(PC) Rodriguez-Mendez v. Ellred,et al

Filing 15

ORDER signed by Magistrate Judge Dennis M. Cota on 6/5/2024 ORDERING plaintiff may file a first amended complaint within 30 days. (Yin, K)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RODRIGO RODRIGUEZ-MENDEZ, 12 Plaintiff, 13 v. 14 ELLRED, et al., 15 No. 2:24-CV-0678-DMC-P ORDER Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 Bivens v. Six Unknown Agents, 403 U.S. 388 (1971). Pending before the Court is Plaintiff’s 19 original complaint, ECF No. 1. 20 The Court is required to screen complaints brought by prisoners seeking relief 21 against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 22 § 1915A(a). This provision also applies if the plaintiff was incarcerated at the time the action was 23 initiated even if the litigant was subsequently released from custody. See Olivas v. Nevada ex rel. 24 Dep’t of Corr., 856 F.3d 1281, 1282 (9th Cir. 2017). The Court must dismiss a complaint or 25 portion thereof if it: (1) is frivolous or malicious; (2) fails to state a claim upon which relief can 26 be granted; or (3) seeks monetary relief from a defendant who is immune from such relief. See 27 28 U.S.C. § 1915A(b)(1), (2). Moreover, the Federal Rules of Civil Procedure require that 28 complaints contain a “. . . short and plain statement of the claim showing that the pleader is 1 1 entitled to relief.” Fed. R. Civ. P. 8(a)(2). This means that claims must be stated simply, 2 concisely, and directly. See McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (referring to 3 Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the complaint gives the defendant fair notice 4 of the plaintiff’s claim and the grounds upon which it rests. See Kimes v. Stone, 84 F.3d 1121, 5 1129 (9th Cir. 1996). Because Plaintiff must allege with at least some degree of particularity 6 overt acts by specific defendants which support the claims, vague and conclusory allegations fail 7 to satisfy this standard. Additionally, it is impossible for the Court to conduct the screening 8 required by law when the allegations are vague and conclusory. 9 Plaintiff names the following as defendants: (1) Ellred, a physician at Federal 10 Correctional Institution – Herlong (FCI Herrlong); (2) Kerney, a correctional lieutenant at FCI 11 Herlong; (3) Birtwell, a correctional officer at FCI Herlong; (4) Fox, a correctional officer at FCI 12 Herlong; (5) Peterson, a correctional officer at FCI Herlong; and (6) Waurbaug, a correctional 13 officer at FCI Herlong. See ECF No. 1, pgs. 3-4. Plaintiff alleges as follows: 14 15 16 17 18 19 20 21 22 23 24 25 The preventing from causing cruel and unusual punishment being inflicted and the infliction of excessive force. The deliberate indifference of the intentional refusal to provide medical care, delayed provision of medical treatment, denial of prescribed medical treatment, denial of reasonable requests for treatment that requests in suffering and further injury. In addition the persistent conduct in the fact of resultant pain and risk of permanent injury. Reasonable request for treatment denied, and exposure of the plaintiff to undue suffering and threat of further injury. The reckless and conscious disregard of a serious risk was displayed by the defendant’s [sic] whom were the Correctional Officers working under the color of law. The refusal of medical care whatsoever and further delay in providing the necessary surgery to prevent further pain and suffering is alleged. The prison physician, i.e., medical doctor failed to give palliative care after being assaulted and treated with excessive force nor was any after care provided. The claim for deliberate indifference to serious medical needs after the use of excessive force is are [sic] claims being made. ECF No. 1, pg. 5. As currently pleaded, the Court finds that Plaintiff’s complaint, when construed 26 liberally, states a plausible Eighth Amendment claim against Defendant Ellred based on 27 Plaintiff’s allegation that the “medical doctor” failed to provide Plaintiff with medical care 28 following an assault. While Plaintiff does not mention Defendant Ellred specifically in his 2 1 statement of the claim, Defendant Ellred is the only physician named in the lawsuit and, as such, 2 Plaintiff’s allegation is sufficient to put Defendant Ellred on fair notice of the claim. 3 The complaint, however, fails to state a cognizable claim against any other named 4 defendant. To state a claim under 42 U.S.C. § 1983, the plaintiff must allege an actual connection 5 or link between the actions of the named defendants and the alleged deprivations. See Monell v. 6 Dep’t of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). “A person 7 ‘subjects’ another to the deprivation of a constitutional right, within the meaning of § 1983, if he 8 does an affirmative act, participates in another's affirmative acts, or omits to perform an act which 9 he is legally required to do that causes the deprivation of which complaint is made.” Johnson v. 10 Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Vague and conclusory allegations concerning the 11 involvement of official personnel in civil rights violations are not sufficient. See Ivey v. Board of 12 Regents, 673 F.2d 266, 268 (9th Cir. 1982). Rather, the plaintiff must set forth specific facts as to 13 each individual defendant’s causal role in the alleged constitutional deprivation. See Leer v. 14 Murphy, 844 F.2d 628, 634 (9th Cir. 1988). Here, Plaintiff does not allege facts linking any of remaining the named defendants 15 16 to a violation of Plaintiff’s constitutional rights. Plaintiff only generally mentions “Correctional 17 Officers,” see ECF No. 1, pg. 5, but does not name them or explain what each did or did not do 18 which caused a violation of Plaintiff’s rights. Plaintiff will be provided an opportunity to amend 19 the complaint to allege facts specific to the named defendants. Because it is possible that the deficiencies identified in this order may be cured by 20 21 amending the complaint, Plaintiff is entitled to leave to amend. See Lopez v. Smith, 203 F.3d 22 1122, 1126, 1131 (9th Cir. 2000) (en banc). Plaintiff is informed that, as a general rule, an 23 amended complaint supersedes the original complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 24 1262 (9th Cir. 1992). Therefore, if Plaintiff amends the complaint, the Court cannot refer to the 25 prior pleading in order to make Plaintiff's amended complaint complete. See Local Rule 220. An 26 amended complaint must be complete in itself without reference to any prior pleading. See id. 27 /// 28 /// 3 1 If Plaintiff chooses to amend the complaint, Plaintiff must demonstrate how the 2 conditions complained of have resulted in a deprivation of Plaintiff’s constitutional rights. See 3 Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms how 4 each named defendant is involved and must set forth some affirmative link or connection between 5 each defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d 164, 167 6 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 7 Because the complaint appears to otherwise state a cognizable claim against 8 Defendant Ellred, if no amended complaint is filed within the time allowed therefor, the Court 9 will issue findings and recommendations that the claims identified herein as defective be 10 dismissed, as well as such further orders as are necessary for service of process as to the 11 cognizable claim. 12 13 Accordingly, IT IS HEREBY ORDERED that Plaintiff may file a first amended complaint within 30 days of the date of service of this order. 14 15 Dated: June 5, 2024 ____________________________________ DENNIS M. COTA UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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