Johnson v. Alnager et al

Filing 11

ORDER signed by Magistrate Judge Carolyn K. Delaney on 4/7/14 ORDERING that Plaintiff' s first amended complaint (ECF No. 10 ) is dismissed; and Plaintiff is granted thirty days from the date of service of this order to file a second amended complaint(Dillon, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL ODIS JOHNSON, 12 Plaintiff, 13 14 No. 2:14-cv-0401 MCE CKD P v. ORDER V. M. ALNAGER, et al., 15 Defendants. 16 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this action brought 17 18 pursuant to 42 U.S.C. § 1983. By order filed February 25, 2014, plaintiff‟s complaint was 19 dismissed for failure to state a claim. Plaintiff was granted leave to file an amended complaint, 20 which is now before the court.1 (ECF No. 10.) The court is required to screen complaints brought by prisoners seeking relief against a 21 22 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 23 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 24 1 25 26 27 28 On February 24, 2014, plaintiff filed a document that appears to consist of additional exhibits to the original complaint filed February 6, 2014. (ECF No. 8.) While this document is labeled “First Amended Complaint” in the docket of this action, it does not constitute a freestanding complaint. Moreover, had it been received in time to be considered along with plaintiff‟s complaint for screening purposes, the outcome – dismissal with leave to amend – would have been the same. In the instant order, the court considers the first amended complaint filed on March 21, 2014. 1 1 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 2 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 3 Having reviewed the amended complaint, the undersigned concludes that it fails to cure 4 the deficiencies of the original complaint as discussed in the screening order of February 25, 5 2014. Insofar as plaintiff alleges that prison officials were deliberately indifferent to plaintiff‟s 6 serious medical needs by failing to dispense his pain medication, the allegations are too vague 7 and conclusory to state a cognizable claim. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) 8 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory 9 statements do not suffice.”). 10 Denial or delay of medical care for a prisoner‟s serious medical needs may constitute a 11 violation of the prisoner‟s Eighth and Fourteenth Amendment rights. Estelle v. Gamble, 429 U.S. 12 97, 104-05 (1976). An individual is liable for such a violation only when the individual is 13 deliberately indifferent to a prisoner‟s serious medical needs. Id.; see Jett v. Penner, 439 F.3d 14 1091, 1096 (9th Cir. 2006); Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002); Lopez v. 15 Smith, 203 F.3d 1122, 1131-32 (9th Cir. 2000). 16 In the Ninth Circuit, the test for deliberate indifference consists of two parts. Jett, 439 17 F.3d at 1096, citing McGuckin v. Smith, 974 F.2d 1050 (9th Cir. 1991), overruled on other 18 grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc). First, the 19 plaintiff must show a “serious medical need” by demonstrating that “failure to treat a prisoner‟s 20 condition could result in further significant injury or the „unnecessary and wanton infliction of 21 pain.‟” Id., citing Estelle, 429 U.S. at 104. “Examples of serious medical needs include „[t]he 22 existence of an injury that a reasonable doctor or patient would find important and worthy of 23 comment or treatment; the presence of a medical condition that significantly affects an 24 individual‟s daily activities; or the existence of chronic and substantial pain.‟” Lopez, 203 F. 3d 25 at 1131-1132, citing McGuckin, 974 F.2d at 1059-60. 26 Second, the plaintiff must show the defendant‟s response to the need was deliberately 27 indifferent. Jett, 439 F.3d at 1096. This second prong is satisfied by showing (a) a purposeful act 28 or failure to respond to a prisoner‟s pain or possible medical need and (b) harm caused by the 2 1 indifference. Id. Under this standard, the prison official must not only “be aware of facts from 2 which the inference could be drawn that a substantial risk of serious harm exists,” but that person 3 “must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). This “subjective 4 approach” focuses only “on what a defendant‟s mental attitude actually was.” Id. at 839. A 5 showing of merely negligent medical care is not enough to establish a constitutional violation. 6 Frost v. Agnos, 152 F.3d 1124, 1130 (9th Cir. 1998), citing Estelle, 429 U.S. at 105-106. A 7 difference of opinion about the proper course of treatment is not deliberate indifference, nor does 8 a dispute between a prisoner and prison officials over the necessity for or extent of medical 9 treatment amount to a constitutional violation. See, e.g., Toguchi v. Chung, 391 F.3d 1051, 1058 10 (9th Cir. 2004); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). 11 Under this standard, plaintiff has failed to state a medical indifference claim against any 12 defendant. Plaintiff will be granted one final opportunity to amend the complaint so as to state a 13 cognizable claim. 14 As before, plaintiff is informed that the court cannot refer to a prior pleading in order to 15 make plaintiff‟s amended complaint complete. Local Rule 220 requires that an amended 16 complaint be complete in itself without reference to any prior pleading. This is because, as a 17 general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 18 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no 19 longer serves any function in the case. Therefore, in an amended complaint, as in an original 20 complaint, each claim and the involvement of each defendant must be sufficiently alleged. 21 Accordingly, IT IS HEREBY ORDERED THAT: 22 1. Plaintiff‟s first amended complaint (ECF No. 10) is dismissed; and 23 2. Plaintiff is granted thirty days from the date of service of this order to file a second 24 amended complaint that complies with the requirements of the Civil Rights Act, the Federal Rules 25 of Civil Procedure, and the Local Rules of Practice; the amended complaint must bear the docket 26 number assigned this case and must be labeled “Second Amended Complaint”; plaintiff must file 27 //// 28 //// 3 1 an original and two copies of the second amended complaint; failure to file a second amended 2 complaint in accordance with this order will result in a recommendation that this action be 3 dismissed. 4 Dated: April 7, 2014 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 5 6 7 8 9 10 11 2 / john0401.fac 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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