Callender v. Castillo et al

Filing 10

ORDER signed by Magistrate Judge Edmund F. Brennan on 4/4/13 ORDERING that the amended complaint (Dckt. No. 9 ) is DISMISSED with leave to amend within 30 days.(Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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VINCENT ANTHONY CALLENDER,
Plaintiff,

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No. 2:12-cv-1708 GEB EFB P

vs.
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M. CASTILLO, et al.,
Defendants.

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ORDER
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Plaintiff, a state prisoner proceeding pro se, filed this civil rights action under 42 U.S.C.

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§ 1983. After a dismissal pursuant to 28 U.S.C. § 1915A, plaintiff has filed an amended

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complaint.

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I.

Screening Requirement and Standards

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Federal courts must engage in a preliminary screening of cases in which prisoners seek

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

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§ 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion

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of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which

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relief may be granted,” or “seeks monetary relief from a defendant who is immune from such

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relief.” Id. § 1915A(b).

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A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a)

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of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short

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and 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 Atl. Corp. v.

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Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)).

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While the complaint must comply with the “short and plaint statement” requirements of Rule 8,

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its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 129

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S. Ct. 1937, 1949 (2009).

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To avoid dismissal for failure to state a claim a complaint must contain more than “naked

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assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of

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action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of

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a cause of action, supported by mere conclusory statements do not suffice.” Ashcroft v. Iqbal,

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129 S. Ct. at 1949.

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Furthermore, a claim upon which the court can grant relief must have facial plausibility.

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Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual

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content that allows the court to draw the reasonable inference that the defendant is liable for the

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misconduct alleged.” Iqbal, 129 S. Ct. at 1949. When considering whether a complaint states a

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claim upon which relief can be granted, the court must accept the allegations as true, Erickson v.

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Pardus, 127 S. Ct. 2197, 2200 (2007), and construe the complaint in the light most favorable to

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the plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

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II.

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Background
Plaintiff commenced this action by filing a civil rights complaint on June 27, 2012. Dckt.

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No. 1. Pursuant to § 1915A, the court screened the complaint. Dckt. No. 6. The court found

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that plaintiff’s allegations were too vague and conclusory to state a cognizable claim for relief.

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See id. at 4 (“plaintiff names over twenty-five defendants, but he does not link any of them,

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through either an act or an omission, to a deprivation of plaintiff’s constitutional rights”).
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Accordingly, the court dismissed the complaint with leave to amend. That initial screening order

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informed plaintiff of the following:

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In order to state a claim under 42 U.S.C. § 1983, a plaintiff must allege:
(1) the violation of a federal constitutional or statutory right; and (2) that the
violation was committed by a person acting under the color of state law. See West
v. Atkins, 487 U.S. 42, 48 (1988); Jones v. Williams, 297 F.3d 930, 934 (9th Cir.
2002). An individual defendant is not liable on a civil rights claim unless the facts
establish the defendant’s personal involvement in the constitutional deprivation or
a causal connection between the defendant’s wrongful conduct and the alleged
constitutional deprivation. See Hansen v. Black, 885 F.2d 642, 646 (9th Cir.
1989); Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978).

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To state a claim for violation of the Eighth Amendment based on
inadequate medical care, plaintiff must allege “acts or omissions sufficiently
harmful to evidence deliberate indifference to serious medical needs.” Estelle v.
Gamble, 429 U.S. 97, 106 (1976). To prevail, plaintiff must show both that his
medical needs were objectively serious, and that defendant possessed a
sufficiently culpable state of mind. Wilson v. Seiter, 501 U.S. 294, 297-99 (1991);
McKinney v. Anderson, 959 F.2d 853, 854 (9th Cir. 1992). A serious medical
need is one that significantly affects an individual’s daily activities, an injury or
condition a reasonable doctor or patient would find worthy of comment or
treatment, or the existence of chronic and substantial pain. See, e.g., McGuckin v.
Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992), overruled on other grounds by
WMX Techs. v. Miller, 104 F.2d 1133, 1136 (9th Cir.1997) (en banc). It is
important to differentiate common law negligence claims of malpractice from
claims predicated on violations of the Eight Amendment’s prohibition of cruel
and unusual punishment. In asserting the latter, “[m]ere ‘indifference,’
‘negligence,’ or ‘medical malpractice’ will not support this cause of action.”
Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing
Estelle v. Gamble, 429 U.S. 97, 105-106 (1976); see also Toguchi v. Chung, 391
F.3d 1051, 1057 (9th Cir. 2004). Moreover, it is well established that mere
differences of opinion concerning the appropriate treatment cannot be the basis of
an Eighth Amendment violation. Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir.
1996); Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981).

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Any amended complaint must identify as a defendant only persons who
personally participated in a substantial way in depriving him of a federal
constitutional right. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person
subjects another to the deprivation of a constitutional right if he does an act,
participates in another’s act or omits to perform an act he is legally required to do
that causes the alleged deprivation).

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Dckt. No. 6 at 2-3, 5.

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III.

Screening Order
In the amended complaint, plaintiff again names approximately 25 defendants and fails to

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link them to any deprivation of his constitutional rights. Plaintiff attempts to state claims that

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defendants were deliberately indifferent to his medical needs. To succeed on an Eighth

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Amendment claim predicated on the denial of medical care, a plaintiff must establish that he had

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a serious medical need and that the defendant’s response to that need was deliberately

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indifferent. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); see also Estelle v. Gamble, 429

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U.S. 97, 106 (1976). That is, the defendant must have known that the inmate faced a substantial

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risk of serious harm, and must have also disregarded that risk by failing to take reasonable

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measures to abate it. Farmer v. Brennan, 511 U.S. 825, 847 (1994).
Plaintiff’s allegations discuss the specific conduct of only three of the 25 defendants:

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defendant Castillo (allegedly examined plaintiff, ordered Ibuprofen for plaintiff, and

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recommended an x-ray), defendant Beregovakaya (allegedly prescribed Celecoxib to plaintiff),

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and defendant Akintola (allegedly ordered an x-ray for plaintiff). See Dckt. No. 9, ¶¶ 4, 5, 8.

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Plaintiff’s allegations against these defendants fail to state a cognizable claim for relief. As for

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the remaining defendants, plaintiff alleges generally, that “all of the Medical staff members

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named in the . . . complaint” minimized his medical needs and “would not take the Plaintiffs

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suffering serious.” Id. ¶¶ 8, 9. These allegations are not sufficient to state a cognizable claim for

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relief. An individual defendant is not liable on a civil rights claim unless the facts establish the

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defendant’s personal involvement in the constitutional deprivation or a causal connection

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between the defendant’s wrongful conduct and the alleged constitutional deprivation. See

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Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44 (9th

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Cir. 1978). Plaintiff fails to allege sufficient facts showing that a particular defendant

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consciously disregarded a substantial risk of serious harm to plaintiff. Once again, plaintiff’s

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allegations are too vague and conclusory to state a plausible claim for relief. Accordingly, the

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amended complaint must be dismissed.
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IV.

Leave to Amend
Plaintiff will be granted leave to file an amended complaint, if he can allege sufficient

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facts in support of a cognizable Eighth Amendment deliberate indifference to medical needs

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claim against a proper defendant. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000)

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(en banc) (district courts must afford pro se litigants an opportunity to amend to correct any

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deficiency in their complaints). Should plaintiff choose to file an amended complaint, the

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amended complaint shall clearly set forth the claims and allegations against each defendant.

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Any amended complaint must cure the deficiencies identified above and also adhere to the

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following requirements:

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Any amended complaint must identify as a defendant only persons who personally

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participated in a substantial way in depriving him of a federal constitutional right. Johnson v.

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Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a

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constitutional right if he does an act, participates in another’s act or omits to perform an act he is

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legally required to do that causes the alleged deprivation). It must also contain a caption

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including the names of all defendants. Fed. R. Civ. P. 10(a).

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Any amended complaint must be written or typed so that it so that it is complete in itself

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without reference to any earlier filed complaint. L.R. 220. This is because an amended

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complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the

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earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114

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F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter

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being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.

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1967)). Plaintiff may not change the nature of this suit by alleging new, unrelated claims in an

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amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot”

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complaints).

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Moreover, plaintiff is informed that because this case is only in the pleading stage, he
need not prove his claims with evidence at this time. At this stage, plaintiff is only required to
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provide notice of his claim through “a short and plain statement.” Fed. R. Civ. P. 8(a). While

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that statement must provide enough factual detail to show a viable cause of action, the facts need

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not be proven with evidence at the complaint stage. By inundating the court with evidence at

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this stage in the proceedings, plaintiff only burdens the court, confuses the records, and delays

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his lawsuit. If this action proceeds to a point where submission of evidence is appropriate, for

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example, summary judgment or trial, plaintiff will have the opportunity to submit necessary

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evidence. But in amending his complaint, plaintiff should simply state the facts upon which he

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alleges a defendant has violated his constitutional rights and refrain from submitting exhibits

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unless truly necessary to state a claim.

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V.

Order

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Accordingly, IT IS HEREBY ORDERED that the amended complaint (Dckt. No. 9) is

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dismissed with leave to amend within 30 days. The amended complaint must bear the docket

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number assigned to this case and be titled “Second Amended Complaint.” Failure to comply

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with this order will result in a recommendation that this action be dismissed for failure to state a

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claim. If plaintiff files an amended complaint stating a cognizable claim the court will proceed

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with service of process by the United States Marshal.

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Dated: April 4, 2013.

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