(PC) Harris v. Mkrtchyan ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 EMMETT HARRIS, No. 2:19-cv-1040-JAM-EFB P 12 Plaintiff, 13 v. ORDER 14 MERCY HOSPITAL OF FOLSOM, 15 Defendant. 16 17 Plaintiff, a state prisoner proceeding without counsel in an action brought under 42 U.S.C. 18 § 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) and (2). 21 Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect 22 and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C. 23 § 1915(b)(1) and (2). 24 Screening 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 Screening Order 24 Plaintiff alleges that on June 10, 2018, he was taken to Mercy Hospital of Folsom. ECF 25 No. 1 at 3. He claims he was in a coma and sexually assaulted. Id. He also claims that unnamed 26 staff and doctors stole his gold teeth. Id. He lists only Mercy Hospital of Folsom as a defendant. 27 Plaintiff’s claims cannot survive screening for three reasons. First, the hospital itself is 28 not a person acting under color of state law for purposes of a § 1983 case. See Tebo v. Tebo, 550 1 F.3d 492, 503 (5th Cir. 2008) (noting that “a public hospital employee, is a state actor for 2 purposes of Section 1983.” (emphasis added)). Second, assuming plaintiff intends to assert an 3 Eighth Amendment claim based on the sexual assault, he must allege specific facts showing how 4 a particular defendant’s conduct was “offensive to human dignity.” See Schwenk v. Hartford, 204 5 F.3d 1187, 1196-97 (9th Cir. 1987). Third, it is not clear whether the claim about stolen teeth can 6 be properly brought together in a single action with the sexual assault claim. Is unclear how the 7 two events are related. It is well settled that a claimant may not proceed with various unrelated 8 claims against separate defendants: 9 “The controlling principle appears in Fed. R. Civ. P. 18(a): ‘A party asserting a claim to relief as an original claim, counterclaim, cross- 10 claim, or third-party claim, may join, either as independent or as alternate claims, as many claims, legal, equitable, or maritime, as the 11 party has against an opposing party.’ Thus multiple claims against a single party are fine, but Claim A against Defendant 1 should not be 12 joined with unrelated Claim B against Defendant 2.” 13 George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). In any amended complaint, should plaintiff 14 choose to file one, he must cure these deficiencies. 15 Leave to Amend 16 Plaintiff will be given an opportunity to amend his complaint. He is cautioned that any 17 amended complaint must identify as a defendant only persons who personally participated in a 18 substantial way in depriving him of his constitutional rights. Johnson v. Duffy, 588 F.2d 740, 743 19 (9th Cir. 1978) (a person subjects another to the deprivation of a constitutional right if he does an 20 act, participates in another’s act or omits to perform an act he is legally required to do that causes 21 the alleged deprivation). Plaintiff may also include any allegations based on state law that are so 22 closely related to his federal allegations that “they form the same case or controversy.” See 28 23 U.S.C. § 1367(a). 24 The amended complaint must also contain a caption including the names of all defendants. 25 Fed. R. Civ. P. 10(a). 26 Plaintiff may not change the nature of this suit by alleging new, unrelated claims. See 27 George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Nor may he bring multiple, unrelated claims 28 against more than one defendant. Id. 1 Any amended complaint must be written or typed so that it so that it is complete in itself 2 || without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended 3 || complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the 4 | earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114 5 || F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter 6 || being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 7 | 1967)). 8 Any amended complaint should be as concise as possible in fulfilling the above 9 || requirements. Fed. R. Civ. P. 8(a). Plaintiff should avoid the inclusion of procedural or factual 10 | background which has no bearing on his legal claims. He should also take pains to ensure that his 11 || amended complaint is as legible as possible. This refers not only to penmanship, but also spacing 12 | and organization. Plaintiff should carefully consider whether each of the defendants he names 13 | actually had involvement in the constitutional violations he alleges. A “scattershot” approach in 14 | which plaintiff names dozens of defendants will not be looked upon favorably by the court. 15 Conclusion 16 Accordingly, it is ORDERED that: 17 1. Plaintiff’ □ application to proceed in forma pauperis (ECF No. 2) is GRANTED; 18 2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected 19 || in accordance with the notice to the California Department of Corrections and Rehabilitation filed 20 | concurrently herewith; 21 3. Plaintiff’ s complaint (ECF No. 1) is dismissed with leave to amend within 30 22 || days from the date of service of this order; and 23 4. Failure to file an amended complaint that complies with this order may result in 24 || the dismissal of this action for the reasons stated 25 || herein. DATED: February 10, 2020. 26 > 27 / EDMUND F. BRENNAN 28 UNITED STATES MAGISTRATE JUDGE