(PC) Connor v. CDCR ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 BARBARA A. CONNOR, No. 2:19-cv-2088-TLN-EFB P 11 Plaintiff, 12 v. ORDER 13 CALIFORNIA DEPARTMENT OF CORRECTIONS AND 14 REHABILITATION, et al., 15 Defendants. 16 17 Plaintiff is a former state prisoner proceeding without counsel in a civil action. She seeks 18 leave to proceed in forma pauperis. 19 Application to Proceed In Forma Pauperis 20 Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1). 21 Accordingly, her request to proceed in forma pauperis is granted 22 Screening Order 23 Determining that plaintiff may proceed in forma pauperis does not complete the required 24 inquiry. Pursuant to § 1915(e)(2), the court must dismiss the case at any time if it determines the 25 allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on 26 which relief may be granted, or seeks monetary relief against an immune defendant. As discussed 27 below, plaintiff’s complaint must be dismissed for failure to state a claim. 28 ///// 1 In screening a pro se pleading, the court must accept as true the allegations of the 2 complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), 3 construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the 4 plaintiff’s favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must satisfy 5 the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 8(a)(2) 6 requires a complaint to include “a short and plain statement of the claim showing that the pleader 7 is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds 8 upon which it rests.” Twombly, 550 U.S. at 555 (citing Conley v. Gibson, 355 U.S. 41 (1957)). 9 The allegations in plaintiff’s complaint (ECF No. 1) are limited. She claims that in July of 10 2018, defendant doctor Jerry Wiener erroneously informed her that she had stage three breast 11 cancer and on August 7, 2018 performed an unnecessary mastectomy. Plaintiff alleges that in 12 October of 2018, she learned from another doctor that she only had stage one cancer and that the 13 surgery had been unnecessary. According to plaintiff, the “intentional misconduct and deliberate 14 indifference” has caused her irreparable harm. She seeks damages of $5,000,000. 15 Deliberate indifference requires a showing that the defendant, acting with a state of mind 16 more blameworthy than negligence, denied, delayed, or interfered with the treatment of plaintiff’s 17 serious medical needs. Farmer v. Brennan, 511 U.S. 825, 835 (1994); Estelle v. Gamble, 429 18 U.S. 97, 106 (1976). The indifference to medical needs must be substantial; mere malpractice, or 19 even gross negligence, does not constitute cruel and unusual punishment. Estelle, 429 U.S. at 20 106. Her claims that defendant misdiagnosed the stage of her cancer and performed an 21 unnecessary surgery, are at most allegations of medical negligence, which does not establish and 22 Eighth Amendment violation. It is unclear from her allegations why the defendant made the 23 decision in question, and whether he did so through deliberate decision or negligent oversight. 24 Absent some allegations as to what motivated defendant’s actions, it is impossible to determine 25 whether defendant acted with deliberate indifference or mere negligence. Accordingly, plaintiff’s 26 complaint must be dismissed. Plaintiff may file an amended complaint addressing this 27 deficiency. 28 ///// 1 Moreover, any amended complaint should allege where the claims against defendant 2 | Weiner arose. If plaintiff’s consultation and surgery with Weiner took place in Chowchilla, at or 3 || near the Central California Women’s Facility facility were plaintiff was then confined, then this 4 || action ought to be transferred to the Fresno division of this court. See E.D. Cal. Local Rule 5 || 120(d). 6 The amended complaint must also contain a caption including the names of all defendants. 7 | Fed. R. Civ. P. 10(a). Plaintiff may not change the nature of this suit by alleging new, unrelated 8 || claims. See George, 507 F.3d at 607. Nor may she bring multiple, unrelated claims against more 9 | than one defendant. Jd. 10 Any amended complaint should be as concise as possible in fulfilling the above 11 || requirements. Fed. R. Civ. P. 8(a). Plaintiff should avoid the inclusion of procedural or factual 12 | background which has no bearing on her legal claims. 13 Conclusion 14 Accordingly, it is ORDERED that: 15 1. Plaintiff's application to proceed in forma pauperis (ECF No. 2) is GRANTED; 16 2. Plaintiffs complaint (ECF No. 1) is dismissed with leave to amend within 30 days 17 || from the date of service of this order; and 18 3. Failure to comply with any part of this this order may result in dismissal of this 19 | action. 20 || DATED: April 10, 2020. > 21 / EDMUND F. BRENNAN 0 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28