Gipson v. Schmist, et al.

Filing 17

ORDER DISMISSING Second Amended Complaint For Failure To State A Claim And Granting LEAVE TO AMEND (ECF No. 14 ), Thirty-Day Deadline, signed by Magistrate Judge Barbara A. McAuliffe on 11/1/2013. Third Amended Complaint due by 12/9/2013. (Attachments: # 1 Amended Complaint Form)(Fahrney, E)

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EASTERN DISTRICT OF CALIFORNIA

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WILLIAM GIPSON,

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Plaintiff,
v.
R. SCHMIST, et al.,

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Defendants.

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1:12-cv-00343-BAM (PC)
ORDER DISMISSING SECOND AMENDED
COMPLAINT FOR FAILURE TO STATE A
CLAIM AND GRANTING LEAVE TO
AMEND
(ECF No. 14)
THIRTY-DAY DEADLINE

Third Screening Order

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I.

Screening Requirement and Standard

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Plaintiff William Gipson (“Plaintiff”) is a former state prisoner proceeding pro se and in

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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff’s second

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amended complaint, filed on October 30, 2013, is currently before the Court for screening.

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The Court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. §

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1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous or

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malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary

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relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2); 28

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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

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pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not

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required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere
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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937,

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1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65

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(2007)). While a plaintiff’s allegations are taken as true, courts “are not required to indulge

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unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009)

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(internal quotation marks and citation omitted).

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To survive screening, Plaintiff’s claims must be facially plausible, which requires

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sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable

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for the misconduct alleged. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks omitted);

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Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility

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that a defendant acted unlawfully is not sufficient, and mere consistency with liability falls short

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of satisfying the plausibility standard. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks

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omitted); Moss, 572 F.3d at 969.
Plaintiff’s Allegations

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II.

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Plaintiff is former state prisoner. The events alleged in this action occurred while

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Plaintiff was housed at the California Substance Abuse Treatment Facility in Corcoran,

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California. Plaintiff names Dr. O. Onyeje, a physician, and Lansdale J. Peters, a physician

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assistant, as defendants in this action.
Plaintiff alleges as follows: On November 29, 2011, Plaintiff was transferred to

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Corcoran State Prison.
On December 10, 2011, Plaintiff saw Dr. Onyeje for his chronic Hepatitis-C and

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requested to be treated for it. At the time, Dr. Onyeje agreed and stated Plaintiff would be

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treated, but he needed to send Plaintiff to get an ultrasound and blood work.
On December 29, 2011, Plaintiff was moved to the F-yard where they did not have a

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doctor, only a physician’s assistant, Lansdale J. Peters.
Plaintiff complains that Dr. Onyeje and Physician Assistant Lansdale Peters “delayed and

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denied [him] treatment requested.” (ECF No. 16, p. 2.)
In March 2012, Plaintiff was sent out for tests and blood work.

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III.

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Deficiencies of the Complaint
A. Federal Rule of Civil Procedure 8

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Pursuant to Federal Rule of Civil Procedure 8, a complaint must contain “a short and

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plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a).

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As noted above, detailed factual allegations are not required, but “[t]hreadbare recitals of the

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elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal,

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556 U.S. at 678 (citation omitted). Plaintiff must set forth “sufficient factual matter, accepted as

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true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting

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Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are

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not. Id; see also Twombly, 550 U.S. at 556–557; Moss, 572 F.3d at 969.
Plaintiff’s complaint is sparse and does not clearly set forth the factual allegations

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underlying his claims. In particular, his allegations are conclusory and fail to describe specific

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actions by defendants. Plaintiff cannot merely state that defendants were deliberately indifferent

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to a serious medical need without setting forth the facts of his claim. If Plaintiff elects to amend

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his complaint, he must set forth factual allegations against each defendant sufficient to state a

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claim.

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B. Eighth Amendment – Deliberate Indifference to Serious Medical Needs
“[T]o maintain an Eighth Amendment claim based on prison medical treatment, an

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inmate must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d

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1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 291

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(1976)). The two part test for deliberate indifference requires the plaintiff to show (1) “a ‘serious

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medical need’ by demonstrating that failure to treat a prisoner’s condition could result in further

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significant injury or the ‘unnecessary and wanton infliction of pain,’” and (2) “the defendant’s

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response to the need was deliberately indifferent.” Jett, 439 F.3d at 1096; Wilhelm v. Rotman,

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680 F.3d 1113, 1122 (9th Cir. 2012).

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Deliberate indifference is shown where the official is aware of a serious medical need and

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fails to adequately respond. Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1018 (9th Cir.

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2010). Deliberate indifference is a high legal standard. Simmons, 609 F.3d at 1019; Toguchi v.
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Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). The prison official must be aware of facts from

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which he could make an inference that “a substantial risk of serious harm exists” and he must

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make the inference. Farmer, 511 U.S. 825 at 837.

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As the Court instructed Plaintiff in its prior screening order, his allegation that defendants

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denied him the “treatment requested” is not sufficient to state a claim. At best, Plaintiff has

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alleged a disagreement regarding the appropriate course of treatment, which does not rise to the

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level of a constitutional violation. A prisoner’s mere disagreement with diagnosis or treatment

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does not support a claim of deliberate indifference. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir.

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1989). Further, Plaintiff’s complaint lacks any factual allegations regarding the circumstances of

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this claim or to demonstrate that Defendants failed to respond to a serious medical need.

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Plaintiff will be given a final opportunity to amend this claim.

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IV.

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 a third amended complaint.

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Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). Plaintiff may not change the nature of this

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suit by adding new, unrelated claims in his amended complaint. George v. Smith, 507 F.3d 605,

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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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the named defendant did that led to the deprivation of Plaintiff’s constitutional rights, Iqbal, 556

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U.S. at 678-79, 129 S.Ct. at 1948-49. Although accepted as true, the “[f]actual allegations must

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be [sufficient] to raise a right to relief above the speculative level. . . .” Twombly, 550 U.S. at

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555 (citations omitted).

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Finally, Plaintiff is advised that an amended complaint supersedes the original complaint.

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Lacey v. Maricopa Cnty., 693 F.3d 896, 927 (9th Cir. 2012) (en banc). Therefore, Plaintiff’s

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third amended complaint must be “complete in itself without reference to the prior or superseded

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pleading.” Local Rule 220.

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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;

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3. Within thirty (30) days from the date of service of this order, Plaintiff shall file a
third amended complaint; and

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4. If Plaintiff fails to file a third 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.
Dated:

/s/ Barbara

November 1, 2013

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A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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