Jesse Valdivia, Jr. v. Smith et al

Filing 12

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND and denying 8 & 9 Requests for Injunctive Relief signed by Magistrate Judge Sheila K. Oberto on 12/15/2016. (First Amended Complaint due by 1/20/2017). (Attachments: # 1 Complaint Form). (Lundstrom, T)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 JESSE VALDVIA, JR., 10 Plaintiff, 11 v. 12 Case No. 1:16-cv-01020-SKO (PC) ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND and DENYING PLAINTIFF’S REQUESTS FOR INJUNCTIVE RELIEF Dr. SMITH, et al., (Docs. 1, 8, 9) 13 Defendants. THIRTY-DAY DEADLINE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 INTRODUCTION A. Background Plaintiff, Jesse Validvia, Jr., is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. ' 1983. As discussed below, Plaintiff fails to state a cognizable claim upon which relief may be granted and the Complaint is DISMISSED. Although it appears unlikely that Plaintiff will be able to state a cognizable claim, he is granted one opportunity to correct the deficiencies identified below and leave to file a first amended complaint. B. Screening Requirement and Standard The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or 1 1 that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 2 § 1915A(b)(1), (2). “Notwithstanding any filing fee, or any portion thereof, that may have been 3 paid, the court shall dismiss the case at any time if the court determines that . . . the action or 4 appeal . . . fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 5 6 C. Pleading Requirements 1. Federal Rule of Civil Procedure 8(a) 7 "Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited 8 exceptions," none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 9 U.S. 506, 512 (2002); Fed. R. Civ. Pro. 8(a). A complaint must contain "a short and plain 10 statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. Pro. 8(a). 11 "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and 12 the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512. 13 Violations of Rule 8, at both ends of the spectrum, warrant dismissal. A violation occurs 14 when a pleading says too little -- the baseline threshold of factual and legal allegations required 15 was the central issue in the Iqbal line of cases. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 678, 16 129 S.Ct. 1937 (2009). The Rule is also violated, though, when a pleading says too much. 17 Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1058 (9th Cir.2011) (“[W]e 18 have never held -- and we know of no authority supporting the proposition -- that a pleading may 19 be of unlimited length and opacity. Our cases instruct otherwise.”) (citing cases); see also 20 McHenry v. Renne, 84 F.3d 1172, 1179–80 (9th Cir.1996) (affirming a dismissal under Rule 8, 21 and recognizing that “[p]rolix, confusing complaints such as the ones plaintiffs filed in this case 22 impose unfair burdens on litigants and judges”). 23 Detailed factual allegations are not required, but A[t]hreadbare recitals of the elements of a 24 cause of action, supported by mere conclusory statements, do not suffice.@ Ashcroft v. Iqbal, 556 25 U.S. 662, 678 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). 26 Plaintiff must set forth Asufficient factual matter, accepted as true, to >state a claim that is 27 plausible on its face.=@ Iqbal, 556 U.S. at 678, quoting Twombly, 550 U.S. at 555. Factual 28 2 1 allegations are accepted as true, but legal conclusions are not. Iqbal. at 678; see also Moss v. U.S. 2 Secret Service, 572 F.3d 962, 969 (9th Cir. 2009); Twombly, 550 U.S. at 556-557. 3 While Aplaintiffs [now] face a higher burden of pleadings facts . . . ,@ Al-Kidd v. Ashcroft, 4 580 F.3d 949, 977 (9th Cir. 2009), the pleadings of pro se prisoners are still construed liberally 5 and are afforded the benefit of any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). 6 However, "the liberal pleading standard . . . applies only to a plaintiff's factual allegations," Neitze 7 v. Williams, 490 U.S. 319, 330 n.9 (1989), "a liberal interpretation of a civil rights complaint may 8 not supply essential elements of the claim that were not initially pled," Bruns v. Nat'l Credit 9 Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) quoting Ivey v. Bd. of Regents, 673 F.2d 266, 10 268 (9th Cir. 1982), and courts are not required to indulge unwarranted inferences, Doe I v. Wal- 11 Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation 12 omitted). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, and 13 “facts that are ‘merely consistent with’ a defendant’s liability” fall short of satisfying the 14 plausibility standard. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949; Moss, 572 F.3d at 969. 15 If he chooses to file a first amended complaint, Plaintiff should endeavor to make it as 16 concise as possible. He should simply state which of his constitutional rights he believes were 17 violated by each Defendant and set forth the supporting facts. Plaintiff need not and should not 18 cite legal authority for his claims in a first amended complaint. His factual allegations are 19 accepted as true and need not be bolstered by legal authority at the pleading stage. If Plaintiff 20 files a first amended complaint, his factual allegations will be screened under the below legal 21 standards and authorities. 22 23 2. Linkage and Causation Section 1983 provides a cause of action for the violation of Plaintiff’s constitutional or 24 other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 25 1087, 1092 (9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); 26 Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). Plaintiff fails to show any basis upon 27 which to find that the Delano Regional Medical Center (“the Center”) is a state facility, state 28 3 1 agency, or in any way connected with the state for medical personnel therein to be “acting under 2 color of state law.” Nor does Plaintiff state any other basis upon which he premises the Center’s 3 liability in this action other than the fact that Dr. Smith performed his surgeries at that facility, 4 Plaintiff assumes he is employed by the Center, and the Center provided the pin that Dr. Smith 5 used on his clavicular repair. 6 Further, “[s]ection 1983 is not itself a source of substantive rights, but merely provides a 7 method for vindicating federal rights elsewhere conferred.” Crowley v. Nevada ex rel. Nevada 8 Sec’y of State, 678 F.3d 730, 734 (9th Cir. 2012) (citing Graham v. Connor, 490 U.S. 386, 393- 9 94, 109 S.Ct. 1865 (1989)) (internal quotation marks omitted). To state a claim, Plaintiff must 10 allege facts demonstrating the existence of a link, or causal connection, between each defendant’s 11 actions or omissions and a violation of his federal rights. Lemire v. California Dep’t of Corr. and 12 Rehab., 726 F.3d 1062, 1074-75 (9th Cir. 2013); Starr v. Baca, 652 F.3d 1202, 1205-08 (9th Cir. 13 2011). Plaintiff’s allegations must show how each individual defendant participated in the 14 deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the 15 presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 556 U.S. 16 at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility 17 of misconduct falls short of meeting this plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 18 F.3d at 969. However, prisoners proceeding pro se in civil rights actions are still entitled to have 19 their pleadings liberally construed and to have any doubt resolved in their favor. Hebbe, 627 F.3d 20 at 342. It is on this last basis that Plaintiff is granted an opportunity to amend his allegations. DISCUSSION 21 Plaintiff’s Allegations 22 A. 23 Plaintiff is currently incarcerated at Ironwood State Prison in Blythe California, but 24 attempts to state claims based on incidents that occurred while he was housed at North Kern State 25 Prison in Delano California. Plaintiff names David Smith, M.D., Delano Regional Medical 26 Center, “Manufacture of Medical Device (pin),” and the California Department of Corrections 27 and Rehabilitation (“CDCR”) as defendants in this action. 28 4 1 Plaintiff complains of events that occurred following a surgical repair of a broken clavicle. 2 On October 23, 2014, Plaintiff allegedly submitted to surgical repair by Dr. Smith at Delano 3 Regional Medical Center, for a “grade III A/C separated clavicle.” Plaintiff alleges that six days 4 after the surgery, he was on his bunk when he heard a loud pop and felt excruciating pain. He 5 was taken for x-rays that revealed that the pin Dr. Smith used to repair his clavicle had snapped in 6 half. Plaintiff alleges that he returned to the Delano Regional Medical Center on November 19, 7 2014, where Dr. Smith performed another surgery. 8 All went well until physical therapy was ordered. The physical therapist allegedly thought 9 it was too soon for Plaintiff to begin therapy (though no time frame is stated), but initiated it 10 because Dr. Smith had ordered it. Two weeks into therapy, Plaintiff was riding the stationary 11 bike when another loud pop occurred, followed by excruciating pain. X-rays revealed “that once 12 again [his] collarbone is out.” Upon waking from the second surgery, C/O Chavez (who attended 13 both surgeries) told Plaintiff that Dr. Smith said that “even if the sales rep comes 1000 times, he’ll 14 never buy that product again.” Plaintiff seeks monetary damages and permanent pain medication. 15 As discussed in greater detail below, these allegations do not state a cognizable claim 16 upon which Plaintiff may proceed. Plaintiff is given the standards that apply to his claims and 17 opportunity to file an amended complaint. 18 19 20 B. Legal Standards 1. Eleventh Amendment Immunity Plaintiff names the CDCR as a defendant. The Eleventh Amendment, however, prohibits 21 federal courts from hearing suits brought against an un-consenting state. Brooks v. Sulphur 22 Springs Valley Elec. Co., 951 F.2d 1050, 1053 (9th Cir. 1991); see also Seminole Tribe of Fla. v. 23 Florida, 116 S.Ct. 1114, 1122 (1996); Puerto Rico Aqueduct Sewer Auth. v. Metcalf & Eddy, Inc., 24 506 U.S. 139, 144 (1993); Austin v. State Indus. Ins. Sys., 939 F.2d 676, 677 (9th Cir. 1991). The 25 Eleventh Amendment bars suits against state agencies as well as those where the state itself is 26 named as a defendant. See Natural Resources Defense Council v. California Dep=t of Tranp., 96 27 F.3d 420, 421 (9th Cir. 1996); Brooks v. Sulphur Springs Valley Elec. Co., 951 F.2d 1050, 1053 28 5 1 (9th Cir. 1991); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (concluding that Nevada 2 Department of Prisons was a state agency entitled to Eleventh Amendment immunity); Mitchell v. 3 Los Angeles Community College Dist., 861 F.2d 198, 201 (9th Cir. 1989). AThough its language 4 might suggest otherwise, the Eleventh Amendment has long been construed to extend to suits 5 brought against a state by its own citizens, as well as by citizens of other states.@ Brooks, 951 6 F.2d at 1053 (citations omitted). AThe Eleventh Amendment=s jurisdictional bar covers suits 7 naming state agencies and departments as defendants, and applies whether the relief is legal or 8 equitable in nature.@ Id. (citation omitted). Because the CDCR is a state agency, it is entitled to 9 dismissal based on Eleventh Amendment immunity. 10 2. Eighth Amendment -- Deliberate Indifference 11 Prison officials violate the Eighth Amendment if they are “deliberate[ly] indifferen[t] to [a 12 prisoner's] serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). “A medical need 13 is serious if failure to treat it will result in ‘ “significant injury or the unnecessary and wanton 14 infliction of pain.” ’ ” Peralta v. Dillard, 744 F.3d 1076, 1081-82 (2014) (quoting Jett v. Penner, 15 439 F.3d 1091, 1096 (9th Cir.2006) (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th 16 Cir.1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th 17 Cir.1997) (en banc)) 18 To maintain an Eighth Amendment claim based on medical care in prison, a plaintiff must 19 first “show a serious medical need by demonstrating that failure to treat a prisoner=s condition 20 could result in further significant injury or the unnecessary and wanton infliction of pain. Second, 21 the plaintiff must show the defendants= response to the need was deliberately indifferent.” 22 Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (quoting Jett v. Penner, 439 F.3d 1091, 23 1096 (9th Cir. 2006) (quotation marks omitted)). 24 “Indications that a plaintiff has a serious medical need include the existence of an injury 25 that a reasonable doctor or patient would find important and worthy of comment or treatment; the 26 presence of a medical condition that significantly affects an individual’s daily activities; or the 27 existence of chronic or substantial pain.” Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 28 6 1 2014) (citation and internal quotation marks omitted); accord Wilhelm v. Rotman, 680 F.3d 1113, 2 1122 (9th Cir. 2012); Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000). For screening 3 purposes, Plaintiff's broken clavicle is accepted as a serious medical need. 4 Deliberate indifference is “a state of mind more blameworthy than negligence” and 5 “requires ‘more than ordinary lack of due care for the prisoner’s interests or safety.’ ” Farmer v. 6 Brennan, 511 U.S. 825, 835 (1994) (quoting Whitley, 475 U.S. at 319). “Deliberate indifference 7 is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir.2004). “Under this 8 standard, the prison official must not only ‘be aware of the facts from which the inference could 9 be drawn that a substantial risk of serious harm exists,’ but that person ‘must also draw the 10 inference.’ ” Id. at 1057 (quoting Farmer, 511 U.S. at 837). “ ‘If a prison official should have 11 been aware of the risk, but was not, then the official has not violated the Eighth Amendment, no 12 matter how severe the risk.’ ” Id. (quoting Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 13 1188 (9th Cir. 2002)). In medical cases, this requires showing: (a) a purposeful act or failure to 14 respond to a prisoner=s pain or possible medical need and (b) harm caused by the indifference. 15 Wilhelm, 680 F.3d at 1122 (quoting Jett, 439 F.3d at 1096). More generally, deliberate 16 indifference Amay appear when prison officials deny, delay or intentionally interfere with medical 17 treatment, or it may be shown by the way in which prison physicians provide medical care.@ Id. 18 (internal quotation marks omitted). Nothing in Plaintiff’s allegations show, or even imply, that 19 Dr. Smith was deliberately indifferent to his broken clavicle. 20 At most, Dr. Smith’s actions might amount to a claim for negligence or medical 21 malpractice. Before it can be said that a prisoner=s civil rights have been abridged with regard to 22 medical care, Athe indifference to his medical needs must be substantial. Mere >indifference,= 23 >negligence,= or >medical malpractice= will not support this cause of action.@ Broughton v. Cutter 24 Laboratories, 622 F.2d 458, 460 (9th Cir.1980) (citing Estelle, 429 U.S. at 105-06). See also 25 Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir.2004). “Medical malpractice does not become a 26 constitutional violation merely because the victim is a prisoner.” Estelle, at 106; Snow v. 27 McDaniel, 681 F.3d 978, 987-88 (9th Cir. 2012), overruled in part on other grounds, Peralta v. 28 7 1 Dillard, 744 F.3d 1076, 1082-83 (9th Cir. 2014); Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th 2 Cir. 2012) (“The deliberate indifference doctrine is limited in scope.”). Even assuming Dr. Smith 3 erred, a finding which is not supported by the record, an Eighth Amendment claim may not be 4 premised on even gross negligence by a physician. Wood v. Housewright, 900 F.2d 1332, 1334 5 (9th Cir. 1990). 6 Further, “[a] difference of opinion between a physician and the prisoner - or between 7 medical professionals - concerning what medical care is appropriate does not amount to deliberate 8 indifference.” Snow v. McDaniel, 681 F.3d 978, 987 (9th Cir. 2012) (citing Sanchez v. Vild, 891 9 F.2d 240, 242 (9th Cir. 1989)), overruled in part on other grounds, Peralta v. Dillard, 744 F.3d 10 1076, 1082-83 (9th Cir. 2014); Wilhelm v. Rotman, 680 F.3d 1113, 1122-23 (9th Cir. 2012) 11 (citing Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1986)). Plaintiff must show that Dr. 12 Smith’s surgeries were “medically unacceptable under the circumstances” and that Dr. Smith 13 “chose this course in conscious disregard of an excessive risk to [his] health.” Snow, 681 F.3d at 14 988 (citing Jackson, 90 F.3d at 332) (internal quotation marks omitted). 15 Plaintiff has not stated any facts upon which to find that Dr. Smith acted with deliberate 16 indifference to his serious medical need. Plaintiff, therefore, fails to state a cognizable claim for 17 violation of the Eighth Amendment against Dr. Smith. 18 19 20 3. Claims Under California Law a. The California Tort Claims Act Under the California Tort Claims Act (“CTCA”), set forth in California Government Code 21 sections 810 et seq., a plaintiff may not bring a suit for monetary damages against a public 22 employee or entity unless the plaintiff first presented the claim to the California Victim 23 Compensation and Government Claims Board (“VCGCB” or “Board”), and the Board acted on 24 the claim, or the time for doing so expired. “The Tort Claims Act requires that any civil 25 complaint for money or damages first be presented to and rejected by the pertinent public entity.” 26 Munoz v. California, 33 Cal.App.4th 1767, 1776, 39 Cal.Rptr.2d 860 (1995). The purpose of this 27 requirement is “to provide the public entity sufficient information to enable it to adequately 28 8 1 investigate claims and to settle them, if appropriate, without the expense of litigation.” City of 2 San Jose v. Superior Court, 12 Cal.3d 447, 455, 115 Cal.Rptr. 797, 525 P.2d 701 (1974) 3 (citations omitted). Compliance with this “claim presentation requirement” constitutes an 4 element of a cause of action for damages against a public entity or official. State v. Superior 5 Court (Bodde), 32 Cal.4th 1234, 1244, 13 Cal.Rptr.3d 534, 90 P.3d 116 (2004). Thus, in the state 6 courts, “failure to allege facts demonstrating or excusing compliance with the claim presentation 7 requirement subjects a claim against a public entity to a demurrer for failure to state a cause of 8 action.” Id. at 1239, 13 Cal.Rptr.3d 534, 90 P.3d 116 (fn.omitted). 9 To be timely, a claim must be presented to the VCGCB “not later than six months after 10 the accrual of the cause of action.” Cal. Govt.Code § 911.2. Thereafter, Aany suit brought against 11 a public entity@ must be commenced no more than six months after the public entity rejects the 12 claim. Cal. Gov. Code, ' 945.6, subd. (a)(1). 13 Federal courts must require compliance with the CTCA for pendant state law claims that 14 seek damages against state employees or entities. Willis v. Reddin, 418 F.2d 702, 704 (9th 15 Cir.1969); Mangold v. California Public Utilities Commission, 67 F.3d 1470, 1477 (9th 16 Cir.1995). State tort claims included in a federal action filed pursuant to 42 U.S.C. § 1983 may 17 proceed only if the claims were first presented to the state in compliance with the applicable 18 requirements. Karim–Panahi v. Los Angeles Police Department, 839 F.2d 621, 627 (9th 19 Cir.1988); Butler v. Los Angeles County, 617 F.Supp.2d 994, 1001 (C.D.Cal.2008). Plaintiff has 20 failed to establish that he complied with the CTCA so he may proceed on claims under state law 21 in this action. 22 23 b. Supplemental Jurisdiction Pursuant to 28 U.S.C. ' 1367(a), in any civil action in which the district court has original 24 jurisdiction, the district court Ashall have supplemental jurisdiction over all other claims in the 25 action within such original jurisdiction that they form part of the same case or controversy under 26 Article III,@ except as provided in subsections (b) and (c). A[O]nce judicial power exists under 27 ' 1367(a), retention of supplemental jurisdiction over state law claims under 1367(c) is 28 9 1 discretionary.@ Acri v. Varian Assoc., Inc., 114 F.3d 999, 1000 (9th Cir. 1997). AThe district court 2 may decline to exercise supplemental jurisdiction over a claim under subsection (a) if . . . the 3 district court has dismissed all claims over which it has original jurisdiction.@ 28 U.S.C. ' 4 1367(c)(3). The Supreme Court has cautioned that Aif the federal claims are dismissed before 5 trial, . . . the state claims should be dismissed as well.@ United Mine Workers of America v. 6 Gibbs, 383 U.S. 715, 726 (1966). If Plaintiff has complied with the CTCA, his claims under 7 California law will be allowed to proceed in this Court so long as he has federal claims pending. 8 c. Negligence 9 “An action in negligence requires a showing that the defendant owed the plaintiff a legal 10 duty, that the defendant breached the duty, and that the breach was a proximate or legal cause of 11 injuries suffered by the plaintiff. [Citations.]” Regents of the Univ. of California v. Superior 12 Court of Los Angeles Cty., 240 Cal. App. 4th 1296, 1310, 193 Cal. Rptr. 3d 447, 458 (2015), 13 reh'g denied (Oct. 26, 2015) quoting Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 14 666, 673, 25 Cal.Rptr.2d 137, 863 P.2d 207 (Ann M.) [disapproved on another ground in Reid v. 15 Google, Inc. (2010) 50 Cal.4th 512, 527, fn. 5, 113 Cal.Rptr.3d 327, 235 P.3d 988].) 16 "In order to establish liability on a negligence theory, a plaintiff must prove duty, breach, 17 causation and damages. The threshold element of a cause of action for negligence is the existence 18 of a duty to use due care toward an interest of another that enjoys legal protection against 19 unintentional invasion. Whether this essential prerequisite to a negligence cause of action has 20 been satisfied in a particular case is a question of law to be resolved by the court. To say that 21 someone owes another a duty of care is a shorthand statement of a conclusion, rather than an aid 22 to analysis in itself. [D]uty is not sacrosanct in itself, but only an expression of the sum total of 23 those considerations of policy which lead the law to say that the particular plaintiff is entitled to 24 protection. [L]egal duties are not discoverable facts of nature, but merely conclusory expressions 25 that, in cases of a particular type, liability should be imposed for damage done.” Los Angeles 26 Memorial Coliseum Commission v. Insomaniac, Inc. 233 Cal.App.4th 803, 908 (2015) (citations 27 and quotations omitted). Plaintiff fails to state any allegations that meet the elements of a 28 10 1 negligence claim under California Law. d. 2 3 Medical Malpractice “The elements of a medical malpractice claim are (1) the duty of the professional to use 4 such skill, prudence, and diligence as other members of his profession commonly possess and 5 exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent 6 conduct and resulting injury; and (4) actual loss or damage resulting from the professional's 7 negligence.” Avivi v. Centro Medico Urgente Medical Center, 159 Cal.App.4th 463, 468, n. 2, 71 8 Cal.Rptr.3d 707 (Ct.App.2008) (internal quotations and citation omitted); Johnson v. Superior 9 Court, 143 Cal.App.4th 297, 305, 49 Cal.Rptr.3d 52 (2006). 10 Medical professionals are negligent if they fail to use the level of skill, knowledge, and 11 care in diagnosis and treatment that other reasonably careful medical professional would use in 12 the same or similar circumstances. This level of skill, knowledge, and care is sometimes referred 13 to as "the standard of care" and can usually only be opined by other medical professionals. 14 Landeros v. Flood, 17 Cal.3d 399, 408 (1976); see also Brown v. Colm, 11 Cal.3d 639, 642B643 15 (1974); Mann v. Cracchiolo, (1985) 38 Cal.3d 18, 36; and Judicial Council of California Civil 16 Jury Instruction 500, Summer 2008 Supplement Instruction. Plaintiff neither sets forth any 17 allegations, nor has any medical education to be able to opine regarding the applicable standard of 18 care and Dr. Smith’s breach of this standard. 4. 19 20 Injunctive Relief On August 19, 2016, Plaintiff filed two motions seeking preliminary injunctive relief. In 21 the first motion, Plaintiff requests an order requiring the Center to tell him the name of the 22 manufacturer of the pin that Dr. Smith used to repair his clavicle on October 23, 2014. (Doc. 8.) 23 In his second motion, Plaintiff requests the CDCR be ordered to tell him the names and badge 24 numbers of the correctional officers who transported him to the Center for both of his surgeries. 25 (Doc. 9.) 26 As a threshold matter and for the reasons previously set forth in this order, Plaintiff has 27 not stated any claims upon which he may proceed in this action. The Court has not yet verified 28 11 1 whether Plaintiff will be able to state any claim upon which relief may be granted, such that there 2 is no actual case or controversy before the Court. As such, the Court lacks the jurisdiction to 3 issue the orders sought by Plaintiff. Summers v. Earth Island Institute, 129 S.Ct. 1142, 1149 4 (2009); Stormans, Inc. v. Selecky, 586 F.3d 1109, 1119 (9th Cir. 2009); 18 U.S.C. ' 5 3626(a)(1)(A). Assuming that Plaintiff is able to amend to state a claim, the pendency of this 6 action will not entitle Plaintiff to obtain orders aimed at securing his ability to litigate effectively 7 or efficiently. Id. The Court=s jurisdiction will be limited to the issuance of orders that remedy 8 the underlying legal claim.1 Id. Thus, Plaintiff=s motions for records from the CDCR and the Center are denied. 9 10 ORDER 11 For the reasons set forth above, the Complaint is dismissed with leave to file a first 12 amended complaint within thirty (30) days. Any such first amended complaint shall not exceed 13 twenty-five (25) pages in length, exclusive of exhibits. If Plaintiff needs an extension of time to 14 comply with this order, Plaintiff shall file a motion seeking an extension of time no later than 15 thirty (30) days from the date of service of this order. 16 Plaintiff must demonstrate in any first amended complaint how the conditions complained 17 of have resulted in a deprivation of Plaintiff's constitutional rights. See Ellis v. Cassidy, 625 F.2d 18 227 (9th Cir. 1980). The first amended complaint must allege in specific terms how each named 19 defendant is involved. There can be no liability under section 1983 unless there is some 20 affirmative link or connection between a defendant's actions and the claimed deprivation. Rizzo 21 v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. 22 Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 23 Plaintiff's first amended complaint should be brief. Fed. R. Civ. P. 8(a). Such a short and 24 plain statement must "give the defendant fair notice of what the . . . claim is and the grounds upon 25 which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) quoting Conley v. 26 Gibson, 355 U.S. 41, 47 (1957). Although accepted as true, the "[f]actual allegations must be 27 1 28 It appears that the information Plaintiff is seeking may be obtained via formal discovery, which will open after responsive pleading is filed if he is able to state a cognizable claim upon which to proceed. 12 1 [sufficient] to raise a right to relief above the speculative level . . . ." Twombly, 550 U.S. 127, 555 2 (2007) (citations omitted). Plaintiff is further reminded that an amended complaint supercedes the original, Lacey v. 3 4 Maricopa County, Nos. 09-15806, 09-15703, 2012 WL 3711591, at *1 n.1 (9th Cir. Aug. 29, 5 2012) (en banc), and must be "complete in itself without reference to the prior or superceded 6 pleading," Local Rule 220. The Court provides Plaintiff with opportunity to amend to cure the deficiencies identified 7 8 by the Court in this order. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff 9 may not change the nature of this suit by adding new, unrelated claims in his first amended 10 complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no "buckshot" complaints). 11 Based on the foregoing, it is HEREBY ORDERED that: 12 1. Plaintiff's Complaint is dismissed, with leave to amend; 13 2. Plaintiff’s requests for injunctive relief, filed on August 19, 2016, (Docs. 8, 9), are DENIED; 14 15 3. The Clerk's Office shall send Plaintiff a civil rights complaint form; 16 4. Within thirty (30) days from the date of service of this order Plaintiff must file 17 either: 18 (a) a first amended complaint curing the deficiencies identified by the Court in this order; or 19 (b) 20 5. 21 a notice of voluntary dismissal; and If Plaintiff fails to comply with this order, this action will be dismissed for failure to obey a court order and for failure to state a cognizable claim. 22 23 24 25 26 IT IS SO ORDERED. Dated: December 15, 2016 /s/ UNITED STATES MAGISTRATE JUDGE 27 28 Sheila K. Oberto 13 .

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