Brown v. Lopez et al

Filing 11

ORDER DISMISSING First Amended Complaint and GRANTING Plaintiff LEAVE to FILE a SECOND AMENDED COMPLAINT, signed by Magistrate Judge Gary S. Austin on 10/9/2013. Amended Complaint Due Within Thirty Days. (Attachments: # 1 1983 Amended Complaint Form)(Marrujo, C)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

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Case No. 1:13 cv 01106 AWI GSA PC

KARENGA BROWN,
Plaintiff,

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ORDER DISMISSING FIRST AMENDED
COMPLAINT AND GRANTING PLAINTIFF
LEAVE TO FILE A SECOND AMENDED
COMPLAINT

vs.

M. D. BITER, et al.,
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

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action pursuant to 42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule

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302 pursuant to 28 U.S.C. § 636(b)(1).

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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).

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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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appeal . . . fails to state a claim upon which relief may be granted.” 28 U.S.C. §

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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.

Plaintiff’s Claims
This action proceeds on the August 8, 2013, first amended complaint. Plaintiff, an

inmate in the custody of the California Department of Corrections and Rehabilitation at Kern
Valley State Prison, brings this action against correctional officials employed by the CDCR at

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Kern Valley. Plaintiff claims that he is being denied adequate medical care in violation of the
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Eighth Amendment. Plaintiff names the following individual defendants: Warden M.D. Biter;

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Chief Medical Officer S. Lopez; Dr. Jonathan Akanno; Dr. U. Varanasi; Dr. Umloa; Dietitians L.

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Johnson and R. Yager.

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Plaintiff alleges that defendants in general are deliberately indifferent to his serious

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medical needs.
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Plaintiff’s alleges that defendants “in this complaint when due to the wanton,
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reckless, malicious or oppressive and unwanted stress, medical anguish and exemplary damages

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which is due to the oppressive character of the acts complained of in this civil claim.” (Am.

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Compl. ¶ IV.) Plaintiff complains generally about “the failed healthcare of an through the

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CDCR and Warden M.D. Biter’s knowledge of my high risk medical needs for end stage renal
disease and dialysis treatment.” (Id.)

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A.

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

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Medical Care

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

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allegations regarding his health care, and names individual defendants. To state a claim under
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section 1983, a plaintiff must allege that (1) the defendant acted under color of state law and (2)

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the defendant deprived him of rights secured by the Constitution or federal law. Long v. County

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of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). “A person deprives another of a

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constitutional right, where that person ‘does an affirmative act, participates in another’s

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

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causes the deprivation of which complaint is made.’” Hydrick v. Hunter, 500 F.3d 978, 988 (9th

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Cir. 2007) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “[T]he ‘requisite

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causal connection can be established not only by some kind of direct, personal participation in
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the deprivation, but also by setting in motion a series of acts by others which the actor knows or

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reasonably should know would cause others to inflict the constitutional injury.’” Id. (quoting

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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

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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.

Conclusion and Order

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The Court has screened Plaintiff’s first amended complaint and finds that it does not state

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any claims upon which relief may be granted under section 1983. The Court will provide

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Plaintiff with the opportunity to file an amended complaint curing the deficiencies identified by

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the Court in this order. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff is

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cautioned that he may not change the nature of this suit by adding new, unrelated claims in his
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amended complaint. George, 507 F.3d at 607 (no “buckshot” complaints).
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).

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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,
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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

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at 567 (citing to London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981)); accord

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Forsyth, 114 F.3d at 1474.
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Accordingly, based on the foregoing, it is HEREBY ORDERED that:
1.

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

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

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

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second amended complaint;

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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
complaint; and

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5.

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

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IT IS SO ORDERED.

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Dated:

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/s/

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

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October 9, 2013

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