Moorehead v. Maksy et al

Filing 12

ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND signed by Magistrate Judge Gary S. Austin on 2/26/2015. Second Amended Complaint due by 4/2/2015. (Attachments: # 1 Complaint Form)(Lundstrom, T)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

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JAMES ARTHUR MOOREHEAD,
Plaintiff,

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Case No. 1:14 cv 01021 GSA PC

vs.

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RALPH M. DIAZ, et al.,

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Defendants

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

AMENDED COMPLAINT DUE
IN THIRTY DAYS

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I.

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

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

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jurisdiction pursuant to 28 U.S.C. § 636(c).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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Plaintiff filed a consent to proceed before a magistrate judge on August 4, 2014 (ECF No. 10).
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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
This action proceeds on the August 14, 1014, first amended complaint. Plaintiff,

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formerly an inmate in the custody of the California Department of Corrections and Rehabilitation

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(CDCR) at Corcoran State Prison, brings this civil rights action against defendant CDCR

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officials employed by the CDCR at Corcoran. Plaintiff names several medical officials as

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defendants. Plaintiff fails to allege any facts or charge any of the named defendants with any

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particular conduct. Plaintiff attaches as exhibits to his complaint copies of documents from his

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medical record. Plaintiff is advised that the Court will not consider documents attached to the

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complaint in order to make the complaint complete. Plaintiff must allege all facts in support of

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his claims in the complaint. Plaintiff is advised of the following legal standards.

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A.

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

Medical Care

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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
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.
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
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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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). “A person

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deprives another of a constitutional right, where that person „does an affirmative act, participates

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

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

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988 (9th Cir. 2007) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “[T]he

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„requisite causal connection can be established not only by some kind of direct, personal

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participation in the deprivation, but also by setting in motion a series of acts by others which the

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actor knows or reasonably should know would cause others to inflict the constitutional injury.‟”

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Id. (quoting Johnson at 743-44). Plaintiff has not specifically charged each defendant with

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conduct indicating that they knew of and disregarded a serious risk to Plaintiff‟s health, resulting

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in injury to Plaintiff. Plaintiff may not hold defendants liable simply by alleging a serious

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medical condition and then charge defendants with the vague allegation that they neglected his

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condition. Plaintiff must allege facts indicating that each defendant was aware of a specific harm

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to Plaintiff, and acted with deliberate indifference to that harm. Plaintiff has failed to do so here.
The complaint should therefore be dismissed. Plaintiff will, however, be 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
hold an individual defendant liable, Plaintiff must name the individual defendant, describe where
that defendant is employed and in what capacity, and explain how that defendant acted under
color of state law. Plaintiff should state clearly, in his 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.
III.

Conclusion and Order
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).

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

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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
Forsyth, 114 F.3d at 1474.
Accordingly, based on the foregoing, it is HEREBY ORDERED that:
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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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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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Plaintiff‟s first amended complaint is dismissed, with leave to amend, for failure

complaint; and
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If Plaintiff fails to file an amended complaint, the Court will recommend dismiss
this action, 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

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UNITED STATES MAGISTRATE JUDGE

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February 26, 2015