Primas v. San Joaquin Community Hospital, et al.

Filing 6

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND signed by Magistrate Judge Gary S. Austin on 2/5/2014. First Amended Complaint due within thirty (30) days. (Attachments: # 1 Amended Complaint Form). (Jessen, A)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

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ERIC PRIMAS,
Plaintiff,

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Case No. 1:13 cv 00444 GSA PC

vs.

DR. SARKIES, et al.,

ORDER DISMISSING COMPLAINT AND
GRANTING PLAINTIFF LEAVE TO FILE
AN AMENDED COMPLAINT

Defendants

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AMENDED COMPLAINT DUE
IN THIRTY DAYS

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I.

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

action pursuant to 42 U.S.C. § 1983. Plaintiff has consented to magistrate judge jurisdiction
pursuant to 28 U.S.C. § 636(c).1
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).

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

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

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that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C.

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§ 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion thereof, that may have been

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paid, the court shall dismiss the case at any time if the court determines that . . . the action or

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Plaintiff filed a consent to proceed before a magistrate judge on April 2, 2013 (ECF No. 5).
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appeal . . . fails to state a 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

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U.S. 506, 512 (2002); Fed. R. Civ. P. 8(a). Pursuant to Rule 8(a), a complaint must contain “a

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short and plain statement of the claim showing that the pleader is entitled to relief . . . .” Fed. R.

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Civ. P. 8(a). “Such a statement must simply give the defendant fair notice of what the plaintiff’s

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claim is and the grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512. However, “the

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liberal pleading standard . . . applies only to a plaintiff’s factual allegations.” Neitze v. Williams,

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490 U.S. 319, 330 n.9 (1989). “[A] liberal interpretation of a civil rights complaint may not

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supply essential elements of the claim that were not initially pled.” Bruns v. Nat’l Credit Union

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Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268

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(9th Cir. 1982)).

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II.

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Plaintiff’s Claims
Plaintiff is an inmate in the custody of the California Department of Corrections and

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Rehabilitation at Valley State Prison in Chowchilla. Plaintiff brings this civil rights action

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against the following individuals and Defendants: San Joaquin Community Hospital; Coalinga

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Regional Medical Hospital; Dr. Nadim Sarkies; Dr. Michael Freedman; Dr. Matab Singh; Dr.

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Casabar; Lorell Hedberg; John Does 1 through 6. The events at issue in this lawsuit occurred

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while Plaintiff was housed at Pleasant Valley State Prison.

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Plaintiff alleges that on August 5, 2012, he suffered major facial injuries when he was

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struck by a softball. Plaintiff was transferred to Coalinga Regional Medical Center for treatment.

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Plaintiff was admitted by John Doe 2. John Doe 3 was the physician who initially examined

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Plaintiff . John Doe 4 inserted an intravenous (IV) needle into Plaintiff’s left arm. Once the

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needle was inserted, Plaintiff “immediately felt severe pain and advised John Doe #4 of his

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discomfort, and that his arm felt like it was on fire. John Doe #4 did not readjust the I.V. needle.

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As a result of John Doe #4 action caused Plaintiff’s arm to swell the size of a football, in the area
of the injection of the I.V.” (Compl. p. A2.)
While the IV was still in his arm, Plaintiff was transferred to San Joaquin Community
Hospital. Upon arrival at San Joaquin, Plaintiff complained to Dr. Sarkies, Dr. Freeman, Dr.
Singh, Dr. Casabar, Lorell Hedberg and Johns Does 3, 5 and 6 about the pain at the injection site.
Plaintiff alleges that no matter how much he complained about the pain, no medical attention
was given. Plaintiff alleges that as a result of the lack of medical attention, he suffers from deep
vein thrombosis, a condition that he did not have prior to August 5, 2012.

Plaintiff alleges that

he now has blood clots, and has to take blood thinners in order to prevent a stroke or heart attack.
Plaintiff alleges that he is now a high risk medical inmate due to Defendants’ conduct.
A.

Medical Care

“[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, 106, 97 S.Ct. 295 (1976)).

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

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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 (quoting McGuckin v.

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Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds, WMX Techs., Inc. v.

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Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc) (internal quotations omitted)). Deliberate

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indifference is shown by “a purposeful act or failure to respond to a prisoner’s pain or possible

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medical need, and harm caused by the indifference.” Id. (citing McGuckin, 974 F.2d at 1060).

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Where a prisoner is alleging a delay in receiving medical treatment, the delay must have led to

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further harm in order for the prisoner to make a claim of deliberate indifference to serious

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medical needs. McGuckin at 1060 (citing Shapely v. Nevada Bd. of State Prison Comm’rs, 766

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F.2d 404, 407 (9th Cir. 1985)).

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Liberally construed, Plaintiff has alleged facts indicating that Defendant John Doe #4
knew of and disregarded a serious risk to Plaintiff’s health, resulting in injury to Plaintiff.

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However, unidentified, or “John Doe” defendants must be named or otherwise identified before

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service can go forward. “As a general rule, the use of ‘John Doe’ to identify a defendant is not

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favored.” Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). John Doe or Jane Doe

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defendants cannot be served by the United States Marshal until Plaintiff has identified them as
actual individuals and amended his complaint to substitute names for John Doe or Jane Doe. For
service to be successful, the Marshal must be able to identify and locate defendants. Plaintiff
will be provided an opportunity to file an amended complaint that identifies John Doe #4.
Further, Plaintiff has not alleged any facts indicating that John Doe #4 is a state
actor. To state a claim under section 1983, a plaintiff must allege that (1) the defendant acted

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under color of state law and (2) the defendant deprived him of rights secured by the Constitution

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or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006).

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Physicians who contract with prisons to provide medical services are acting under color of state

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law. See West v. Atkins, 487 U.S. 42, 53-54 (1988); Lopez v. Dep’t. of Health Servs, 939 F.2d

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881, 883 (9th Cir. 1991)(per curiam)(hospital and ambulance service under contract with the

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state). There are no allegations that John Doe #4 worked for the prison, or had any contract with

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the prison to provide medical services. Taking the facts of the complaint as true, John Doe #4

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was acting in a private capacity, and not a state actor for purposes of § 1983. Absent some

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allegations indicating that John Doe #4 is a state actor, he should be dismissed.

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The Court finds that, as to the remaining defendants, Plaintiff’s allegations are vague. To

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state a claim under section 1983, a plaintiff must allege that (1) the defendant acted under color

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of state law and (2) the defendant deprived him of rights secured by the Constitution or federal

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law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). “A person deprives

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another of a constitutional right, where that person ‘does an affirmative act, participates in

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another’s affirmative acts, or omits to perform an act which [that person] is legally required to do

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that causes the deprivation of which complaint is made.’” Hydrick v. Hunter, 500 F.3d 978, 988

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(9th Cir. 2007) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “[T]he ‘requisite
causal connection can be established not only by some kind of direct, personal participation in
the deprivation, but also by setting in motion a series of acts by others which the actor knows or
reasonably should know would cause others to inflict the constitutional injury.’” Id. (quoting
Johnson at 743-44). Plaintiff has not specifically charged each defendant with conduct
indicating that they knew of and disregarded a serious risk to Plaintiff’s health, resulting in injury
to Plaintiff. Plaintiff may not hold defendants liable simply by alleging a serious medical
condition and then charge defendants with the vague allegation that they neglected his condition.
Here, Plaintiff lists defendants and asserts a conclusory allegation that they were deliberately
indifferent to his condition. Plaintiff must allege facts indicating that each defendant was aware
of a specific harm to Plaintiff, and acted with deliberate indifference to that harm. Plaintiff has

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failed to do so here. The complaint should therefore be dismissed. Plaintiff will, however, be

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granted leave to file an amended complaint.

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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

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

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

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by Plaintiff. Plaintiff has failed to do so here.

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III.

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

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Upon 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

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order. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff is cautioned that he

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may not change the nature of this suit by adding new, unrelated claims in his amended

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

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rights, Hydrick, 500 F.3d at 987-88. 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 . . . .” Bell Atlantic Corp. v.

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Twombly, 550 U.S. 544, 554 (2007) (citations omitted).
Finally, Plaintiff is advised that an amended complaint supercedes the original complaint,
Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565,

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567 (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

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original complaint which are not alleged in an amended complaint are waived.” King, 814 F.2d
at 567 (citing to London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981)); accord
Forsyth, 114 F.3d at 1474.

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

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1.

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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

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an amended complaint;
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Plaintiff may not add any new, unrelated claims to this action via his amended

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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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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:

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
DEAC_Signature-END:

6i0kij8d

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February 5, 2014

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