Johnson v. California Medical Facility, et al.

Filing 4

ORDER signed by Magistrate Judge Kendall J. Newman on 3/17/14 ORDERING that 2 Motion to Proceed IFP is GRANTED; Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff's complaint is DISMISSED with 30 days to amend.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JACKIE M. JOHNSON,

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No. 2:14-cv-0580 KJN P

Plaintiff,
v.

ORDER

CALIFORNIA MEDICAL FACILITY
HEALTH SERVICES, et al.,
Defendants.

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Plaintiff is a state prisoner at the California Medical Facility (CMF), proceeding pro se.

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Plaintiff seeks relief pursuant to 42 U.S.C. § 1983, and requests leave to proceed in forma

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pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court by Local Rule

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302, and 28 U.S.C. § 636(b)(1).

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Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. §
1915(a). Accordingly, the request to proceed in forma pauperis will be granted.
Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§

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1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in

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accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct

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the appropriate agency to collect the initial partial filing fee from plaintiff‟s trust account and

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forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments

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of twenty percent of the preceding month‟s income credited to plaintiff‟s prison trust account.

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These payments will be forwarded by the appropriate agency to the Clerk of the Court each time

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the amount in plaintiff‟s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. §

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1915(b)(2).

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The court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).

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A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v.

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Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir.

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1984). The court may, therefore, dismiss a claim as frivolous when it is based on an indisputably

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meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at

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327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an

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arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989),

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superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (“a

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judge may dismiss [in forma pauperis] claims which are based on indisputably meritless legal

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theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at 1227.

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Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only „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

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defendant fair notice of what the . . . claim is and the grounds upon which it rests.‟” Bell Atlantic

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Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

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In order to survive dismissal for failure to state a claim, a complaint must contain more than “a

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formulaic recitation of the elements of a cause of action;” it must contain factual allegations

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sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550 U.S. at 555.

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However, “[s]pecific facts are not necessary; the statement [of facts] need only „give the

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defendant fair notice of what the . . . claim is and the grounds upon which it rests.‟” Erickson v.

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Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal
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quotations marks omitted). In reviewing a complaint under this standard, the court must accept as

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true the allegations of the complaint in question, Erickson, 551 U.S. at 93, and construe the

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pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236

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(1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984).

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The complaint attempts to state an Eighth Amendment claim (deliberate indifference to

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serious medical needs), against several defendants for allegedly refusing to effectively treat

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plaintiff‟s surgical wound. Plaintiff alleges that after he received surgery on his “flexor digitorum

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profundus pollicis longus” (apparently in his forearm and/or hand), the stitches were prematurely

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removed on the seventh, rather than the prescribed tenth, day thereafter, resulting in the wound

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coming open four hours later. The only defendant against whom plaintiff makes specific

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allegations is defendant “Supervisor R.N. Luisa [who] refused to dress wound, she just put an

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band ads on it, I asked her 4 times to dress it, open wound giving me serious pain and bleeding.”

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(Sic) (ECF No. 1 at 3.) Thereafter, plaintiff alleges, each nurse dressed the wound differently,

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allegedly causing plaintiff pain, burning, and a “bad scar.” Plaintiff alleges that he had to ask for

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physical therapy, which was delayed for one month, and that his request for “pain management”

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was denied. In addition to defendant Luisa, plaintiff names five other nurses (Hipaitto, Naidee,

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Mandoza, Reayes, and Malik), the Chief Medical Officer Zamora, the “Doctor‟s in B-1 Treatment

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Clinic” (sic), and, generally, the California Medical Facility Health Care Services.

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The court finds the allegations in plaintiff‟s complaint so vague and conclusory that it is

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unable to determine whether the current action is frivolous or fails to state a claim for relief. The

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allegations of the complaint are specific as to only defendant. However, even plaintiff‟s specific

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allegations against defendant Luisa fail to state an Eighth Amendment claim. “Mere

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„indifference,‟ „negligence,‟ or „medical malpractice‟ will not support this cause of action.”

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Broughton v. Cutter Lab., 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle v. Gamble, 429 U.S.

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97, 105-06 (1976)). To state a claim for deliberate indifference to serious medical needs, a

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prisoner must allege that a specifically identified prison official, while performing or failing to

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perform specific acts, “kn[ew] of and disregard[ed] an excessive risk to inmate health or safety;

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the official must both be aware of the facts from which the inference could be drawn that a
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substantial risk of serious harm exists, and he must also draw the inference.” Farmer v. Brennan,

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511 U.S. 825, 837 (1994).

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

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notice and state the elements of the claim plainly and succinctly. Fed. R. Civ. P. 8(a)(2); Jones v.

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

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degree of particularity overt acts which defendants engaged in that support plaintiff‟s

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constitutional claim. Id. Because plaintiff has failed to meet these requirements, the complaint

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

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If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions

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about which he complains resulted in the alleged deprivation of plaintiff‟s constitutional rights.

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Rizzo v. Goode, 423 U.S. 362, 371 (1976). The complaint must allege in specific terms how each

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named defendant is involved. Id. There can be no liability under 42 U.S.C. § 1983 unless there is

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some affirmative link or connection between a defendant‟s actions and the claimed deprivation.

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Id.; May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743

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(9th Cir. 1978). Vague and conclusory allegations of official participation in civil rights

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violations are not sufficient. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

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Plaintiff is informed that an amended complaint must be complete in itself without

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reference to any prior pleading. Local Rule 220; see Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.

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1967). Once plaintiff files an amended complaint, the original pleading is superseded. Therefore,

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in an amended complaint, as in an original complaint, each claim and the involvement of each

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defendant must be sufficiently alleged.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Plaintiff‟s request for leave to proceed in forma pauperis is granted.

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2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff

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is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C.

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§ 1915(b)(1). All fees shall be collected and paid in accordance with this court‟s order to the

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Director of the California Department of Corrections and Rehabilitation filed concurrently

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herewith.
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3. Plaintiff‟s complaint is dismissed.

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4. Within thirty days from the filing date of this order, plaintiff may complete the

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attached Notice of Amendment and submit the following documents to the court:

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a. The completed Notice of Amendment; and

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b. An Amended Complaint.

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An Amended Complaint must be so labeled, and bear the docket number assigned to this case; the

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Amended Complaint must comply with the requirements of the Civil Rights Act, the Federal

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Rules of Civil Procedure, and the Local Rules.

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5. Failure to timely file an Amended Complaint in accordance with this order will result
in a recommendation that this action be dismissed.

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SO ORDERED.

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Dated: March 17, 2014

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JACKIE M. JOHNSON,

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No. 2:14-cv-0580 KJN P

Plaintiff,
v.

NOTICE OF AMENDMENT

CALIFORNIA MEDICAL FACILITY
HEALTH SERVICES, et al.,
Defendants.

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Plaintiff hereby submits the following document in compliance with the court‟s order
filed______________.

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Amended Complaint

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____________________________________
Date

____________________________________
Plaintiff

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