Anderson v. Krpan et al

Filing 15

ORDER STRIKING 14 First Amended Complaint and Requiring Plaintiff to File a signed Amended Pleading,signed by Magistrate Judge Michael J. Seng on 01/29/2015. ( 30-Day Deadline) (Attachments: # 1 Amended Complaint Form, # 2 Amended Complaint, filed December 31, 2014)(Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SHAWN ANDERSON,

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Plaintiff,
v.
CHRIS KRPAN, et al.,
Defendants.

CASE NO. 1:14-cv-01380-AWI-MJS (PC)
ORDER STRIKING FIRST AMENDED
COMPLAINT AND REQUIRING
PLAINTIFF TO FILE A SIGNED
AMENDED PLEADING
(ECF NO. 14)
SIGNED AMENDED COMPLAINT DUE
WITHIN THIRTY (30) DAYS

Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil
rights action brought pursuant to 42 U.S.C. § 1983. (ECF Nos. 4 & 14.)

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Plaintiff‟s complaint (ECF No. 1) was dismissed for failure to state a claim, but he

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was given leave to amend (ECF No. 5.) On October 3, 2014, Plaintiff filed a first

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amended complaint. (ECF No. 9.) On October 27, 2014, the Court struck Plaintiff‟s first

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amended complaint because it was unsigned. (ECF No. 10.) The Court instructed

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Plaintiff to file a signed amended pleading within thirty days. (Id.) The Court also noted

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that the unsigned first amended complaint was substantively deficient, advised Plaintiff

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of the legal standards applicable to what appeared to be Plaintiff‟s claims, and instructed

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Plaintiff to cure the deficiencies in his amended pleading. (Id.)

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Plaintiff then filed another, unsigned first amended complaint on December 31,

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2014. (ECF No. 14.) Plaintiff‟s second attempt to amend is taken largely verbatim from

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his first attempt, and therefore bears the same deficiencies as the stricken pleading.

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(Compare ECF Nos. 9 & 14.) The only apparent differences are minor changes in the

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introduction and the omission of the final page of the complaint containing Plaintiff‟s

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request for relief. The Court, therefore, will repeat the substance of ECF No. 10.

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I.

SCREENING REQUIREMENT

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The Court is required to screen complaints brought by prisoners seeking relief

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against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has

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raised claims that are legally “frivolous, malicious,” or that fail to state a claim upon which

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relief may be granted, or that seek monetary relief from a defendant who is immune from

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such relief. 28 U.S.C. § 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion

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thereof, that may have been paid, the court shall dismiss the case at any time if the court

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determines that . . . the action or appeal . . . fails to state a claim upon which relief may

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be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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II.

PLEADING STANDARD

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Section 1983 “provides a cause of action for the deprivation of any rights,

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privileges, or immunities secured by the Constitution and laws of the United States.”

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Wilder v. Virginia Hosp. Ass‟n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983).

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Section 1983 is not itself a source of substantive rights, but merely provides a method for

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vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94

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(1989).

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To state a claim under § 1983, a plaintiff must allege two essential elements: (1)

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that a right secured by the Constitution or laws of the United States was violated and (2)

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that the alleged violation was committed by a person acting under the color of state law.

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See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243,

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1245 (9th Cir. 1987).

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A complaint must contain “a short and plain statement of the claim showing that

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the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations

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are not required, but “[t]hreadbare recitals of the elements of a cause of action,

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supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S.

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662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

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Plaintiff must set forth “sufficient factual matter, accepted as true, to state a claim to relief

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that is plausible on its face.” Id. Facial plausibility demands more than the mere

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possibility that a defendant committed misconduct and, while factual allegations are

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accepted as true, legal conclusions are not. Id. at 677-78.

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III.

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PLAINTIFF’S ALLEGATIONS
Plaintiff names as Defendants (1) Chris Krpan, Sierra Conservation Camp

(“SCC”) Physician, and (2) Michael Forster, SCC Physician.

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His allegations may be summarized essentially as follows:

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Plaintiff had reconstructive ankle surgery in February 2012. Following surgery, he

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suffered pain and swelling, and his ankle was unstable. He was wheelchair bound for a

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while and then was dependent on a cane.

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Plaintiff transferred to SCC in late 2012. He saw Defendant Forster for an initial

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medical evaluation on November 6, 2012. Forster noted the ankle was swollen, heard

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Plaintiff‟s complaints of ongoing severe pain, and reviewed Plaintiff‟s medical records

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including an August 2012 MRI showing a possible dislocation of the fibula. Forster stated

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he would refer Plaintiff to an orthopedic specialist. Forster did not refer Plaintiff to an

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orthopedist until January 13, 2013.

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Plaintiff was examined by Defendant Krpan on February 14, 2013. Krpan noted

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the swollen ankle, reviewed Plaintiff‟s medical records including the August MRI and a

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February 2013 x-ray showing floating bone particles in the ankle. Krpan also noted

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physical therapy had not improved Plaintiff‟s symptoms. Krpan did not confirm the fibula

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dislocation and correct it. Krpan did not refer Plaintiff for surgery to remove the bone

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particles.

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Plaintiff maintains both Defendants viewed his urgent need for medical treatment

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as simply routine, delaying treatment of the possibly dislocated fibula and floating bone

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fragments, and causing Plaintiff continuing and worsening ankle pain and swelling.
Plaintiff‟s complaint does not contain a prayer for relief.

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IV.

ANALYSIS

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A.

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The first amended complaint is unsigned. The Court cannot consider unsigned

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filings and therefore, the first amended complaint shall be stricken from the record.

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Plaintiff has thirty days to file a signed amended pleading that complies with Federal

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Pleading Unsigned

Rule of Civil Procedure 8(a) and this order.

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B.

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Plaintiff‟s complaint fails to demand any relief. Fed. R. Civ. P. 8(a)(3).

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Plaintiff will be given leave to amend. If he chooses to do so, he should identify

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No Relief Requested

the relief requested.

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C.

Medical Indifference

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A claim of medical indifference requires (1) a serious medical need, and (2) a

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deliberately indifferent response by defendant. Jett v. Penner, 439 F.3d 1091, 1096 (9th

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Cir. 2006). The deliberate indifference standard is met by showing (a) a purposeful act or

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

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the indifference. Id. Where a prisoner alleges deliberate indifference based on a delay in

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medical treatment, the prisoner must show that the delay led to further injury. See Hallett

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v. Morgan, 296 F.3d 732, 745-46 (9th Cir. 2002); McGuckin v. Smith, 974 F.2d 1050,

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1060 (9th Cir. 1992); Shapley v. Nevada Bd. Of State Prison Comm‟rs, 766 F.2d 404,

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407 (9th Cir. 1985) (per curiam). Delay which does not cause harm is insufficient to state

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a claim of deliberate medical indifference. Shapley, 766 F.2d at 407 (citing Estelle v.

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Gamble, 429 U.S. 97, 106 (1976)).

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“Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d

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1051, 1060 (9th Cir. 2004). “Under this standard, the prison official must not only „be

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aware of the facts from which the inference could be drawn that a substantial risk of

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serious harm exists,‟ but that person „must also draw the inference.‟” Id. at 1057 (quoting

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Farmer v. Brennan, 511 U.S. 825, 837 (1994)). “„If a prison official should have been

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aware of the risk, but was not, then the official has not violated the Eighth Amendment,

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no matter how severe the risk.‟” Id. (brackets omitted) (quoting Gibson, 290 F.3d at

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1188). Mere indifference, negligence, or medical malpractice is not sufficient to support

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the claim. Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle v.

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Gamble, 429 U.S. 87, 105-06 (1976)).

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Plaintiff‟s post-surgical ankle presented a serious need for medical treatment. Jett,

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439 F.3d at 1096; McGuckin, 974 F.2d at 1059-60 (the existence of an injury that a

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reasonable doctor or patient would find important and worthy of comment or treatment,

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the presence of a medical condition that significantly affects an individual's daily

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activities, or the existence of chronic and substantial pain are examples of indications

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that a prisoner has a serious need for medical treatment).

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However, Plaintiff‟s belief that his ankle required urgent treatment appears to be

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based solely on his lay opinion and speculation. He does not reference any medical

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findings or opinions or other evidence in support of these claims nor any facts which

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would suggest he is qualified to diagnose such conditions. Plaintiff‟s beliefs, no matter

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how sincerely held, and his desire for alternative treatment, are not a basis for a civil

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rights claim unless the course of treatment chosen is medically unacceptable and in

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conscious disregard of an excessive risk to the prisoner's health. See Franklin v.

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Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981); Jackson v. McIntosh, 90 F.3d 330, 332

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(9th Cir. 1996). Nothing suggests Defendants intentionally provided medically

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unacceptable care. Evan v. Manos, 336 F. Supp. 2d 255, 261 (W.D.N.Y. 2004); see also

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Veloz v. New York, 339 F. Supp. 2d 505, 521 (S.D.N.Y. 2004) (“To establish deliberate

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indifference, plaintiff must demonstrate that the defendants actually wished him harm, or

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at least, were totally unconcerned with his welfare.” (brackets omitted) (citing Hathaway

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v. Coughlin, 37 F.3d 63, 69 (2d Cir. 1994))). Plaintiff‟s allegations are insufficient to

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allege anything other than a difference of opinion regarding appropriate treatment.

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There is no factual basis to claim Defendants Forster and Krpan knowingly

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denied, delayed, or interfered with medically necessary consultation and treatment, or

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provided medically unacceptable care, causing harm to Plaintiff. See Toguchi v. Chung,

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391 F.3d 1051, 1058-60 (9th Cir. 2004); cf. Wilhelm v. Rotman, 680 F.3d 1113, 1123

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(9th Cir. 2012) (doctor's awareness of need for treatment followed by his unnecessary

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delay in implementing the prescribed treatment sufficient to plead deliberate

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indifference). Significantly, Plaintiff omits description of the diagnosis, prognosis and

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treatment plan created as a result of his January 2013 consultation with the orthopedic

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specialist.

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Plaintiff points to CDCR policies that require referral to a specialist for urgent

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medical needs be made within fifteen days. However, Plaintiff previously was instructed

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that merely citing to CDCR medical policy, without facts showing intentional indifference

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to the policy and resulting harm does not state a federal rights violations.

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Plaintiff will be given leave to file an amended pleading. If he chooses to do so, he

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must allege facts demonstrating how each Defendant knowingly denied, delayed or

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interfered with medically necessary care for his ankle, or knowingly provided care that

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was medically unacceptable, causing him harm.

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V.

CONCLUSION AND ORDER

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The first amended complaint is unsigned and fails to state any cognizable claim.

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The Court will provide Plaintiff with one final opportunity to file an amended complaint,

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duly signed, that cures noted deficiencies. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th

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Cir. 1987).

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If Plaintiff chooses to amend, his amended complaint should be brief, Fed. R. Civ.

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P. 8(a), but must state what each named Defendant did or did not do that led to the

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deprivation of Plaintiff's constitutional or other federal rights, Iqbal, 556 U.S. at 677-78.

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Although accepted as true, the “[f]actual allegations must be [sufficient] to raise a right to

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relief above the speculative level . . . .” Twombly, 550 U.S. at 555. Further, Plaintiff may

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

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complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).

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Finally, an amended complaint supersedes the original complaint, Lacey v.

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Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012), and must be “complete in itself

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without reference to the prior or superseded pleading,” Local Rule 220.

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Accordingly, it is HEREBY ORDERED that:

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1. The Clerk‟s Office shall send Plaintiff (1) a blank civil rights complaint form and

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(2) a copy of his first amended complaint (ECF No. 14), filed December 31,

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2014;

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2. Plaintiff‟s first amended complaint (ECF No. 14) is STRICKEN from the record

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for lack of signature;

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3. Plaintiff shall file an amended complaint within thirty (30) days; and

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4. If Plaintiff fails to file a signed amended complaint in compliance with this

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order, the Court will dismiss this action, with prejudice, for failure to state a

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claim, failure to comply with a court order, and failure to prosecute, subject to

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the “three strikes” provision set forth in 28 U.S.C. § 1915(g). Silva v. Di

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Vittorio, 658 F.3d 1090, 1098 (9th Cir. 2011).

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IT IS SO ORDERED.
Dated:

January 29, 2015

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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