Segovia v. State of California, et al.

Filing 4

ORDER signed by Magistrate Judge Dale A. Drozd on 12/18/2014 GRANTING plaintiff's 2 motion to proceed IFP; plaintiff shall pay the $350.00 filing fee in accordance with the concurrent CDCR order; plaintiff's complaint is DISMISSED with leave to file an amended complaint within 30 days; the Clerk shall immediately mail copies of this order and of plaintiff's complaint to J. Clark Kelso, Receiver, California Correctional Health Care Services; and the Receiver is requested to provide the undersigned with an informal status report as to plaintiff's current medical status and treatment, if any, for Hepatitis C and/or lymphatic cancer. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DAVID SEGOVIA,

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No. 2:14-cv-0715 DAD P

Plaintiff,
v.

ORDER

STATE OF CALIFORNIA,
Defendant.

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Plaintiff is a state prisoner proceeding pro se. He seeks relief pursuant to 42 U.S.C.

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§ 1983 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This

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proceeding was referred to this court by Local Rule 302 pursuant to 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.

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§ 1915(a). Accordingly, plaintiff‟s 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 who seek 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.

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

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

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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

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490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

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pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th

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Cir. 1989); Franklin, 745 F.2d at 1227.

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In considering whether a complaint states a claim upon which relief can be granted, the

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court must accept the allegations as true, Erickson v. Pardus, 551 U.S. 89, 94 (2007), and construe

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

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236 (1974). Pro se pleadings are held to a less stringent standard than those drafted by lawyers.

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See Haines v. Kerner, 404 U.S. 519, 520 (1972). Still, to survive dismissal for failure to state a

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claim, a pro se complaint must contain more than “naked assertions,” “labels and conclusions” or

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“a formulaic recitation of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly,

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550 U.S. 544, 555-57 (2007). In other words, “[t]hreadbare recitals of the elements of a cause of

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action, supported by mere conclusory statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662,

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678 (2009). Furthermore, a claim upon which the court can grant relief must have facial

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plausibility. Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads

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factual content that allows the court to draw the reasonable inference that the defendant is liable

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for the misconduct alleged.” Iqbal, 556 U.S. at 678. Attachments to a complaint are considered

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part of the complaint for purposes of a motion to dismiss for failure to state a claim. Hal Roach
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Studios v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir.1990).

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A complaint must give fair notice and state the elements of the claim plainly and

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

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must allege with at least some degree of particularity overt acts in which defendants engaged that

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support plaintiff's claim. Id. Therefore the complaint must allege in specific terms how each

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

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some affirmative link or connection between an individual defendant‟s actions and the claimed

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deprivation. Rizzo v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir.

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1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, vague and conclusory

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allegations of official participation in civil rights violations are not sufficient. Ivey v. Board of

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Regents, 673 F.2d 266, 268 (9th Cir. 1982).

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Plaintiff‟s complaint variously identifies as defendants the following parties: the State of

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California, California State Prison-Sacramento, New Folsom Prison, board members of the State

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Medical Board, Dr. Nguyen, and Dr. Shafer. Plaintiff‟s statement of claim in his complaint

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provides: “Denied treatment for Hep-C & Lymphoma Cancer. Diagnoses March 23, 2013.”

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(Compl. (Doc. No. 1) at 3.) The relief plaintiff seeks is: “grant me a civil suit.” (Id.)

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Beyond the admittedly serious allegation that plaintiff has been denied medical treatment,

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the complaint as pled fails to apprise the court or the defendants as to the facts underlying

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plaintiff‟s clams under the Civil Rights Act. There is nothing in the complaint to indicate what

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acts or omissions the named defendants allegedly committed that, if proved, would entitle the

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plaintiff to relief under 42 U.S.C. § 1983. It is also impossible to determine what relief plaintiff is

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seeking. For example, does he wish to enjoin the defendants from committing, or require them to

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perform, actions, such as providing him with specific medical treatment? And to what extent, if

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any, is he seeking monetary damages?
Because of these pleading deficiencies, plaintiff‟s complaint will be dismissed. However,

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the court will grant plaintiff the opportunity to file an amended complaint that states a claim

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under § 1983.

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If plaintiff is attempting to assert a claim for inadequate medical care, the Supreme Court

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has held that inadequate medical care did not constitute cruel and unusual punishment cognizable

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under § 1983 unless the mistreatment rose to the level of “deliberate indifference to serious

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medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). In general, deliberate indifference

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may be shown when prison officials deny, delay, or intentionally interfere with medical

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treatment, or may be shown by the way in which prison officials provide medical care.

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Hutchinson v. United States, 838 F.2d 390, 393-94 (9th Cir. 1988).

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In any amended complaint plaintiff elects to file, he will need to allege facts as to how
each defendant‟s actions rose to the level of “deliberate indifference.” Mere differences of

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opinion between a prisoner and prison medical staff or between medical professionals as to the

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proper course of treatment for a medical condition do not give rise to a § 1983 claim. See

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Toguchi v. Soon Hwang Chung, 391 F.3d 1051, 1058 (9th Cir. 2004); Jackson v. McIntosh, 90

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F.3d 330, 332 (9th Cir. 1996); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); Franklin v.

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Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981). In addition, before it can be said that a prisoner‟s

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civil rights have been abridged, “the indifference to his medical needs must be substantial. 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, 429 U.S. at 105-06).

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See also Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990) (“In determining deliberate

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indifference, we scrutinize the particular facts and look for substantial indifference in the

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individual case, indicating more than mere negligence or isolated occurrences of neglect.”).

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In closing, plaintiff is informed that the court cannot refer to a prior pleading in order to

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make plaintiff‟s amended complaint complete. Local Rule 220 requires that an amended

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complaint be complete in itself without reference to any prior pleading. This is because, as a

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general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375

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F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no

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longer serves any function in the case. Therefore, in an amended complaint, as in an original

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complaint, each claim and the involvement of each 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 motion for leave to proceed in forma pauperis (ECF No. 2) 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. Plaintiff is granted thirty days from the date of service of this order to file an amended

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complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil

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Procedure, and the Local Rules of Practice. The amended complaint must bear the docket

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number assigned this case and must be labeled “Amended Complaint.” Plaintiff must file an

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original and two copies of the amended complaint. Failure to file an amended complaint in

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accordance with this order will result in a recommendation that this action be dismissed.

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5. The Clerk of the Court is directed to immediately mail copies of this order and of

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plaintiff‟s complaint (ECF No. 1) to J. Clark Kelso, Receiver, California Correctional Health Care

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Services, P.O. Box 588500, Elk Grove, CA 95758. The Receiver, in turn, is requested to provide

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the undersigned with an informal status report as to plaintiff‟s current medical status and

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treatment, if any, for Hepatitis C and/or lymphatic cancer.

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Dated: December 18, 2014

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DAD:10
sego0715.14

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