Hearne v. Ma et al

Filing 12

ORDER signed by Magistrate Judge Edmund F. Brennan on 11/14/17 GRANTING 9 Motion to Proceed IFP. Plaintiff shall pay the statutory filing fee of $350.00 for this action. All fees shall be paid 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 JOHNNY HEARNE, 12 Plaintiff, 13 14 No. 2:16-cv-1775-EFB P v. ORDER GRANTING IFP AND DISMISSING COMPLAINT PURSUANT TO 28 U.S.C. § 1915A J. MA, et al., 15 Defendants. 16 Plaintiff, a state prisoner proceeding without counsel in an action brought under 42 U.S.C. 17 18 19 § 1983, has filed an application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. I. Request to Proceed In Forma Pauperis Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2). 20 21 Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect 22 and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C. 23 § 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 plaintiff’s complaint (ECF No. 1) pursuant to § 1915A and finds 25 that the allegations are too vague and conclusory to state a cognizable claim for relief. The 26 named defendants include Warden David Baughman, Dr. Ma, LVN Child, LVN Pekke, and RN 27 Simes. The “Statement of Claim” alleged in the complaint consists of the following: 28 2 1 2 3 4 5 6 On 7-20-16, 8pm, I had to go to C yard clinic to find my blood pressure was 204 over 123. Dr. Ma was called. He told LVN to send me back to my cell; He’s not sending me out “to the hospital”! His action is going to cause me to have a strokeseizure! LVN Pekke has told custody to search my cell – as if I’m not taking my pills; and LVN’s have to watch me take them. I refuse to have KOP meds, keep on person’s meds, so they watch me, and the blood test proof, I take my meds! ECF No. 1, § IV. The allegations suggest that plaintiff intends to assert claims based on defendant Ma’s 7 response to his high blood pressure and defendant Pekke’s instructions to custody staff to search 8 his cell. However, plaintiff has not identified his intended claims for relief or otherwise pleaded 9 sufficient facts to state a proper claim for relief. Although the Federal Rules adopt a flexible 10 pleading policy, a complaint must give fair notice and state the elements of the claim plainly and 11 succinctly. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff does 12 not allege whether he needed and/or received any medical treatment while he was at the clinic. 13 Nor does he plead facts showing that defendant Ma’s order for plaintiff to return to his cell 14 exposed him to a substantial risk of serious harm. The allegations regarding a cell search for 15 medication also fail to state a claim because “the Fourth Amendment proscription against 16 unreasonable searches does not apply within the confines of the prison cell.” Hudson v. Palmer, 17 468 U.S. 517, 526 (1984). Indeed, “[p]rison officials must be free to seize from cells any articles 18 which, in their view, disserve legitimate institutional interests.” Id. at 528 n. 8. Lastly, plaintiff 19 names several defendants but does not make any allegations against those defendants. He thus 20 fails to link them to any violation of his federal constitutional or statutory rights. Because 21 plaintiff fails to state a claim for relief, the complaint must be dismissed. 22 Plaintiff will be granted leave to file an amended complaint, if he can allege a cognizable 23 legal theory against a proper defendant and sufficient facts in support of that cognizable legal 24 theory. Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (district courts must 25 afford pro se litigants an opportunity to amend to correct any deficiency in their complaints). 26 Should plaintiff choose to file an amended complaint, the amended complaint shall clearly set 27 forth the claims and allegations against each defendant. Any amended complaint must cure the 28 deficiencies identified above and also adhere to the following requirements: 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 E.D. Cal. L.R. 110. 19 20 In addition, the court notes that the following legal standards may apply to plaintiff’s intended claims 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). An individual defendant is not liable on a civil rights claim unless the 25 facts establish the defendant’s personal involvement in the constitutional deprivation or a causal 26 connection between the defendant’s wrongful conduct and the alleged constitutional deprivation. 27 See Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44 28 (9th Cir. 1978). Plaintiff may not sue any official on the theory that the official is liable for the 4 1 unconstitutional conduct of his or her subordinates. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). 2 Plaintiff must identify the particular person or persons who violated his rights. He must also 3 plead facts showing how that particular person was involved in the alleged violation. 4 To succeed on an Eighth Amendment claim predicated on the denial of medical care, a 5 plaintiff must establish that he had a serious medical need and that the defendant’s response to 6 that need was deliberately indifferent. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); see 7 also Estelle v. Gamble, 429 U.S. 97, 106 (1976). A serious medical need exists if the failure to 8 treat the condition could result in further significant injury or the unnecessary and wanton 9 infliction of pain. Jett, 439 F.3d at 1096. Deliberate indifference may be shown by the denial, 10 delay or intentional interference with medical treatment or by the way in which medical care is 11 provided. Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988). 12 To act with deliberate indifference, a prison official must both be aware of facts from 13 which the inference could be drawn that a substantial risk of serious harm exists, and he must also 14 draw the inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). Thus, a defendant is liable if 15 he knows that plaintiff faces “a substantial risk of serious harm and disregards that risk by failing 16 to take reasonable measures to abate it.” Id. at 847. A physician need not fail to treat an inmate 17 altogether in order to violate that inmate’s Eighth Amendment rights. Ortiz v. City of Imperial, 18 884 F.2d 1312, 1314 (9th Cir. 1989). A failure to competently treat a serious medical condition, 19 even if some treatment is prescribed, may constitute deliberate indifference in a particular case. 20 Id. 21 It is important to differentiate common law negligence claims of malpractice from claims 22 predicated on violations of the Eight Amendment’s prohibition of cruel and unusual punishment. 23 In asserting the latter, “[m]ere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not 24 support this cause of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 25 1980) (citing Estelle v. Gamble, 429 U.S. 97, 105-106 (1976); see also Toguchi v. Chung, 391 26 F.3d 1051, 1057 (9th Cir. 2004). 27 ///// 28 ///// 5 1 2 IV. Summary of Order Accordingly, IT IS HEREBY ORDERED that: 3 1. Plaintiff’s request to proceed in forma pauperis (ECF No. 9) is granted. 4 2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected 5 in accordance with the notice to the California Department of Corrections and 6 Rehabilitation filed concurrently herewith. 7 3. The complaint is dismissed with leave to amend within 30 days. The complaint 8 must bear the docket number assigned to this case and be titled “Amended 9 Complaint.” Failure to comply with this order may result in dismissal of this 10 action for failure to prosecute and failure to state a claim. If plaintiff files an 11 amended complaint stating a cognizable claim the court will proceed with service 12 of process by the United States Marshal. 13 Dated: November 14, 2017. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6

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