Cardona v. Syverson

Filing 9

ORDER signed by Magistrate Judge Kendall J. Newman on 8/15/11: Plaintiff's request for leave to proceed in forma pauperis is granted. Plaintiff's complaint is dismissed. Within thirty days from the date of this order, plaintiff shall file Amended Complaint. (Kaminski, H)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JUAN CARDONA,

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Plaintiff,
vs.
DALE SYVERSON, M.D.,
Defendant.

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No. 2:11-cv1680 KJM KJN P

ORDER
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Plaintiff is a state prisoner proceeding without counsel. Plaintiff seeks relief

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pursuant to 42 U.S.C. § 1983, and has requested leave to proceed in forma pauperis pursuant to

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28 U.S.C. § 1915. This proceeding was referred to this court pursuant to 28 U.S.C. § 636(b)(1)

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and Local Rule 302.

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Plaintiff has submitted a declaration that makes the showing required by
28 U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.
Plaintiff is required to pay the statutory filing fee of $350.00 for this action.

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28 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing

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fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court

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will direct the appropriate agency to collect the initial partial filing fee from plaintiff’s prison

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trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated to
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make monthly payments of twenty percent of the preceding month’s income credited to

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plaintiff’s prison trust account. These payments will be forwarded by the appropriate agency to

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the Clerk of the Court each time the amount in plaintiff’s account exceeds $10.00, until the filing

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fee is paid in full. 28 U.S.C. § 1915(b)(2).

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The court is required to screen complaints brought by prisoners seeking relief

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against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised

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claims that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be

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granted, or that seek monetary relief from a defendant who is immune from such relief.

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28 U.S.C. § 1915A(b)(1),(2).

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A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28

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(9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an

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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

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490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

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pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th

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Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir.

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2000) (“a judge may dismiss [in forma pauperis] claims which are based on indisputably

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meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at

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1227.

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Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and

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plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the

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defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic

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Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47

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(1957)). In order to survive dismissal for failure to state a claim, a complaint must contain more

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than “a formulaic recitation of the elements of a cause of action;” it must contain factual
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allegations sufficient “to raise a right to relief above the speculative level.” Id. However,

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“[s]pecific facts are not necessary; the statement [of facts] need only ‘give the defendant fair

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notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551

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U.S. 89, 93 (2007) (quoting Bell Atlantic Corp., 550 U.S. at 555) (citations and internal

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quotations marks omitted). In reviewing a complaint under this standard, the court must accept

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as true the allegations of the complaint in question, id., and construe the pleading in the light

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most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

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Plaintiff alleges that defendant “negligently and carelessly” performed a needle
biopsy of plaintiff’s liver, puncturing plaintiff’s right lung, requiring hospitalization, further

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medical treatment, personal injury, pain and suffering. (Dkt. No. 1 at 3.) Plaintiff states

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defendant’s “acts or omissions are below the degree of skill and competence commonly

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exercised by medical practitioners.” (Id.)

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In Estelle v. Gamble, 429 U.S. 97, 106 (1976), the Supreme Court held that

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inadequate medical care did not constitute cruel and unusual punishment cognizable under

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§ 1983 unless the mistreatment rose to the level of “deliberate indifference to serious medical

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needs.” An official is deliberately indifferent if he both knows of and disregards an excessive

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risk to an inmate's health. Farmer v. Brennan, 511 U.S. 825, 837 (1994). Thus, to demonstrate

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deliberate indifference, a plaintiff must establish that the alleged harm was “sufficiently serious”

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and that the official acted with a “sufficiently culpable state of mind.” Id. at 834 (citing Wilson

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v. Seiter, 501 U.S. 294, 298, 302-03 (1991)). In applying this standard, the Ninth Circuit has

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held that before it can be said that a prisoner's civil rights have been abridged, “the indifference

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to his medical needs must be substantial. Mere ‘indifference,’ ‘negligence,’ or ‘medical

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malpractice’ will not support this cause of action.” Broughton v. Cutter Lab., 622 F.2d 458, 460

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(9th Cir. 1980), citing Estelle, 429 U.S. at 105-06. Therefore, “a complaint that a physician has

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been negligent in diagnosing or treating a medical condition does not state a valid claim of

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medical mistreatment under the Eighth Amendment.” Estelle, 429 U.S. at 106. Even gross
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negligence is insufficient to establish deliberate indifference to serious medical needs. See Wood

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v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990) (delay of several days in receiving pain

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medication for a broken shoulder was not an Eighth Amendment violation). “Medical

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

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Estelle, 429 U.S. at 106.

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Therefore, plaintiff’s claim that defendant was negligent or careless does not rise

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to the level of a civil rights violation because it does not demonstrate that defendant was

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deliberately indifferent. However, in an abundance of caution, plaintiff will be granted leave to

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amend should he be able to allege facts demonstrating defendant was deliberately indifferent to

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plaintiff’s serious medical needs. If plaintiff wishes to pursue a medical malpractice claim, such

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an action should be pursued in state court.

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If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the

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conditions about which he complains resulted in a deprivation of plaintiff’s constitutional rights.

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Rizzo v. Goode, 423 U.S. 362, 371 (1976). Also, the complaint must allege in specific terms

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how each named defendant is involved. Id. There can be no liability under 42 U.S.C. § 1983

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unless there is some affirmative link or connection between a defendant’s actions and the

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claimed deprivation. Id.; May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy,

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588 F.2d 740, 743 (9th Cir. 1978). Furthermore, vague and conclusory allegations of official

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participation in civil rights violations are not sufficient. Ivey v. Board of Regents, 673 F.2d 266,

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268 (9th Cir. 1982).

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In addition, plaintiff is hereby informed that the court cannot refer to a prior

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pleading in order to make plaintiff’s amended complaint complete. Local Rule 220 requires that

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an amended complaint be complete in itself without reference to any prior pleading. This

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requirement exists because, as a general rule, an amended complaint supersedes the original

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complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended

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complaint, the original pleading no longer serves any function in the case. Therefore, in an
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amended complaint, as in an original complaint, each claim and the involvement of each

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defendant must be sufficiently alleged.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request for leave to proceed in forma pauperis is granted.

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2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action.

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Plaintiff is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C.

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§ 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the

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Director of the California Department of Corrections and Rehabilitation filed concurrently

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herewith.

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3. Plaintiff’s complaint is dismissed.

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4. Within thirty days from the date of this order, plaintiff shall complete the

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attached Notice of Amendment and submit the following documents to the court:

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a. The completed Notice of Amendment; and

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b. An original and one copy of the Amended Complaint.

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Plaintiff’s amended complaint shall comply with the requirements of the Civil Rights Act, the

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Federal Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint must

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also bear the docket number assigned to this case and must be labeled “Amended Complaint.”

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Failure to file an amended complaint in accordance with this order may result in the dismissal of

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this action.

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DATED: August 15, 2011

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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card1680.14

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JUAN CARDONA,

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Plaintiff,

No. 2:11-cv1680 KJM KJN P

vs.

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DALE SYVERSON, M.D.,

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Defendants.

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_________________________/

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Plaintiff hereby submits the following document in compliance with the court's
order filed

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NOTICE OF AMENDMENT

:
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Amended Complaint

DATED:

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Plaintiff
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