Arviso v. Chapnick et al

Filing 7

ORDER signed by Magistrate Judge Edmund F. Brennan on 10/03/17 GRANTING 2 plaintiff's request to proceed in forma pauperis. Plaintiff shall pay the statutory filing fee of $350.00 for this action. All fees shall be collected in accordance with the court's CDC order filed concurrently herewith. The complaint is dismissed with leave to amend within 30 days. (Plummer, 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 Q. ARVISO, 12 Plaintiff, 13 14 No. 2:16-cv-1414-EFB P v. DR. CHAPNICK, et al., 15 ORDER GRANTING IFP AND DISMISSING COMPLAINT PURSUANT TO 28 U.S.C. § 1915A Defendants. 16 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 17 18 19 U.S.C. § 1983. He has filed an application for leave to proceed in forma pauperis. I. Request to Proceed In Forma Pauperis Plaintiff’s application (ECF No. 2) makes the showing required by 28 U.S.C. § 1915(a)(1) 20 21 and (2). Accordingly, by separate order, the court directs the agency having custody of plaintiff 22 to collect and forward the appropriate monthly payments for the filing fee as set forth in 28 23 U.S.C. § 1915(b)(1) and (2). 24 II. Screening Requirement and Standards 25 Federal courts must engage in a preliminary screening of cases in which prisoners seek 26 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 27 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion 28 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which 1 relief may be granted,” or “seeks monetary relief from a defendant who is immune from such 2 relief.” Id. § 1915A(b). 3 A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) 4 of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and 5 plain statement of the claim showing that the pleader is entitled to relief, in order to give the 6 defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. 7 Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). 8 While the complaint must comply with the “short and plaint statement” requirements of Rule 8, 9 its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 10 U.S. 662, 679 (2009). 11 To avoid dismissal for failure to state a claim a complaint must contain more than “naked 12 assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of 13 action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of 14 a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 15 678. 16 Furthermore, a claim upon which the court can grant relief must have facial plausibility. 17 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual 18 content that allows the court to draw the reasonable inference that the defendant is liable for the 19 misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a 20 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. 21 Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the 22 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 23 III. 24 Screening Order The court has reviewed the complaint (ECF No. 1) pursuant to § 1915A and finds that it 25 fails to state a viable claim. Plaintiff has articulated three separate claims in his complaint, 26 namely: (1) that defendant Malet removed his lower bunk ‘chrono’; (2) that both of his knees 27 require surgery and these procedures have not yet taken place; and (3) that his ear drum also 28 requires surgery and this need has not been met. Id. at 3. The Federal Rules of Civil Procedure 2 1 do not allow a claimant to raise unrelated claims against different defendants in a single action. 2 Instead, a plaintiff may add multiple parties where the asserted right to relief arises out of the 3 “same transaction, occurrence, or series of transactions or occurrences.” Fed. R. Civ. P. 4 20(a)(2)(A). Unrelated claims involving different defendants must be brought in separate 5 lawsuits. Bryant v. Romero, No. 1:12-CV-02074-DLB PC, 2013 U.S. Dist. LEXIS 157159, 2013 6 WL 5923108, at *2 (E.D. Cal. Nov. 1, 2013) (citing George v. Smith, 507 F.3d 605, 607 (7th Cir. 7 2007)). The complaint, as it stands, does not sufficiently allege a connection between the three 8 aforementioned claims. 9 Additionally, plaintiff’s intention appears to be to assert various Eighth Amendment 10 claims of deliberate indifference. However, he has not pleaded sufficient facts to state a proper 11 claim for relief. Although the Federal Rules adopt a flexible pleading policy, a complaint must 12 give fair notice and state the elements of the claim plainly and succinctly. Jones v. Community 13 Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege, with at least some 14 degree of particularity, overt acts which defendants engaged in that support plaintiff’s claim. Id. 15 To succeed on an Eighth Amendment claim predicated on the denial of medical care, a 16 plaintiff must establish that he had a serious medical need and that the defendant’s response to 17 that need was deliberately indifferent. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); see 18 also Estelle v. Gamble, 429 U.S. 97, 106 (1976). A serious medical need exists if the failure to 19 treat the condition could result in further significant injury or the unnecessary and wanton 20 infliction of pain. Jett, 439 F.3d at 1096. Deliberate indifference may be shown by the denial, 21 delay, or intentional interference with medical treatment, or by the way in which medical care is 22 provided. Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988). 23 To act with deliberate indifference, a prison official must both be aware of facts from 24 which the inference could be drawn that a substantial risk of serious harm exists, and he must also 25 draw the inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). Thus, a defendant is liable if 26 he knows that plaintiff faces “a substantial risk of serious harm and disregards that risk by failing 27 to take reasonable measures to abate it.” Id. at 847. A physician need not fail to treat an inmate 28 altogether in order to violate that inmate’s Eighth Amendment rights. Ortiz v. City of Imperial, 3 1 884 F.2d 1312, 1314 (9th Cir. 1989). A failure to competently treat a serious medical condition, 2 even if some treatment is prescribed, may constitute deliberate indifference in a particular case. 3 Id. 4 It is important to differentiate common law negligence claims of malpractice from claims 5 predicated on violations of the Eighth Amendment’s prohibition of cruel and unusual punishment. 6 In asserting the latter, “[m]ere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not 7 support this cause of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 8 1980) (citing Estelle, 429 U.S. at 105-06); see also Toguchi v. Chung, 391 F.3d 1051, 1057 (9th 9 Cir. 2004). Plaintiff must show a deliberate disregard for a known medical need. The Ninth 10 Circuit has made clear that a difference of medical opinion is, as a matter of law, insufficient to 11 establish deliberate indifference. See Toguchi, 391 F.3d at 1058. “Rather, to prevail on a claim 12 involving choices between alternative courses of treatment, a prisoner must show that the chosen 13 course of treatment ‘was medically unacceptable under the circumstances,’ and was chosen ‘in 14 conscious disregard of an excessive risk to [the prisoner's] health.’” Id. (quoting Jackson v. 15 McIntosh, 90 F.3d 330, 332 (9th Cir. 1996)). 16 Based on the foregoing, plaintiff fails to state a claim for relief and his complaint must be 17 dismissed. Plaintiff may, if he chooses, amend his complaint to correct these deficiencies. Lopez 18 v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (district courts must afford pro se 19 litigants an opportunity to amend to correct any deficiency in their complaints). Should plaintiff 20 choose to file an amended complaint, the amended complaint shall clearly set forth the claims and 21 allegations against each defendant. Any amended complaint must cure the deficiencies identified 22 above and also adhere to the following requirements: 23 Any amended complaint must identify as a defendant only persons who personally 24 participated in a substantial way in depriving him of a federal constitutional right. Johnson v. 25 Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a 26 constitutional right if he does an act, participates in another’s act or omits to perform an act he is 27 legally required to do that causes the alleged deprivation). 28 ///// 4 1 It must also contain a caption including the names of all defendants. Fed. R. Civ. P. 10(a). 2 Plaintiff may not change the nature of this suit by alleging new, unrelated claims. George 3 v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). 4 Any amended complaint must be written or typed so that it so that it is complete in itself 5 without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended 6 complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the 7 earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114 8 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter 9 being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 10 1967)). 11 The court cautions plaintiff that failure to comply with the Federal Rules of Civil 12 Procedure, this court’s Local Rules, or any court order may result in this action being dismissed. 13 See E.D. Cal. L.R. 110. 14 Accordingly, IT IS HEREBY ORDERED that: 15 1. Plaintiff’s request to proceed in forma pauperis (ECF No. 2) is granted. 16 2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected 17 in accordance with the notice to the California Department of Corrections and 18 Rehabilitation filed concurrently herewith. 19 3. The complaint is dismissed with leave to amend within 30 days. The complaint 20 must bear the docket number assigned to this case and be titled “Amended 21 Complaint.” Failure to comply with this order will result in dismissal of this 22 action for failure to prosecute. If plaintiff files an amended complaint stating a 23 cognizable claim the court will proceed with service of process by the United 24 States Marshal. 25 Dated: October 3, 2017. 26 27 28 5

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