(PC) Hodge v. Taylor ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JASON ROBERT HODGE, No. 2:19-cv-1956-EFB P 12 Plaintiff, 13 v. ORDER 14 KEVIN RUETER, et al. 15 Defendants. 16 17 Plaintiff, proceeding without counsel in this action brought pursuant to 42 U.S.C. § 1983, 18 has filed an application to proceed in forma pauperis (ECF No. 2) and a motion to appoint 19 counsel (ECF Nos. 10, 11). 20 Application to Proceed In Forma Pauperis 21 The court has reviewed plaintiff’s application (and accompanying trust fund account (ECF 22 No. 5)) and finds that it makes the showing required by 28 U.S.C. § 1915(a)(1). Accordingly, 23 plaintiff’s request to proceed in forma pauperis is granted. 24 Screening 25 I. Legal Standards 26 Pursuant to § 1915(e)(2), the court must dismiss the case at any time if it determines the 27 allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on 28 which relief may be granted, or seeks monetary relief against an immune defendant. 1 Although pro se pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519, 2 520-21 (1972), a complaint, or portion thereof, should be dismissed for failure to state a claim if it 3 fails to set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. 4 Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 5 (1957)); see also Fed. R. Civ. P. 12(b)(6). “[A] plaintiff's obligation to provide the ‘grounds’ of 6 his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of 7 a cause of action's elements will not do. Factual allegations must be enough to raise a right to 8 relief above the speculative level on the assumption that all of the complaint's allegations are 9 true.” Id. (citations omitted). Dismissal is appropriate based either on the lack of cognizable 10 legal theories or the lack of pleading sufficient facts to support cognizable legal theories. 11 Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). 12 In reviewing a complaint under this standard, the court must accept as true the allegations 13 of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 14 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in 15 the plaintiff's favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must 16 satisfy the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 17 8(a)(2) “requires a complaint to include a short and plain statement of the claim showing that the 18 pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the 19 grounds upon which it rests.” Twombly, 550 U.S. at 562-563 (2007). 20 II. Analysis 21 Plaintiff alleges that, in April of 2017 and while incarcerated at Corcoran State Prison, he 22 suffered a major shoulder injury. ECF No. 1 at 3. He was subsequently diagnosed with a tear of 23 the lateral pectoral muscle and atrophy of the bicep. Id. Plaintiff was transferred to High Desert 24 State Prison (“HDSP”) and, in June of 2018, sent for a consult with an orthopedic surgeon in 25 Redding, California. Id. That physician – Dr. Richard Cross – allegedly opined that plaintiff 26 required a full left shoulder replacement surgery. Id. at 3-4. Plaintiff’s primary care physician at 27 HDSP then forwarded Dr. Cross’s report to the State-Wide Medical Authorization Review Team 28 (“SMART”) for approval of the shoulder replacement. Id. at 4. SMART indicated a desire for a 1 second opinion and, on February 1, 2019, a second unidentified doctor allegedly agreed with Dr. 2 Cross’s assessment. Id. 3 On April 16, 2019, SMART allegedly denied the request for shoulder replacement 4 surgery. Id. Instead, they recommended steroid injections as an alternative treatment. Id. 5 Plaintiff claims that the injections have not proven helpful in addressing his pain and mobility 6 issues and, indeed, have made him sick in some unspecified way. Id. Hence, he now alleges that 7 SMART was deliberately indifferent to his serious medical needs. 8 The court notes that plaintiff has named three individual defendants – Kevin Rueter (Chief 9 Medical Executive at HDSP), Grace Song (Deputy Medical Executive at HDSP), and Laraika 10 Jones (a Utilization Management Registered Nurse) – but does not allege what actions each 11 personally undertook in connection with the alleged denial of treatment. In fact, as far as the 12 court can discern, none receives specific mention in the body of the complaint. Critically, it is 13 unclear whether each of these individuals is a member of SMART – the entity plaintiff holds 14 responsible for denial of treatment.1 2 Thus, he has failed to state a cognizable claim against any 15 of them. See Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002) (“In order for a person acting 16 under color of state law to be liable under section 1983 there must be a showing of personal 17 participation in the alleged rights deprivation: there is no respondeat superior liability under 18 section 1983.”). 19 Plaintiff will be given leave to amend to address the foregoing deficiency. 20 Leave to Amend 21 Plaintiff is cautioned that any amended complaint must identify as a defendant only 22 persons who personally participated in a substantial way in depriving him of his constitutional 23 1 In a “memorandum” document attached to the complaint, defendant Song writes that 24 SMART reviewed the request for treatment and describes the reasons for denying it. ECF No. 1 at 6. It is unclear, however, whether Song was involved in the decision or whether she is simply 25 relaying it. 26 2 After his complaint was filed, plaintiff submitted a collection of exhibits which appear to 27 be medical and administrative records relevant to his shoulder injury. ECF Nos. 7, 8 & 9. The court declines, to the extent plaintiff so invites, to sift through these separate documents and piece 28 together allegations which plaintiff has not explicitly made in a complaint. 1 rights. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the 2 deprivation of a constitutional right if he does an act, participates in another’s act or omits to 3 perform an act he is legally required to do that causes the alleged deprivation). Plaintiff may also 4 include any allegations based on state law that are so closely related to his federal allegations that 5 “they form the same case or controversy.” See 28 U.S.C. § 1367(a). 6 The amended complaint must also contain a caption including the names of all defendants. 7 Fed. R. Civ. P. 10(a). 8 Plaintiff may not change the nature of this suit by alleging new, unrelated claims. See 9 George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). 10 Any amended complaint must be written or typed so that it so that it is complete in itself 11 without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended 12 complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the 13 earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114 14 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter 15 being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 16 1967)). 17 Any amended complaint should be as concise as possible in fulfilling the above 18 requirements. Fed. R. Civ. P. 8(a). Plaintiff should avoid the inclusion of procedural or factual 19 background which has no bearing on his legal claims. He should also take pains to ensure that his 20 amended complaint is as legible as possible. This refers not only to penmanship, but also spacing 21 and organization. Plaintiff should carefully consider whether each of the defendants he names 22 actually had involvement in the constitutional violations he alleges. A “scattershot” approach in 23 which plaintiff names dozens of defendants will not be looked upon favorably by the court. 24 Request for Appointment of Counsel 25 Plaintiff requests that the court appoint him counsel. District courts lack authority to 26 require counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States 27 Dist. Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an 28 attorney to voluntarily to represent such a plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell v. 1 | Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th 2 | Cir. 1990). When determining whether “exceptional circumstances” exist, the court must 3 || consider the likelihood of success on the merits as well as the ability of the plaintiff to articulate 4 | his claims pro se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 5 || F.3d 965, 970 (9th Cir. 2009). Having considered those factors, the court finds there are no 6 || exceptional circumstances in this case. 7 Conclusion 8 Accordingly, it is ORDERED that: 9 1. Plaintiff’s application to proceed in forma pauperis (ECF No. 2) is GRANTED; 10 2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected 11 || in accordance with the notice to the California Department of Corrections and Rehabilitation filed 12 || concurrently herewith; 13 3. Plaintiff’s request for appointment of counsel (ECF Nos. 10, 11) is DENIED without 14 | prejudice; 15 4. Plaintiffs complaint (ECF No. 1) is DISMISSED with leave to amend within 30 days 16 || from the date of service of this order; and 17 5. Failure to file an amended complaint that complies with this order may result in the 18 || dismissal of this action for the reasons stated herein. 19 | DATED: February 10, 2020. tid, PDEA EDMUND F. BRENNAN 21 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28