id. at 4-5).

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Records attached to the Complaint indicate that a physician’s

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assistant2 evaluated Plaintiff on October 18, 2016.

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The

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accommodation request.

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the physician’s assistant allegedly informed Plaintiff that he was

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not disabled because his “activities of daily living” were not

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limited.

evaluation

was

conducted

because

Plaintiff

(Id. at 3-5, 7, 12).

(Id. at 7).3
filed

a

work

After the evaluation,

(Id. at 7).

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Plaintiff

claims

that

Defendants

were

deliberately

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indifferent to his serious medical needs and denied Plaintiff’s

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work

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disability.

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Defendants to provide the “right medical care” and follow the

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“operational

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“investigate” the alleged “unconstitutional medical care” at CVSP.

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(Id. at 6).

accommodation

request

(Id. at 3-6).

procedure,”

in

disregard

of

his

respiratory

Plaintiff seeks an injunction requiring

and

he

requests

that

the

Court

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2

The records do not identify the physician’s assistant by name.

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The Court refers to the documents attached to the Complaint as
if they were part of the Complaint and consecutively paginated.
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III.

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DISCUSSION

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Pursuant to 28 U.S.C. § 1915A(b), the Court dismisses the

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Complaint due to defects in pleading.

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rights case, however, must be given leave to amend his or her

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complaint unless “it is absolutely clear that the deficiencies of

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the complaint cannot be cured by amendment.”

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698

F.3d

1202,

1212

(9th

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quotation marks omitted).

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Cir.

A pro se litigant in a civil

2012)

See Akhtar v. Mesa,

(citation

and

internal

Accordingly, the Complaint is dismissed

with leave to amend.

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A.

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Plaintiff

Fails

To

State

An

Eighth

Amendment

Claim

For

Deliberate Indifference To Serious Medical Needs

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Plaintiff

alleges

that

Defendants

were

deliberately

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indifferent to his serious medical needs in violation of the Eighth

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Amendment. Defendants allegedly failed to provide adequate medical

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care

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Plaintiff’s health to deteriorate.

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Plaintiff’s deliberate indifference claim is defective.

for

Plaintiff’s

respiratory

disability,

which

(Compl. at 3-6).

caused
However,

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To maintain an Eighth Amendment claim based on a prisoner’s

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medical treatment, the prisoner must demonstrate that the defendant

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was “deliberately indifferent” to his “serious medical needs.”

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Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); see also West

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v. Atkins, 487 U.S. 42, 49 (1988).

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need,” the prisoner must demonstrate that “failure to treat a
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To establish a “serious medical

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prisoner’s condition could result in further significant injury or

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the ‘unnecessary and wanton infliction of pain.’”

Jett, 439 F.3d

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at

show

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deprivation

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serious.”

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2006).

1096

(citation
that

omitted).
he

A

suffered

prisoner

was

must

“objectively,

that

the

sufficiently

Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir.

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To

establish

“deliberate

indifference,”

a

prisoner

must

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demonstrate “(a) a purposeful act or failure to respond to a

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prisoner’s pain or possible medical need and (b) harm caused by

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the indifference.”

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prison

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medical treatment, or it may be shown by the way in which prison

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physicians provide medical care.”

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defendant must have been subjectively aware of a serious risk of

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harm and must have consciously disregarded that risk.

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v. Brennan, 511 U.S. 825 (1994).

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to a defendant’s “overall treatment” of a prisoner does not state

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a deliberate indifference claim.

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malpractice or negligence in the provision of medical care does

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not establish a constitutional violation.

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Ariz., 609 F.3d 1011, 1019 (9th Cir. 2010).

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difference of opinion in the form or method of treatment does not

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amount to a deliberate indifference of plaintiff’s serious medical

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needs.

officials

Id.
deny,

Deliberate indifference “may appear when
delay

or

intentionally

interfere

with

Id. (citations omitted).

The

See Farmer

Further, an “isolated exception”

Jett, 439 F.3d at 1096. Mere

Simmons v. Navajo Cnty.
Additionally, a mere

Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004).

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Here, the Complaint does not adequately allege that Plaintiff
had a “serious medical need.”

Rather, Plaintiff refers to an
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unspecified

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alleges

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(Compl. at 3-5).

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significant injury or unnecessary and wanton infliction of pain.

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Jett, 439 F.3d at 1096.

“disability;”

that

his

claims

“breathing

that

problem

is

he

is

getting

“weak;”
worst

and

[sic].”

These vague allegations fail to demonstrate a

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Moreover,

the

Complaint

does

not

sufficiently

allege

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“deliberate indifference,” i.e., a purposeful act or failure to

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respond to an objectively serious medical need and harm caused by

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the

indifference.

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particular Defendant was subjectively aware of a risk of harm to

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Plaintiff and consciously disregarded that risk.

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the

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symptoms with medicine and a “breathing machine.

Complaint

The

indicates

Complaint

that

does

Defendants

not

assert

that

any

On the contrary,

treated

Plaintiff’s

(Id. at 3-5).

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The Complaint does not contain any dates explaining when the

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alleged incidents occurred and which Defendants were involved on

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what date.

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Plaintiff’s condition (e.g., the specific diagnosis, severity of

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the condition, and how it has progressed) and in what manner have

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Defendants’ actions affected Plaintiff’s condition.

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Complaint vaguely alleges that Plaintiff had a disability and

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Defendants’ unspecified actions and inactions made his disability

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“worse.”

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does not rise to the level of a constitutional violation because

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the Complaint merely alleges that she lacked compassion and yelled

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at Plaintiff.

The Complaint also does not sufficiently explain

(Compl. at 3-5).

Instead, the

Additionally, Nurse Beatres’ conduct

(Id. at 3).

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In

sum,

the

Complaint

acknowledges

that

Defendants

took

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affirmative steps to investigate and treat Plaintiff’s complaints.

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The Complaint does not meet the high burden needed to sufficiently

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allege a deliberate indifference to serious medical needs claim.

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Accordingly,

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dismissed with leave to amend.

Plaintiff’s

deliberate

indifference

claims

are

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B.

Plaintiff Fails To State A Claim Under The ADA

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Plaintiff claims that Defendants declined to (1) medically

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treat

and

(2)

authorize

a

work

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alleged respiratory disability.

accommodation

for

Plaintiff’s

(Compl. at 3-6).

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In order to be considered disabled under the ADA, a plaintiff

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must

either

have:

“(A)

a

physical

or

mental

impairment

that

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substantially limits one or more of the major life activities of

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such individual; (B) a record of such an impairment; or (C) [be]

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regarded as having such an impairment.” 42 U.S.C. § 12102(2).

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Here, Plaintiff alleges that he is disabled under the ADA

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because of an alleged respiratory condition.

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However, Plaintiff also provides documentation establishing that

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CVSP medical staff examined Plaintiff and found “no restrictions

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or limitations in [his] ability to perform [his] Activities of

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Daily Living . . . ”

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Plaintiff

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demonstrating that he has been diagnosed with a condition that

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limits his life activities.

is

(Id. at 3-5, 9).

disabled

under

the

ADA,

(Compl. at 3-6).

In order to allege that
he

must

state

facts

Bragdon v. Abbott, 524 U.S. 624, 631
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(1998); Gaines v. Diaz, No. 1:13-CV-01478-MJS, 2014 WL 4960794, at

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*6 (E.D. Cal. Oct. 1, 2014) (Plaintiff’s claim that he “suffered

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from unspecified lower body mobility and pain conditions [did] not

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alone demonstrate a disability.”).

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alleged facts to demonstrate that he is disabled under the ADA.

Accordingly, Plaintiff has not

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Assuming that Plaintiff is disabled, he still has not alleged

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facts to establish a claim under the ADA.

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prohibits discrimination “against a qualified individual on the
of

disability

in

regard

to

.

.

.

Title I of the ADA

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basis

[the]

privileges

of

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employment.”

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F.3d 901, 906 (9th Cir. 2013). Plaintiff has not alleged sufficient

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facts to show whether he worked voluntarily or was employed by the

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prison.

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allegations.

42 U.S.C. § 12112(a); Castle v. Eurofresh, Inc., 731

In any amended complaint, Plaintiff must clarify his

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Moreover, claims under the ADA based solely on inadequate or

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negligent medical treatment do not necessarily state a claim.

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Simmons, 609 F.3d at 1021-22 (“The ADA prohibits discrimination

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because of disability, not inadequate treatment for disability”).

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Here,

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treatment

because

of

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Plaintiff

claims

that

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Prisons are subject to the ADA.

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955, 1072 (9th Cir. 2013).

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from the current complaint the nature of Plaintiff’s ADA claim.

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Accordingly, Plaintiff’s claims under the ADA are dismissed with

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leave to amend.

Plaintiff

does

not
his

allege

that

respiratory

Defendants

he

was

denied

disability.

provided

medical
Instead,

substandard

care.

See Armstrong v. Brown, 732 F.3d

However, the Court cannot determine

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C.

The Complaint Violates Rule 8

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Plaintiff’s Complaint does not comply with the standards of

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Federal Rule of Civil Procedure 8.

See Fed. R. Civ. P. 8.

Rule

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8(a)(2) “‘requires only a short and plain statement of the claim

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showing that the pleader is entitled to relief,’ in order to ‘give

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

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upon which it rests.’”

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555 (2007).

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

“Each allegation must be simple, concise, and direct.”

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Fed. R. Civ. P. 8(d)(1); see also Knapp v. Hogan, 738 F.3d 1106,

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1109 (9th Cir. 2013) (pleading may violate Rule 8 in “multiple

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ways,” including by saying “too little” or “too much”).

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Here, the Complaint does not give Defendants fair notice of

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what Plaintiff’s claims are and the grounds upon which they rest.

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The Complaint states far “too little” and does not provide enough

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detail regarding Defendants’ alleged actions or inactions.

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example, although the Complaint states that CO Anderson did not

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follow “operational procedure,” the Complaint does not explain what

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this procedure is and what Defendants should have done differently.

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(Compl. at 3-5).

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regulation, with nothing more, does not equate to a constitutional

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violation.

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1051-53 (9th Cir. 2002) (finding defendant’s negligent failure to

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follow

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Amendment

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Defendant’s

For

Moreover, the mere failure to follow a state

See Estate of Ford v. Ramirez-Palmer, 301 F.3d 1043,

prison

procedures

violation).
conduct

did

not

Plaintiff

itself

constitute

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9

allege

his

violated

must

and

constitutional

an

Eighth

explain

how

rights.

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Accordingly, the Complaint is dismissed with leave to amend for

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failure to meet the pleading standards of Rule 8.

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D.

Plaintiff’s Official Capacity Claims Are Defective

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Plaintiff sues Defendants under section 1983 in both their

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official and individual capacities.

(Compl. at 3-4).

However,

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the Eleventh Amendment bars Plaintiff's official capacity claims.

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Pursuant to the Eleventh Amendment, a state and its official

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arms are immune from suit under section 1983.

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496 U.S. 356, 365 (1990); Brown v. Cal. Dept. of Corrections, 554

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F.3d 747, 752 (9th Cir. 2009) (“California has not waived its

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Eleventh Amendment immunity with respect to claims

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§ 1983 in federal court”).

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his

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from a suit against the State itself.”

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816, 824-25 (9th Cir. 2007) (citation omitted).4

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officials sued for damages in their official capacity are generally

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entitled to immunity.

or

her

official

See Howlett v. Rose,

brought under

“A suit against a state official in

capacity

.

.

.

is

no

different

Flint v. Dennison, 488 F.3d
Thus, state

Id. at 825.

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Notwithstanding,

when

state

officials

are

sued

in

their

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official capacity for prospective injunctive relief under section

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1983, they are considered “individuals” not immune from suit.

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Id.

Because official capacity claims are “in all respects other than
name” suits against the government entity, Plaintiff’s claims here
against Defendants in their official capacity are claims against
the California Department of Corrections and Rehabilitation, i.e.,
the California state government. Kentucky v. Graham, 473 U.S. 159,
166 (1985).
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(citing Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985)).

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Eleventh Amendment does not bar such claims.

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noted above, Plaintiff does not appear to bring any claims for

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prospective, i.e., future injunctive relief.

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is inapplicable. Accordingly, Plaintiff’s official capacity claims

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must be dismissed.

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However, as

Thus, this exception

IV.

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Id.

The

CONCLUSION

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For the reasons stated above, the Complaint is dismissed with

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leave to amend.

If Plaintiff still wishes to pursue this action,

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he is granted thirty (30) days from the date of this memorandum

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and Order within which to file a First Amended Complaint.

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amended complaint, Plaintiff shall cure the defects described

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above.

In any

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Furthermore, Plaintiff shall omit any claims or allegations

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that are not reasonably related to the claims asserted in the

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Complaint

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addressed in this Order.

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shall be complete in itself and shall bear both the designation

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“First Amended Complaint” and the case number assigned to this

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action. It shall not refer in any manner to the original Complaint.

but

shall

instead

attempt

to

cure

the

deficiencies

The First Amended Complaint, if any,

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25

In

any

amended

complaint,

Plaintiff

should

confine

his

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allegations to the operative facts supporting each of his claims.

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Plaintiff

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

is

advised

that

pursuant

11

to

Federal

Rule

of

Civil

1

of the claim showing that the pleader is entitled to relief.”

2

Plaintiff is strongly encouraged to utilize the standard civil

3

rights complaint form when filing any amended complaint, a copy of

4

which is attached.

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identify the nature of each separate legal claim and make clear

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what specific factual allegations support his claims.

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is strongly encouraged to keep his statements concise and to omit

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irrelevant details.

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law or include legal argument.

In any amended complaint, Plaintiff should

Plaintiff

It is not necessary for Plaintiff to cite case

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Plaintiff is explicitly cautioned that failure to timely file

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a First Amended Complaint, or failure to correct the deficiencies

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described above, will result in a recommendation that this action

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be dismissed with prejudice for failure to prosecute and obey Court

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orders

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Plaintiff is further advised that if he no longer wishes to pursue

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this action he may voluntarily dismiss it by filing a Notice of

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Dismissal

in

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41(a)(1).

A form Notice of Dismissal is attached for Plaintiff’s

20

convenience.

pursuant

to

Federal

accordance

with

Rule

of

Federal

Civil

Rule

of

Procedure

Civil

41(b).

Procedure

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DATED:

April 13, 2017

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/S/
__________
SUZANNE H. SEGAL
UNITED STATES MAGISTRATE JUDGE

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THIS DECISION IS NOT INTENDED FOR PUBLICATION IN LEXIS, WESTLAW OR
ANY OTHER LEGAL DATABASE.
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