Debbs v. Valley Convalscent Hospital

Opinion

1 2 3 4

8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

11 EURAL DEBBS, SR., Case No. 1:22-cv-00248-AWI-BAK

12 Plaintiff, ORDER DISCHARGING ORDER TO

13 v. SHOW CAUSE

14 VALLEY CONVALESCENT HOSPITAL, et (ECF No. 7) al., 15 ORDER VACATING MARCH 21, 2022 Defendants. 16 SCREENING ORDER

17 (ECF No. 6)

18 SCREENING ORDER 19 ORDER FOR PLAINTIFF TO: 20 (1) FILE A SECOND AMENDED 21 COMPLAINT; OR 22 (2) NOTIFY THE COURT THAT HE WISHES TO STAND ON HIS FIRST 23 AMENDED COMPLAINT 24 (ECF No. 6) 25 THIRTY-DAY DEADLINE 26 Plaintiff Eural Debbs, Sr. (“Plaintiff”) is proceeding pro se and in forma pauperis in this 27 action. Plaintiff filed the complaint commencing this action on February 28, 2022. (ECF No. 28 1.) Plaintiff filed a First Amended Complaint (“FAC”) on March 4, 2022. (ECF No. 4.) 1 On March 21, 2022, the Court screened Plaintiff’s FAC and found that it failed to state 2 any cognizable claims. (ECF No. 7.) The Court gave Plaintiff thirty days to either: “File a 3 Second Amended Complaint; or b. Notify the Court in writing that he wants to stand on his 4 First Amended Complaint.” (Id. at 9.) 5 More than thirty days elapsed and Plaintiff did not file a Second Amended Complaint or 6 otherwise respond to the screening order. Accordingly, on May 12, 2022, the Court issued an 7 order requiring Plaintiff to show cause why this action should not be dismissed. (ECF No. 7.) 8 Plaintiff was directed to file either a written response, a Second Amended Complaint, or a 9 notice that he wants to stand on his FAC within twenty-one days of service of the order. (Id.) 10 On June 3, 2022, Plaintiff filed a notice that he wants to stand on the FAC. (ECF No. 8.) 11 In light of Plaintiff’s response, the Court will discharge the order to show cause. The 12 Court will also vacate the March 21, 2022 screening order and conduct another screening of the 13 FAC.1 14 As set forth further below, the Court finds that the Complaint fails to state any 15 cognizable claims. After Plaintiff reviews this order, Plaintiff can decide to file an amended 16 complaint, which the Court will screen in due course. Plaintiff can also notify the Court that he 17 wants to stand on his complaint, in which case this Court will issue findings and 18 recommendations to the district judge assigned to the case recommending that Plaintiff’s 19 complaint be dismissed for the reasons in this order. If Plaintiff does not file anything, the 20 Court will recommend that the case be dismissed. 21 I. SCREENING REQUIREMENT 22 As Plaintiff is proceeding in forma pauperis, the Court screens this complaint under 28 23 U.S.C. § 1915. “Notwithstanding any filing fee, or any portion thereof, that may have been 24 paid, the court shall dismiss the case at any time if the court determines that the action or 25 appeal fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 26 /// 27 28 1 Upon review, the Court identified errors in the applicable legal standards cited in its previous screening order. This order corrects those errors and supersedes the Court’s March 21, 2022 screening order. 1 A complaint is required to contain “a short and plain statement of the claim showing 2 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 3 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 4 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 5 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient 6 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. 7 (quoting Twombly, 550 U.S. at 570). The mere possibility of misconduct falls short of meeting 8 this plausibility standard. Id. at 679. While a plaintiff’s allegations are taken as true, courts “are 9 not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 10 681 (9th Cir. 2009) (citation and quotation marks omitted). Additionally, a plaintiff’s legal 11 conclusions are not accepted as true. Iqbal, 556 U.S. at 678. 12 Pleadings of pro se plaintiffs “must be held to less stringent standards than formal 13 pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding that 14 pro se complaints should continue to be liberally construed after Iqbal). 15 II. SUMMARY OF THE FIRST AMENDED COMPLAINT 16 The FAC alleges that Defendants Valley Convalescent Hospital, Dr. Patel, Julia 17 Bulosan, “Proserpina, doe,” and “Alexandria, Doe” (“Defendants”) violated Plaintiff’s 18 “federally protected constitutional rights.” (ECF No. 4 at 1.) Defendants Valley Convalescent 19 Hospital and Julia Bulosan are liable under a theory of respondeat superior. (Id.) Dr. Patel was 20 deliberately indifferent to Plaintiff’s serious medical needs between December 2021 and March 21 2, 2022, when Plaintiff received no treatment for “(a.) diagnosed eye diseases (B.) undiagnosed 22 skin problems (c.) sciatica (D.) undiagnosed feet problems.” (Id. at 2.) Dr. Patel committed 23 negligence and medical malpractice. (Id.) Additionally, “Julia Bulosan is guilty of all the same 24 charges” as Dr. Patel. (Id.) Nurse Doe Alexandria and Nurse Doe Proserpina committed 25 negligence and professional malpractice. (Id.) 26 Plaintiff alleges that Valley Convalescent Hospital is a corporation licensed in 27 California and doing business in Bakersfield, California. (ECF No. 4 at 2.) Dr. Patel is a 28 licensed medical doctor doing business in Bakersfield, California, and Julia Bulosan is the 1 Director of Nursing and Valley Convalescent Hospital. (Id.) Proserpina Doe and Alexandria 2 Doe are also employees of Valley Convalescent Hospital. (Id. at 3.) Each of the Defendants 3 played a role in the deprivations of Plaintiff’s protected constitutional rights and are liable 4 under either respondeat superior or negligence and medical malpractice. (Id.) Plaintiff requests 5 an award of compensatory damages from each Defendant, injunctive relief, and that the Court 6 order a biopsy be conducted on his legs. (Id. at 3-4.) 7 III. ANALYSIS 8 A. Pleading Standards 9 As set forth above, Federal Rule of Civil Procedure 8(a) (“Rule 8(a)”) requires a 10 complaint to contain “a short and plain statement of the claim showing that the pleader is 11 entitled to relief.” Fed. R. Civ. P. 8(a)(2). Although a complaint is not required to include 12 detailed factual allegations, it must set forth “sufficient factual matter, accepted as true, to ‘state 13 a claim to relief that is plausible on its face.’ ” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 14 U.S. at 570). It must also contain “sufficient allegations of underlying facts to give fair notice 15 and to enable the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 16 1216 (9th Cir. 2011). Moreover, Plaintiff must demonstrate that each named defendant 17 personally participated in the deprivation of his rights. Iqbal, 556 U.S. at 676-77. 18 A court may dismiss a complaint for failure to comply with Rule 8(a) if it is “verbose, 19 confusing and conclusory.” Nevijel v. N. Coast Life Ins. Co., 651 F.2d 671, 674 (9th Cir. 1981); 20 Brosnahan v. Caliber Home Loans, Inc., 765 F. App’x 173, 174 (9th Cir. 2019). Additionally, a 21 court may dismiss a complaint for failure to comply with Rule 8(a) if it is “argumentative, 22 prolix, replete with redundancy, and largely irrelevant.” McHenry v. Renne, 84 F.3d 1172, 1177 23 (9th Cir. 1996). 24 Plaintiff’s complaint violates Rule 8(a). Although the FAC is short, it is not a plain 25 statement of Plaintiff’s claims. The FAC is conclusory and does not describe the facts 26 underlying each claim against each of the Defendants. For example, Plaintiff alleges that the 27 Defendants were deliberately indifferent and/or engaged in negligence and medical 28 malpractice, but does not include virtually any factual allegations regarding these claims. 1 Additionally, it is not clear what claims Plaintiff is attempting to bring as he lists multiple legal 2 theories in a single paragraph. Pinzon v. Jensen, 2009 WL 231164, at *2 (E.D. Cal., Jan. 30, 3 2009) (“Although Plaintiff attempts to allege many causes of action and provides a description 4 of his alleged experiences, his narrative-style complaint is insufficient to state legally 5 cognizable causes of action. It is Plaintiff's burden, not that of the court, to separately identify 6 claims and state facts in support of each claim.”); Saunders v. Saunders, 2009 WL 382922, at 7 *2 (E.D. Cal., Feb. 13, 2009) (“A complaint having the factual elements of a cause of action 8 scattered throughout the complaint and not organized into a ‘short and plain statement of the 9 claim’ may be dismissed for failure to satisfy Rule 8(a).”). 10 The allegations in the FAC are confusing and unclear, making it difficult for the Court 11 to determine what, if any, cognizable claims are included in the FAC. Although the Federal 12 Rules employ a flexible pleading policy, Plaintiff must give fair notice to the defendants and 13 must allege facts that support the elements of the claim plainly and succinctly. 14 Accordingly, Plaintiff’s complaint fails to comply with Rule 8(a). If Plaintiff chooses 15 to amend his complaint, he must demonstrate that each named defendant personally 16 participated in the deprivation of his rights with allegations that are not conclusory. He should 17 also list each claim that she is bringing, along with the facts supporting each claim. 18 B. Legal Standards 19 1. Federal Subject Matter Jurisdiction 20 Federal courts are courts of limited jurisdiction and their power to adjudicate is limited 21 to that granted by Congress. U.S. v. Sumner, 226 F.3d 1005, 1009 (9th Cir. 2000). Federal 22 courts are presumptively without jurisdiction over civil actions, and the burden to establish the 23 contrary rests upon the party asserting jurisdiction. Kokkonen v. Guardian Life Ins. Co., 511 24 U.S. 375, 377 (1994). Generally, there are two bases for subject matter jurisdiction: 1) diversity 25 jurisdiction; and 2) federal question jurisdiction. 28 U.S.C. §§ 1331, 1332. 26 Pursuant to 28 U.S.C. § 1332, federal district courts have diversity jurisdiction over 27 civil actions “where the matter in controversy exceeds the sum or value of $75,000,” and where 28 the matter is between “citizens of different states.” 28 U.S.C. § 1332(a)(1). 1 Pursuant to 28 U.S.C. § 1331, federal district courts have federal question jurisdiction 2 over “all civil actions arising under the Constitution, laws, or treaties of the United States.” “A 3 case ‘arises under’ federal law either where federal law creates the cause of action or ‘where 4 the vindication of a right under state law necessarily turn[s] on some construction of federal 5 law.” Republican Party of Guam v. Gutierrez, 277 F.3d 1086, 1088–89 (9th Cir. 2002) (quoting 6 Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 8–9 (1983)). The 7 presence or absence of federal question jurisdiction is governed by the “well-pleaded complaint 8 rule.” Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). Under this rule, “federal 9 jurisdiction exists only when a federal question is presented on the face of the plaintiff's 10 properly pleaded complaint.” Id. 11 The FAC does not describe the basis for the Court’s jurisdiction in this action. As to 12 federal question jurisdiction, the FAC appears to primarily allege state law claims for 13 negligence and professional or medical malpractice. (See ECF No. 4 at 1-2.) Although the FAC 14 makes one reference to Defendants violating Plaintiff’s constitutional rights and another 15 reference to Dr. Patel being deliberately indifferent, these statements are interspersed with 16 Plaintiff’s other claims and the FAC does not set forth a separate claim on this theory. The FAC 17 also does not identify any federal constitutional rights or statutes that Plaintiff believes were 18 violated. It is not clear if these references are intended to allege a separate claim against the 19 named defendants or what the basis of those claims may be. As to diversity jurisdiction, 20 Plaintiff alleges that he and all defendants reside in California. Therefore, there is no diversity 21 of citizenship. If Plaintiff elects to amend his complaint, he must allege facts establishing the 22 existence of subject matter jurisdiction to proceed in federal court. 23 2. Section 1983 24 It is not clear if the FAC is attempting to bring a claim for violation of 42 U.S.C. § 25 1983. However, the FAC alleges that Defendants violated Plaintiff’s federal constitutional 26 rights. (See ECF No. 4 at 1.) Thus, in an abundance of caution, the Court will analyze whether 27 the FAC states such a claim. 28 The Civil Rights Act provides: Every person who, under color of any statute, ordinance, regulation, custom, or 1 usage, of any State or Territory or the District of Columbia, subjects, or causes to 2 be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities 3 secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.... 4 5 42 U.S.C. § 1983. “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely 6 provides ‘a method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 7 490 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see 8 also Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los 9 Angeles, 697 F.3d 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 10 2012); Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). 11 To state a claim under § 1983, a plaintiff must allege that (1) the defendant acted under 12 color of state law, and (2) the defendant deprived him of rights secured by the Constitution or 13 federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); see also 14 Marsh v. Cnty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing “under color of 15 state law”). A person deprives another of a constitutional right, “within the meaning of § 1983, 16 ‘if he does an affirmative act, participates in another's affirmative act, or omits to perform an 17 act which he is legally required to do that causes the deprivation of which complaint is made.’” 18 Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007) (quoting 19 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite causal connection may be 20 established when an official sets in motion a ‘series of acts by others which the actor knows or 21 reasonably should know would cause others to inflict’ constitutional harms.” Preschooler II, 22 479 F.3d at 1183 (quoting Johnson, 588 F.2d at 743). This standard of causation “closely 23 resembles the standard ‘foreseeability’ formulation of proximate cause.” Arnold v. Int'l Bus. 24 Mach. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981); see also Harper v. City of Los Angeles, 533 25 F.3d 1010, 1026 (9th Cir. 2008). 26 A plaintiff must demonstrate that each named defendant personally participated in the 27 deprivation of his rights. Iqbal, 556 U.S. at 676-77. In other words, there must be an actual 28 connection or link between the actions of the defendants and the deprivation alleged to have 1 been suffered by Plaintiff. See Monell v. Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658, 691, 2 695 (1978). 3 Supervisory personnel are generally not liable under § 1983 for the actions of their 4 employees under a theory of respondeat superior and, therefore, when a named defendant 5 holds a supervisory position, the causal link between him and the claimed constitutional 6 violation must be specifically alleged. Iqbal, 556 U.S. at 676-77; Fayle v. Stapley, 607 F.2d 7 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). To state a 8 claim for relief under § 1983 based on a theory of supervisory liability, a plaintiff must allege 9 some facts that would support a claim that the supervisory defendants either personally 10 participated in the alleged deprivation of constitutional rights; knew of the violations and failed 11 to act to prevent them; or promulgated or “implement[ed] a policy so deficient that the policy 12 itself is a repudiation of constitutional rights' and is ‘the moving force of the constitutional 13 violation.” Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989) (citations and internal quotation 14 marks omitted); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). For instance, a supervisor 15 may be liable for his “own culpable action or inaction in the training, supervision, or control of 16 his subordinates,” “his acquiescence in the constitutional deprivations of which the complaint is 17 made,” or “conduct that showed a reckless or callous indifference to the rights of others.” Larez 18 v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991) (internal citations, quotation marks, 19 and alterations omitted). 20 a. State Actor Requirement 21 Section 1983 imposes civil liability on an individual who “under color [of state law] . . . 22 subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any 23 rights, privileges or immunities secured by the Constitution and laws.” 42 U.S.C. § 1983. 24 Private parties are not generally acting under color of state law for the purposes 25 of § 1983. Price v. Hawaii, 939 F.2d 702, 707–08 (9th Cir. 1991) (“Careful adherence to the 26 ‘state action’ requirement preserves an area of individual freedom by limiting the reach of 27 federal law and federal judicial power. It also avoids imposing on the State, its agencies or 28 officials, responsibility for conduct for which they cannot fairly be blamed”). 1 Nevertheless, in some circumstances, the actions of a private actor may render them 2 liable under § 1983. Under the “public function test,” private individuals or entities may be 3 deemed state actors for purposes of § 1983 when they perform a public function that has been 4 “traditionally the exclusive prerogative of the State.” Rendell–Baker v. Kohn, 457 U.S. 830, 5 842 (1982) (citations and quotation marks omitted; emphasis in original). “That a private entity 6 performs a function which serves the public does not make its acts state action.” Id. 7 Under the joint action test, a private individual may be liable as a state actor under § 8 1983 if he or she was part of a conspiracy or was a “willful participant in [other] joint action” 9 with a state actor that caused the constitutional violation. Franklin v. Fox, 312 F.3d 423, 445 10 (9th Cir. 2002). “To prove a conspiracy between private parties and the government 11 under § 1983, an agreement or ‘meeting of the minds’ to violate constitutional rights must be 12 shown.” Fonda v. Gray, 707 F.2d 435, 438 (9th Cir. 1983). “To be liable as a co-conspirator, a 13 private defendant must share with the public entity the goal of violating a plaintiff’s 14 constitutional rights.” Franklin, 312 312 F.3d at 445. “The Ninth Circuit requires a ‘substantial 15 degree of cooperation’ between the government and a private citizen before finding such a 16 conspiracy.” Annan-Yartey v. Honolulu Police Dep’t, 475 F.Supp.2d 1041, 1046 (D. Haw. 17 2007 )(quoting Franklin, 312 F.3d at 445). 18 Plaintiff alleges that Valley Convalescent Hospital is a corporation, Dr. Patel is a 19 licensed medical doctor, and the remaining defendants are employees of Valley Convalescent 20 Hospital. Plaintiff does not allege that Defendants are state actors and the FAC does not set 21 forth any facts indicating that Defendants were acting jointly with the government. If Plaintiff 22 amends his complaint, any claim pursuant to § 1983 should allege facts establishing whether 23 each defendant is a state or private actor and whether any private actors’ conduct is fairly 24 attributable to the government.2 25 26 2 Even if Plaintiff had alleged that Valley Convalescent Hospital was a governmental entity, the Court notes that a governmental entity may be held liable under § 1983 only where a policy, practice, or custom of the entity can be 27 shown to be a moving force behind a violation of constitutional rights. Id. (“Instead, it is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said 28 to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.”). To state a claim for governmental entity liability under § 1983, a plaintiff must allege facts demonstrating “(1) that 1 b. Supervisor Liability 2 As noted above, supervisory personnel are generally not liable under § 1983 for the 3 actions of their employees under a theory of respondeat superior and, therefore, when a named 4 defendant holds a supervisory position, the causal link between him and the claimed 5 constitutional violation must be specifically alleged. Iqbal, 556 U.S. at 676-77; Fayle, 607 F.2d 6 at 862; Mosher, 589 F.2d at 441. A plaintiff must allege some facts that would support a claim 7 that the supervisory defendants either personally participated in the alleged deprivation of 8 constitutional rights; knew of the violations and failed to act to prevent them; or promulgated or 9 “implement[ed] a policy so deficient that the policy itself is a repudiation of constitutional 10 rights’ and is ‘the moving force of the constitutional violation.” Hansen, 885 F.2d at 646 11 (citations and internal quotation marks omitted); Taylor, 880 F.2d at 1045. 12 The FAC alleges that Defendants Valley Convalescent Hospital and Julia Bulosan are 13 liable on a respondeat superior theory. The FAC does not allege that these defendants 14 personally participated in any alleged constitutional violations or implemented an 15 unconstitutional policy. While the FAC alleges that Julia Bulosan “is [guilty] of all the same 16 17 charges as defendant Dr. Patel,” this allegation is conclusory and not supported by any factual 18 detail. (See ECF No. 4.) To state a claim, a complaint must contain sufficient factual detail for 19 the Court to draw the reasonable conclusion that the defendant is liable for the misconduct 20 alleged. Iqbal, 556 U.S. at 678; Buckley v. Cty. of San Mateo, 2017 WL 3394747, at *2 (N.D. 21 Cal. Aug. 8, 2017) (“Supervisor defendants are entitled to qualified immunity where the 22 allegations against them are simply ‘bald’ or ‘conclusory’ because such allegations do not 23

24 [the plaintiff] possessed a constitutional right of which he was deprived; (2) that the municipality had a policy; (3) 25 that this policy amounts to deliberate indifference to the plaintiff’s constitutional right; and (4) that the policy is the moving force behind the constitutional violation.” Plumeau v. Sch. Dist. No. 40 Cnty. of Yamhill, 130 F.3d 432, 26 438 (9th Cir. 1997) (internal quotation marks and citation omitted; alterations in original). Here, Plaintiff has not alleged that any policy or custom of Valley Convalescent Hospital caused him injury. If Plaintiff chooses to file an 27 amended complaint and is claiming that a governmental entity has a policy or custom giving rise to liability under § 1983, he must include facts in his amended complaint showing that he was deprived of a constitutional right; that 28 the governmental entity has a policy; that this policy is deliberately indifferent to Plaintiff’s constitutional rights; and that the policy is the reason or “moving force” behind the violation of Plaintiff’s constitutional rights. 1 ‘plausibly’ establish the supervisors’ personal involvement in their subordinates’ constitutional 2 wrong.” (citing Iqbal, 556 U.S. at 675-84)); Sullivan v. Biter, 2017 WL 1540256, at *1 (E.D. 3 Cal. Apr. 28, 2017) (“Conclusory allegations that various . . . officials knew or should have 4 known about constitutional violations occurring against plaintiff simply because of their 5 general supervisory role are insufficient to state a claim under 42 U.S.C. § 1983.”). 6 If Plaintiff amends his complaint, he should describe what each specific defendant did 7 to deprive him of his constitutional rights or how they implemented an unconstitutional policy. 8 3. State Law Claims 9 California’s Government Claims Act3 requires that a claim against the State4 or its 10 employees “relating to a cause of action for death or for injury to person” be presented to the 11 Department of General Services’ Government Claims Program no more than six months after 12 the cause of action accrues. Cal. Gov’t Code §§ 905.2, 910, 911.2, 945.4, 950- 13 950.2. Presentation of a written claim, and action on or rejection of the claim, are conditions 14 precedent to suit. State v. Superior Court of Kings County (Bodde), 32 Cal.4th 1234, 1245 15 (Cal. 2004); Mangold v. California Pub. Utils. Comm’n, 67 F.3d 1470, 1477 (9th Cir. 16 1995). To state a tort claim against a public entity or employee, a plaintiff must allege 17 compliance with the Government Claims Act. Bodde, 32 Cal.4th at 1245; Mangold, 67 F.3d at 18 1477; Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 627 (9th Cir. 1988). 19 Here, Plaintiff is asserting state law claims for negligence and medical or professional 20 malpractice and is seeking to recover money damages. Although the FAC’s allegations are 21 unclear as discussed above, to the extent Defendants are public entities or employees, Plaintiff 22 has not alleged facts demonstrating that he complied with, or excusing his compliance with, the 23 Government Claims Act claims presentation requirement for his state law claims. If Plaintiff 24 25

26 3 This Act was formerly known as the California Tort Claims Act. City of Stockton v. Superior Court, 42 Cal. 4th 27 730, 741-42 (Cal. 2007) (adopting the practice of using Government Claims Act rather than California Tort Claims Act). 28 4 “‘State’ means the State and any office, officer, department, division, bureau, board, commission or agency of the State claims against which are paid by warrants drawn by the Controller.” Cal. Gov’t Code § 900.6. 1 amends his complaint and wished to assert claims against a state entity, he should allege facts 2 demonstrating he complied with the Government Claims Act or was excused from compliance. 3 II. CONCLUSION AND ORDER 4 The Court has screened Plaintiff’s complaint and finds that it fails to state any 5 cognizable claim. 6 Under Rule 15(a)(2) of the Federal Rules of Civil Procedure, “the court should freely 7 give leave [to amend] when justice so requires.” Accordingly, the Court will provide Plaintiff 8 with time to file an amended complaint, so that Plaintiff can provide additional factual 9 allegations. Lopez v. Smith, 203 F.3d 1122, 1126-30 (9th Cir. 2000). Plaintiff is granted leave to 10 file an amended complaint within thirty days. 11 If Plaintiff chooses to amend his complaint, in his amended complaint he must state 12 what each named defendant did that led to the deprivation of his constitutional or other federal 13 rights. Fed. R. Civ. P. 8(a); Iqbal, 556 U.S. at 678; Jones v. Williams, 297 F.3d 930, 934 (9th 14 Cir. 2002). 15 Plaintiff should note that although he has been given the opportunity to amend, it is not 16 for the purpose of changing the nature of this suit or adding unrelated claims. George v. Smith, 17 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” complaints). 18 Plaintiff is advised that an amended complaint supersedes the original complaint, Lacey 19 v. Maricopa County, 693 F 3d. 896, 907 n.1 (9th Cir. 2012) (en banc), and it must be complete 20 in itself without reference to the prior or superseded pleading, Local Rule 220. Therefore, in an 21 amended complaint, as in an original complaint, each claim and the involvement of each 22 defendant must be sufficiently alleged. The amended complaint should be clearly and boldly 23 titled “Second Amended Complaint,” refer to the appropriate case number, and be an original 24 signed under penalty of perjury. 25 Plaintiff has a choice on how to proceed. Plaintiff may file an amended complaint if he 26 believes that additional true factual allegations would state cognizable claim(s). If Plaintiff files 27 an amended complaint, the Court will screen that complaint in due course. Alternatively, 28 Plaintiff may choose to stand on his complaint subject to the Court issuing findings and 1 || recommendations to a district judge consistent with this order. 2 Based on the foregoing, it is HEREBY ORDERED that: 3 1. The Court’s May 12, 2022 order to show cause (ECF No. 7) is DISCHARGED; 4 2. The Court’s May 21, 2022 screening order (ECF No. 6) is VACATED; 5 3. Within thirty (30) days from the date of service of this order, Plaintiff shall 6 either: 7 a. File a Second Amended Complaint; or 8 b. Notify the Court in writing that he wants to stand on this complaint; 9 4. If Plaintiff chooses to file an amended complaint, Plaintiff shall caption the 10 amended complaint “Second Amended Complaint” and refer to case number 11 1:22-cv-00248-AWI-EPG; and 12 5. Failure to comply with this order may result in the dismissal of this action. 13 14 IT IS SO ORDERED. Sl Dated: _ July 21, 2022 [Je hey — 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 13