Dobson 287619 v. Ryan ( 2020 )

1 WO MDR 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Michael Dobson, No. CV 19-05874-PHX-JAT (ESW) 10 Plaintiff, 11 v. ORDER 12 Charles Ryan, et al., 13 Defendants. 14 15 On December 23, 2019, Plaintiff Michael Dobson, who is confined in the Arizona 16 State Prison Complex-Eyman in Florence, Arizona, filed a pro se civil rights Complaint 17 pursuant to 42 U.S.C. § 1983 and an Application to Proceed In Forma Pauperis. In a 18 January 10, 2020 Order, the Court denied the deficient Application to Proceed and gave 19 Plaintiff thirty days to either pay the administrative and filing fees or file a complete 20 Application to Proceed In Forma Pauperis. 21 On January 15, 2020, Plaintiff filed a second Application to Proceed In Forma 22 Pauperis. On January 22, 2020, Plaintiff filed a collection of exhibits in a document titled 23 “RE: Paperwork Judge Requested for Brian D. Karth.”1 On January 31, 2020, Plaintiff 24 filed a “Motion for Issu[a]nce of the Subpoena for Medical Records Discovery.” In a 25 February 5, 2020 Order, the Court granted the second Application to Proceed, dismissed 26 the Complaint because Plaintiff had failed to state a claim, denied without prejudice the 27 28 1 The Court did not request any paperwork from Plaintiff other than information in support of his request to proceed in forma pauperis. 1 discovery motion, and gave Plaintiff thirty days to file an amended complaint that cured 2 the deficiencies identified in the Order. 3 On February 10, 2020, Plaintiff filed a First Amended Complaint and a second 4 “Motion for Issu[a]nce of the Subpoena for Medical Records Discovery.” In a February 5 26, 2020 Order, the Court dismissed the First Amended Complaint because Plaintiff had 6 failed to state a claim, denied without prejudice the discovery motion, and gave Plaintiff 7 thirty days to file a second amended complaint that cured the deficiencies identified in the 8 Order. 9 On March 9, 2020, Plaintiff filed a “Motion for Injunction to Stop Deliberate 10 Interference of Surgery Under 18 USC 2283,” which the Court denied in a March 13, 2020 11 Order. Plaintiff also filed a Notice of Appeal from the February 26, 2020 Order. 12 On March 25, 2020, Plaintiff filed a Motion for Extension to Amend. In an April 13 2, 2020 Order, the Court granted the Motion for Extension to Amend and gave Plaintiff an 14 additional thirty days to file his second amended complaint. On April 6, 2020, Plaintiff 15 filed a Motion to Stay Amendment Pending Appeal, which the Court denied in an April 16 20, 2020 Order. 17 On April 24, 2020, Plaintiff filed a Second Amended Complaint (Doc. 23). The 18 Court will dismiss the Second Amended Complaint and this action. 19 I. Statutory Screening of Prisoner Complaints 20 The Court is required to screen complaints brought by prisoners seeking relief 21 against a governmental entity or an officer or an employee of a governmental entity. 28 22 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 23 has raised claims that are legally frivolous or malicious, that fail to state a claim upon which 24 relief may be granted, or that seek monetary relief from a defendant who is immune from 25 such relief. 28 U.S.C. § 1915A(b)(1)–(2). 26 A pleading must contain a “short and plain statement of the claim showing that the 27 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does 28 not demand detailed factual allegations, “it demands more than an unadorned, the- 1 defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 2 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 3 conclusory statements, do not suffice.” Id. 4 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 5 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 6 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 7 that allows the court to draw the reasonable inference that the defendant is liable for the 8 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 9 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 10 experience and common sense.” Id. at 679. Thus, although a plaintiff’s specific factual 11 allegations may be consistent with a constitutional claim, a court must assess whether there 12 are other “more likely explanations” for a defendant’s conduct. Id. at 681. 13 But as the United States Court of Appeals for the Ninth Circuit has instructed, courts 14 must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 15 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent 16 standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 17 U.S. 89, 94 (2007) (per curiam)). 18 II. Second Amended Complaint 19 In his one-count Second Amended Complaint, Plaintiff alleges his Eighth 20 Amendment rights were violated as a result of deficient medical care and “fraud.” He seeks 21 monetary damages from Defendants former Arizona Department of Corrections (ADC) 22 Director Charles L. Ryan and Nurse Practitioners Gay and Hahn. 23 Plaintiff’s allegations in the Second Amended Complaint are, for the most part, 24 identical to his allegations in the First Amended Complaint. As the Court stated in the 25 February 26, 2020 Order, those allegations suggest, at most, that Defendants Gay and Hahn 26 were negligent in 2017 when they failed to stop Plaintiff’s warfarin prior to an appointment 27 with a vascular specialist and failed to schedule a hematology appointment after noting one 28 was needed. However, negligence is insufficient to state an Eighth Amendment deliberate 1 indifference claim. See Farmer v. Brennan, 511 U.S. 825, 835 (1994); Broughton v. Cutter 2 Labs., 622 F.2d 458, 460 (9th Cir. 1980); Clement v. Cal. Dep’t of Corr., 220 F. Supp. 2d 3 1098, 1105 (N.D. Cal. 2002). Likewise, as the Court explained in the February 26, 2020 4 Order, Plaintiff’s allegations about Defendant Ryan’s May 2017 response to an August 5 2016 grievance appeal are unclear and are too vague and conclusory to state a deliberate 6 indifference claim against Defendant Ryan. 7 The new allegations in Plaintiff’s Second Amended Complaint discuss an April 8 2020 diagnosis, an April 2020 response from “ADC/Centurion . . . that [Plaintiff’s] 9 procedure has been approved,” and a March 2020 response from the Health Services 10 Contract Monitoring Program’s Evaluation Administrator regarding correspondence 11 Plaintiff sent to the current ADC Director in February 2020. These allegations in no way 12 suggest Defendants Gay, Hahn, and Ryan were acting with deliberate indifference in 2017. 13 Thus, the Court will dismiss the Second Amended Complaint for failure to state a claim. 14 III. Dismissal without Leave to Amend 15 Because Plaintiff has failed to state a claim in his Second Amended Complaint, the 16 Court will dismiss his Second Amended Complaint. “Leave to amend need not be given 17 if a complaint, as amended, is subject to dismissal.” Moore v. Kayport Package Express, 18 Inc., 885 F.2d 531, 538 (9th Cir. 1989). The Court’s discretion to deny leave to amend is 19 particularly broad where Plaintiff has previously been permitted to amend his complaint. 20 Sisseton-Wahpeton Sioux Tribe v. United States, 90 F.3d 351, 355 (9th Cir. 1996). 21 Repeated failure to cure deficiencies is one of the factors to be considered in deciding 22 whether justice requires granting leave to amend. Moore, 885 F.2d at 538. 23 Plaintiff has made three efforts at crafting a viable complaint and appears unable to 24 do so despite specific instructions from the Court. The Court finds that further 25 opportunities to amend would be futile. Therefore, the Court, in its discretion, will dismiss 26 Plaintiff’s Second Amended Complaint without leave to amend. 27 . . . . 28 . . . . ITIS ORDERED: 2 (1) ‘Plaintiff's Second Amended Complaint (Doc. 23) and this action are 3| dismissed for failure to state a claim, and the Clerk of Court must enter judgment 4} accordingly. 5 (2) The Clerk of Court must make an entry on the docket stating that the dismissal for failure to state a claim may count as a “strike” under 28 U.S.C. § 1915(g). 7 (3) | The docket shall reflect that the Court, pursuant to 28 U.S.C. § 1915(a)(3) 8 | and Federal Rules of Appellate Procedure 24(a)(3)(A), has considered whether an appeal 9| of this decision would be taken in good faith and finds Plaintiff may appeal in forma 10 | pauperis. 11 Dated this Ist day of May, 2020. 12 13 a 14 15 _ James A. Teil Org Senior United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28