(PC) Carr v. Balaji ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 ARTHUR CARR, No. 2:19-cv-0688-EFB P 11 Plaintiff, 12 v. ORDER 13 A. BALAJI, et al., 14 Defendants. 15 16 Plaintiff, a state prisoner proceeding without counsel in an action brought under 42 U.S.C. 17 § 1983, has filed an application to proceed in forma pauperis (ECF No. 2) and a motion to appoint 18 counsel (ECF No. 3). 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 According to the complaint, plaintiff suffers from a painful medical condition in his hand 25 known as Dupuytren’s hand or “trigger lock.” ECF No. 1 at 5, 14. On October 10, 2017, a 26 specialist at an outside hospital recommended that plaintiff have surgery. Id. at 5, 14. On 27 January 30, 2018, defendant Church denied the request. Id. at 15. For reasons not clearly stated, 28 Church was “incensed” and cancelled the surgery to “punish” plaintiff. Id. at 5. An unknown 1 person subsequently approved the surgery and it was scheduled for July 2, 2018. Id. at 16. Just 2 before the surgery, however, defendant Nurse Gurm informed plaintiff that it had to be 3 rescheduled because plaintiff’s “primary care teams” had not complied with pre-surgery 4 protocols. Id. at 17. Eventually, nearly a year later, on October 1, 2018, plaintiff had the surgery. 5 Id. at 5. 6 In addition to claiming defendants were deliberately indifferent to his medical needs in 7 violation of the Eighth Amendment, plaintiff claims that defendant nurses Suson and Gurm were 8 grossly negligent. Id. at 8. He also asserts he was dissatisfied with an amended response to an 9 administrative appeal issued by defendants Gates, Singh, Recary, and Magsayo and that their 10 response violated institutional policy. Id. at 7, 18-20. 11 These allegations lack sufficient clarity to establish an Eighth Amendment deliberate 12 indifference to medical needs claim. Deliberate indifference requires a showing that the 13 defendant, acting with a state of mind more blameworthy than negligence, denied, delayed, or 14 interfered with the treatment of plaintiff’s serious medical needs. Farmer v. Brennan, 511 U.S. 15 825, 835 (1994); Estelle v. Gamble, 429 U.S. 97, 106 (1976). The indifference to medical needs 16 must be substantial; mere malpractice, or even gross negligence, does not constitute cruel and 17 unusual punishment. Estelle, 429 U.S. at 106. In any amended complaint plaintiff should specify 18 (1) why Church cancelled the surgery and how any delay caused him further harm; and (2) what 19 the pre-surgery protocols consisted of, which defendants failed to comply with them, and why 20 they so failed. 21 Moreover, claims based upon how a defendant processed an administrative appeal are not 22 viable. Inmates have no standalone rights with respect to the administrative grievance process. 23 Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003); Williams v. Cate, No. 1:09-cv-00468- 24 0WW-YNP PC, 2009 U.S. Dist. LEXIS 107920, 2009 WL 3789597, at *6 (E.D. Cal. Nov. 10, 25 2009) (“Plaintiff has no protected liberty interest in the vindication of his administrative 26 claims.”). 27 Finally, plaintiff has failed to properly plead his state tort law claim of gross negligence. 28 ///// 1 The California Torts Claims Act (“Act”) requires that a party seeking to recover money damages 2 from a public entity or its employees submit a claim to the entity before filing suit in court, 3 generally no later than six months after the cause of action accrues. Cal. Gov’t Code §§ 905, 4 911.2, 945, 950.2 (emphasis added). When a plaintiff asserts a claim subject to the Act, he must 5 affirmatively allege compliance with the claim presentation procedure, or circumstances excusing 6 such compliance, in his complaint. Shirk v. Vista Unified Sch. Dist., 42 Cal. 4th 201, 209 (2007). 7 Plaintiff’s complaint is devoid of such allegations 8 Leave to Amend 9 Plaintiff will be given an opportunity to amend his complaint. He is cautioned that any 10 amended complaint must identify as a defendant only persons who personally participated in a 11 substantial way in depriving him of his constitutional rights. Johnson v. Duffy, 588 F.2d 740, 743 12 (9th Cir. 1978) (a person subjects another to the deprivation of a constitutional right if he does an 13 act, participates in another’s act or omits to perform an act he is legally required to do that causes 14 the alleged deprivation). Plaintiff may also include any allegations based on state law that are so 15 closely related to his federal allegations that “they form the same case or controversy.” See 28 16 U.S.C. § 1367(a). 17 The amended complaint must also contain a caption including the names of all defendants. 18 Fed. R. Civ. P. 10(a). 19 Plaintiff may not change the nature of this suit by alleging new, unrelated claims. See 20 George, 507 F.3d at 607. Nor, as he was warned above, may he bring multiple, unrelated claims 21 against more than one defendant. Id. 22 Any amended complaint must be written or typed so that it so that it is complete in itself 23 without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended 24 complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the 25 earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114 26 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter 27 being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 28 1967)). 1 Any amended complaint should be as concise as possible in fulfilling the above 2 requirements. Fed. R. Civ. P. 8(a). Plaintiff should avoid the inclusion of procedural or factual 3 background which has no bearing on his legal claims. He should also take pains to ensure that his 4 amended complaint is as legible as possible. This refers not only to penmanship, but also spacing 5 and organization. Plaintiff should carefully consider whether each of the defendants he names 6 actually had involvement in the constitutional violations he alleges. A “scattershot” approach in 7 which plaintiff names dozens of defendants will not be looked upon favorably by the court. 8 Motion for Appointment of Counsel 9 Plaintiff requests the appointment of counsel. ECF No. 3. District courts may authorize 10 the appointment of counsel to represent an indigent civil litigant in certain exceptional 11 circumstances. See 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th 12 Cir.1991); Wood v. Housewright, 900 F.2d 1332, 1335–36 (9th Cir.1990); Richards v. Harper, 13 864 F.2d 85, 87 (9th Cir. 1988). In considering whether exceptional circumstances exist, the 14 court must evaluate (1) the plaintiff’s likelihood of success on the merits; and (2) the ability of the 15 plaintiff to articulate her claims pro se in light of the complexity of the legal issues involved. 16 Terrell, 935 F.2d at 1017. The court cannot conclude that plaintiff’s likelihood of success, the 17 complexity of the issues, or the degree of plaintiff’s ability to articulate her claims amount to 18 exceptional circumstances justifying the appointment of counsel at this time. The court will 19 however, grant plaintiff’s request for an extension of time. 20 Conclusion 21 Accordingly, it is ORDERED that: 22 1. Plaintiff’s application to proceed in forma pauperis (ECF No. 2) is GRANTED. 23 2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected 24 in accordance with the notice to the California Department of Corrections and Rehabilitation filed 25 concurrently herewith. 26 3. Plaintiff’s request for the appointment of counsel (ECF No.3) is denied. 27 4. Plaintiff’s complaint (ECF No. 1) is dismissed with leave to amend within 30 days 28 from the date of service of this order. 1 5. Failure to file an amended complaint that complies with this order may result in the 2 dismissal of this action for the reasons stated herein. 3 || DATED: February 11, 2020. 4 Pati Bet A 5 EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28