Esparza v. Mims

Filing 6

ORDER Dismissing Complaint and Granting Plaintiff Leave to File an Amended Complaint, signed by Magistrate Judge Gary S. Austin on 9/15/13. Amended Complaint Due in Thirty Days. (Attachments: # 1 Amended Complaint Form)(Gonzalez, R)

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1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA 2 3 4 5 6 7 Plaintiff, 8 9 10 Case No. 1:13 cv 00593 GSA PC RUBEN ESPARZA, ORDER DISMISSING COMPLAINT AND GRANTING PLAINTIFF LEAVE TO FILE AN AMENDED COMPLAINT vs. MARGARET MIMS, et al., Defendants 11 AMENDED COMPLAINT DUE IN THIRTY DAYS 12 13 14 15 16 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 17 18 19 pursuant to 28 U.S.C. § 636(c). The Court is required to screen complaints brought by prisoners seeking relief against a 20 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 21 The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 22 legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or 23 24 that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 25 § 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion thereof, that may have been 26 paid, the court shall dismiss the case at any time if the court determines that . . . the action or 27 28 1 1 appeal . . . fails to state a claim upon which relief may be granted.” 28 U.S.C. § 2 1915(e)(2)(B)(ii). 3 “Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited 4 5 exceptions,” none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 6 U.S. 506, 512 (2002); Fed. R. Civ. P. 8(a). Pursuant to Rule 8(a), a complaint must contain “a 7 short and plain statement of the claim showing that the pleader is entitled to relief . . . .” Fed. R. 8 Civ. P. 8(a). “Such a statement must simply give the defendant fair notice of what the plaintiff’s 9 claim is and the grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512. However, “the 10 11 liberal pleading standard . . . applies only to a plaintiff’s factual allegations.” Neitze v. Williams, 12 490 U.S. 319, 330 n.9 (1989). “[A] liberal interpretation of a civil rights complaint may not 13 supply essential elements of the claim that were not initially pled.” Bruns v. Nat’l Credit Union 14 Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 15 (9th Cir. 1982)). 16 17 II. Plaintiff’s Claims 18 Plaintiff, an inmate at the Fresno County Jail, brings this civil rights action against 19 Defendants Sheriff Margaret Mims and “Medical Staff and Doctor.” Plaintiff filed his complaint 20 21 on a form for a civil rights action pursuant to 42 U.S.C. § 1983. However, in his statement of claim, Plaintiff indicates that “attached are grievances for medical attention as well as 22 23 24 treatment.” To state a claim under section 1983, a plaintiff must allege that (1) the defendant acted 25 under color of state law and (2) the defendant deprived him of rights secured by the Constitution 26 or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). “A person 27 28 deprives another of a constitutional right, where that person ‘does an affirmative act, participates 2 1 in another’s affirmative acts, or omits to perform an act which [that person] is legally required to 2 do that causes the deprivation of which complaint is made.’” Hydrick v. Hunter, 500 F.3d 978, 3 988 (9th Cir. 2007) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “[T]he 4 5 ‘requisite causal connection can be established not only by some kind of direct, personal 6 participation in the deprivation, but also by setting in motion a series of acts by others which the 7 actor knows or reasonably should know would cause others to inflict the constitutional injury.’” 8 Id. (quoting Johnson at 743-44). 9 Plaintiff may not simply file a complaint and refer the Court to his exhibits. Plaintiff 10 11 must name individual defendants, and allege facts indicating how each individual defendant 12 violated a constitutional right of Plaintiff’s. Plaintiff need not, however, set forth legal 13 arguments in support of his claims. In order to hold an individual defendant liable, Plaintiff must 14 name the individual defendant, describe where that defendant is employed and in what capacity, 15 and explain how that defendant acted under color of state law. Plaintiff should state clearly, in 16 17 18 his or her own words, what happened. Plaintiff must describe what each defendant, by name, did to violate the particular right described by Plaintiff. Plaintiff has failed to do so here. 19 A. 20 Plaintiff is advised that “[T]o maintain an Eighth Amendment claim based on prison 21 Medical Care medical treatment, an inmate must show ‘deliberate indifference to serious medical needs.’” Jett 22 23 v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 24 S.Ct. 295 (1976)). The two part test for deliberate indifference requires the plaintiff to show (1) 25 “‘a serious medical need’ by demonstrating that ‘failure to treat a prisoner’s condition could 26 result in further significant injury or the unnecessary and wanton infliction of pain,’” and (2) “the 27 28 defendant’s response to the need was deliberately indifferent.” Jett, 439 F.3d at 1096 (quoting 3 1 McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds, WMX 2 Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc) (internal quotations 3 omitted)). Deliberate indifference is shown by “a purposeful act or failure to respond to a 4 5 prisoner’s pain or possible medical need, and harm caused by the indifference.” Id. (citing 6 McGuckin, 974 F.2d at 1060). Where a prisoner is alleging a delay in receiving medical 7 treatment, the delay must have led to further harm in order for the prisoner to make a claim of 8 deliberate indifference to serious medical needs. McGuckin at 1060 (citing Shapely v. Nevada 9 Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985)). 10 B. 11 Plaintiff names Sheriff Mims as a Defendant. Government officials may not be held 12 13 14 Supervisory Liability liable for the actions of their subordinates under a theory of respondeat superior. Ashcroft v. Iqbal , 556 U.S. 662, 673 (2009). Since a government official cannot be held liable under a 15 theory of vicarious liability for section 1983 actions, Plaintiff must plead that the official has 16 17 violated the Constitution through his own individual actions. Id. at 673. In other words, to state 18 a claim for relief under section 1983, Plaintiff must link each named defendant with some 19 affirmative act or omission that demonstrates a violation of Plaintiff’s federal rights. Plaintiff 20 21 has not alleged any facts indicating that Sheriff Mims was personally involved in the deprivation of any constitutional right of Plaintiff’s. She should therefore be dismissed. 22 23 24 25 26 III. Conclusion and Order The Court has screened Plaintiff’s complaint and finds that it does not state any claims Upon which relief may be granted under section 1983. The Court will provide Plaintiff with the opportunity to file an amended complaint curing the deficiencies identified by the Court in this 27 order. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff is cautioned that he 28 4 1 may not change the nature of this suit by adding new, unrelated claims in his amended 2 complaint. George, 507 F.3d at 607 (no “buckshot” complaints). 3 Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but must state what 4 5 each named defendant did that led to the deprivation of Plaintiff’s constitutional or other federal 6 rights, Hydrick, 500 F.3d at 987-88. Although accepted as true, the “[f]actual allegations must 7 be [sufficient] to raise a right to relief above the speculative level . . . .” Bell Atlantic Corp. v. 8 Twombly, 550 U.S. 544, 554 (2007) (citations omitted). 9 Finally, Plaintiff is advised that an amended complaint supercedes the original complaint, 10 11 Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 12 567 (9th Cir. 1987), and must be “complete in itself without reference to the prior or superceded 13 pleading,” Local Rule 15-220. Plaintiff is warned that “[a]ll causes of action alleged in an 14 original complaint which are not alleged in an amended complaint are waived.” King, 814 F.2d 15 at 567 (citing to London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981)); accord 16 17 Forsyth, 114 F.3d at 1474. 18 Accordingly, based on the foregoing, it is HEREBY ORDERED that: 19 1. 20 Plaintiff’s complaint is dismissed, with leave to amend, for failure to state a claim; 21 2. The Clerk’s Office shall send to Plaintiff a complaint form; 3. Within thirty (30) days from the date of service of this order, Plaintiff shall file 22 23 an amended complaint; 24 25 26 4. 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 27 complaint; and 28 5 1 5. 2 If Plaintiff fails to file an amended complaint, the Court will dismiss action, with prejudice, for failure to state a claim. 3 4 5 6 7 8 IT IS SO ORDERED. 9 Dated: 10 11 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE DEAC_Signature-END: 12 6i0kij8d 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 September 15, 2013 6

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