Cruz v. Pacific Orthopedic Medical Group et al

Filing 9

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND signed by Magistrate Judge Stanley A. Boone on 12/24/2014. Amended Complaint due by 1/26/2015. (Attachments: # 1 Complaint Form)(Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAMES F. CRUZ,

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Plaintiff,
v.
PACIFIC ORTHOPEDIC MEDICAL
GROUPS, et al.,
Defendants.

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Case No.: 1:14-cv-01631-AWI-SAB (PC)
ORDER DISMISSING COMPLAINT, WITH
LEAVE TO AMEND, FOR FAILURE TO STATE
A COGNIZABLE CLAIM FOR RELIEF
[ECF No. 1]

Plaintiff James F. Cruz is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.
Plaintiff filed the instant complaint on October 17, 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

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to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but “[t]hreadbare

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recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”

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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555

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(2007)). Plaintiff must demonstrate that each named defendant personally participated in the

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deprivation of his rights. Iqbal, 556 U.S. at 676-677; Simmons v. Navajo County, Ariz., 609 F.3d

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1011, 1020-1021 (9th Cir. 2010).
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
In April 2003, while jogging Plaintiff’s ankle popped. Plaintiff complained to the nursing staff

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during the course of his confinement from 2003 to 2007, and in response Plaintiff received numerous

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x-rays.

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In July 2007, Plaintiff requested an MRI. On September 6, 2007, surgery was performed.

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However, Plaintiff’s ankle was still in pain. On September 17, 2007, Plaintiff saw the doctor who

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performed the surgery. The doctor began tapping on the ankle, which caused Plaintiff horrendous

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pain, to which the doctor stated “oh shit.”

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The doctor then stated that he was going to operate on Plaintiff’s ankle and right shoulder, but
blood tests and chest x-rays were necessary prior to the surgery. After the preliminary examination,

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the doctor stated that the surgery could not be performed because of abnormality was discovered in

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Plaintiff’s chest. A follow-up examination was scheduled.

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Plaintiff filed an inmate appeal on May 21, 2008, which was complete on January 27, 2010.

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Plaintiff then filed health care appeal forms on March 28, 2012, and Plaintiff received a

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response on October 17, 2012. A denial decision was issued on February 28, 2014.

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III.

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DISCUSSION

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A.

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Under section 1983, Plaintiff must link the named defendants to the participation in the

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violation at issue. Ashcroft v. Iqbal, 556 U.S. 662, 676-77 (2009); Simmons v. Navajo County, Ariz.,

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609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir.

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2009); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). Liability may not be imposed under a

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theory of respondeat superior, and there must exist some causal connection between the conduct of

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each named defendant and the violation at issue. Iqbal, 556 U.S. at 676-77; Lemire v. California

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Dep’t of Corr. and Rehab., 726 F.3d 1062, 1074-75 (9th Cir. 2013); Lacey v. Maricopa County, 693

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F.3d 896, 915-16 (9th Cir. 2012) (en banc); Starr v. Baca, 652 F.3d 1202, 1205-08 (9th Cir. 2011)

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(2012).

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Linkage

Although Plaintiff names Marshall Lewis, Jones, and Does 1 through 25, Plaintiff fails to link
any of these individuals to an affirmative act or omission giving rise to his constitutional violation.

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B.

Deliberate Indifference to Serious Medical Need

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For Eighth Amendment claims arising out of medical care in prison, Plaintiff “must show (1) a

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serious medical need by demonstrating that failure to treat [his] condition could result in further

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significant injury or the unnecessary and wanton infliction of pain,” and (2) that “the defendant’s

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response to the need was deliberately indifferent.” Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir.

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2012) (citing Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006)). Deliberate indifference is shown

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by “(a) a purposeful act or failure to respond to a prisoner’s pain or possible medical need, and (b)

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harm caused by the indifference.” Wilhelm, 680 F.3d at 1122 (citing Jett, 439 F.3d at 1096). The

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requisite state of mind is one of subjective recklessness, which entails more than ordinary lack of due
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care. Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012) (citation and quotation marks omitted);

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Wilhelm, 680 F.3d at 1122.

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Despite failing to link any of the named Defendants to an affirmative act or omission, Plaintiff

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fails to allege facts giving rise to a constitutional claim of deliberate indifference. “Medical

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malpractice does not become a constitutional violation merely because the victim is a prisoner.”

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Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285 (1977); Snow v. McDaniel, 681 F.3d 978, 987-88

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(9th Cir. 2012), overruled in part on other grounds, Peralta v. Dillard, 744 F.3d 1076, 1082-83 (9th

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Cir. 2014); Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012). Furthermore, “[a] difference of

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opinion between a physician and the prisoner - or between medical professionals - concerning what

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medical care is appropriate does not amount to deliberate indifference.” Snow v. McDaniel, 681 F.3d

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978, 987 (9th Cir. 2012) (citing Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989)), overruled in part

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on other grounds, Peralta v. Dillard, 744 F.3d 1076, 1082-83 (9th Cir. 2014); Wilhelm v. Rotman, 680

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F.3d 1113, 1122-23 (9th Cir. 2012) (citing Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1986)).

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Rather, Plaintiff “must show that the course of treatment the doctors chose was medically

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unacceptable under the circumstances and that the defendants chose this course in conscious disregard

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of an excessive risk to [his] health.” Snow, 681 F.3d at 988 (citing Jackson, 90 F.3d at 332) (internal

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quotation marks omitted). Plaintiff has alleged nothing more than mere disagreement with the

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treatment he was provided. Accordingly, Plaintiff fails to state a cognizable claim for deliberate

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indifference to a serious medical need.

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IV.

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CONCLUSION AND ORDER

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For the reasons stated, Plaintiff’s complaint fails to state a claim upon which relief may be

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granted. Plaintiff is granted leave to file an amended complaint within thirty (30) days. Noll v.

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Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff may not change the nature of this suit by

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adding new, unrelated claims in his amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir.

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2007) (no “buckshot” complaints).

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

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named defendant did that led to the deprivation of Plaintiff’s constitutional or other federal rights.
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Iqbal, 556 U.S. 662, 678. “The inquiry into causation must be individualized and focus on the duties

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and responsibilities of each individual defendant whose acts or omissions are alleged to have caused a

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constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988). Although accepted as

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true, the “[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level .

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. . .” Twombly, 550 U.S. at 555 (citations omitted).

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Finally, an amended complaint supersedes the original complaint, Forsyth v. Humana, Inc.,

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114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), and must be

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“complete in itself without reference to the prior or superseded pleading,” Local Rule 220. “All

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causes of action alleged in an original complaint which are not alleged in an amended complaint are

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waived.” King, 814 F.2d at 567 (citing to London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir.

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1981)); accord Forsyth, 114 F.3d at 1474.

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Based on the foregoing, it is HEREBY ORDERED that:

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1.

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

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2.

Plaintiff’s complaint, filed October 17, 2014, is dismissed for failure to state a claim;

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3.

Within thirty (30) days from the date of service of this order, Plaintiff shall file an
amended complaint as to his Eighth and First Amendment claims; and

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4.

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If Plaintiff fails to file an amended complaint in compliance with this order, this action
will 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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December 24, 2014
UNITED STATES MAGISTRATE JUDGE

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