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)

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