Linder v. Galang et al

Filing 15

ORDER signed by Magistrate Judge Allison Claire on 1/30/2018 WITHDRAWING the 13 findings and recommendations issued 1/10/2018 and CONSTRUING Plaintiff's objections to the findings and recommendations as a request for extended time to file a First Amended Complaint, which is GRANTED. Plaintiff shall file a First Amended Complaint within 30 days. The Clerk shall send plaintiff, together with a copy of this order, the following: (i) a copy of plaintiff's original complaint 1 ; (ii) a copy of this court's order filed 11/28/2017; and (iii) a blank complaint form.(Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DUANE PEYTON LINDER,

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No. 2:17-cv-0941 JAM AC P

Plaintiff,
v.

ORDER

CARMALINO GALANG, M.D., et al.,
Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this case, in which

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he seeks to challenge the alleged failure of his knee replacement surgery and inability to obtain

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restorative post-surgical medical care. By order filed November 28, 2017, the undersigned

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informed plaintiff of the deficiencies in his original complaint, and dismissed the complaint with

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leave to file a First Amended Complaint (FAC) within thirty days. See ECF No. 10. Plaintiff did

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not file a FAC. Therefore, on January 10, 2018, the court issued Findings and Recommendations

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in which the undersigned recommended that this action be dismissed without prejudice. See ECF

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No. 13. Plaintiff timely filed objections in which he states that he is disabled and has been unable

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to obtain assistance with this case. See ECF No. 14.

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The court construes plaintiff’s objections as a late request for extended time to file a FAC,

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and grants the request. Plaintiff will be given 30 days to file a First Amended Complaint. The

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pending findings and recommendations will accordingly be withdrawn.
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The original screening order, ECF No. 10, informed plaintiff of the requirements for

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stating a claim for deliberate indifference to serious medical needs under the Eighth Amendment.

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In summary, the original complaint is deficient in two significant ways: (1) it does not identify

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the challenged conduct of each defendant (it contains “no charging allegations”); and (2) the facts

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plaintiff provided, if true, might establish medical malpractice but do not establish an Eighth

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Amendment violation. A medical malpractice case may be filed in state court. In order to

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proceed in federal court under 42 U.S.C. § 1983, the federal civil rights statute, plaintiff’s claim

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must involve his constitutional rights.

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In drafting his First Amended Complaint, plaintiff should review the Order dated

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November 28, 2017 (attached). He should do his best to follow the court’s instructions.

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Amending the complaint does not require legal research or knowledge. To amend, plaintiff needs

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to provide more information about what happened to him, so that the court can determine

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whether the facts state a claim.

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It is particularly important for the First Amended Complaint to identify who was (or is)

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responsible for the medical care or medical decisions he is challenging. The First Amended

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Complaint must also clearly identify the challenged conduct of each defendant – it is helpful to

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consider “who did what, when, and where” – and specifically describe how this challenged

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conduct caused or otherwise relates to plaintiff’s knee problems. Also, in order to state an Eighth

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Amendment claim, plaintiff must allege specific facts, showing that each defendant knew of but

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disregarded an excessive risk to plaintiff’s health.

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It may be helpful for plaintiff to consider two time frames: (1) his surgery and any

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complications arising directly from the surgery, and (2) his medical care afterwards. This

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framework may assist plaintiff in the identification of appropriate defendants and their respective

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challenged conduct.

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Plaintiff is also reminded that he will only be allowed to proceed against San Joaquin

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General Hospital as a defendant if he can allege facts showing that a specific policy, practice or

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custom of the hospital was the “moving force” that resulted in the violation of plaintiff’s

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constitutional rights. The hospital cannot be liable under § 1983 for the actions of its doctors or
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other employees unless a particular hospital policy caused those actions.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations issued January 10, 2018 (ECF No. 13) are

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withdrawn.
2. Plaintiff’s objections to the findings and recommendations (ECF No. 14) are construed
as a request for extended to time to file a First Amended Complaint, which is granted.
3. Plaintiff is directed to file a First Amended Complaint within thirty (30) days after
service of this order.
4. Failure to timely file a First Amended Complaint will result in a recommendation that
this action be dismissed without prejudice.
5. The Clerk of Court is directed to send plaintiff, together with a copy of this order, the

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following: (i) a copy of plaintiff’s original complaint (ECF No. 1); (ii) a copy of this court’s

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order filed November 28, 2017 (ECF No. 10); and (iii) a blank complaint form used by prisoners

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in this district to pursue a civil rights action.

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IT IS SO ORDERED.
DATED: January 30, 2018

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