Montenegro v. Schrffenberg

Filing 10

ORDER DISMISSING FIRST AMENDED COMPLAINT, AND GRANTING PLAINTIFFONE FINAL OPPORTUNITY TO FILE A SECOND AMENDED COMPLAINT RE 9 signed by Magistrate Judge Stanley A. Boone on 6/13/2017. Second Amended Complaint due by 7/17/2017. (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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JUAN MONTENEGRO,

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Plaintiff,
v.
DR. SCHRFFENBERG, et.al.,
Defendants.

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Case No.: 1:17-cv-00422-AWI-SAB (PC)
ORDER DISMISSING FIRST AMENDED
COMPLAINT, AND GRANTING PLAINTIFF
ONE FINAL OPPORTUNITY TO FILE A
SECOND AMENDED COMPLAINT
[ECF No. 9]

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Plaintiff Juan Montenegro is appearing pro se and in forma pauperis in this civil rights action

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pursuant to 42 U.S.C. § 1983. This matter was referred to a United States Magistrate Judge pursuant

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to 28 U.S.C. § 636(1)(B) and Local Rule 302. Pending before the Court is Plaintiff’s first amended

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complaint, filed June 5, 2017, in response to the May 8, 2017, order dismissing the original complaint

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and granting Plaintiff leave to file an amended complaint. (ECF Nos. 7, 9.)

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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 “fail[] to state a claim on which relief may be granted,” or that “seek[]

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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

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entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,

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do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly,

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550 U.S. 544, 555 (2007)).

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participated in the deprivation of his rights. Iqbal, 556 U.S. at 676-677; Simmons v. Navajo County,

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Ariz., 609 F.3d 1011, 1020-1021 (9th Cir. 2010).

Plaintiff must demonstrate that each named defendant personally

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Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally

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construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121

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(9th Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be facially plausible,

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which requires sufficient factual detail to allow the Court to reasonably infer that each named

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defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service,

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572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant has acted unlawfully” is not

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sufficient, and “facts that are ‘merely consistent with’ a defendant’s liability” fall short of satisfying

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the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.

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II.

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COMPLAINT ALLEGATIONS
Plaintiff has serious injuries on his body that cause him tremendous and excruciating pain.

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One doctor prescribed pain medication to alleviate his pain. Defendant Dr. Schrffenberg was aware

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that Plaintiff had tremendous and excruciating pain due to his serious injuries. Dr. Schrffenberg took

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Plaintiff’s pain medication causing him to suffer pain.
Defendant Nurse Jane Doe gave Plaintiff psychotropic medication which caused nausea and

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suicidal ideations.
Plaintiff requests punitive and compensatory damages for his pain and suffering.

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III.

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DISCUSSION

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A.

Deliberate Indifference to Serious Medical Need

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While the Eighth Amendment of the United States Constitution entitles Plaintiff to medical

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care, the Eighth Amendment is violated only when a prison official acts with deliberate indifference to

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an inmate’s serious medical needs. Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012), overruled

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

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Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012); Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006).

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Plaintiff “must show (1) a serious medical need by demonstrating that failure to treat [his] condition

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could result in further significant injury or the unnecessary and wanton infliction of pain,” and (2) that

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“the defendant’s response to the need was deliberately indifferent.” Wilhelm, 680 F.3d at 1122 (citing

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Jett, 439 F.3d at 1096). Deliberate indifference is shown by “(a) a purposeful act or failure to respond

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to a prisoner’s pain or possible medical need, and (b) harm caused by the indifference.” Wilhelm, 680

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F.3d at 1122 (citing Jett, 439 F.3d at 1096). The requisite state of mind is one of subjective

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recklessness, which entails more than ordinary lack of due care. Snow, 681 F.3d at 985 (citation and

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quotation marks omitted); Wilhelm, 680 F.3d at 1122.

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“A difference of opinion between a physician and the prisoner - or between medical

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professionals - concerning what medical care is appropriate does not amount to deliberate

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indifference.” Snow v. McDaniel, 681 F.3d 978, 987 (9th Cir. 2012) (citing Sanchez v. Vild, 891 F.2d

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240, 242 (9th Cir. 1989)), overruled in part on other grounds, Peralta v. Dillard, 744 F.3d 1076, 1082-

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83 (9th Cir. 2014); Wilhelm v. Rotman, 680 F.3d 1113, 1122-23 (9th Cir. 2012) (citing Jackson v.

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McIntosh, 90 F.3d 330, 332 (9th Cir. 1986)). Rather, Plaintiff “must show that the course of treatment

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the doctors chose was medically unacceptable under the circumstances and that the defendants chose

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this course in conscious disregard of an excessive risk to [his] health.” Snow, 681 F.3d at 988 (citing

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Jackson, 90 F.3d at 332) (internal quotation marks omitted).

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“Medical malpractice does not become a constitutional violation merely because the victim is a

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prisoner.” Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285 (1977); Snow v. McDaniel, 681 F.3d at

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987-88; Wilhelm v. Rotman, 680 F.3d at 1122. Isolated occurrences of neglect do not rise to the level
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of an Eighth Amendment violation. O’Loughlin v. Doe, 920 F.2d 614, 617 (9th Cir. 1990) (quotation

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marks omitted); Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990).
Plaintiff’s allegations in the first amended complaint suffer from the same defects as his

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original complaint, and Plaintiff’s allegations fail to give rise to a constitutional violation under the

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Eighth Amendment. First, Plaintiff fails to demonstrate that he was suffering from a serious medical

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condition. Plaintiff alleges only that he has “serious injuries” to his body which cause him tremendous

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pain. Such conclusory and vague allegations fail to meet the objective prong for an Eighth

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Amendment violation. Second, Plaintiff fails to set forth facts to demonstrate that either Defendant

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knew of and disregarded an excessive risk to a serious medical need or that any medical care was

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purposeful and more than mere negligence. As Plaintiff was previously advised, even if he was

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previously prescribed pain medication by a different doctor, such fact, alone, does not give rise to a

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claim for deliberate indifference because differences of opinion in medical treatment between doctors

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is insufficient. Wilhelm, 680 F.3d at 1122. Accordingly, Plaintiff fails to state a cognizable claim for

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relief and Plaintiff will be given one final opportunity to file an amended complaint if he believes he

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can do so in good faith.

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III.

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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 one final opportunity to file an amended complaint within thirty (30)

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

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this suit by adding new, unrelated claims in his amended complaint. George v. Smith, 507 F.3d 605,

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607 (7th Cir. 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.
Based on the foregoing, it is HEREBY ORDERED that:

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

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2.

Plaintiff’s first amend complaint, filed June 5, 2017, is dismissed for failure to state a
claim;

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3.

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Within thirty (30) days from the date of service of this order, Plaintiff shall file an
amended complaint; 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 for failure to state a claim.

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IT IS SO ORDERED.

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Dated:

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June 13, 2017
UNITED STATES MAGISTRATE JUDGE

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