Escalante v. California Department of Corrections et al

Filing 8

ORDER signed by Magistrate Judge Edmund F. Brennan on 1/26/17 ORDERING that 7 Motion to Proceed IFP is GRANTED; Plaintiff shall pay the statutory filing fee of $350. The complaint is DISMISSED with leave to amend within 30 days.(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 REFUGIO ARAIZA ESCALANTE, 12 Plaintiff, 13 14 15 No. 2:15-cv-1451-EFB P v. CALIFORNIA DEPARTMENT OF CORRECTIONS, et al., ORDER GRANTING IFP AND DISMISSING COMPLAINT PURSUANT TO 28 U.S.C. § 1915A Defendants. 16 17 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 18 19 U.S.C. § 1983.1 He has filed an application to proceed in forma pauperis pursuant to 28 U.S.C. 20 § 1915. 21 22 I. Request to Proceed In Forma Pauperis Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2). 23 Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect 24 and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C. 25 § 1915(b)(1) and (2). 26 27 28 1 This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1) and is before the undersigned pursuant to plaintiff’s consent. See E.D. Cal. Local Rules, Appx. A, at (k)(4). 1 1 II. Screening Requirement and Standards 2 Federal courts must engage in a preliminary screening of cases in which prisoners seek 3 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 4 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion 5 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which 6 relief may be granted,” or “seeks monetary relief from a defendant who is immune from such 7 relief.” Id. § 1915A(b). 8 9 A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and 10 plain statement of the claim showing that the pleader is entitled to relief, in order to give the 11 defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. 12 Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). 13 While the complaint must comply with the “short and plaint statement” requirements of Rule 8, 14 its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 15 U.S. 662, 679 (2009). 16 To avoid dismissal for failure to state a claim a complaint must contain more than “naked 17 assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of 18 action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of 19 a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 20 678. 21 Furthermore, a claim upon which the court can grant relief must have facial plausibility. 22 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual 23 content that allows the court to draw the reasonable inference that the defendant is liable for the 24 misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a 25 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. 26 Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the 27 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 28 ///// 2 1 III. 2 Screening Order The court has reviewed plaintiff’s complaint pursuant to § 1915A and finds that the 3 allegations are too vague and conclusory to state a cognizable claim for relief. The complaint 4 names a “Nurse(s) Doe” and a “Doctor Doe” as defendants and the allegations consist of the 5 following: 6 All defendants named in this civil rights lawsuit violated plaintiffs 8th Amend right to be free from cruel and unusual punishment by deliberate indifference to plaintiffs serious medical needs such as (1) stomach bleeding from “E coli.” (2) miss diagnosed as “Flu” which allowed the Eoli to do permanent damage to plaintiff’s organs. Additionally defendant knew or should have known plaintiff was in immediate danger with escrutiating pain. 7 8 9 10 ECF No. 1, § IV. Plaintiff’s appears to be attempting to assert Eighth Amendment claims of 11 deliberate indifference to medical needs against unknown defendants. However, he has not 12 pleaded sufficient facts to state a proper claim for relief. Although the Federal Rules adopt a 13 flexible pleading policy, a complaint must give fair notice and state the elements of the claim 14 plainly and succinctly. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). 15 Plaintiff must allege with at least some degree of particularity overt acts which defendants 16 engaged in that support plaintiff’s claim. Id. Because plaintiff fails to state a claim for relief, the 17 complaint must be dismissed. In addition, plaintiff’s naming of Doe defendants is problematic. 18 Unknown persons cannot be served with process until they are identified by their real names and 19 the court will not investigate the names and identities of unnamed defendants. 20 Plaintiff will be granted leave to file an amended complaint, if he can allege a cognizable 21 legal theory against a proper defendant and sufficient facts in support of that cognizable legal 22 theory. Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (district courts must 23 afford pro se litigants an opportunity to amend to correct any deficiency in their complaints). 24 Should plaintiff choose to file an amended complaint, the amended complaint shall clearly set 25 forth the claims and allegations against each defendant. Any amended complaint must cure the 26 deficiencies identified above and also adhere to the following requirements: 27 ///// 28 3 1 Any amended complaint must identify as a defendant only persons who personally 2 participated in a substantial way in depriving him of a federal constitutional right. Johnson v. 3 Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a 4 constitutional right if he does an act, participates in another’s act or omits to perform an act he is 5 legally required to do that causes the alleged deprivation). 6 It must also contain a caption including the names of all defendants. Fed. R. Civ. P. 10(a). 7 Plaintiff may not change the nature of this suit by alleging new, unrelated claims. George 8 v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). 9 Any amended complaint must be written or typed so that it so that it is complete in itself 10 without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended 11 complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the 12 earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114 13 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter 14 being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 15 1967)). 16 The court cautions plaintiff that failure to comply with the Federal Rules of Civil 17 Procedure, this court’s Local Rules, or any court order may result in this action being dismissed. 18 See Local Rule 110. 19 20 In addition, the court notes that the following legal standards may apply to plaintiff’s intended claim for relief. 21 To state a claim under § 1983, a plaintiff must allege: (1) the violation of a federal 22 constitutional or statutory right; and (2) that the violation was committed by a person acting under 23 the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Jones v. Williams, 297 F.3d 24 930, 934 (9th Cir. 2002). 25 An individual defendant is not liable on a civil rights claim unless the facts establish the 26 defendant’s personal involvement in the constitutional deprivation or a causal connection between 27 the defendant’s wrongful conduct and the alleged constitutional deprivation. See Hansen v. 28 Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978). 4 1 Plaintiff may not sue any official on the theory that the official is liable for the unconstitutional 2 conduct of his or her subordinates. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Plaintiff must 3 identify the particular person or persons who violated his rights. He must also plead facts 4 showing how that particular person was involved in the alleged violation. 5 Claims for damages against the state, its agencies or its officers for actions performed in 6 their official capacities are barred under the Eleventh Amendment, unless the state waives its 7 immunity. Kentucky v. Graham, 473 U.S. 159, 169 (1985); see also Will v. Michigan Dep’t of 8 State Police, 491 U.S. 58, 71 (1989) (neither a state nor its officials acting in their official 9 capacities are persons under § 1983). Section 1983 does not abrogate the states’ Eleventh 10 Amendment immunity from suit. See Quern v. Jordan, 440 U.S. 332, 344-45 (1979). See also 11 Hafer v. Melo, 502 U.S. 21, 30 (1991) (clarifying that Eleventh Amendment does not bar suits 12 against state officials sued in their individual capacities, nor does it bar suits for prospective 13 injunctive relief against state officials sued in their official capacities). 14 To succeed on an Eighth Amendment claim predicated on the denial of medical care, a 15 plaintiff must establish that he had a serious medical need and that the defendant’s response to 16 that need was deliberately indifferent. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); see 17 also Estelle v. Gamble, 429 U.S. 97, 106 (1976). A serious medical need exists if the failure to 18 treat the condition could result in further significant injury or the unnecessary and wanton 19 infliction of pain. Jett, 439 F.3d at 1096. Deliberate indifference may be shown by the denial, 20 delay or intentional interference with medical treatment or by the way in which medical care is 21 provided. Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988). 22 To act with deliberate indifference, a prison official must both be aware of facts from 23 which the inference could be drawn that a substantial risk of serious harm exists, and he must also 24 draw the inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). Thus, a defendant is liable if 25 he knows that plaintiff faces “a substantial risk of serious harm and disregards that risk by failing 26 to take reasonable measures to abate it.” Id. at 847. A physician need not fail to treat an inmate 27 altogether in order to violate that inmate’s Eighth Amendment rights. Ortiz v. City of Imperial, 28 884 F.2d 1312, 1314 (9th Cir. 1989). A failure to competently treat a serious medical condition, 5 1 even if some treatment is prescribed, may constitute deliberate indifference in a particular case. 2 Id. 3 It is important to differentiate common law negligence claims of malpractice from claims 4 predicated on violations of the Eight Amendment’s prohibition of cruel and unusual punishment. 5 In asserting the latter, “[m]ere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not 6 support this cause of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 7 1980) (citing Estelle v. Gamble, 429 U.S. 97, 105-106 (1976); see also Toguchi v. Chung, 391 8 F.3d 1051, 1057 (9th Cir. 2004). 9 IV. 10 Summary of Order Accordingly, IT IS HEREBY ORDERED that: 11 1. Plaintiff’s request to proceed in forma pauperis (ECF No. 7) is granted. 12 2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected 13 in accordance with the notice to the California Department of Corrections and 14 Rehabilitation filed concurrently herewith. 15 3. The complaint is dismissed with leave to amend within 30 days. The complaint 16 must bear the docket number assigned to this case and be titled “Amended 17 Complaint.” Failure to comply with this order will result in dismissal of this 18 action for failure to prosecute. If plaintiff files an amended complaint stating a 19 cognizable claim the court will proceed with service of process by the United 20 States Marshal. 21 Dated: January 26, 2017. 22 23 24 25 26 27 28 6

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