Quinn v. Dowbak

Filing 9

ORDER signed by Magistrate Judge Edmund F. Brennan on 10/5/2017 GRANTING 2 Motion to Proceed IFP and DISMISSING 1 Complaint with leave to amend within 30 days. Plaintiff to pay the statutory filing fee of $350. All payments to be collected in accordance with the notice to the CDCR filed concurrently herewith. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GREGORY WAYNE QUINN,

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Plaintiff,

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No. 2:17-cv-0992-EFB P

v.

ORDER

JOHN M. DOWBAK,

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Defendant.

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Plaintiff, a state prisoner proceeding without counsel in an action brought under 42 U.S.C.

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§ 1983, has filed an application to proceed in forma pauperis under 28 U.S.C. § 1915 (ECF No.

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2).

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I.

Application to Proceed In Forma Pauperis
Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2).

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Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect

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and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C.

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§ 1915(b)(1) and (2).

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II.

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Screening Requirements
The court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally
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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).

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A claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.”

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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th

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Cir. 1984). “[A] judge may dismiss [in forma pauperis] claims which are based on indisputably

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meritless legal theories or whose factual contentions are clearly baseless.” Jackson v. Arizona,

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885 F.2d 639, 640 (9th Cir. 1989) (citation and internal quotations omitted), superseded by statute

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on other grounds as stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); Neitzke, 490

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U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded,

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has an arguable legal and factual basis. Id.
“Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the

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claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of

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what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S.

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544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

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However, in order to survive dismissal for failure to state a claim, a complaint must contain more

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than “a formulaic recitation of the elements of a cause of action;” it must contain factual

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allegations sufficient “to raise a right to relief above the speculative level.” Id. (citations

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omitted). “[T]he pleading must contain something more . . . than . . . a statement of facts that

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merely creates a suspicion [of] a legally cognizable right of action.” Id. (alteration in original)

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(quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure, 1216 (3d

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ed. 2004)).

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“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to

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relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

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Corp., 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content

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that allows the court to draw the reasonable inference that the defendant is liable for the

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misconduct alleged.” Id. (citing Bell Atl. Corp., 550 U.S. at 556). In reviewing a complaint

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under this standard, the court must accept as true the allegations of the complaint in question,

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Hospital Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976), as well as construe the pleading
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in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, Jenkins v.

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McKeithen, 395 U.S. 411, 421 (1969).

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III.

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Screening Order
The court finds that plaintiff has failed to state a cognizable Eighth Amendment claim for

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deliberate indifferent to serious medical needs against defendant Dowbak. Plaintiff alleges that

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he suffered a broken finger on September 19, 2013 while he was incarcerated at Mule Creek State

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Prison. ECF No. 1 at 3. The next day, he was transported to San Joaquin General Hospital and

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underwent a surgery performed by defendant Dowbak. Id. Two pins were placed in his finger as

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a consequence of this surgery. Id. When the pins were removed on November 7, 2013, plaintiff

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noticed that his finger was deformed and causing him significant pain. Id. Shortly thereafter, he

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claims that he saw a second doctor who informed him that pins should never have been placed in

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his finger. Id.

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The court assumes, for screening purposes, that defendant Dowbak, who is alleged to be a

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physician at a public hospital, is a state actor within the meaning of section 1983. See Tebo v.

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Tebo, 550 F.3d 492, 503 (5th Cir. 2008) (noting that both parties agreed that “a public hospital

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employee, is a state actor for purposes of Section 1983.”); see also Jones v. Nickens, No 11-cv-

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2445 (JFB) (WDW), 961 F. Supp. 2d 475, 486 (E.D.N.Y. 2013).

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Although plaintiff has clearly alleged an injury resulting from Dowbak’s medical care, he

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has not alleged that this defendant acted with the requisite state of mind to support a claim of

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deliberate indifference. An Eighth Amendment deliberate indifference claim requires more than

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an allegation that a medical provider inadvertently or negligently failed to provide adequate care.

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See Estelle v. Gamble, 429 U.S. 97, 105-106 (1976). Instead, plaintiff must allege that Dowbak

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acted with deliberate indifference, a standard which requires that the defendant: (1) be actually

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aware of facts from which an inference could be drawn that a substantial risk of harm exists; (2)

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actually draw the inference; but (3) nevertheless disregard the risk to the inmate's health. See

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Farmer v. Brennan, 511 U.S. 825, 837-38 (1994). He has not alleged as much in the instant

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complaint. Accordingly, his complaint will be dismissed with leave to amend.

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IV.

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Leave to Amend
Plaintiff will be afforded an opportunity to file an amended complaint to see if he can state

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a cognizable claim. If plaintiff chooses to file an amended complaint it should observe the

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following:

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Any amended complaint must identify as a defendant only persons who personally

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participated in a substantial way in depriving him of a federal constitutional right. Johnson v.

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Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a

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constitutional right if he does an act, participates in another’s act or omits to perform an act he is

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legally required to do that causes the alleged deprivation).

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It must also contain a caption including the names of all defendants. Fed. R. Civ. P. 10(a).

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Plaintiff may not change the nature of this suit by alleging new, unrelated claims. George

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v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Any amended complaint must be written or typed so

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that it so that it is complete in itself without reference to any earlier filed complaint. E.D. Cal.

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L.R. 220. This is because an amended complaint supersedes any earlier filed complaint, and once

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an amended complaint is filed, the earlier filed complaint no longer serves any function in the

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case. See Forsyth v. Humana, 114 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint

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supersedes the original, the latter being treated thereafter as non-existent.’”) (quoting Loux v.

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Rhay, 375 F.2d 55, 57 (9th Cir. 1967)).

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Finally, the court notes that any amended complaint should be as concise as possible in

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fulfilling the above requirements. Fed. R. Civ. P. 8(a). Plaintiff should avoid the inclusion of

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procedural or factual background which has no bearing on his legal claims. He should also take

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pains to ensure that his amended complaint is as legible as possible. This refers not only to

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penmanship, but also spacing and organization. Lengthy, unbroken paragraphs can be difficult to

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read when handwritten and plaintiff would do well to avoid them wherever possible.

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V.

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Accordingly, IT IS HEREBY ORDERED that:

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Conclusion

1. Plaintiff’s application to proceed in forma pauperis (ECF No. 2) is granted.
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2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected

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in accordance with the notice to the California Department of Corrections and

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Rehabilitation filed concurrently herewith.

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3. The complaint is dismissed with leave to amend within 30 days. The new

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complaint must bear the docket number assigned to this case and be titled

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“Amended Complaint.” If plaintiff files an amended complaint stating a

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cognizable claim the court will proceed with service of process by the United

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States Marshal.

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4. Failure to comply with this order may result in dismissal of this action.
DATED: October 5, 2017.

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