Robert Bowie v. M. Vu

Filing 13

ORDER DISMISSING 7 Complaint, WITH LEAVE TO AMEND, for Failure to State a Claim under Section 1983; Thirty Day Deadline signed by Magistrate Judge Sheila K. Oberto on 5/18/2011. First Amended Complaint due by 6/21/2011. (Attachments: # 1 Amended Complaint Form)(Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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ROBERT BOWIE,

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Plaintiff,

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CASE NO. 1:10-cv-01033-SKO PC
ORDER DISMISSING COMPLAINT, WITH
LEAVE TO AMEND, FOR FAILURE TO
STATE A CLAIM UNDER SECTION 1983

v.
DR. M. VU,

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(Doc. 7)
Defendant.

THIRTY-DAY DEADLINE
/

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Screening Order
I.

Screening Requirement and Standard

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Plaintiff Robert Bowie, a state prisoner proceeding pro se and in forma pauperis, filed this

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civil rights action pursuant to 42 U.S.C. § 1983 on June 1, 2010. The Court is required to screen

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complaints brought by prisoners seeking relief against a governmental entity or an officer or

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employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or

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portion thereof if the prisoner has raised claims that are legally “frivolous or malicious,” that fail to

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state a claim upon which relief may be granted, or that seek monetary relief from a defendant who

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is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). “Notwithstanding any filing fee, or any

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portion thereof, that may have been paid, the court shall dismiss the case at any time if the court

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determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted.”

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28 U.S.C. § 1915(e)(2)(B)(ii).

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A complaint must contain “a short and plain statement of the claim showing that the pleader

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is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but
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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,

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do not suffice,” Ashcroft v. Iqbal, ___ U.S. ___, ___, 129 S.Ct. 1937, 1949 (2009) (citing Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)), and courts “are not required

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to indulge unwarranted inferences,” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir.

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2009) (internal quotation marks and citation omitted). While factual allegations are accepted as true,

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legal conclusions are not. Iqbal, 129 S.Ct. at 1949.

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To state a claim, Plaintiff must demonstrate that each defendant personally participated in

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the deprivation of his rights. Id. at 1949. This requires the presentation of factual allegations

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sufficient to state a plausible claim for relief. Iqbal, 129 S.Ct. at 1949-50; Moss v. U.S. Secret

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Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of

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meeting this plausibility standard. Iqbal, 129 S.Ct. at 1949-50; Moss, 572 F.3d at 969.

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II.

Plaintiff’s Eighth Amendment Medical Care Claim

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Plaintiff brings this action against Defendant M. Vu, a physician at the California

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Correctional Institution in Tehachapi. Plaintiff alleges that Defendant Vu was disrespectful and

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unprofessional, and that he committed malpractice in treating the gunshot wound to Plaintiff’s right

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foot.

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To constitute cruel and unusual punishment in violation of the Eighth Amendment, prison

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conditions must involve “the wanton and unnecessary infliction of pain.” Rhodes v. Chapman, 452

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U.S. 337, 347, 101 S.Ct. 2392 (1981). A prisoner’s claim of inadequate medical care does not rise

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to the level of an Eighth Amendment violation unless (1) “the prison official deprived the prisoner

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of the ‘minimal civilized measure of life’s necessities,’” and (2) “the prison official ‘acted with

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deliberate indifference in doing so.’” Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004)

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(quoting Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) (citation omitted)). A prison official

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does not act in a deliberately indifferent manner unless the official “knows of and disregards an

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excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970

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(1994).

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Plaintiff’s conclusory allegations are insufficient to state a claim under section 1983.
Disrespect, lack of professionalism, and malpractice will not support a claim for violation of the
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Eighth Amendment, Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285 (1977); Oltarzewski v.

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Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987), and Plaintiff’s complaint is devoid of any facts

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suggesting that Defendant Vu knowingly disregarded a substantial risk of harm to Plaintiff’s health,

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Farmer, 511 U.S. at 837. Accordingly, Plaintiff fails to state a cognizable claim against Defendant

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Vu.

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III.

Conclusion and Order

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Plaintiff’s complaint fails to state a claim upon which relief may be granted under section

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1983. The Court will provide Plaintiff with the opportunity to file an amended complaint curing the

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deficiencies identified by the Court in this order. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir.

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2000); Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff may not change the nature

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of this suit by adding new, unrelated claims in his amended complaint. George v. Smith, 507 F.3d

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605, 607 (7th Cir. 2007) (no “buckshot” complaints).

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Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but it must state what

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each named defendant did that led to the deprivation of Plaintiff’s constitutional rights, Iqbal, 129

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S.Ct. at 1948-49. Although accepted as true, the “[f]actual allegations must be [sufficient] to raise

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a right to relief above the speculative level. . . .” Twombly, 550 U.S. at 555 (citations omitted).

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Finally, an amended complaint supercedes the prior complaint, Forsyth v. Humana, Inc., 114

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F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), and it must be

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“complete in itself without reference to the prior or superceded pleading,” Local Rule 220.

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Therefore, “[a]ll causes of action alleged in an original complaint which are not alleged in an

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amended complaint are waived.” King, 814 F.2d at 567 (citing to London v. Coopers & Lybrand,

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644 F.2d 811, 814 (9th Cir. 1981)); accord Forsyth, 114 F.3d at 1474.

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Based on the foregoing, it is HEREBY ORDERED that:

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1.

The Clerk’s Office shall send Plaintiff a complaint form;

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2.

Plaintiff’s complaint is dismissed for failure to state a claim upon which relief may

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be granted under section 1983;
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Within thirty (30) days from the date of service of this order, Plaintiff shall file an
amended complaint; and
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4.

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If Plaintiff fails to file an amended complaint in compliance with this order, this
action will be dismissed, with prejudice, for failure to state a claim.

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IT IS SO ORDERED.

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Dated:
ie14hj

May 18, 2011

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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