Nadauld v. Freeman, et al.

Filing 7

ORDER DISMISSING CASE WITH LEAVE TO AMEND signed by Magistrate Judge Gary S. Austin on 2/18/2015. Amended Complaint due within thirty (30) days. (Attachments: # 1 Amended Complaint Form). (Jessen, A)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

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GILBERT L. NADAULD,
Plaintiff,

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Case No. 1:14 cv 01831 GSA PC

vs.

M. FREEMAN, et al.,

ORDER DISMISSING COMPLAINT AND
GRANTING PLAINTIFF LEAVE TO FILE
AN AMENDED COMPLAINT

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

action pursuant to 42 U.S.C. § 1983. Plaintiff has consented to magistrate judge jurisdiction
pursuant to 28 U.S.C. § 636(c).1
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 February 3, 2015 (ECF No. 6).
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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
Plaintiff, an inmate in the custody of the California Department of Corrections (CDCR) at

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the California Health Care Facility at Stockton, brings this civil rights action against Dr. M.

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Freeman, a physician at San Joaquin Hospital in Bakersfield and Dr. Li, a physician employed by

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the CDCR at CHC Stockton. Plaintiff claims that he was subjected to inadequate medical care

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such that it violated the Eighth Amendment prohibition on cruel and unusual punishment.

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Plaintiff alleges that on June 6, 2014, he was admitted to San Joaquin Hospital and

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treated for a bladder infection. Plaintiff alleges that “I received a skin flap. My wounds became

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infected and I was given antibiotics, at which time the infection stopped.” On July 4, 2014,

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Plaintiff‟s wound again became infected, emitting a strong odor. At this time, Plaintiff was

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housed at CHC Stockton. Plaintiff complained “over and over again” to Dr. Li and staff at CHC

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Stockton. In October, Plaintiff was sent to an outside hospital in Oakland. Plaintiff alleges that

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as a direct result of the delay in treatment, he now has bone cancer.

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A.

Medical Care

“[T]o maintain an Eighth Amendment claim based on prison medical treatment, an
inmate must show „deliberate indifference to serious medical needs.‟” Jett v. Penner, 439 F.3d
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.
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 that, as to Dr. Freeman, Plaintiff has failed to state a claim for relief.

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To state a claim under section 1983, a plaintiff must allege that (1) the defendant acted under

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color of state law and (2) the defendant deprived him of rights secured by the Constitution or

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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 Dr. Freeman with any
conduct indicating that he knew of and disregarded a serious risk to Plaintiff‟s health, resulting in
injury to Plaintiff. Plaintiff may not hold Dr. Freeman liable simply because he treated
Plaintiff‟s bladder infection. Plaintiff must allege facts indicating that Dr. Freeman was aware of
a specific harm to Plaintiff, and acted with deliberate indifference to that harm. Mere

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„indifference,‟ „negligence,‟ or „medical malpractice‟ will not support this cause of action.”

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Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980)(citing Estelle, 429 U.S. at

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105-06). See also Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). Plaintiff has failed to

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state a claim as to Dr. Freeman. He should therefore be dismissed. Plaintiff will, however, be
granted leave to file an amended complaint.

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As to Dr. Li, Plaintiff is advised that the federal venue statute requires that a civil action,

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other than one based on diversity jurisdiction, be brought only in “(1) a judicial district where

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any defendant resides, if all defendants reside in the same state, (2) a judicial district in which a

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substantial part of the events or omissions giving rise to the claim occurred, or a substantial part

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of the property that is the subject of the action is situated, or (3) a judicial district in which any

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defendant may be found, if there is no district in which the action may otherwise be brought.” 28

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U.S.C. § 1391(b). The decision to transfer venue of a civil action under § 1404(a) lies soundly

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within the discretion of the trial court. Jones v. GNC Franchising, Inc., 211 F.3d 495, 498 (9th

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Cir. 2000). CHC Stockton is located in San Joaquin County, in the Sacramento Division of this

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District. Any claims against Dr. Li should therefore be brought in the Sacramento division of the

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Eastern District of California. Should Plaintiff file an amended complaint with allegations of

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conduct at CHC Stockton, the Court will transfer those claims to the Sacramento division of the

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Eastern District.

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III.

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Conclusion and Order
The Court has screened Plaintiff‟s complaint and finds that it does not state any claims

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upon which relief may be granted under section 1983. The Court will provide Plaintiff with the

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opportunity to file an amended complaint curing the deficiencies identified by the Court in this

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order. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff is cautioned that he
may not change the nature of this suit by adding new, unrelated claims in his amended
complaint. George, 507 F.3d at 607 (no “buckshot” complaints).
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 or her own words, what happened.
Plaintiff must describe what each defendant, by name, did to violate the particular right described
by Plaintiff.
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

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Forsyth, 114 F.3d at 1474.

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Accordingly, based on the foregoing, it is HEREBY ORDERED that:

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

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2.

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

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3.

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

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an amended complaint;
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4.

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complaint and any attempt to do so will result in an order striking the amended

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Plaintiff may not add any new, unrelated claims to this action via his amended

complaint; and
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If Plaintiff fails to file an amended complaint, the Court will 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 18, 2015