Valdez v. Cate et al

Filing 4

ORDER signed by Magistrate Judge Edmund F. Brennan on 11/29/12 ORDERING that 2 Motion to Proceed IFP is GRANTED. Plaintiff shall pay the statutory filing fee of $350. The complaint 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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RICARDO VALDEZ,
Plaintiff,

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No. 2:12-cv-2854 EFB P

vs.

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MATTHEW CATE, et al.,

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Defendants.

ORDER
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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28

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U.S.C. § 636(b)(1). In addition to filing a complaint, plaintiff has filed an application to proceed

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in forma pauperis.

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I.

Request to Proceed In Forma Pauperis

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Plaintiff has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.

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Dckt. No. 2. Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and

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(2). Accordingly, by separate order, the court directs the agency having custody of plaintiff to

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collect and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C.

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§ 1915(b)(1) and (2).

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II.

Screening Order

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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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In order to avoid dismissal for failure to state a claim a complaint must contain more than

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

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of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words,

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

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statements do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).

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Furthermore, a claim upon which the court can grant relief has 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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A pro se plaintiff must satisfy the pleading requirements of Rule 8(a) of the Federal

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

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statement of the claim showing that the pleader is entitled to relief, in order to give the defendant

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fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly,

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

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The court has reviewed plaintiff’s complaint pursuant to 28 U.S.C. § 1915A and finds
that it must be dismissed. The form complaint lists the names of defendants, includes a request
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for relief, but no factual allegations. Under the heading “Statement of Claim,” it states, “See,

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Appendix A.” Dckt. No. 1. Attached to the form complaint are nearly 200 pages of exhibits,

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including many medical records, but no “Appendix A” or other statement of plaintiff’s claim.

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Although the Federal Rules adopt a flexible pleading policy, a complaint must give fair notice

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and state the elements of the claim plainly and succinctly. Jones v. Community Redev. Agency,

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733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least some degree of

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particularity overt acts which defendants engaged in that support plaintiff's claim. Id. Because

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plaintiff fails to allege any facts in support of a claim for relief, the complaint must be dismissed.

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Plaintiff will be granted leave to file an amended complaint, if plaintiff can allege a

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cognizable legal theory against a proper defendant and sufficient facts in support of that

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cognizable legal theory. Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc)

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(district courts must afford pro se litigants an opportunity to amend to correct any deficiency in

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

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

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complaint must cure the deficiencies identified above and also adhere to the following

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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 hereby informed that because this case is only in the pleading

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stage, he need not prove his claims with evidence at this time. At this stage, plaintiff is only

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required to provide notice of his claim through “a short and plain statement.” Fed. R. Civ. P.

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8(a). By inundating the court with evidence at this stage in the proceedings, plaintiff only

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burdens the court, confuses the records, and delays his lawsuit. If this action proceeds to a point

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where submission of evidence is appropriate, for example, summary judgment or trial, plaintiff

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will have the opportunity to submit necessary evidence. But in amending his complaint, plaintiff

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should simply state the facts upon which he alleges a defendant has violated his constitutional

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rights and refrain from submitting exhibits.

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In order to state a claim under 42 U.S.C. § 1983, a plaintiff must allege: (1) the violation

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of a federal constitutional or statutory right; and (2) that the violation was committed by a person

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acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Jones v.

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Williams, 297 F.3d 930, 934 (9th Cir. 2002). An individual defendant is not liable on a civil

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rights claim unless the facts establish the defendant’s personal involvement in the constitutional

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deprivation or a causal connection between the defendant’s wrongful conduct and the alleged

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constitutional deprivation. See Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v.

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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

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care, plaintiff must allege “acts or omissions sufficiently harmful to evidence deliberate

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indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). To prevail,

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plaintiff must show both that his medical needs were objectively serious, and that defendant
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possessed a sufficiently culpable state of mind. Wilson v. Seiter, 501 U.S. 294, 297-99 (1991);

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McKinney v. Anderson, 959 F.2d 853, 854 (9th Cir. 1992). A serious medical need is one that

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significantly affects an individual’s daily activities, an injury or condition a reasonable doctor or

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patient would find worthy of comment or treatment, or the existence of chronic and substantial

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pain. See, e.g., McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992), overruled on other

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grounds by WMX Techs. v. Miller, 104 F.2d 1133, 1136 (9th Cir.1997) (en banc).

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Deliberate indifference may be shown by the denial, delay or intentional interference

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with medical treatment or by the way in which medical care is provided. Hutchinson v. United

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States, 838 F.2d 390, 394 (9th Cir. 1988). To act with deliberate indifference, a prison official

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must both be aware of facts from which the inference could be drawn that a substantial risk of

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serious harm exists, and he must also draw the inference. Farmer v. Brennan, 511 U.S. 825, 837

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(1994). Thus, a defendant is liable if he knows that plaintiff faces “a substantial risk of serious

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harm and disregards that risk by failing to take reasonable measures to abate it.” Id. at 847.

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It is important to differentiate common law negligence claims of malpractice from

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claims predicated on violations of the Eight Amendment’s prohibition of cruel and unusual

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punishment. In asserting the latter, “[m]ere ‘indifference,’ ‘negligence,’ or ‘medical

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

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458, 460 (9th Cir. 1980) (citing Estelle v. Gamble, 429 U.S. 97, 105-106 (1976); see also

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Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004). Moreover, it is well established that

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mere differences of opinion concerning the appropriate treatment cannot be the basis of an

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Eighth Amendment violation. Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996); Franklin

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v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981).

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Accordingly, the court hereby orders that:

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

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2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected in

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accordance with the notice to the Director of the California Department of Corrections and

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Rehabilitation filed concurrently herewith.

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3. The complaint is dismissed with leave to amend within 30 days. The amended

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complaint must bear the docket number assigned to this case and be titled “First Amended

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Complaint.” Failure to comply with this order will result in a recommendation that this action be

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dismissed for failure to state a claim. If plaintiff files an amended complaint stating a cognizable

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claim the court will proceed with service of process by the United States Marshal.

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Dated: November 29, 2012.

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