Joseph v. Tseng, et al

Filing 11

ORDER signed by Magistrate Judge Edmund F. Brennan on 9/29/2014 DENYING 4 Motion for Summary Judgment and DENYING 8 Motion for Default Judgment. The complaint is DISMISSED with leave to amend within 30 days. The amended complaint must bear 2:14-cv-0476 EFB as the case number and be titled First Amended Complaint. (Donati, J)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ALONZO JOSEPH,

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No. 2:14-cv-476-EFB P

Plaintiff,

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v.

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S. TSENG, et al.,

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SCREENING ORDER DISMISSING
COMPLAINT WITH LEAVE TO AMEND
FOR FAILURE TO STATE A CLAIM
Defendants.

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Plaintiff is a state prisoner proceeding without counsel. He commenced this action in the

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Amador County Superior Court and defendants Tseng, Smiley, and Horowitz removed it to this

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court on February 13, 2014.1 Plaintiff has filed a motion for summary judgment and a motion for

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default judgment. Additionally, the complaint is before the court for screening. For the reasons

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stated below, both motions must be denied and the complaint must be dismissed with leave to

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amend.

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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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Defense counsel represents that all three defendants were served on January 14, 2014.
ECF No. 2 at 2, ¶ 3.
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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 and

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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 S.

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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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The court has reviewed plaintiff’s complaint pursuant to § 1915A and finds that the

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allegations are too vague and conclusory to state a cognizable claim for relief. Although the

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

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elements of the claim plainly and succinctly. Jones v. Community Redev. Agency, 733 F.2d 646,

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649 (9th Cir. 1984). Plaintiff must allege with at least some degree of particularity overt acts

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which defendants engaged in that support plaintiff's claim. Id. Because plaintiff fails to state a

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claim for relief, the complaint must be dismissed.

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Plaintiff alleges that he has degenerative arthritis and that defendant Dr. Horowitz denied

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his request for pain medication and foot surgery. He does not allege why Horowitz denied his

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requests. He also alleges that defendant doctors Tseng and Smiley denied his administrative

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appeals regarding this issue. He does not allege why either defendant denied his appeals. He

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concludes, however, that their actions amounted to deliberate indifference to his serious medical

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needs in violation of the Eighth Amendment. Plaintiff also claims that Dr. Smiley is liable as a

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doctor’s supervisor.

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To state a claim under § 1983, a plaintiff must allege: (1) the violation of a federal

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

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the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Jones v. Williams, 297 F.3d

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930, 934 (9th Cir. 2002). An individual defendant is not liable on a civil rights claim unless the

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

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

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

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(9th Cir. 1978). That is, plaintiff may not sue any official on the theory that the official is liable

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

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1948 (2009). In sum, plaintiff must identify the particular person or persons who violated his

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rights. He must also plead facts showing how that particular person was involved in the alleged

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violation.

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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 exists if the failure to

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treat the condition could result in further significant injury or the unnecessary and wanton

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infliction of pain. Jett, 439 F.3d at 1096. Deliberate indifference may be shown by the denial,

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delay or intentional interference with medical treatment or by the way in which medical care is

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provided. Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988).

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To act with deliberate indifference, a prison official must both be aware of facts from

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which the inference could be drawn that a substantial risk of serious harm exists, and he must also

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draw the inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). Thus, a defendant is liable if

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he knows that plaintiff faces “a substantial risk of serious harm and disregards that risk by failing

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to take reasonable measures to abate it.” Id. at 847. A physician need not fail to treat an inmate

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altogether in order to violate that inmate’s Eighth Amendment rights. Ortiz v. City of Imperial,

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884 F.2d 1312, 1314 (9th Cir. 1989). A failure to competently treat a serious medical condition,

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even if some treatment is prescribed, may constitute deliberate indifference in a particular case.

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Id.

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

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

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In asserting the latter, “[m]ere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not

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

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1980) (citing Estelle v. Gamble, 429 U.S. 97, 105-106 (1976); see also Toguchi v. Chung, 391

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F.3d 1051, 1057 (9th Cir. 2004).

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Moreover, there are no constitutional requirements regarding how a grievance system is

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operated. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (holding that prisoner’s

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claimed loss of a liberty interest in the processing of his appeals does not violate due process

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because prisoners lack a separate constitutional entitlement to a specific prison grievance system).

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Thus, plaintiff may not impose liability on defendants Tseng or Smiley simply because they

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played a role in processing plaintiff’s inmate appeals. See Buckley v. Barlow, 997 F.2d 494, 495

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(8th Cir. 1993) (an administrative “grievance procedure is a procedural right only, it does not

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confer any substantive right upon the inmates. Hence, it does not give rise to a protected liberty

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interest requiring the procedural protections envisioned by the fourteenth amendment. . . . Thus,

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defendants’ failure to process any of Buckley’s grievances, without more, is not actionable under

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section 1983.” (internal quotations omitted)).
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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 complaint

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must cure the deficiencies identified above and also adhere to the 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 plaintiff of a federal constitutional right. Johnson

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v. 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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An amended complaint supersedes any earlier filed complaint, and once an amended

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complaint is filed, the earlier filed complaint no longer serves any function in the case. See

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Forsyth v. Humana, 114 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes

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the original, the latter being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d

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55, 57 (9th Cir. 1967)). Therefore, any amended complaint must be written or typed so that it is

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complete in itself without reference to any earlier filed complaint. L.R. 220.

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The court cautions plaintiff that failure to comply with the Federal Rules of Civil

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Procedure, the court’s Local Rules, or any court order may result in this action being dismissed.

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See Local Rule 110.

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Finally, plaintiff’s outstanding motions must be denied. In light of this order dismissing

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the complaint with leave to amend, plaintiff’s motion for summary judgment necessarily fails. In

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addition, plaintiff’s motion for default judgment lacks merit, as defendants are not required to

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respond to the complaint until after the court identifies a cognizable claim, pursuant to section

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1915A.

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Accordingly, IT IS HEREBY ORDERED that:

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1. 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

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Amended Complaint.” Failure to comply with this order may result in this action

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being dismissed for failure to state a claim.

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2. Plaintiff’s motion for summary judgment (ECF No. 4) and motion for default
judgment (ECF No. 8) are denied.
DATED: September 29, 2014.

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