Valdez v. Cate et al
Filing
15
ORDER signed by Magistrate Judge Edmund F. Brennan on 5/8/13 ORDERING that Plaintiffs request to proceed in forma pauperis is GRANTED. Plaintiff shall pay the statutory filing fee of $350. The complaint is DISMISSED with leave to amend with in 30 days. The Clerk of the Court shall strike the second amended complaint 11 from this action, and re-file it as a second amended complaint in Valdez v. Cate, No. 2:12-cv-2854. Plaintiffs request for appointment of counsel 3 is DENIED.(Dillon, M)
1
2
3
4
5
6
7
8
IN THE UNITED STATES DISTRICT COURT
9
FOR THE EASTERN DISTRICT OF CALIFORNIA
10
RICARDO VALDEZ,
Plaintiff,
11
No. 2:12-cv-2867 TLN EFB P
vs.
12
13
MATTHEW CATE, et al.,
14
ORDER GRANTING IFP, DENYING
APPOINTMENT OF COUNSEL, AND
SCREENING ORDER DISMISSING
COMPLAINT WITH LEAVE TO AMEND
Defendants.
/
15
16
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42
17
U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28
18
U.S.C. § 636(b)(1). In addition to filing a complaint, plaintiff has filed an application to proceed
19
in forma pauperis and a request for appointment of counsel.1
20
////
21
////
22
23
24
25
26
1
Plaintiff also filed a “second amended complaint” in response to a “court order.” Dckt.
No. 11. While the undersigned did not direct plaintiff to file an amended complaint in this
action, plaintiff was granted leave to amend his complaint in Valdez v. Cate, No. 2:12-cv-2854
JAM EFB, Dckt. No. 17 (Mar. 12, 2013 order granting plaintiff leave to file an amended
complaint within thirty days). Because it appears that plaintiff intended to file the amended
complaint in Valdez, No. 2:12-cv-2854, the Clerk of the Court is directed to file the amended
complaint in that action and it will be stricken from this action.
1
1
I.
2
Request to Proceed In Forma Pauperis
Plaintiff has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
3
Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2).
4
Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect
5
and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C.
6
§ 1915(b)(1) and (2).
7
II.
8
9
Request for Appointment of Counsel
Plaintiff requests that the court appoint counsel. District courts lack authority to require
counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States Dist.
10
Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an
11
attorney to voluntarily to represent such a plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell v.
12
Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36
13
(9th Cir. 1990). When determining whether “exceptional circumstances” exist, the court must
14
consider the likelihood of success on the merits as well as the ability of the plaintiff to articulate
15
his claims pro se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560
16
F.3d 965, 970 (9th Cir. 2009). Having considered those factors, the court finds there are no
17
exceptional circumstances in this case.
18
III.
Screening Order
19
Federal courts must engage in a preliminary screening of cases in which prisoners seek
20
redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C.
21
§ 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion
22
of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which
23
relief may be granted,” or “seeks monetary relief from a defendant who is immune from such
24
relief.” Id. § 1915A(b).
25
26
A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a)
of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short
2
1
and plain statement of the claim showing that the pleader is entitled to relief, in order to give the
2
defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v.
3
Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)).
4
While the complaint must comply with the “short and plaint statement” requirements of Rule 8,
5
its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 129
6
S. Ct. 1937, 1949 (2009).
7
To avoid dismissal for failure to state a claim a complaint must contain more than “naked
8
assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of
9
action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of
10
a cause of action, supported by mere conclusory statements do not suffice.” Ashcroft v. Iqbal,
11
129 S. Ct. at 1949.
12
Furthermore, a claim upon which the court can grant relief must have facial plausibility.
13
Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual
14
content that allows the court to draw the reasonable inference that the defendant is liable for the
15
misconduct alleged.” Iqbal, 129 S. Ct. at 1949. When considering whether a complaint states a
16
claim upon which relief can be granted, the court must accept the allegations as true, Erickson v.
17
Pardus, 127 S. Ct. 2197, 2200 (2007), and construe the complaint in the light most favorable to
18
the plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
19
The court has reviewed plaintiff’s complaint pursuant to 28 U.S.C. § 1915A and finds
20
that it must be dismissed. The form complaint lists the names of defendants, includes a request
21
for relief, but no factual allegations. Under the heading “Statement of Claim,” it states, “See,
22
Appendix A.” Dckt. No. 1. Attached to the form complaint are nearly 200 pages of exhibits,
23
including many medical records, but no “Appendix A” or other statement of plaintiff’s claim.
24
Although the Federal Rules adopt a flexible pleading policy, a complaint must give fair notice
25
and state the elements of the claim plainly and succinctly. Jones v. Community Redev. Agency,
26
733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least some degree of
3
1
particularity overt acts which defendants engaged in that support plaintiff's claim. Id. Because
2
plaintiff fails to allege any facts in support of a claim for relief, the complaint must be
3
dismissed.2
4
Plaintiff will be granted leave to file an amended complaint, if plaintiff can allege a
5
cognizable legal theory against a proper defendant and sufficient facts in support of that
6
cognizable legal theory. Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc)
7
(district courts must afford pro se litigants an opportunity to amend to correct any deficiency in
8
their complaints). Should plaintiff choose to file an amended complaint, the amended complaint
9
shall clearly set forth the claims and allegations against each defendant. Any amended
10
complaint must cure the deficiencies identified above and also adhere to the following
11
requirements:
12
Any amended complaint must identify as a defendant only persons who personally
13
participated in a substantial way in depriving him of a federal constitutional right. Johnson v.
14
Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a
15
constitutional right if he does an act, participates in another’s act or omits to perform an act he is
16
legally required to do that causes the alleged deprivation). It must also contain a caption
17
including the names of all defendants. Fed. R. Civ. P. 10(a).
18
Any amended complaint must be written or typed so that it so that it is complete in itself
19
without reference to any earlier filed complaint. L.R. 220. This is because an amended
20
complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the
21
earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114
22
F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter
23
24
25
26
2
The court previously noted the similarities between the original complaint in this action
and that in Valdez, No. 2:12-cv-2854. See Dckt. No. 7. Plaintiff is reminded that if he did
not intend to commence two separate civil rights actions, he may file a notice of voluntary
dismissal pursuant to Rule 41 of the Federal Rules of Civil Procedure and proceed with Valdez,
No. 2:12-cv-2854, the action that he filed first.
4
1
being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.
2
1967)). Plaintiff may not change the nature of this suit by alleging new, unrelated claims in an
3
amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot”
4
complaints).
5
Moreover, plaintiff is hereby informed that because this case is only in the pleading
6
stage, he need not prove his claims with evidence at this time. At this stage, plaintiff is only
7
required to provide notice of his claim through “a short and plain statement.” Fed. R. Civ. P.
8
8(a). By inundating the court with evidence at this stage in the proceedings, plaintiff only
9
burdens the court, confuses the records, and delays his lawsuit. If this action proceeds to a point
10
where submission of evidence is appropriate, for example, summary judgment or trial, plaintiff
11
will have the opportunity to submit necessary evidence. But in amending his complaint, plaintiff
12
should simply state the facts upon which he alleges a defendant has violated his constitutional
13
rights and refrain from submitting exhibits.
14
In order to state a claim under 42 U.S.C. § 1983, a plaintiff must allege: (1) the violation
15
of a federal constitutional or statutory right; and (2) that the violation was committed by a person
16
acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Jones v.
17
Williams, 297 F.3d 930, 934 (9th Cir. 2002). An individual defendant is not liable on a civil
18
rights claim unless the facts establish the defendant’s personal involvement in the constitutional
19
deprivation or a causal connection between the defendant’s wrongful conduct and the alleged
20
constitutional deprivation. See Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v.
21
Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978).
22
To state a claim for violation of the Eighth Amendment based on inadequate medical
23
care, plaintiff must allege “acts or omissions sufficiently harmful to evidence deliberate
24
indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). To prevail,
25
plaintiff must show both that his medical needs were objectively serious, and that defendant
26
possessed a sufficiently culpable state of mind. Wilson v. Seiter, 501 U.S. 294, 297-99 (1991);
5
1
McKinney v. Anderson, 959 F.2d 853, 854 (9th Cir. 1992). A serious medical need is one that
2
significantly affects an individual’s daily activities, an injury or condition a reasonable doctor or
3
patient would find worthy of comment or treatment, or the existence of chronic and substantial
4
pain. See, e.g., McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992), overruled on other
5
grounds by WMX Techs. v. Miller, 104 F.2d 1133, 1136 (9th Cir.1997) (en banc).
6
Deliberate indifference may be shown by the denial, delay or intentional interference
7
with medical treatment or by the way in which medical care is provided. Hutchinson v. United
8
States, 838 F.2d 390, 394 (9th Cir. 1988). To act with deliberate indifference, a prison official
9
must both be aware of facts from which the inference could be drawn that a substantial risk of
10
serious harm exists, and he must also draw the inference. Farmer v. Brennan, 511 U.S. 825, 837
11
(1994). Thus, a defendant is liable if he knows that plaintiff faces “a substantial risk of serious
12
harm and disregards that risk by failing to take reasonable measures to abate it.” Id. at 847.
13
It is important to differentiate common law negligence claims of malpractice from
14
claims predicated on violations of the Eight Amendment’s prohibition of cruel and unusual
15
punishment. In asserting the latter, “[m]ere ‘indifference,’ ‘negligence,’ or ‘medical
16
malpractice’ will not support this cause of action.” Broughton v. Cutter Laboratories, 622 F.2d
17
458, 460 (9th Cir. 1980) (citing Estelle v. Gamble, 429 U.S. 97, 105-106 (1976); see also
18
Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004). Moreover, it is well established that
19
mere differences of opinion concerning the appropriate treatment cannot be the basis of an
20
Eighth Amendment violation. Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996); Franklin
21
v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981).
22
Accordingly, the court hereby orders that:
23
1. Plaintiff’s request to proceed in forma pauperis is granted.
24
2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected in
25
accordance with the notice to the Director of the California Department of Corrections and
26
Rehabilitation filed concurrently herewith.
6
1
3. The complaint is dismissed with leave to amend within 30 days. The amended
2
complaint must bear the docket number assigned to this case and be titled “First Amended
3
Complaint.” Failure to comply with this order will result in a recommendation that this action be
4
dismissed for failure to state a claim. If plaintiff files an amended complaint stating a cognizable
5
claim the court will proceed with service of process by the United States Marshal.
6
7
8
9
4. The Clerk of the Court shall strike the second amended complaint (Dckt. No. 11) from
this action, and re-file it as a second amended complaint in Valdez v. Cate, No. 2:12-cv-2854.
5. Plaintiff’s request for appointment of counsel (Dckt. No. 3) is denied.
Dated: May 8, 2013.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?