1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DONALD FELIX, Case No.: 3:22-cv-0559-GPC-KSC CDCR #AS4135, 12 ORDER DISMISSING FIRST Plaintiff, 13 AMENDED COMPLAINT FOR vs. FAILURE TO STATE A CLAIM 14 PURSUANT TO 28 U.S.C.
15 § 1915(e)(2)(B)(ii) AND 28 U.S.C. DAVID CLAYTON, S. GATES, S. § 1915A(b)(1) 16 ROBERTS, R. BARENCHI, et al., 17 Defendants. [Doc. No. 4] 18 19 20 I. Procedural History 21 On April 20, 2022, Donald Felix (“Plaintiff” or “Felix”), currently incarcerated at 22 Richard J. Donovan Correctional Facility (“RJD”) and proceeding pro se, filed a civil 23 rights complaint pursuant to 42 U.S.C. § 1983. ECF No. 1. Plaintiff also filed a Motion to 24 Proceed In Forma Pauperis (“IFP”) under 28 U.S.C. § 1915(a). ECF No. 2. In his original 25 Complaint, Felix alleged Defendants violated his Eighth Amendment rights by delaying 26 and denying medical care. See ECF No. 1. 27 On July 28, 2022, the Court granted Felix’s Motion to Proceed in Forma Pauperis 28 (“IFP”) and dismissed his Complaint for failing to state a claim pursuant to 28 U.S.C. 1 §§ 1915(e) and 1915A. ECF No. 3. The Court gave Felix leave to file an amended 2 complaint and he did so on September 16, 2022. ECF No. 4. 3 II. Screening per 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) 4 A. Standard of Review 5 Plaintiff’s First Amended Complaint (“FAC”) requires a pre-answer screening 6 pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b). Under these statutes, the Court 7 must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, which is 8 frivolous, malicious, fails to state a claim, or seeks damages from defendants who are 9 immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) 10 (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 11 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that 12 the targets of frivolous or malicious suits need not bear the expense of responding.’” 13 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (citation omitted). 14 “The standard for determining whether [a] Plaintiff has failed to state a claim upon 15 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 16 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 17 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 18 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 19 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 20 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted 21 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 22 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 23 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 24 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 25 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for 26 relief [is] . . . a context-specific task that requires the reviewing court to draw on its 27 judicial experience and common sense.” Id. The “mere possibility of misconduct” or 28 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting 1 this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 2 (9th Cir. 2009). 3 B. Plaintiff’s Allegations 4 In his First Amended Complaint (“FAC”), Felix alleges he was denied adequate 5 medical care under the Eighth Amendment; but the FAC contains very few factual 6 allegations. Felix states that “Dr. Clayton failed to provide medical care and continuous 7 treatment, medical devices, [durable medical equipment] as needed and requested by the 8 plaintiff.” FAC at 3. He goes on to state that Clayton “failed to provide pain medication 9 strong enough to provide [Felix] with comfort during walking to and from work and 10 while sleeping.” Id. Felix contends Clayton “failed to prevent risk of further harm and 11 injury.” Id. Plaintiff also alleges “S. Roberts failed to provide trained medical staff to 12 assist [him] with his requested medical needs. . . and failed to supervise medical staff to 13 assure” his medical needs were met. Id. at 4. Finally, Felix contends S. Gates “failed to 14 investigate and ensure that [Felix’s] medical requests and care was provided by S. 15 Roberts. M. Glenn and David Clayton.” Id. at 5. 16 Plaintiff names Dr. D. Clayton, S. Gates, S. Roberts, R. Barenchi, Raymond 17 Madden, Dr. Shakiba and Does 1–20 as defendants. See id. at 1–2. Felix seeks money 18 damages and injunctive relief. Id. at 7. 19 C. 42 U.S.C. § 1983 20 “Section 1983 creates a private right of action against individuals who, acting 21 under color of state law, violate federal constitutional or statutory rights.” Devereaux v. 22 Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of 23 substantive rights, but merely provides a method for vindicating federal rights elsewhere 24 conferred.” Graham v. Connor, 490 U.S. 386, 393‒94 (1989) (internal quotation marks 25 and citations omitted). “To establish § 1983 liability, a plaintiff must show both (1) 26 deprivation of a right secured by the Constitution and laws of the United States, and (2) 27 that the deprivation was committed by a person acting under color of state law.” Tsao v. 28 Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). 1 D. Discussion 2 Felix alleges Defendants violated his Eighth Amendment right to adequate medical 3 care. FAC at 3–5. As discussed in this Court’s previous dismissal order, when a 4 prisoner’s constitutional claim is one for inadequate medical care, he must allege “acts or 5 omissions sufficiently harmful to evidence deliberate indifference to serious medical 6 needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976); Jett v. Penner, 439 F.3d 1091, 1096 7 (9th Cir. 2006). The plaintiff must first establish a “serious medical need by 8 demonstrating that [the] failure to treat [his] condition could result in further significant 9 injury or the unnecessary and wanton infliction of pain.” Jett, 439 F.3d at 1096 (citation 10 omitted).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DONALD FELIX, Case No.: 3:22-cv-0559-GPC-KSC CDCR #AS4135, 12 ORDER DISMISSING FIRST Plaintiff, 13 AMENDED COMPLAINT FOR vs. FAILURE TO STATE A CLAIM 14 PURSUANT TO 28 U.S.C.
15 § 1915(e)(2)(B)(ii) AND 28 U.S.C. DAVID CLAYTON, S. GATES, S. § 1915A(b)(1) 16 ROBERTS, R. BARENCHI, et al., 17 Defendants. [Doc. No. 4] 18 19 20 I. Procedural History 21 On April 20, 2022, Donald Felix (“Plaintiff” or “Felix”), currently incarcerated at 22 Richard J. Donovan Correctional Facility (“RJD”) and proceeding pro se, filed a civil 23 rights complaint pursuant to 42 U.S.C. § 1983. ECF No. 1. Plaintiff also filed a Motion to 24 Proceed In Forma Pauperis (“IFP”) under 28 U.S.C. § 1915(a). ECF No. 2. In his original 25 Complaint, Felix alleged Defendants violated his Eighth Amendment rights by delaying 26 and denying medical care. See ECF No. 1. 27 On July 28, 2022, the Court granted Felix’s Motion to Proceed in Forma Pauperis 28 (“IFP”) and dismissed his Complaint for failing to state a claim pursuant to 28 U.S.C. 1 §§ 1915(e) and 1915A. ECF No. 3. The Court gave Felix leave to file an amended 2 complaint and he did so on September 16, 2022. ECF No. 4. 3 II. Screening per 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) 4 A. Standard of Review 5 Plaintiff’s First Amended Complaint (“FAC”) requires a pre-answer screening 6 pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b). Under these statutes, the Court 7 must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, which is 8 frivolous, malicious, fails to state a claim, or seeks damages from defendants who are 9 immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) 10 (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 11 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that 12 the targets of frivolous or malicious suits need not bear the expense of responding.’” 13 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (citation omitted). 14 “The standard for determining whether [a] Plaintiff has failed to state a claim upon 15 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 16 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 17 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 18 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 19 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 20 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted 21 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 22 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 23 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 24 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 25 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for 26 relief [is] . . . a context-specific task that requires the reviewing court to draw on its 27 judicial experience and common sense.” Id. The “mere possibility of misconduct” or 28 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting 1 this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 2 (9th Cir. 2009). 3 B. Plaintiff’s Allegations 4 In his First Amended Complaint (“FAC”), Felix alleges he was denied adequate 5 medical care under the Eighth Amendment; but the FAC contains very few factual 6 allegations. Felix states that “Dr. Clayton failed to provide medical care and continuous 7 treatment, medical devices, [durable medical equipment] as needed and requested by the 8 plaintiff.” FAC at 3. He goes on to state that Clayton “failed to provide pain medication 9 strong enough to provide [Felix] with comfort during walking to and from work and 10 while sleeping.” Id. Felix contends Clayton “failed to prevent risk of further harm and 11 injury.” Id. Plaintiff also alleges “S. Roberts failed to provide trained medical staff to 12 assist [him] with his requested medical needs. . . and failed to supervise medical staff to 13 assure” his medical needs were met. Id. at 4. Finally, Felix contends S. Gates “failed to 14 investigate and ensure that [Felix’s] medical requests and care was provided by S. 15 Roberts. M. Glenn and David Clayton.” Id. at 5. 16 Plaintiff names Dr. D. Clayton, S. Gates, S. Roberts, R. Barenchi, Raymond 17 Madden, Dr. Shakiba and Does 1–20 as defendants. See id. at 1–2. Felix seeks money 18 damages and injunctive relief. Id. at 7. 19 C. 42 U.S.C. § 1983 20 “Section 1983 creates a private right of action against individuals who, acting 21 under color of state law, violate federal constitutional or statutory rights.” Devereaux v. 22 Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of 23 substantive rights, but merely provides a method for vindicating federal rights elsewhere 24 conferred.” Graham v. Connor, 490 U.S. 386, 393‒94 (1989) (internal quotation marks 25 and citations omitted). “To establish § 1983 liability, a plaintiff must show both (1) 26 deprivation of a right secured by the Constitution and laws of the United States, and (2) 27 that the deprivation was committed by a person acting under color of state law.” Tsao v. 28 Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). 1 D. Discussion 2 Felix alleges Defendants violated his Eighth Amendment right to adequate medical 3 care. FAC at 3–5. As discussed in this Court’s previous dismissal order, when a 4 prisoner’s constitutional claim is one for inadequate medical care, he must allege “acts or 5 omissions sufficiently harmful to evidence deliberate indifference to serious medical 6 needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976); Jett v. Penner, 439 F.3d 1091, 1096 7 (9th Cir. 2006). The plaintiff must first establish a “serious medical need by 8 demonstrating that [the] failure to treat [his] condition could result in further significant 9 injury or the unnecessary and wanton infliction of pain.” Jett, 439 F.3d at 1096 (citation 10 omitted). Next, Plaintiff must show that the defendant’s response to his objectively 11 serious medical need was deliberately indifferent. Id. To establish deliberate indifference, 12 a prisoner must allege facts to show: (1) a purposeful act or failure to respond to the 13 prisoner’s pain or possible medical need; and (2) harm caused by the indifference. Id. 14 “Under this standard, the prison official must not only ‘be aware of the facts from which 15 the inference could be drawn that a substantial risk of serious harm exists,’ but that 16 person ‘must also draw the inference.’” Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 17 (quoting Farmer v. Brennen, 511 U.S. 825, 837 (1994)). 18 Here, Plaintiff’s FAC is extremely vague and contains virtually no specific factual 19 allegations.1 Felix states only that Defendants have failed to meet his “requested medical 20 needs.” See FAC at 3. He fails however, to provide any facts regarding what that medical 21 need is. Because Felix cannot allege a “serious medical need” without specific facts 22 which could show a failure to treat it could lead to “injury or unnecessary and wanton 23 infliction of pain,” he has not alleged a necessary element of an Eighth Amendment claim 24 based on inadequate medical care. See Jett, 439 F.3d at 1096. 25
26 1 Plaintiff’s original Complaint contained some factual allegations regarding Felix’s medical condition 27 that are not re-alleged in the First Amended Complaint. As discussed in the Court’s previous Order, an amended complaint must be complete in itself, without reference to any prior pleading, because it 28 1 Moreover, Felix fails to allege specific facts to show Defendants were deliberately 2 indifferent to his unspecified medical needs. Indeed, he does not even reference Shakiba, 3 Madden, Barenchi, or any Doe Defendants in the body his FAC, much less provide 4 factual allegations to support an Eighth Amendment claim. See FAC at 3–5. Because 5 Plaintiff has failed to allege any facts as to Shakiba, Madden, Barenchi and Doe 6 Defendants, he has failed to state a claim as to those defendants. 7 As for the defendants who are referenced in the allegations contained in the FAC–– 8 Clayton, Roberts, and Gates––Plaintiff’s claims are conclusory allegations devoid of 9 supporting facts. For instance, Felix refers vaguely to Clayton’s alleged failure to provide 10 him with “medical devices” and “pain medication strong enough to provide . . . comfort 11 during walking,” FAC at 4, but he fails to allege any facts to support a showing of 12 deliberate indifference by Clayton. Id. Specifically, he does not allege Clayton was aware 13 of his medical needs, nor does Felix allege Clayton was “aware of the facts from which 14 the inference could be drawn that a substantial risk of serious harm exists,” or that 15 Clayton “dr[ew] the inference.” Estelle, 429 U.S. at 106; Jett, 439 F.3d at 1096. As such, 16 Felix has failed to state a claim against Clayton. 17 Plaintiff’s factual allegations against Roberts and Gates are even more sparse. As 18 to his claim against Roberts, Plaintiff states Roberts “failed to provide trained medical 19 staff to assist the plaintiff with his requested medical needs.” FAC at 4. He also states 20 Roberts failed to supervise the medical staff. Id. But there is no supervisory liability 21 under 42 U.S.C. § 1983. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) A supervisor 22 is only liable for the “constitutional violations of … subordinates if the supervisor 23 participated in or directed the violations, or knew of the violations and failed to act to 24 prevent them.” Id. (citations omitted); see also Iqbal, 556 U.S. at 676 (“Because vicarious 25 liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each 26 Government-official defendant, through the official’s own individual actions, has 27 violated the Constitution.”). Plaintiff must show “(1) [Roberts] personal involvement in 28 the constitutional deprivation, or (2) a sufficient causal connection between the [Roberts’] 1 wrongful conduct and the constitutional violation.” Rodriguez v. Cty. of Los Angeles, 891 2 F.3d 776, 798 (9th Cir. 2018) (quotation marks and citation omitted); King v. Cty. of Los 3 Angeles, 885 F.3d 548, 559 (9th Cir. 2018). Plaintiff has done neither here. He has failed 4 to allege any facts which show Roberts had personal involvement in his medical care or 5 that any causal connection existed between Roberts’ conduct and his alleged Eighth 6 Amendment violation. Therefore, Plaintiff has failed to state a claim against Roberts. 7 The same is true for Gates. The entirety of Plaintiff’s allegations against Gates are 8 that he “failed to investigate and ensure that the plaintiff’s medical request and care was 9 provided by S. Roberts, M. Glenn and David Clayton.” FAC at 5. Plaintiff has failed to 10 allege any facts to show Gates was personally involved in, or had any connection to, his 11 allegedly inadequate medical care. See id. Because there is no supervisory liability under 12 § 1983, he has failed to state a claim against Gates. Rodriguez, 891 F.3d at 798; King, 13 885 F.3d at 559. 14 For the above reasons, FAC must be dismissed as to all defendants for failing to 15 state a claim upon which § 1983 relief can be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii); 16 Watison, 668 F.3d 1108, 1112 (9th Cir. 2012). 17 III. Leave to Amend 18 In light of his pro se status, the Court GRANTS Plaintiff one final opportunity to 19 amend his Eighth Amendment claim. See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th 20 Cir. 2015) (“A district court should not dismiss a pro se complaint without leave to 21 amend [pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)] unless ‘it is absolutely clear that the 22 deficiencies of the complaint could not be cured by amendment.’”) (quoting Akhtar v. 23 Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012)). 24 IV. Conclusion and Order 25 For the above reasons, the Court DISMISSES Plaintiff’s First Amended 26 Complaint, pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b) and GRANTS him 27 thirty (30) days leave from the date of this Order to file a Second Amended Complaint 28 which cures all the deficiencies of pleading noted. Plaintiff’s Second Amended 1 || Complaint must be complete by itself without reference to his previous pleadings. 2 Defendants not named and any claim not re-alleged in his Second Amended Complaint 3 || will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard 4 || Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading 5 || supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) 6 || (noting that claims dismissed with leave to amend which are not re-alleged in an 7 amended pleading may be “considered waived if not repled.’’). 8 If Plaintiff fails to file a Second Amended Complaint within the time provided, the 9 || Court will enter a final Order dismissing this civil action based both on Plaintiff's failure 10 || to state a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B) 11 1915A(b), and his failure to prosecute in compliance with a court order requiring 12 |}amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (‘If a plaintiff 13 || does not take advantage of the opportunity to fix his complaint, a district court may 14 || convert the dismissal of the complaint into dismissal of the entire action.”’). 15 Finally, the Clerk of the Court is DIRECTED to provide Plaintiff with a blank 16 || court-approved form Second Amended Civil Rights Complaint pursuant to 42 U.S.C. 17 ||§ 1983 for his use and convenience. 18 IT IS SO ORDERED. 19 Dated: September 27, 2022 72 20 Hon. athe Cae 71 United States District Judge 22 23 24 25 26 27 28 7