Hoskins v. Ngyen

Filing 8

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND, For Failure to State a Cognizable Claim for Relief signed by Magistrate Judge Stanley A. Boone on 9/5/2017. First Amended Complaint due within thirty (30) days. (Attachments: # 1 Amended Complaint Form). (Jessen, A)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY HOSKINS, 12 Plaintiff, 13 14 15 v. L. NGYEN, Defendant. 16 17 18 19 ) ) ) ) ) ) ) ) ) ) Case No.: 1:17-cv-01133-SAB (PC) ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE A COGNIZABLE CLAIM FOR RELIEF [ECF No. 1] Plaintiff Anthony Hoskins is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Currently before the Court is Plaintiff’s complaint, filed on August 23, 2017. 20 I. 21 SCREENING REQUIREMENT 22 The Court is required to screen complaints brought by prisoners seeking relief against a 23 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 24 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 25 “frivolous or malicious,” that “fail[] to state a claim on which relief may be granted,” or that “seek[] 26 monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). 27 A complaint must contain “a short and plain statement of the claim showing that the pleader is 28 entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 1 1 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, 2 do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 3 550 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate that each defendant personally 4 participated in the deprivation of Plaintiff’s rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 5 2002). 6 Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally 7 construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121 8 (9th Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be facially plausible, 9 which requires sufficient factual detail to allow the Court to reasonably infer that each named 10 defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 11 572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant has acted unlawfully” is not 12 sufficient, and “facts that are ‘merely consistent with’ a defendant’s liability” falls short of satisfying 13 the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969. 14 II. 15 COMPLAINT ALLEGATIONS 16 17 Plaintiff names Doctor L. Ngyen as the sole Defendant in the complaint regarding the conditions of confinement at California Correctional Institution (CCI). 18 In 2007, Plaintiff developed cystic acne. Plaintiff informed medical that during the time he 19 was awaiting prescription medication, he developed an immunity to the medication, and eventually 20 developed keloids along the jaw line, buttocks and arm pits. Dr. Ngyen was Plaintiff’s primary care 21 provider and was aware of the problem, including the diet that is necessary because he has no longer 22 digest milk. Plaintiff also developed shingles as a result of the stress from the pain and lack of 23 medication. 24 III. 25 DISCUSSION 26 A. Deliberate Indifference to a Serious Medical Need 27 A prisoner’s claim of inadequate medical care does not constitute cruel and unusual 28 punishment in violation of the Eighth Amendment unless the mistreatment rises to the level of 2 1 “deliberate indifference to serious medical needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) 2 (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two part test for deliberate indifference 3 requires Plaintiff to show (1) “a ‘serious medical need’ by demonstrating that failure to treat a 4 prisoner’s condition could result in further significant injury or the ‘unnecessary and wanton infliction 5 of pain,’” and (2) “the defendant’s response to the need was deliberately indifferent.” Jett, 439 F.3d at 6 1096. A defendant does not act in a deliberately indifferent manner unless the defendant “knows of 7 and disregards an excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 837 8 (1994). 9 “Deliberate indifference is a high legal standard,” Simmons v. Navajo County Ariz., 609 F.3d 10 1011, 1019 (9th Cir. 2010); Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004), and is shown 11 where there was “a purposeful act or failure to respond to a prisoner’s pain or possible medical need” 12 and the indifference caused harm. Jett, 439 F.3d at 1096. Mere ‘indifference,’ ‘negligence,’ or 13 ‘medical malpractice’ will not support this cause of action.” Broughton v. Cutter Laboratories, 622 14 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 105-06). “Medical malpractice does not 15 become a constitutional violation merely because the victim is a prisoner.” Estelle, at 106; Snow v. 16 McDaniel, 681 F.3d at 987-88, overruled in part on other grounds, Peralta v. Dillard, 744 F.3d 1076, 17 1082-83 (9th Cir. 2014); Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (“The deliberate 18 indifference doctrine is limited in scope.”). 19 Further, “[a] difference of opinion between a physician and the prisoner—or between medical 20 professionals—concerning what medical care is appropriate does not amount to deliberate 21 indifference.” Snow, 681 F.3d at 987 (citing Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989)); 22 Wilhelm, 680 F.3d at 1122-23 (citing Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1986)). Rather, 23 a plaintiff is required to show that the course of treatment selected was “medically unacceptable under 24 the circumstances” and that the defendant “chose this course in conscious disregard of an excessive 25 risk to plaintiff’s health.” Snow v. McDaniel, 681 F.3d 978, 988 (9th Cir. 2012) (quoting Jackson, 90 26 F.3d at 332). 27 Here, Plaintiff alleges that he has cystic acne and keloids, but he does not state any facts 28 showing that a failure to treat the condition will result in a significant injury. As stated above, a 3 1 difference in medical opinion, or even negligence, is not sufficient to state an Eighth Amendment 2 violation. Plaintiff must meet the standards explained above. Plaintiff’s conclusory allegations that his 3 medical care is not appropriate, or that the delay in treatment is causing harm, are not sufficient. 4 Plaintiff must allege sufficient facts to show that Defendant is aware of a serious medical need and 5 was deliberately indifferent to that need. Plaintiff will be granted leave amend his allegations to cure 6 these deficiencies. 7 IV. 8 CONCLUSION AND ORDER 9 For the reasons stated, Plaintiff’s complaint fails to state a claim upon which relief may be 10 granted. The Court strongly doubts that Plaintiff will plead a viable claim based on the allegations 11 here, but will nevertheless allow him an opportunity to file an amended complaint to attempt to state a 12 cognizable claim. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff’s amended 13 complaint must be filed within thirty (30) days, and Plaintiff may not change the nature of this suit by 14 adding new, unrelated claims in his amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 15 2007) (no “buckshot” complaints). 16 Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but must state what each 17 named defendant did that led to the deprivation of Plaintiff’s constitutional or other federal rights. 18 Iqbal, 556 U.S. 662, 678. “The inquiry into causation must be individualized and focus on the duties 19 and responsibilities of each individual defendant whose acts or omissions are alleged to have caused a 20 constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988). Although accepted as 21 true, the “[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level. . 22 . .” Twombly, 550 U.S. at 555 (citations omitted). 23 Finally, an amended complaint supersedes the original complaint, Forsyth v. Humana, Inc., 24 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), and must be 25 “complete in itself without reference to the prior or superseded pleading,” Local Rule 220. “All 26 causes of action alleged in an original complaint which are not alleged in an amended complaint are 27 waived.” King, 814 F.2d at 567 (citing to London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 28 1981)); accord Forsyth, 114 F.3d at 1474. 4 1 Based on the foregoing, it is HEREBY ORDERED that: 2 1. The Clerk’s Office shall send to Plaintiff a civil rights complaint form; 3 2. Plaintiff’s complaint, filed August 23, 2017, is dismissed for the failure to state a claim 4 upon which relief may be granted, with leave to amend; 3. 5 6 amended complaint; and 4. 7 8 Within thirty (30) days from the date of service of this order, Plaintiff shall file an If Plaintiff fails to file an amended complaint, this action will be dismissed for failure to state a claim and the failure to obey a court order. 9 10 IT IS SO ORDERED. 11 Dated: 12 September 5, 2017 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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