Cofield v. Unknown

Filing 9

ORDER signed by Magistrate Judge Edmund F. Brennan on 3/4/2013 GRANTING plaintiff's 5 request to proceed IFP; plaintiff to pay the $350.00 filing fee in accordance with the concurrent CDC order; the complaint is DISMISSED with leave to amend within 30 days. (Yin, K)

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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 E. COFIELD,
Plaintiff,

ORDER

vs.

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No. 2:12-cv-3060 EFB P

Defendant.

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UNKNOWN,

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/

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Plaintiff is a state prisoner proceeding pro se with this civil rights action under 42 U.S.C.

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§ 1983. Plaintiff commenced this action with a letter, but asks that the letter be construed as a

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complaint. Dckt. Nos. 1, 4. In addition, plaintiff has filed an application to proceed in forma

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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. 5. 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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Here, plaintiff’s letter does not identify any defendants or claims for relief. Rather, it

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complains generally about plaintiff’s breathing problems and the medical department at High
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Desert State Prison. The letter does not include a request for relief. Instead, plaintiff writes, “I

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am not sure if at all what you can do about my matter, but I just have to keep trying to contact

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someone who can. Asthma runs in my family, in 2007 I lost my lil sister to an asthma attack,

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and I am afraid the same will happen to me if I don’t get off this mountain were the air is thin,

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and there are so many fires. It’s bad for both my asthma and my COPD, high blood pressure and

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allergies.” Dckt. No. 1 at 3.

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Construing plaintiff’s letter as a complaint, the court finds, pursuant to § 1915A, that the

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allegations are too vague to state a cognizable claim for relief. Although the Federal Rules adopt

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a flexible pleading policy, a complaint must give fair notice and state the elements of the claim

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plainly and succinctly. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984).

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Plaintiff must allege with at least some degree of particularity overt acts which defendants

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engaged in that support plaintiff's claim. Id. Because plaintiff fails to plausibly state a claim for

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relief, the complaint must be dismissed. The court will, however, grant leave to file an amended

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complaint.

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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).
The court hereby informs plaintiff of the requirements for stating an Eighth Amendment

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claim pursuant to 42 U.S.C. § 1983, based on alleged deliberate indifference to his medical

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needs:

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements:

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(1) that a right secured by the Constitution or laws of the United States was violated, and (2) that

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the alleged violation was committed by a person acting under the color of state law. West v.

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Atkins, 487 U.S. 42, 48 (1988).

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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 may not sue any official on the theory that the official is liable for the

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unconstitutional conduct of his or her subordinates. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948

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(2009). Rather, a plaintiff must plead that each defendant, through his own individual actions,
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has violated the Constitution. Id. It is plaintiff’s responsibility to allege facts to state a plausible

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claim for relief. Iqbal, 129 S. Ct. at 1949; Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir.

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2009).

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The Eighth Amendment protects prisoners from inhumane methods of punishment and

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from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir.

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2006). Prison officials have a duty to ensure that prisoners are provided adequate shelter, food,

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clothing, sanitation, medical care, and personal safety. Johnson v. Lewis, 217 F.3d 726, 731 (9th

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Cir. 2000). Extreme deprivations are required to make out a conditions of confinement claim,

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and only those deprivations denying the minimal civilized measure of life’s necessities are

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sufficiently grave to form the basis of an Eighth Amendment violation. Hudson v. McMillian,

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503 U.S. 1, 9 (1992). To succeed on such a claim, a prisoner must show that (1) the defendant’s

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conduct deprived him of the minimal civilized measure of life’s necessities and (2) that the

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defendant acted with deliberate indifference to the prisoner’s health or safety. Farmer v.

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Brennan, 511 U.S. 825, 834 (1994). That is, the defendant must have known that the inmate

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faced a substantial risk of serious harm, and must have also disregarded that risk by failing to

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take reasonable measures to abate it. Id. at 847.

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To succeed on an Eighth Amendment claim predicated on the denial of medical care, a

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plaintiff must establish that he had a serious medical need and that the defendant’s response to

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that need was deliberately indifferent. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); see

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also Estelle v. Gamble, 429 U.S. 97, 106 (1976). A serious medical need is one that significantly

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

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

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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). It is important

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to differentiate common law negligence claims of malpractice from claims predicated on

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violations of the Eight Amendment’s prohibition of cruel and unusual punishment. In asserting
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the latter, “[m]ere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this

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cause of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing

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Estelle v. Gamble, 429 U.S. 97, 105-106 (1976); see also Toguchi v. Chung, 391 F.3d 1051,

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1057 (9th Cir. 2004). Moreover, it is well established that mere differences of opinion

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concerning the appropriate treatment cannot be the basis of an Eighth Amendment violation.

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Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996); Franklin v. Oregon, 662 F.2d 1337, 1344

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(9th Cir. 1981.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request to proceed in forma pauperis (Dckt. No. 5) 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 California Department of Corrections and Rehabilitation filed

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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 may result in a recommendation that this action

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be dismissed.

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Dated: March 4, 2013.

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