1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KWESI MUHAMMAD, No. 2:19-cv-2592-TLN-EFB P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 CHRISTINE BARBER, 15 Defendant. 16 17 Plaintiff, a state prisoner, originally filed this action in the San Joaquin Superior Court. 18 ECF No. 1. Defendant removed it to this court on December 23, 2019, id., and on December 30, 19 2019, filed a motion to dismiss, ECF No. 3. Before addressing defendant’s motion to dismiss, the 20 court must screen plaintiff’s complaint. See, e.g., Morris v. Horel, No. C 07-6060 SI (pr), 2008 21 U.S. Dist. LEXIS 56938, *3 (N.D. Cal., March 12, 2008) (civil rights action screened pursuant to 22 section 1915A after being removed from state court). 23 Screening 24 I. Legal Standards 25 Federal courts must engage in a preliminary screening of cases in which prisoners seek 26 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 27 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion 28 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which 1 relief may be granted,” or “seeks monetary relief from a defendant who is immune from such 2 relief.” Id. § 1915A(b). 3 A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) 4 of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and 5 plain statement of the claim showing that the pleader is entitled to relief, in order to give the 6 defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. 7 Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). 8 While the complaint must comply with the “short and plaint statement” requirements of Rule 8, 9 its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 10 U.S. 662, 679 (2009). 11 To avoid dismissal for failure to state a claim a complaint must contain more than “naked 12 assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of 13 action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of 14 a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 15 678. 16 Furthermore, a claim upon which the court can grant relief must have facial plausibility. 17 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual 18 content that allows the court to draw the reasonable inference that the defendant is liable for the 19 misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a 20 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. 21 Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the 22 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 23 II. Analysis 24 Plaintiff’s complaint, written on a state form, has a “check the box” indicator that the case 25 concerns medical malpractice. ECF No. 1 at 5. The body of the complaint, however, plainly 26 indicates that it is premised on two claims: an Eighth Amendment claim for deliberate 27 indifference to serious medical needs (id. at 10-11) and a state law claim for intentional infliction 28 of emotional distress (id. at 7, 11). 1 The alleged facts of the case are straightforward. On September 15, 2017, plaintiff’s 2 primary care provider – Dr. Win – examined a persistent callus on his left foot that was causing 3 him chronic pain. Id. at 8. Based thereon, plaintiff was approved for an outpatient consult at San 4 Joaquin General Hospital on October 17, 2017. Id. There, a specialist recommended that 5 plaintiff undergo a “hammertoe correction” procedure. Id. On November 1, 2017, Dr. Win 6 requested approval for the procedure from the “Utilization Management Unit” – of which 7 defendant is allegedly a part. Id. The defendant allegedly denied Dr. Win’s request on the 8 grounds that it did not “meet IQC.”1 Id. Regardless, plaintiff filed a health grievance concerning 9 the denial and, on December 18, 2017, the defendant’s decision was overturned. Id. at 9. On 10 February 20, 2018, plaintiff underwent the procedure. Id. 11 A. Deliberate Indifference 12 The allegations, taken as true, do not rise to the level of deliberate indifference. To 13 succeed on an Eighth Amendment claim predicated on the denial of medical care, a plaintiff must 14 establish that he had a serious medical need and that the defendant's response to that need was 15 deliberately indifferent. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); see also Estelle v. 16 Gamble, 429 U.S. 97, 106 (1976). A serious medical need exists if the failure to treat the 17 condition could result in further significant injury or the unnecessary and wanton infliction of 18 pain. Jett, 439 F.3d at 1096. Deliberate indifference may be shown by the denial, delay or 19 intentional interference with medical treatment or by the way in which medical care is provided. 20 Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988). To act with deliberate 21 indifference, a prison official must both be aware of facts from which the inference could be 22 drawn that a substantial risk of serious harm exists, and she must also draw the inference. Farmer 23 v. Brennan, 511 U.S. 825, 837 (1994). Thus, a defendant is liable if she knows that plaintiff faces 24 “a substantial risk of serious harm and disregards that risk by failing to take reasonable measures 25 to abate it.” Id. at 847. 26 ///// 27 1 It is not apparent from the complaint what “IQC” stands for. The acronym, however, is 28 a common short-hand for internal quality control. 1 Here, plaintiff alleges only that the defendant denied his primary care provider’s request 2 for an outside surgical procedure. He has not alleged facts which, taken as true, show that the 3 defendant understood that her denial would expose plaintiff to a substantial risk of serious harm. 4 Put another way, nothing in the complaint indicates that defendant’s denial stemmed from 5 anything other than her well-meaning professional judgment. Perhaps that judgment was wrong 6 or negligent, but it is important to differentiate common law negligence claims of malpractice 7 from claims predicated on violations of the Eighth Amendment's prohibition of cruel and unusual 8 punishment. In asserting the latter, “[m]ere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ 9 will not support this cause of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th 10 Cir. 1980) (citing Estelle, 429 U.S. at 105-06); see also Toguchi v. Chung, 391 F.3d 1051, 1057 11 (9th Cir. 2004). 12 B.
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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 KWESI MUHAMMAD, No. 2:19-cv-2592-TLN-EFB P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 CHRISTINE BARBER, 15 Defendant. 16 17 Plaintiff, a state prisoner, originally filed this action in the San Joaquin Superior Court. 18 ECF No. 1. Defendant removed it to this court on December 23, 2019, id., and on December 30, 19 2019, filed a motion to dismiss, ECF No. 3. Before addressing defendant’s motion to dismiss, the 20 court must screen plaintiff’s complaint. See, e.g., Morris v. Horel, No. C 07-6060 SI (pr), 2008 21 U.S. Dist. LEXIS 56938, *3 (N.D. Cal., March 12, 2008) (civil rights action screened pursuant to 22 section 1915A after being removed from state court). 23 Screening 24 I. Legal Standards 25 Federal courts must engage in a preliminary screening of cases in which prisoners seek 26 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 27 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion 28 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which 1 relief may be granted,” or “seeks monetary relief from a defendant who is immune from such 2 relief.” Id. § 1915A(b). 3 A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) 4 of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and 5 plain statement of the claim showing that the pleader is entitled to relief, in order to give the 6 defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. 7 Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). 8 While the complaint must comply with the “short and plaint statement” requirements of Rule 8, 9 its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 10 U.S. 662, 679 (2009). 11 To avoid dismissal for failure to state a claim a complaint must contain more than “naked 12 assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of 13 action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of 14 a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 15 678. 16 Furthermore, a claim upon which the court can grant relief must have facial plausibility. 17 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual 18 content that allows the court to draw the reasonable inference that the defendant is liable for the 19 misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a 20 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. 21 Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the 22 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 23 II. Analysis 24 Plaintiff’s complaint, written on a state form, has a “check the box” indicator that the case 25 concerns medical malpractice. ECF No. 1 at 5. The body of the complaint, however, plainly 26 indicates that it is premised on two claims: an Eighth Amendment claim for deliberate 27 indifference to serious medical needs (id. at 10-11) and a state law claim for intentional infliction 28 of emotional distress (id. at 7, 11). 1 The alleged facts of the case are straightforward. On September 15, 2017, plaintiff’s 2 primary care provider – Dr. Win – examined a persistent callus on his left foot that was causing 3 him chronic pain. Id. at 8. Based thereon, plaintiff was approved for an outpatient consult at San 4 Joaquin General Hospital on October 17, 2017. Id. There, a specialist recommended that 5 plaintiff undergo a “hammertoe correction” procedure. Id. On November 1, 2017, Dr. Win 6 requested approval for the procedure from the “Utilization Management Unit” – of which 7 defendant is allegedly a part. Id. The defendant allegedly denied Dr. Win’s request on the 8 grounds that it did not “meet IQC.”1 Id. Regardless, plaintiff filed a health grievance concerning 9 the denial and, on December 18, 2017, the defendant’s decision was overturned. Id. at 9. On 10 February 20, 2018, plaintiff underwent the procedure. Id. 11 A. Deliberate Indifference 12 The allegations, taken as true, do not rise to the level of deliberate indifference. To 13 succeed on an Eighth Amendment claim predicated on the denial of medical care, a plaintiff must 14 establish that he had a serious medical need and that the defendant's response to that need was 15 deliberately indifferent. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); see also Estelle v. 16 Gamble, 429 U.S. 97, 106 (1976). A serious medical need exists if the failure to treat the 17 condition could result in further significant injury or the unnecessary and wanton infliction of 18 pain. Jett, 439 F.3d at 1096. Deliberate indifference may be shown by the denial, delay or 19 intentional interference with medical treatment or by the way in which medical care is provided. 20 Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988). To act with deliberate 21 indifference, a prison official must both be aware of facts from which the inference could be 22 drawn that a substantial risk of serious harm exists, and she must also draw the inference. Farmer 23 v. Brennan, 511 U.S. 825, 837 (1994). Thus, a defendant is liable if she knows that plaintiff faces 24 “a substantial risk of serious harm and disregards that risk by failing to take reasonable measures 25 to abate it.” Id. at 847. 26 ///// 27 1 It is not apparent from the complaint what “IQC” stands for. The acronym, however, is 28 a common short-hand for internal quality control. 1 Here, plaintiff alleges only that the defendant denied his primary care provider’s request 2 for an outside surgical procedure. He has not alleged facts which, taken as true, show that the 3 defendant understood that her denial would expose plaintiff to a substantial risk of serious harm. 4 Put another way, nothing in the complaint indicates that defendant’s denial stemmed from 5 anything other than her well-meaning professional judgment. Perhaps that judgment was wrong 6 or negligent, but it is important to differentiate common law negligence claims of malpractice 7 from claims predicated on violations of the Eighth Amendment's prohibition of cruel and unusual 8 punishment. In asserting the latter, “[m]ere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ 9 will not support this cause of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th 10 Cir. 1980) (citing Estelle, 429 U.S. at 105-06); see also Toguchi v. Chung, 391 F.3d 1051, 1057 11 (9th Cir. 2004). 12 B. Intentional Infliction of Emotional Distress 13 Plaintiff alleges that defendant’s denial of his procedure amounted to intentional infliction 14 of emotional distress. “In order to establish a claim for intentional infliction of emotional distress 15 under California law, [plaintiff is] required to show (1) that the defendant's conduct was 16 outrageous, (2) that the defendant intended to cause or recklessly disregarded the probability of 17 causing emotional distress, and (3) that the plaintiff's severe emotional suffering was (4) actually 18 and proximately caused by defendant’s conduct.” Austin v. Terhune, 367 F.3d 1167, 1172 (9th 19 Cir. 2004). “Only conduct ‘exceeding all bounds usually tolerated by a decent society, of a nature 20 which is especially calculated to cause, and does cause, mental distress’ is actionable.” Brooks v. 21 United States, 29 F. Supp. 2d 613, 617-18 (N.D. Cal. 1998). Here, plaintiff alleges only that 22 defendant denied his provider’s request for the aforementioned procedure. Nothing in the 23 complaint indicates that her conduct was outrageous or that she intended or recklessly disregarded 24 the probability of causing emotional distress. 25 ///// 26 ///// 27 ///// 28 ///// 1 III. Leave to Amend2 2 Plaintiff will be given leave to amend to address the foregoing deficiencies. He is 3 cautioned that any amended complaint must identify as a defendant only persons who personally 4 participated in a substantial way in depriving him of his constitutional rights. Johnson v. Duffy, 5 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a constitutional 6 right if he does an act, participates in another’s act or omits to perform an act he is legally 7 required to do that causes the alleged deprivation). Plaintiff may also include any allegations 8 based on state law that are so closely related to his federal allegations that “they form the same 9 case or controversy.” See 28 U.S.C. § 1367(a). 10 The amended complaint must also contain a caption including the names of all defendants. 11 Fed. R. Civ. P. 10(a). 12 Plaintiff may not change the nature of this suit by alleging new, unrelated claims. See 13 George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). 14 Any amended complaint must be written or typed so that it so that it is complete in itself 15 without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended 16 complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the 17 earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114 18 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter 19 being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 20 1967)). 21 Any amended complaint should be as concise as possible in fulfilling the above 22 requirements. Fed. R. Civ. P. 8(a). Plaintiff should avoid the inclusion of procedural or factual 23 background which has no bearing on his legal claims. He should also take pains to ensure that his 24 amended complaint is as legible as possible. This refers not only to penmanship, but also spacing 25
26 2 “[A] district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of 27 other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995)). Here, the court cannot so conclude and, thus, leave to amend 28 will be granted. 1 | and organization. Plaintiff should carefully consider whether each of the defendants he names 2 | actually had involvement in the constitutional violations he alleges. A “scattershot” approach in 3 || which plaintiff names dozens of defendants will not be looked upon favorably by the court. 4 Conclusion 5 Accordingly, it is ORDERED that 6 1. Plaintiffs complaint (ECF No. 1, Ex. A) is dismissed with leave to amend within 30 7 | days from the date of service of this order; and 8 2. Failure to file an amended complaint that complies with this order may result in the 9 || dismissal of this action for the reasons stated herein. 10 Further, it is RECOMMENDED that defendant’s motion to dismiss (ECF No. 3) be 11 | DENIED without prejudice as MOOT. 12 These findings and recommendations are submitted to the United States District Judge 13 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days 14 | after being served with these findings and recommendations, any party may file written 15 || objections with the court and serve a copy on all parties. Such a document should be captioned 16 | “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 17 || within the specified time may waive the right to appeal the District Court’s order. Turner v. 18 || Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 19 | DATED: March 20, 2020. 20 tid, PDEA EDMUND F. BRENNAN 71 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28