Juarez v. Kobor, et al

Filing 35

ORDER DISMISSING Second Amended Complaint, without Leave to Amend, for Failure to State a Cognizable Claim, and Directing Clerk of Court to Terminate Action signed by Magistrate Judge Stanley A. Boone on 11/07/2014. CASE CLOSED. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOSE JUAREZ,

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Plaintiff,

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v.
W. KOBOR, et al.,

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Defendants.

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Case No.: 1:14-cv-00016-SAB (PC)
ORDER DISMISSING SECOND AMENDED
COMPLAINT, WITHOUT LEAVE TO AMEND,
FOR FAILURE TO STATE A COGNIZABLE
CLAIM, AND DIRECTING CLERK OF COURT
TO TERMINATE ACTION
[ECF No. 34]

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Plaintiff Jose Juarez is appearing pro se and in forma pauperis in this civil rights action

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pursuant to 42 U.S.C. § 1983. Pursuant to 28 U.S.C. § 636(c), Plaintiff consented to the jurisdiction of

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the United States Magistrate Judge on January 24, 2014. Local Rule 302.
Plaintiff filed the initial complaint January 6, 2014. On May 14, 2014, Plaintiff’s complaint

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was screened pursuant to 28 U.S.C. § 1915A and dismissed with leave to amend.
Plaintiff filed a first amended complaint on July 16, 2014, which was dismissed with leave to

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amend on August 28, 2014.
Now pending before the Court is Plaintiff’s second amended complaint, filed October 30,

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2014.

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I.

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SCREENING REQUIREMENT

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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 “fails to state a claim on which relief may be granted,” or that “seeks

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monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).

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A complaint must contain “a short and plain statement of the claim showing that the pleader is
entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,

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do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly,

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550 U.S. 544, 555 (2007)). Plaintiff must demonstrate that each named defendant personally

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participated in the deprivation of his rights. Iqbal, 556 U.S. at 676-677; Simmons v. Navajo County,

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Ariz., 609 F.3d 1011, 1020-1021 (9th Cir. 2010).

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Prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings

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liberally construed and to have any doubt resolved in their favor, but the pleading standard is now

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higher, Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted), and to survive

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screening, Plaintiff’s claims must be facially plausible, which requires sufficient factual detail to allow

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the Court to reasonably infer that each named defendant is liable for the misconduct alleged. Iqbal,

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556 U.S. at 678-79; Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The “sheer

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possibility that a defendant has acted unlawfully” is not sufficient, and “facts that are ‘merely

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consistent with’ a defendant’s liability” falls short of satisfying the plausibility standard. Iqbal, 556

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U.S. at 678; Moss, 572 F.3d at 969.

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II.

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COMPLAINT ALLEGATIONS

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Plaintiff names W. Kokor, L. Merritt, A. Alphonso, J. Sundram, L. Worman, C. Crayer, T.

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Brown, and D. Smiley as Defendants. Plaintiff contends that each of the Defendants were deliberately

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indifference toward his serious medical need.
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On August 3, 2011, Petitioner was transferred from Ironwood State Prison to Corcoran State

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Prison and Plaintiff never received his proper medical (Morphine 15 mg) for his chronic lower back

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disorder.

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III.

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DISCUSSION

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A.

Deliberate Indifference to Serious Medical Need

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While the Eighth Amendment of the United States Constitution entitles Plaintiff to medical

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care, the Eighth Amendment is violated only when a prison official acts with deliberate indifference to

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an inmate’s serious medical needs. Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012), overruled

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in part on other grounds, Peralta v. Dillard, 744 F.3d 1076, 1082-83 (9th Cir. 2014); Wilhelm v.

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Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012); Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006).

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Plaintiff “must show (1) a serious medical need by demonstrating that failure to treat [his] condition

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could result in further significant injury or the unnecessary and wanton infliction of pain,” and (2) that

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“the defendant’s response to the need was deliberately indifferent.” Wilhelm, 680 F.3d at 1122 (citing

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Jett, 439 F.3d 1091, 1096 (9th Cir. 2006)). Deliberate indifference is shown by “(a) a purposeful act

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or failure to respond to a prisoner’s pain or possible medical need, and (b) harm caused by the

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indifference.” Wilhelm, 680 F.3d at 1122 (citing Jett, 439 F.3d at 1096). The requisite state of mind

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is one of subjective recklessness, which entails more than ordinary lack of due care. Snow, 681 F.3d

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at 985 (citation and quotation marks omitted); Wilhelm, 680 F.3d at 1122.

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Plaintiff’s vague and conclusory allegations fail to give rise to a constitutional claim for

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deliberate indifference. Because Plaintiff has been given multiple opportunities to file an appropriate

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complaint and provided the legal standard necessary to state such claim, further leave to amend will

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not be granted.

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IV.

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CONCLUSION AND ORDER

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Plaintiff’s second amended complaint fails to state any claims upon which relief may be

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granted under section 1983. Plaintiff was twice previously notified of the legal standard and the

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deficiencies in his claims, what was necessary to correct them and twice before given leave to amend.
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The fact that he has failed to correct these deficiencies provides a reasonable basis for concluding he

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cannot. Thus, it would be futile to repeat the process again and further leave to amend is not justified.

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Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); Noll v. Carlson, 809 F.2d 1446, 1448-1449 (9th

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Cir. 1987).

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Accordingly,

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IT IS HEREBY ORDERED that:

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Plaintiff’s second amended complaint is DISMISSED, with prejudice, for failure to
state a cognizable claim for relief;

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The Clerk of Court is directed to terminate this action; and

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This dismissal is subject to the Athree-strikes@ provision set forth in 28 U.S.C. '
1915(g). Silva v. Di Vittorio, 658 F.3d 1090, 1098-99 (9th Cir. 2011).

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IT IS SO ORDERED.

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Dated:

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November 7, 2014
UNITED STATES MAGISTRATE JUDGE

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