Freddie Francis v. United States of America et al

Filing 9

ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND by Judge S. James Otero, re Complaint (Prisoner Civil Rights) 1 . The First Amended 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 Order within which to file a Second Amended Complaint. Any Second Amended Complaint must be complete in itself and not refer in any manner to any prior complaint. See Order for details. (dml)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 FREDDIE FRANCIS, JR. ) NO. ED CV 17-283-SJO(E) ) Plaintiff, ) ) v. ) ORDER DISMISSING FIRST AMENDED ) UNITED STATES OF AMERICA, ) COMPLAINT WITH LEAVE TO AMEND et al., ) ) Defendants. ) ______________________________) 17 18 For the reasons discussed below, the First Amended Complaint is 19 dismissed with leave to amend. 20 See 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b)(2). 21 22 BACKGROUND 23 24 On February 15, 2017, Plaintiff, a federal prisoner confined at 25 the United States Prison at Coleman, Florida (“USP Coleman”), filed 26 this action pursuant to the Federal Tort Claims Act (“FTCA”) and 27 Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 28 403 U.S. 388 (1971). On March 3, 2017, the Court issued an “Order 1 Dismissing Complaint with Leave to Amend.” 2 On May 1, 2017, Plaintiff filed a First Amended Complaint. 3 4 Plaintiff’s claims arise out his 2013-16 incarceration at the 5 United States Prison at Victorville, California (“USP Victorville”) 6 (see Complaint, ECF Dkt. No. 1, pp. 11, 21).1 7 United States and five USP VIctorville medical officials: (1) J. 8 Esquetini, MLP (mid-level practitioner); (2) Dr. Snell, M.D.; (3) Dr. 9 Quinn, M.D.; (4) MLP W. Wolverton; and (5) Ms. L. Singh, AHSA Defendants are the 10 (apparently an administrator). Plaintiff sues the individual 11 Defendants in their individual capacities only. 12 13 SUMMARY OF PLAINTIFF’S ALLEGATIONS 14 15 I. The Original Complaint 16 17 The Complaint was not a model of clarity. Plaintiff appeared to 18 allege that the individual Defendants were deliberately indifferent to 19 an asserted staph infection and vein problem in Plaintiff’s left leg 20 and to Plaintiff’s alleged coronary artery blockage (see id., p. 13). 21 Plaintiff also appeared to allege that the individual Defendants were 22 negligent in failing to treat Plaintiff properly (see id.). 23 24 25 Plaintiff alleged that, while at USP Victorville, Plaintiff was diagnosed with four blocked arteries (id.). Defendants allegedly were 26 27 28 1 The form Complaint and its attachments and exhibits did not bear consecutive page numbers. The Court uses the ECF pagination. 2 1 told of this diagnosis (id., p. 14). Plaintiff allegedly suffers from 2 unstable angina, shortness of breath and a low heart rate (id., p. 3 13). 4 heart problems (id.). 5 treat Plaintiff for his pain, blocked arteries, chest pains and 6 damaged nerves in his left leg (id.). 7 allegedly did not want to send Plaintiff to an outside hospital 8 because of the cost and because of Plaintiff’s alleged status as a 9 maximum custody inmate (id.). The individual Defendants allegedly were aware of Plaintiff’s The individual Defendants allegedly did not The individual Defendants 10 11 Plaintiff alleged that the individual Defendants told Plaintiff 12 that they would not perform EKGs every time Plaintiff experienced 13 chest pain, although Defendants assertedly knew that Plaintiff had 14 once had a heart attack (id.). 15 Defendant Esquetini who with “the others” assertedly refused to do 16 anything about Plaintiff’s chest pain “for months” (id., pp. 20, 21). 17 Plaintiff also allegedly saw Esquetini concerning a small cut on 18 Plaintiff’s leg (id., p. 21). 19 Plaintiff something for the cut, but never did so (id.). 20 allegedly took over and discovered that Plaintiff had a staph 21 infection in the leg and prescribed something for it “which Esquetini 22 should have did [sic] a month earlier” (id.). 23 took eight months to send Plaintiff to outside doctors to determine 24 what was wrong with Plaintiff’s leg (id.). 25 before Plaintiff was sent to an outside hospital regarding his leg 26 problems (id., p. 20). 27 care for Plaintiff’s chest pains and shortness of breath assertedly 28 caused Plaintiff further harm, and Plaintiff allegedly now faces In April 2014, Plaintiff allegedly saw Esquetini allegedly said he would send Another MLP Esquetini allegedly It took “them” 21 months Defendants’ alleged failure to provide medical 3 1 further injury or death (id., p. 12). 2 3 Plaintiff allegedly was transferred to USP Coleman in March of 4 2016 (id., p. 20). Upon arrival at USP Coleman, pus assertedly was 5 running down Plaintiff’s leg, which was swollen (id.). 6 USP Coleman allegedly determined that the leg was still infected and 7 diagnosed cellulitis (id.). 8 USP Coleman, Dr. Negron, who purportedly told Plaintiff that: 9 (1) Plaintiff assertedly will experience heart failure due to his Officials at Plaintiff saw an “expert cardiologist” at 10 heart condition; (2) the doctor assertedly could not place any stents 11 in the right coronary artery and if the doctor performed surgery on 12 the left coronary artery, which allegedly has 80% blockage, Plaintiff 13 assertedly probably would not survive; and (3) even if Plaintiff 14 survived an operation Plaintiff allegedly probably would die in his 15 sleep (id., 9). 16 17 Although it was somewhat unclear, Plaintiff also appeared to 18 allege that Defendants failed to treat Plaintiff’s claimed problems 19 with his liver, kidney, hip, knee, ankle and shoulder, as well as his 20 alleged Hepatitis-C condition (id., p. 15). 21 in conclusory fashion, that Defendants purposefully denied Plaintiff 22 medical care because Plaintiff would not drop “torts & administrative 23 remedies claims against them” (id., p. 6). Plaintiff also alleged, 24 25 Plaintiff sought damages in an uncertain amount. Plaintiff also 26 sought an “emergency injunction” to order the federal Bureau of 27 Prisons immediately to release Plaintiff from custody (id., p. 12). 28 /// 4 1 II. The First Amended Complaint 2 3 The First Amended Complaint is similar to the original Complaint, 4 but even more conclusory and even less clear. Plaintiff alleges that, 5 upon arrival at USP VIctorville, Plaintiff advised unidentified 6 medical staff that prison officials at Plaintiff’s previous place of 7 incarceration had said that Plaintiff had suffered a heart attack 8 (First Amended Complaint, p. 3). 9 allegedly reported to “medical” every weekday complaining of chest At USP Victorville, Plaintiff 10 pains and of pus and other substances coming out of Plaintiff’s leg 11 (id.). 12 problems regarding his hepatitis C and kidneys (id., p. 4). 13 Unidentified staff allegedly only told Plaintiff to keep his leg 14 elevated (id., p. 3). 15 months (id.). 16 his leg in a trash bag to catch the pus (id.). 17 interested in “cutting [Plaintiff’s] leg off” but Plaintiff assertedly 18 refused an amputation (id., p. 4). Plaintiff also reportedly complained at sick call of alleged This allegedly went on for approximately nine On or about September 1, 2015, Plaintiff allegedly put “They” allegedly were 19 20 In June of 2016, following Plaintiff’s transfer to USP Coleman, 21 Plaintiff allegedly underwent a cardiac catheterization (id.). A 22 cardiologist allegedly told Plaintiff that Plaintiff’s heart was too 23 damaged for surgery, and that the previous institution at which 24 Plaintiff had been incarcerated (i.e., USP Victorville) assertedly 25 should have done more for Plaintiff’s heart issues (id.). 26 Coleman, Plaintiff allegedly was diagnosed as suffering from 27 cellulitis in his left leg (id.). 28 treating Plaintiff’s heart condition and left leg assertedly caused At USP Defendants’ alleged delay in 5 1 further injury to Plaintiff (id.). 2 3 Defendants Esquetini, Walkerton, Snell and Quinn allegedly 4 delayed treatment and displayed deliberate indifference to Plaintiff’s 5 conditions (id.). 6 issues and assertedly promised Plaintiff that she would talk to the 7 physicians’ assistants and doctors concerning Plaintiff’s problems 8 (id., p. 5). 9 costing the Bureau of Prisons too much money and that she purportedly Defendant Singh allegedly knew of Plaintiff’s Singh allegedly would make comments that Plaintiff was 10 was going to try to get Plaintiff transferred to another prison to get 11 rid of Plaintiff, due to Plaintiff’s “filing on them” concerning 12 Plaintiff’s medical issues (id.). 13 of Plaintiff’s medical records “came up missing” (id.). Allegedly due to the transfer, many 14 15 The First Amended Complaint contains two claims for relief. In 16 the First Claim for Relief, Plaintiff alleges that Defendants 17 Esquitini and Wolverton violated the Eighth Amendment, assertedly by 18 delaying Plaintiff’s treatment and failing to treat Plaintiff properly 19 (id., p. 5). 20 in Plaintiff’s medical care and assertedly is responsible “in a 21 supervisory capacity” for the actions of other Defendants (id.). 22 Defendant Snell allegedly sometimes would “peek in” when nurses were 23 changing the dressing on Plaintiff’s leg, but allegedly failed to 24 exercise his supervisory authority to stop his subordinates from 25 acting unlawfully (id.). 26 supervise her subordinates and failed to provide proper timely 27 treatment for Plaintiff’s leg, instead assertedly waiting eight months 28 before sending Plaintiff to an outside hospital (id.). Defendant Quinn allegedly “sometimes did get involved” Defendant Singh allegedly failed to 6 1 The Second Claim for Relief attempts to assert a federal tort 2 claim, alleging that Defendants were negligent in treating Plaintiff’s 3 heart condition (id., p. 6). 4 injunction requiring the Bureau of Prisons to permit Plaintiff to see 5 another cardiologist for a heart transplant (id., p. 7). Plaintiff seeks damages and an 6 7 DISCUSSION 8 9 As the Court previously advised Plaintiff, prison officials can 10 violate the Constitution if they are “deliberately indifferent” to an 11 inmate’s serious medical needs. 12 834 (1994); Estelle v. Gamble, 429 U.S. 97, 104 (1976). 13 for “deliberate indifference,” a jail official must “both be aware of 14 facts from which the inference could be drawn that a substantial risk 15 of serious harm exists, and he must also draw the inference.” 16 v. Brennan, 511 U.S. at 837. 17 significant risk that he should have perceived but did not, while no 18 cause for commendation, cannot . . . be condemned as the infliction of 19 punishment.” 20 Estelle v. Gamble, 429 U.S. at 105-06; Lopez v. Smith, 203 F.3d at 21 1131. 22 inadvertence, or even gross negligence does not amount to a 23 constitutional violation. 24 Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004). 25 official’s failure to alleviate a significant risk that he should have 26 perceived but did not, while no cause for commendation, cannot . . . 27 be condemned as the infliction of punishment.” 28 U.S. at 838. Id. at 838. See Farmer v. Brennan, 511 U.S. 825, To be liable Farmer “[A]n official’s failure to alleviate a Allegations of negligence do not suffice. Thus, inadequate treatment due to accident, mistake, Estelle v. Gamble, 429 U.S. at 105-06; 7 “[A]n Farmer v. Brennan, 511 1 The First Amended Complaint alleges no specific facts showing 2 that Defendants were deliberately indifferent to any known, serious 3 medical need of Plaintiff. 4 allegations that “Defendants” or unidentified “medical staff” knew of 5 and/or were deliberately indifferent to Plaintiff’s alleged medical 6 conditions are insufficient to allege a claim against any specific 7 named Defendant. 8 1996) (complaint is subject to dismissal for failure to state a claim 9 if “one cannot determine from the complaint who is being sued, for Plaintiff’s general and conclusory See McHenry v. Renne, 84 F.3d 1172, 1178 (9th Cir. 10 what relief, and on what theory”); see also E.D.C. Technologies, Inc. 11 v. Seidel, 2016 WL 4549132, at *9 (N.D. Cal. Sept. 1, 2016) (“Courts 12 consistently conclude that undifferentiated pleading against multiple 13 defendants is improper”) (citations, internal brackets and quotations 14 omitted); Chevalier v. Ray and Joan Kroc Corps. Cmty. Ctr., 2012 WL 15 2088819, at *2 (N.D. Cal. June 8, 2012) (complaint that failed to 16 “identify which wrongs were committed by which Defendant” 17 insufficient). 18 that each Defendant assertedly provided inadequate medical care for 19 Plaintiff’s heart, leg, hepatitis C and kidney conditions are 20 insufficient. 21 allegations of deliberate indifference to serious medical needs 22 insufficient); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 23 (plaintiff must allege more than an “unadorned, the-defendant- 24 unlawfully-harmed-me accusation”; a pleading that “offers labels and 25 conclusions or a formulaic recitation of the elements of a cause of 26 action will not do”). 27 /// 28 /// Plaintiff’s similarly bare, conclusory allegations See Toguchi v. Chung, 391 F.3d at 1058 (conclusory 8 1 Additionally, Plaintiff may not sue a supervisor under section 2 1983 on a theory of respondeat superior. See Ashcroft v. Iqbal, 556 3 U.S. at 676 (“Government officials may not be held liable for the 4 unconstitutional conduct of their subordinates on a theory of 5 respondeat superior”). 6 own misconduct,” and is not “accountable for the misdeeds of [his or 7 her] agents.” 8 misconduct is insufficient. 9 his or her individual capacity “for [his or her] own culpable action A supervisor “is only liable for his or her Id. at 677. Mere knowledge of a subordinate’s alleged Id. A supervisor may be held liable in 10 or inaction in the training, supervision or control of [his or her] 11 subordinates.” 12 (9th Cir. 1998) (quoting Larez v. City of Los Angeles, 946 F.2d 630, 13 646 (9th Cir. 1991)). 14 defendant, a plaintiff must allege facts showing that the individual 15 defendant participated in or directed the alleged violation, or knew 16 of the violation and failed to act to prevent it. 17 Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998), cert. denied, 525 18 U.S. 1154 (1999) (“A plaintiff must allege facts, not simply 19 conclusions, that show that an individual was personally involved in 20 the deprivation of his civil rights.”). 21 allegations do not suffice. 22 686 (plaintiff must allege more than an “unadorned, the-defendant- 23 unlawfully-harmed me accusation”; a pleading that “offers labels and 24 conclusions or a formulaic recitation of the elements of a cause of 25 action will not do”) (citations and quotations omitted). 26 /// 27 /// 28 /// Watkins v. City of Oakland, Cal., 145 F.3d 1087, 1093 To state a claim against any individual See Barren v. Plaintiff’s conclusory See Ashcroft v. Iqbal, 556 U.S. at 678, 9 1 ORDER 2 3 For the foregoing reasons, the First Amended Complaint is 4 dismissed with leave to amend. If Plaintiff still wishes to pursue 5 this action, he is granted thirty (30) days from the date of this 6 Order within which to file a Second Amended Complaint. 7 Amended Complaint must be complete in itself and not refer in any 8 manner to any prior complaint. 9 Amended Complaint may result in the dismissal of this action. Any Second Failure to file timely a Second See 10 Pagtalunan v. Galaza, 291 F.3d 639, 642-43 (9th Cir. 2002), cert. 11 denied, 538 U.S. 909 (2003) (court may dismiss action for failure to 12 follow court order); Simon v. Value Behavioral Health, Inc., 208 F.3d 13 1073, 1084 (9th Cir.), amended, 234 F.3d 428 (9th Cir. 2000), cert. 14 denied, 531 U.S. 1104 (2001), overruled on other grounds, Odom v. 15 Microsoft Corp., 486 F.3d 541 (9th Cir.), cert. denied, 552 U.S. 985 16 (2007) (affirming dismissal without leave to amend where plaintiff 17 failed to correct deficiencies in complaint, where court had afforded 18 plaintiff opportunities to do so, and where court had given plaintiff 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 10 1 notice of the substantive problems with his claims); Plumeau v. School 2 District #40, County of Yamhill, 130 F.3d 432, 439 (9th Cir. 1997) 3 (denial of leave to amend appropriate where further amendment would be 4 futile). 5 6 IT IS SO ORDERED. 7 8 DATED: May 22, 2017. 9 10 _____________________________________ S. JAMES OTERO UNITED STATES DISTRICT JUDGE 11 12 13 PRESENTED this 16th day 14 of May, 2017 by: 15 16 17 /s/ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 11

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?