1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ALVIN LEE HARVEY, No. 2:20-cv-203-EFB P 12 Plaintiff, 13 v. ORDER 14 NICOLAS AGUILERA, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding without counsel in this action brought pursuant to 42 18 U.S.C. § 1983, seeks leave to proceed in forma pauperis. ECF No. 2. 19 Application to Proceed In Forma Pauperis 20 Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1). 21 Accordingly, his request to proceed in forma pauperis is granted. 22 Screening 23 I. Legal Standards 24 Pursuant to § 1915(e)(2), the court must dismiss the case at any time if it determines the 25 allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on 26 which relief may be granted, or seeks monetary relief against an immune defendant. 27 Although pro se pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519, 28 520-21 (1972), a complaint, or portion thereof, should be dismissed for failure to state a claim if it 1 fails to set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. 2 Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 3 (1957)); see also Fed. R. Civ. P. 12(b)(6). “[A] plaintiff's obligation to provide the ‘grounds’ of 4 his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of 5 a cause of action's elements will not do. Factual allegations must be enough to raise a right to 6 relief above the speculative level on the assumption that all of the complaint's allegations are 7 true.” Id. (citations omitted). Dismissal is appropriate based either on the lack of cognizable 8 legal theories or the lack of pleading sufficient facts to support cognizable legal theories. 9 Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). 10 In reviewing a complaint under this standard, the court must accept as true the allegations 11 of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 12 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in 13 the plaintiff's favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must 14 satisfy the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 15 8(a)(2) “requires a complaint to include a short and plain statement of the claim showing that the 16 pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the 17 grounds upon which it rests.” Twombly, 550 U.S. at 562-563 (2007). 18 II. Analysis 19 A. Background 20 Plaintiff alleges that, in April of 2017 and while incarcerated at the California Medical 21 Facility (“CMF”), he injured his left ankle while playing basketball. ECF No. 1 at 11. Medical 22 staff examined him and provided him with a cast and x-rays. Id. The x-rays were negative and 23 led staff to conclude that he had only suffered a sprain. Id. 24 Plaintiff continued to experience swelling and pain, however, and on May 12, 2017 25 defendant Aguilera – a physician at CMF – prescribed a wheelchair and physical therapy. Id. at 26 12. Three days later, on May 15, 2017, defendant Chiu – a nurse at CMF – re-examined the ankle 27 and made note of plaintiff’s high level of pain. Id. A month later, on June 15, 2017, defendant 28 Aguilera noted that plaintiff had been made to wait twenty-three days for the ordered physical 1 therapy. Id. At the same visit, plaintiff explained that he was still experiencing pain. Id. He 2 asserts that Aguilera prescribed him with “T3” for his pain. Id. at 13. Plaintiff alleges that this 3 medication was ineffective in alleviating his pain. Id. 4 Plaintiff states that he began receiving physical therapy on June 28, 2017. Id. He saw 5 defendant Chiu the next day, June 29, and she noted that he was still experiencing pain. Id. 6 Plaintiff takes issue with Chiu’s refusal to schedule a “PCP” appointment that same day. Id. 7 Instead, she scheduled him for a “routine” appointment. Id. He went on to receive more 8 physical therapy on June 30, 2017 and July 5, 2017. Id. Plaintiff alleges that the physical therapy 9 did not alleviate his ankle pain, however. Id. 10 On August 3, 2017, defendant Aguilera order plaintiff an ankle support. Id. at 14. Later, 11 in October of 2017, a different, non-defendant provider noted an injury to plaintiff’s Achilles 12 tendon. Id. Thereafter, plaintiff filed a grievance, which was received by prison officials on 13 November 28, 2017, alleging that his healthcare had been inadequate. Id. He claims that 14 defendants scheduled him for surgery on some unspecified date thereafter. Id. His surgery was 15 ultimately performed on December 22, 2017. Id. at 15. 16 Now, plaintiff is suing Aguilera, Chiu, and “1-50” Doe defendants for exhibiting 17 deliberate indifference toward his serious medical needs. 18 B. Analysis 19 The complaint, as currently articulated, fails to state a cognizable deliberate indifference 20 claim. To succeed on an Eighth Amendment claim predicated on allegedly deficient medical 21 care, a plaintiff must establish that: (1) he had a serious medical need and (2) the defendant's 22 response to that need was deliberately indifferent. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 23 2006); see also Estelle v. Gamble, 429 U.S. 97, 106 (1976). A serious medical need exists if the 24 failure to treat the condition could result in further significant injury or the unnecessary and 25 wanton infliction of pain. Jett, 439 F.3d at 1096. A deliberately indifferent response may be 26 shown by the denial, delay or intentional interference with medical treatment or by the way in 27 which medical care was provided. Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 28 1988). To act with deliberate indifference, a prison official must both be aware of facts from 1 which the inference could be drawn that a substantial risk of serious harm exists, and he must also 2 draw the inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). It must be emphasized that 3 mere negligence or simple medical malpractice are not sufficient to violate the Eighth 4 Amendment. See Estelle, 429 U.S. at 106 (“Thus, a complaint that a physician has been negligent 5 in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment 6 under the Eighth Amendment. Medical malpractice does not become a constitutional violation 7 merely because the victim is a prisoner.”).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ALVIN LEE HARVEY, No. 2:20-cv-203-EFB P 12 Plaintiff, 13 v. ORDER 14 NICOLAS AGUILERA, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding without counsel in this action brought pursuant to 42 18 U.S.C. § 1983, seeks leave to proceed in forma pauperis. ECF No. 2. 19 Application to Proceed In Forma Pauperis 20 Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1). 21 Accordingly, his request to proceed in forma pauperis is granted. 22 Screening 23 I. Legal Standards 24 Pursuant to § 1915(e)(2), the court must dismiss the case at any time if it determines the 25 allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on 26 which relief may be granted, or seeks monetary relief against an immune defendant. 27 Although pro se pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519, 28 520-21 (1972), a complaint, or portion thereof, should be dismissed for failure to state a claim if it 1 fails to set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. 2 Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 3 (1957)); see also Fed. R. Civ. P. 12(b)(6). “[A] plaintiff's obligation to provide the ‘grounds’ of 4 his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of 5 a cause of action's elements will not do. Factual allegations must be enough to raise a right to 6 relief above the speculative level on the assumption that all of the complaint's allegations are 7 true.” Id. (citations omitted). Dismissal is appropriate based either on the lack of cognizable 8 legal theories or the lack of pleading sufficient facts to support cognizable legal theories. 9 Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). 10 In reviewing a complaint under this standard, the court must accept as true the allegations 11 of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 12 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in 13 the plaintiff's favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must 14 satisfy the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 15 8(a)(2) “requires a complaint to include a short and plain statement of the claim showing that the 16 pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the 17 grounds upon which it rests.” Twombly, 550 U.S. at 562-563 (2007). 18 II. Analysis 19 A. Background 20 Plaintiff alleges that, in April of 2017 and while incarcerated at the California Medical 21 Facility (“CMF”), he injured his left ankle while playing basketball. ECF No. 1 at 11. Medical 22 staff examined him and provided him with a cast and x-rays. Id. The x-rays were negative and 23 led staff to conclude that he had only suffered a sprain. Id. 24 Plaintiff continued to experience swelling and pain, however, and on May 12, 2017 25 defendant Aguilera – a physician at CMF – prescribed a wheelchair and physical therapy. Id. at 26 12. Three days later, on May 15, 2017, defendant Chiu – a nurse at CMF – re-examined the ankle 27 and made note of plaintiff’s high level of pain. Id. A month later, on June 15, 2017, defendant 28 Aguilera noted that plaintiff had been made to wait twenty-three days for the ordered physical 1 therapy. Id. At the same visit, plaintiff explained that he was still experiencing pain. Id. He 2 asserts that Aguilera prescribed him with “T3” for his pain. Id. at 13. Plaintiff alleges that this 3 medication was ineffective in alleviating his pain. Id. 4 Plaintiff states that he began receiving physical therapy on June 28, 2017. Id. He saw 5 defendant Chiu the next day, June 29, and she noted that he was still experiencing pain. Id. 6 Plaintiff takes issue with Chiu’s refusal to schedule a “PCP” appointment that same day. Id. 7 Instead, she scheduled him for a “routine” appointment. Id. He went on to receive more 8 physical therapy on June 30, 2017 and July 5, 2017. Id. Plaintiff alleges that the physical therapy 9 did not alleviate his ankle pain, however. Id. 10 On August 3, 2017, defendant Aguilera order plaintiff an ankle support. Id. at 14. Later, 11 in October of 2017, a different, non-defendant provider noted an injury to plaintiff’s Achilles 12 tendon. Id. Thereafter, plaintiff filed a grievance, which was received by prison officials on 13 November 28, 2017, alleging that his healthcare had been inadequate. Id. He claims that 14 defendants scheduled him for surgery on some unspecified date thereafter. Id. His surgery was 15 ultimately performed on December 22, 2017. Id. at 15. 16 Now, plaintiff is suing Aguilera, Chiu, and “1-50” Doe defendants for exhibiting 17 deliberate indifference toward his serious medical needs. 18 B. Analysis 19 The complaint, as currently articulated, fails to state a cognizable deliberate indifference 20 claim. To succeed on an Eighth Amendment claim predicated on allegedly deficient medical 21 care, a plaintiff must establish that: (1) he had a serious medical need and (2) the defendant's 22 response to that need was deliberately indifferent. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 23 2006); see also Estelle v. Gamble, 429 U.S. 97, 106 (1976). A serious medical need exists if the 24 failure to treat the condition could result in further significant injury or the unnecessary and 25 wanton infliction of pain. Jett, 439 F.3d at 1096. A deliberately indifferent response may be 26 shown by the denial, delay or intentional interference with medical treatment or by the way in 27 which medical care was provided. Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 28 1988). To act with deliberate indifference, a prison official must both be aware of facts from 1 which the inference could be drawn that a substantial risk of serious harm exists, and he must also 2 draw the inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). It must be emphasized that 3 mere negligence or simple medical malpractice are not sufficient to violate the Eighth 4 Amendment. See Estelle, 429 U.S. at 106 (“Thus, a complaint that a physician has been negligent 5 in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment 6 under the Eighth Amendment. Medical malpractice does not become a constitutional violation 7 merely because the victim is a prisoner.”). 8 Nothing in the complaint indicates that either Aguilera or Chiu, to say nothing of the Doe 9 defendants whose involvement cannot be ascertained, was more than negligent (if, indeed, they 10 were even negligent). The allegations indicate that they provided care based on a belief – 11 apparently mistaken – that plaintiff was dealing with a badly sprained ankle. Nothing in the 12 complaint leads the reader to conclude that either drew the inference that plaintiff had serious 13 medical needs which their treatment could not redress. Even plaintiff’s claim that Chiu delayed 14 in prescribing a “PCP” appointment fails to indicate either: (1) an awareness on Chiu’s part that 15 failure to schedule an immediate appointment was a substantial risk of serious harm to plaintiff’s 16 health; or (2) that plaintiff suffered any concrete injury therefrom. 17 Plaintiff’s complaint will be dismissed with leave to amend. 18 III. Leave to Amend 19 Plaintiff is cautioned that any amended complaint must identify as a defendant only 20 persons who personally participated in a substantial way in depriving him of his constitutional 21 rights. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the 22 deprivation of a constitutional right if he does an act, participates in another’s act or omits to 23 perform an act he is legally required to do that causes the alleged deprivation). Plaintiff may also 24 include any allegations based on state law that are so closely related to his federal allegations that 25 “they form the same case or controversy.” See 28 U.S.C. § 1367(a). 26 The amended complaint must also contain a caption including the names of all defendants. 27 Fed. R. Civ. P. 10(a). 28 ///// wOAOe 2 OU UVM EVO ET BP UETOTIL Sr TOR eee vw VIS
1 Plaintiff may not change the nature of this suit by alleging new, unrelated claims. See 2 || George v. Smith, 507 F.3d 605 at 607. 3 Any amended complaint must be written or typed so that it so that it is complete in itself 4 || without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended 5 || complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the 6 || earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114 7 | F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter 8 || being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 9 | 1967)). 10 Any amended complaint should be as concise as possible in fulfilling the above 11 || requirements. Fed. R. Civ. P. 8(a). Plaintiff should avoid the inclusion of procedural or factual 12 || background which has no bearing on his legal claims. He should also take pains to ensure that his 13 || amended complaint is as legible as possible. This refers not only to penmanship, but also spacing 14 | and organization. Plaintiff should carefully consider whether each of the defendants he names 15 || actually had involvement in the constitutional violations he alleges. A “scattershot” approach in 16 || which plaintiff names dozens of defendants will not be looked upon favorably by the court. 17 Conclusion 18 Accordingly, it is ORDERED that 19 1. Plaintiff’s application to proceed in forma pauperis (ECF No. 2) is GRANTED; 20 2. Plaintiffs complaint (ECF No. 1) is dismissed with leave to amend within 30 days 21 || from the date of service of this order; and 22 3. Failure to file an amended complaint that complies with this order may result in 23 || the dismissal of this action for the reasons stated herein. 24 || DATED: April 21, 2020. 25 tid, PDEA 26 EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 27 28