(PC) Barba v. Smith ( 2020 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LUIS BARBA, No. 2:19-CV-1649-DMC-P 12 Plaintiff, 13 v. ORDER 14 C. SMITH, et al., 15 Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 42 U.S.C. § 1983. Pending before the court is plaintiff’s first amended complaint (ECF No. 10). 19 The court is required to screen complaints brought by prisoners seeking relief 20 against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 21 § 1915A(a). The court must dismiss a complaint or portion thereof if it: (1) is frivolous or 22 malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief 23 from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover, 24 the Federal Rules of Civil Procedure require that complaints contain a “. . . short and plain 25 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This 26 means that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d 27 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the 28 1 complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon which it 2 rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff must allege 3 with at least some degree of particularity overt acts by specific defendants which support the 4 claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is 5 impossible for the court to conduct the screening required by law when the allegations are vague 6 and conclusory. 7 8 I. PLAINTIFF’S ALLEGATIONS 9 Plaintiff Luis Barba names the following as defendants: (1) C. Smith; (2) Sam 10 Wong; and (3) Marianna Ashe.1 Defendants are doctors at Mule Creek State Prison in Ione, 11 California. See ECF No. 10, pg. 3. 12 Plaintiff alleges that defendants violated his Eighth Amendment right to medical 13 care by failing to treat plaintiff’s varicose veins. Id. at 3. Specifically, plaintiff alleges that, in 14 early 2014, defendants became aware of plaintiff’s varicose veins in his left leg. Id. Defendants 15 were aware that plaintiff required vascular corrective surgery but denied plaintiff surgery despite 16 knowing his condition would deteriorate. Id. Defendant, Dr. Sam Wong, specifically informed 17 plaintiff that surgery would be considered after certain medical scans were conducted. However, 18 no surgery was ever ordered, and plaintiff was instead given compression socks which did not 19 alleviate his pain. Id. All defendants were allegedly aware that plaintiff’s condition worsened 20 after this. Id. As a result of this misconduct, plaintiff has experienced severe pain throughout his 21 body and fears he will eventually suffer from a stroke. Id. 22 /// 23 /// 24 /// 25 /// 26 1 California Correctional Health Care Services, the only defendant named in the 27 original complaint, is not named in the first amended complaint. The Clerk of the Court will be directed to update the docket to reflect that this action proceeds against defendants Smith, Wong, 28 and Ashe only. 1 II. DISCUSSION 2 Plaintiff has failed to allege sufficient facts to state a cognizable Eighth 3 Amendment claim against any of the named defendants. 4 To state a claim under 42 U.S.C. § 1983, the plaintiff must allege an actual 5 connection or link between the actions of the named defendants and the alleged deprivations. See 6 Monell v. Dep’t of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). “A 7 person ‘subjects’ another to the deprivation of a constitutional right, within the meaning of 8 § 1983, if he does an affirmative act, participates in another's affirmative acts, or omits to perform 9 an act which he is legally required to do that causes the deprivation of which complaint is made.” 10 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Vague and conclusory allegations 11 concerning the involvement of official personnel in civil rights violations are not sufficient. See 12 Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Rather, the plaintiff must set forth 13 specific facts as to each individual defendant’s causal role in the alleged constitutional 14 deprivation. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). 15 Here, plaintiff alleges that the named defendants violated his Eighth Amendment 16 rights by failing to provide vascular surgery despite knowing it was medically necessary. See 17 ECF No. 10, pg. 3. However, almost all of plaintiff’s factual allegations are directed broadly at 18 the “defendants.” Id. There are no individual factual allegations against either defendant Smith or 19 Ashe. As such, it is not clear what their roles they played in plaintiff’s care, nor how they 20 specifically deprived plaintiff of his rights. Plaintiff provides slightly more context for his claim 21 against Dr. Wong. Plaintiff alleges that Wong assured him that corrective surgery would be 22 considered but plaintiff was ultimately granted compression socks instead of surgery. See ECF 23 No. 3. However, even here, it is not clear what Wong’s involvement in plaintiff’s care was nor 24 what conduct is specifically attributable to him beyond telling plaintiff that surgery would be 25 “considered.”. It should be noted that, to the degree that plaintiff’s Eight Amendment claims rests 26 on Wong choosing to provide plaintiff with compression socks as opposed to surgery, a 27 difference of medical opinion is not a proper basis for a deliberate indifference claim. See 28 Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996). 1 The court acknowledges that plaintiff’s assertion that the “defendants” knew of his 2 need for surgery and refused to act are indeed relevant to an Eighth Amendment claim. However, 3 without more, these allegations are simply vague, conclusory, and insufficient to put defendants 4 on notice of what it is they are claimed to have done. Plaintiff must set forth facts which establish 5 a specific causal connection between each individual defendant and the alleged deprivation. See 6 Leer, 844 F .2d at 634. Applying this standard to plaintiff’s claims, it is clear that he has failed. 7 Therefore, plaintiff shall be granted leave to amend and provide a clearer factual context for his 8 claims. 9 10 III. CONCLUSION 11 Because it is possible that the deficiencies identified in this order may be cured by 12 amending the complaint, plaintiff is entitled to leave to amend prior to dismissal of the entire 13 action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc). Plaintiff is 14 informed that, as a general rule, an amended complaint supersedes the original complaint. See 15 Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Thus, following dismissal with leave to 16 amend, all claims alleged in the original complaint which are not alleged in the amended 17 complaint are waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Therefore, if 18 plaintiff amends the complaint, the court cannot refer to the prior pleading in order to make 19 plaintiff's amended complaint complete. See Local Rule 220. An amended complaint must be 20 complete in itself without reference to any prior pleading. See id. 21 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the 22 conditions complained of have resulted in a deprivation of plaintiff’s constitutional rights. See 23 Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms how 24 each named defendant is involved, and must set forth some affirmative link or connection 25 between each defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d 26 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 27 /// 28 /// 1 Finally, plaintiff is warned that failure to file an amended complaint within the 2 | time provided in this order may be grounds for dismissal of this action. See Ferdik, 963 F.2d at 3 | 1260-61; see also Local Rule 110. Plaintiff is also warned that a complaint which fails to comply 4 | with Rule 8 may, in the court’s discretion, be dismissed with prejudice pursuant to Rule 41(b). 5 | See Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981). 6 Accordingly, IT IS HEREBY ORDERED that: 7 1. The Clerk of the Court is directed to update the docket to reflect that this 8 | action proceeds against the following defendants: Smith, Wong, and Ashe; 9 2. Plaintiff's first amended complaint is dismissed with leave to amend; and 10 3. Plaintiff shall file a second amended complaint within 30 days of the date 11 | of service of this order. 12 13 14 | Dated: February 13, 2020 Ssvcqo_ 15 DENNIS M. COTA 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28