Herrera v. Nguyen

Filing 8

ORDER DISMISSING CASE WITH LEAVE TO AMEND, signed by Magistrate Judge Gary S. Austin on 04/03/2013. (30) Day Deadline (Attachments: # 1 Amended Complaint Form)(Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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ROBERTO HERRERA,

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Plaintiff,

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CASE NO. 1:12-cv-01915 GSA PC
ORDER DISMISSING COMPLAINT, WITH
LEAVE TO FILE AMENDED COMPLAINT
WITHIN THIRTY DAYS

v.
H. NGUYEN,

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(ECF No. 1)
Defendant.
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Screening Order
I.

Screening Requirement

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action

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pursuant to 42 U.S.C. § 1983. Plaintiff has consented to magistrate judge jurisdiction pursuant to

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28 U.S.C. § 636(c).

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

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

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

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“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall

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dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a

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claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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“Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited

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exceptions,” none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S.

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506, 512 (2002); Fed. R. Civ. P. 8(a). Pursuant to Rule 8(a), 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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“Such a statement must simply give the defendant fair notice of what the plaintiff’s claim is and the

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grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512. However, “the liberal pleading

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standard . . . applies only to a plaintiff’s factual allegations.” Neitze v. Williams, 490 U.S. 319, 330

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n.9 (1989). “[A] liberal interpretation of a civil rights complaint may not supply essential elements

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of the claim that were not initially pled.” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 1257

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(9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).

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II.

Plaintiff’s Claims

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Plaintiff, an inmate in the custody of the California Department of Corrections and

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Rehabilitation at CSP Corcoran, brings this civil rights action against Defendant Dr. H. Nguyen,

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M.D., a physician employed by the Department of Corrections and Rehabilitation at Corcoran.

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Plaintiff claims that he was subjected to inadequate medical care, such that it violated the Eighth

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Amendment prohibition on cruel and unusual punishment.

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Plaintiff’s complaint is difficult to discern, due to poor handwriting. Plaintiff appears to

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allege that he suffers from high blood pressure, and that he is dissatisfied with the level of care

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provided by Dr. Nguyen. Plaintiff also alleges that he suffers from “a history of fractured healed

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bones.” Plaintiff refers to medication and pain management, and also indicates that the stress of

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prison life is responsible for his high blood pressure.

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A.

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“[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate

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must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091, 1096

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(9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 295 (1976)). The two part

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test for deliberate indifference requires the plaintiff to show (1) “‘a serious medical need’ by

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demonstrating that ‘failure to treat a prisoner’s condition could result in further significant injury or

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the unnecessary and wanton infliction of pain,’” and (2) “the defendant’s response to the need was

Medical Care

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deliberately indifferent.” Jett, 439 F.3d at 1096 (quoting McGuckin v. Smith, 974 F.2d 1050, 1059

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(9th Cir. 1992), overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th

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Cir. 1997) (en banc) (internal quotations omitted)). Deliberate indifference is shown by “a

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purposeful act or failure to respond to a prisoner’s pain or possible medical need, and harm caused

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by the indifference.” Id. (citing McGuckin, 974 F.2d at 1060). Where a prisoner is alleging a delay

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in receiving medical treatment, the delay must have led to further harm in order for the prisoner to

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make a claim of deliberate indifference to serious medical needs. McGuckin at 1060 (citing Shapely

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v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985)).

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Here, the Court finds Plaintiff’s allegations to be vague. Plaintiff sets forth generalized

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allegations regarding his health care, and identifies Dr. Nguyen. To state a claim under section 1983,

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a plaintiff must allege that (1) the defendant acted under color of state law and (2) the defendant

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deprived him of rights secured by the Constitution or federal law. Long v. County of Los Angeles,

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442 F.3d 1178, 1185 (9th Cir. 2006). “A person deprives another of a constitutional right, where that

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person ‘does an affirmative act, participates in another’s affirmative acts, or omits to perform an act

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which [that person] is legally required to do that causes the deprivation of which complaint is

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made.’” Hydrick v. Hunter, 500 F.3d 978, 988 (9th Cir. 2007) (quoting Johnson v. Duffy, 588 F.2d

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740, 743 (9th Cir. 1978)). “[T]he ‘requisite causal connection can be established not only by some

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kind of direct, personal participation in the deprivation, but also by setting in motion a series of acts

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by others which the actor knows or reasonably should know would cause others to inflict the

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constitutional injury.’” Id. (quoting Johnson at 743-44).

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Plaintiff need not, however, set forth legal arguments in support of his claims. In order to

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hold an individual defendant liable, Plaintiff must name the individual defendant, describe where

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that defendant is employed and in what capacity, and explain how that defendant acted under color

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of state law. Plaintiff should state clearly, in his or her own words, what happened. Plaintiff must

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describe what each defendant, by name, did to violate the particular right described by Plaintiff.

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Plaintiff has failed to do so here.

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Further, Plaintiff must present to the Court an amended complaint that is legible. The

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amended complaint may be handwritten, but must be legible. The amended complaint may be
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handwritten by another inmate, but must, at minimum, be signed by Plaintiff. Plaintiff is cautioned

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that if the Court can not read his complaint, it can not order service upon any defendants.

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III.

Conclusion and Order

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The Court has screened Plaintiff’s complaint and finds that it does not state any claims upon

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which relief may be granted under section 1983. The Court will provide Plaintiff with the

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opportunity to file an amended complaint curing the deficiencies identified by the Court in this order.

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Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff is cautioned that he may not

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change the nature of this suit by adding new, unrelated claims in his amended complaint. George,

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507 F.3d at 607 (no “buckshot” complaints).

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

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named defendant did that led to the deprivation of Plaintiff’s constitutional or other federal rights,

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Hydrick, 500 F.3d at 987-88. Although accepted as true, the “[f]actual allegations must be

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[sufficient] to raise a right to relief above the speculative level . . . .” Bell Atlantic Corp. v.

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Twombly, 550 U.S. 544, 554 (2007) (citations omitted).

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Finally, Plaintiff is advised that an amended complaint supercedes the original complaint,

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Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567

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(9th Cir. 1987), and must be “complete in itself without reference to the prior or superceded

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pleading,” Local Rule 15-220. Plaintiff is warned that “[a]ll causes of action alleged in an original

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complaint which are not alleged in an amended complaint are waived.” King, 814 F.2d at 567 (citing

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to London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981)); accord Forsyth, 114 F.3d at

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1474.

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Accordingly, based on the foregoing, it is HEREBY ORDERED that:

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Plaintiff’s complaint is dismissed, with leave to amend, for failure to state a claim;

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2.

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

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3.

Within thirty (30) days from the date of service of this order, Plaintiff shall file an

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amended complaint;
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Plaintiff may not add any new, unrelated claims to this action via his amended
complaint and any attempt to do so will result in an order striking the amended
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complaint; and

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5.

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If Plaintiff fails to file an amended complaint, the Court will dismiss this action, with
prejudice, for failure to state a claim.

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IT IS SO ORDERED.

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Dated:
6i0kij

April 3, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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