1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 ABELARDO SOTO, No. 2:23-cv-00918-EFB (PC) 11 Plaintiff, 12 v. ORDER 13 CALIFORNIA HEALTH CARE FACILITY, et al., 14 Defendants. 15 16 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 17 U.S.C. § 1983. In addition to filing a complaint, plaintiff filed an application for leave to proceed 18 in forma pauperis (ECF No. 2) and a request for the appointment of counsel (ECF No. 3). The 19 court grants the request for leave to proceed in forma pauperis, dismisses the complaint with 20 leave to amend, and denies the request for appointment of counsel. 21 Application to Proceed in Forma Pauperis 22 The court has reviewed plaintiff’s application and finds that it makes the showing required 23 by 28 U.S.C. § 1915(a)(1) and (2). Accordingly, by separate order, the court directs the agency 24 having custody of plaintiff to collect and forward the appropriate monthly payments for the filing 25 fee as set forth in 28 U.S.C. § 1915(b)(1) and (2). 26 Screening Standards 27 Federal courts must engage in a preliminary screening of cases in which prisoners seek 28 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 1 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion 2 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which 3 relief may be granted,” or “seeks monetary relief from a defendant who is immune from such 4 relief.” Id. § 1915A(b). 5 A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) 6 of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and 7 plain statement of the claim showing that the pleader is entitled to relief, in order to give the 8 defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. 9 Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). 10 While the complaint must comply with the “short and plaint statement” requirements of Rule 8, 11 its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 12 U.S. 662, 679 (2009). 13 To avoid dismissal for failure to state a claim a complaint must contain more than “naked 14 assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of 15 action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of 16 a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 17 678. 18 Furthermore, a claim upon which the court can grant relief must have facial plausibility. 19 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual 20 content that allows the court to draw the reasonable inference that the defendant is liable for the 21 misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a 22 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. 23 Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the 24 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 25 Screening Order 26 The complaint (ECF No. 1) names as defendants Dr. Oladunjoye, the San Joaquin 27 Hospital and the California Health Care Facility. It purports to bring claims for inadequate 28 medical care under the Eighth Amendment. It alleges that on March 30, 2022, the California 1 Health Care Facility sent plaintiff to the San Joaquin General Hospital on an emergency basis. 2 The following day, plaintiff underwent spinal surgery with Dr. Oladunjoye. While plaintiff was 3 under anesthesia, his head slipped out of a “faulty” Mayfield device that was being used to secure 4 it. ECF No. 1 at 4. The resulting injury required head staples and stitches and plaintiff now 5 experiences headaches and dizziness. According to the complaint, Dr. Oladunjoye, the surgery 6 staff, and prison officials tried to hide the incident. As relief, plaintiff seeks $500,000 in 7 damages. As discussed below, these allegations are not sufficient to survive screening. 8 To plead a claim under the Eighth Amendment, plaintiff must plead facts showing that the 9 defendant acted with deliberate indifference. Deliberate indifference may be shown where 10 defendants “deny, delay or intentionally interfere with medical treatment.” Hutchinson v. United 11 States, 838 F.2d 390, 394 (9th Cir. 1988). “[T]he [defendant] must be both aware of facts from 12 which the inference could be drawn that a substantial risk of serious harm exists, and he must also 13 draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). Inadequate treatment due to 14 medical malpractice, negligence, or even gross negligence, does not rise to the level of a 15 constitutional violation. See Wilson v. Seiter, 501 U.S. 294, 297, 111 S. Ct. 2321, 115 L. Ed. 2d 16 271 (1991) (quoting Estelle, 429 U.S. at 105-06); Toguchi v. Chung, 391 F.3d 1051, 1060 (9th 17 Cir. 2004). 18 The allegations pertaining to the cause of plaintiff’s head injury do not demonstrate 19 deliberate indifference. Plaintiff blames his injury on a “faulty” Mayfield device, suggesting that 20 his injury was the result of negligence. Further, the allegations that Dr. Oladunjoye and others 21 tried to “hide the incident” do not constitute deliberate indifference unless plaintiff can show that 22 their conduct led to further injury. See Hallett v. Morgan, 296 F.3d 732, 746 (9th Cir. 2002). 23 Finally, the court notes that to state a claim under § 1983, plaintiff must allege that the violation 24 was committed by a person acting under the color of state law. Neither San Joaquin General 25 Hospital nor the California Health Care Facility are “persons” within the meaning of § 1983. If 26 plaintiff knows the names of the surgical staff or the prison officials who he believes violated his 27 rights, he should name those individuals as defendants in any amended complaint and plead facts 28 showing how they were personally involved in violating his Eighth Amendment rights. 1 For these reasons, plaintiff’s complaint is dismissed with leave to amend. 2 Leave to Amend 3 If plaintiff chooses to file an amended complaint it should observe the following: 4 Any amended complaint must identify as a defendant only persons who personally 5 participated in a substantial way in depriving him of a federal constitutional right. Johnson v. 6 Duffy, 588 F.2d 740, 743 (9th Cir.
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 ABELARDO SOTO, No. 2:23-cv-00918-EFB (PC) 11 Plaintiff, 12 v. ORDER 13 CALIFORNIA HEALTH CARE FACILITY, et al., 14 Defendants. 15 16 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 17 U.S.C. § 1983. In addition to filing a complaint, plaintiff filed an application for leave to proceed 18 in forma pauperis (ECF No. 2) and a request for the appointment of counsel (ECF No. 3). The 19 court grants the request for leave to proceed in forma pauperis, dismisses the complaint with 20 leave to amend, and denies the request for appointment of counsel. 21 Application to Proceed in Forma Pauperis 22 The court has reviewed plaintiff’s application and finds that it makes the showing required 23 by 28 U.S.C. § 1915(a)(1) and (2). Accordingly, by separate order, the court directs the agency 24 having custody of plaintiff to collect and forward the appropriate monthly payments for the filing 25 fee as set forth in 28 U.S.C. § 1915(b)(1) and (2). 26 Screening Standards 27 Federal courts must engage in a preliminary screening of cases in which prisoners seek 28 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 1 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion 2 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which 3 relief may be granted,” or “seeks monetary relief from a defendant who is immune from such 4 relief.” Id. § 1915A(b). 5 A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) 6 of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and 7 plain statement of the claim showing that the pleader is entitled to relief, in order to give the 8 defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. 9 Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). 10 While the complaint must comply with the “short and plaint statement” requirements of Rule 8, 11 its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 12 U.S. 662, 679 (2009). 13 To avoid dismissal for failure to state a claim a complaint must contain more than “naked 14 assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of 15 action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of 16 a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 17 678. 18 Furthermore, a claim upon which the court can grant relief must have facial plausibility. 19 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual 20 content that allows the court to draw the reasonable inference that the defendant is liable for the 21 misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a 22 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. 23 Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the 24 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 25 Screening Order 26 The complaint (ECF No. 1) names as defendants Dr. Oladunjoye, the San Joaquin 27 Hospital and the California Health Care Facility. It purports to bring claims for inadequate 28 medical care under the Eighth Amendment. It alleges that on March 30, 2022, the California 1 Health Care Facility sent plaintiff to the San Joaquin General Hospital on an emergency basis. 2 The following day, plaintiff underwent spinal surgery with Dr. Oladunjoye. While plaintiff was 3 under anesthesia, his head slipped out of a “faulty” Mayfield device that was being used to secure 4 it. ECF No. 1 at 4. The resulting injury required head staples and stitches and plaintiff now 5 experiences headaches and dizziness. According to the complaint, Dr. Oladunjoye, the surgery 6 staff, and prison officials tried to hide the incident. As relief, plaintiff seeks $500,000 in 7 damages. As discussed below, these allegations are not sufficient to survive screening. 8 To plead a claim under the Eighth Amendment, plaintiff must plead facts showing that the 9 defendant acted with deliberate indifference. Deliberate indifference may be shown where 10 defendants “deny, delay or intentionally interfere with medical treatment.” Hutchinson v. United 11 States, 838 F.2d 390, 394 (9th Cir. 1988). “[T]he [defendant] must be both aware of facts from 12 which the inference could be drawn that a substantial risk of serious harm exists, and he must also 13 draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). Inadequate treatment due to 14 medical malpractice, negligence, or even gross negligence, does not rise to the level of a 15 constitutional violation. See Wilson v. Seiter, 501 U.S. 294, 297, 111 S. Ct. 2321, 115 L. Ed. 2d 16 271 (1991) (quoting Estelle, 429 U.S. at 105-06); Toguchi v. Chung, 391 F.3d 1051, 1060 (9th 17 Cir. 2004). 18 The allegations pertaining to the cause of plaintiff’s head injury do not demonstrate 19 deliberate indifference. Plaintiff blames his injury on a “faulty” Mayfield device, suggesting that 20 his injury was the result of negligence. Further, the allegations that Dr. Oladunjoye and others 21 tried to “hide the incident” do not constitute deliberate indifference unless plaintiff can show that 22 their conduct led to further injury. See Hallett v. Morgan, 296 F.3d 732, 746 (9th Cir. 2002). 23 Finally, the court notes that to state a claim under § 1983, plaintiff must allege that the violation 24 was committed by a person acting under the color of state law. Neither San Joaquin General 25 Hospital nor the California Health Care Facility are “persons” within the meaning of § 1983. If 26 plaintiff knows the names of the surgical staff or the prison officials who he believes violated his 27 rights, he should name those individuals as defendants in any amended complaint and plead facts 28 showing how they were personally involved in violating his Eighth Amendment rights. 1 For these reasons, plaintiff’s complaint is dismissed with leave to amend. 2 Leave to Amend 3 If plaintiff chooses to file an amended complaint it should observe the following: 4 Any amended complaint must identify as a defendant only persons who personally 5 participated in a substantial way in depriving him of a federal constitutional right. Johnson v. 6 Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a 7 constitutional right if he does an act, participates in another’s act or omits to perform an act he is 8 legally required to do that causes the alleged deprivation). The complaint should also describe, 9 in sufficient detail, how each defendant personally violated or participated in the violation of his 10 rights. The court will not infer the existence of allegations that have not been explicitly set forth 11 in the amended complaint. 12 The amended complaint must contain a caption including the names of all defendants. 13 Fed. R. Civ. P. 10(a). 14 Plaintiff may not change the nature of this suit by alleging new, unrelated claims. See 15 George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). 16 Any amended complaint must be written or typed so that it so that it is complete in itself 17 without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended 18 complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the 19 earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114 20 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter 21 being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 22 1967)). 23 Finally, the court notes that any amended complaint should be as concise as possible in 24 fulfilling the above requirements. Fed. R. Civ. P. 8(a). Plaintiff should avoid the inclusion of 25 procedural or factual background which has no bearing on his legal claims. 26 Request for Appointment of Counsel 27 District courts lack authority to require counsel to represent indigent prisoners in section 28 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional 1 || circumstances, the court may request an attorney to voluntarily to represent such a plaintiff. See 2 | 28 US.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. 3 | Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether “exceptional 4 || circumstances” exist, the court must consider the likelihood of success on the merits as well as the 5 || ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues 6 || involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). Having considered those factors, 7 || the court finds there are no exceptional circumstances in this case. 8 Conclusion 9 Accordingly, IT IS HEREBY ORDERED that: 10 1. Plaintiff's request to proceed in forma pauperis (ECF No. 2) is GRANTED; 11 2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected in 12 accordance with the notice to the California Department of Corrections and 13 Rehabilitation filed concurrently herewith; 14 3. Plaintiff's request for the appointment of counsel (ECF No. 3) is denied without 15 prejudice; 16 4. Plaintiff's complaint (ECF No. 1) is DISMISSED with leave to amend within 30 17 days of service of this order; and 18 5. Failure to comply with this order may result in dismissal of this action for failure to 19 state a claim. 20 21 || DATED: August 18, 2023. □□ PDEA EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28