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)
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?