(PC) Shipp v. Petras ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ZOAAN SHIPP, No. 2:20-cv-0938-JAM-EFB P 12 Plaintiff, 13 v. ORDER 14 DR. OGNJEN PETRAS, 15 Defendant. 16 17 Plaintiff, a state prisoner proceeding without counsel in this action brought pursuant to 42 18 U.S.C. § 1983, seeks leave to proceed in forma pauperis. ECF Nos. 7 & 8. 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 agency having custody of plaintiff is directed to collect and 22 forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C. § 1915(b)(1) 23 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’s complaint alleges the following: Plaintiff suffers from moderate to severe 25 bilateral carpal tunnel syndrome. ECF No. 6, ¶ 8. He underwent surgery on his left hand in 26 October of 2018 and his right hand in November of 2018. Id. ¶¶ 12-13. On November 27, 2018, 27 plaintiff was experiencing severe pain in both hands. Id. ¶ 14. Dr. Dillion, a non-defendant 28 physician and surgeon, assured plaintiff that he would be referred for physical therapy. Id. 1 Several weeks later, on December 14, 2018, one of plaintiff’s treating surgeons, Dr. Trzeciak, 2 recommended that plaintiff receive occupation therapy. Id. ¶ 16. On December 19, 2018, 3 plaintiff’s primary care provider, defendant Dr. Virginia Ota “waived” the order for physical 4 therapy and opted instead to provide plaintiff with splints and increased pain medication as a 5 “quick fix.” Id. Plaintiff eventually received physical therapy on January 16, 2019. Id. ¶ 17. 6 The delay, however, resulted in hardened tissue in plaintiff’s palms, an increase in pain, and 7 difficulty holding objects. Id. ¶ 20. Plaintiff asserts Eighth Amendment deliberate indifference 8 to medical needs claims against Dr. Ota and Dr. Ognjen Petras, who was replaced by Dr. Ota as 9 plaintiff’s primary care provider. 10 Plaintiff’s claims cannot survive screening as they lack sufficient detail to establish 11 deliberate indifference for an Eighth Amendment claim. As for defendant Petras, there are no 12 specific allegations indicating if, when, or why he denied or delayed physical/occupation therapy 13 for plaintiff. As for defendant Ota, there are no specific allegations as what rationale underlay her 14 decision to pursue other medical options over physical therapy. It is also unclear what plaintiff 15 means when he states that she “waived” physical therapy. See ECF No. 6, ¶ 16. Deliberate 16 indifference requires a showing that the defendant, acting with a state of mind more blameworthy 17 than negligence, denied, delayed, or interfered with the treatment of plaintiff’s serious medical 18 needs. Farmer v. Brennan, 511 U.S. 825, 835 (1994); Estelle v. Gamble, 429 U.S. 97, 106 19 (1976). The indifference to medical needs must be substantial; mere malpractice, or even gross 20 negligence, does not constitute cruel and unusual punishment. Estelle, 429 U.S. at 106. Absent 21 some indication as to why either defendant denied physical therapy, it is impossible to determine 22 whether either of them acted with deliberate indifference. 23 Leave to Amend 24 Plaintiff’s complaint is dismissed with leave to amend. If plaintiff chooses to file an 25 amended complaint it should observe the following: 26 Any amended complaint must identify as a defendant only persons who personally 27 participated in a substantial way in depriving him of a federal constitutional right. Johnson v. 28 Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a 1 constitutional right if he does an act, participates in another’s act or omits to perform an act he is 2 legally required to do that causes the alleged deprivation). The complaint should also describe, 3 in sufficient detail, how each defendant personally violated or participated in the violation of his 4 rights. The court will not infer the existence of allegations that have not been explicitly set forth 5 in the amended complaint. 6 The amended complaint must 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 Finally, the court notes that any amended complaint should be as concise as possible in 18 fulfilling the above requirements. Fed. R. Civ. P. 8(a). Plaintiff should avoid the inclusion of 19 procedural or factual background which has no bearing on his legal claims. 20 Conclusion 21 Accordingly, IT IS HEREBY ORDERED that: 22 1. Plaintiff’s request to proceed in forma pauperis (ECF Nos. 7 & 8) is GRANTED; 23 2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected in 24 accordance with the notice to the California Department of Corrections and 25 Rehabilitation filed concurrently herewith; 26 3. Plaintiff’s complaint (ECF No. 6) is DISMISSED with leave to amend within 30 days 27 from the date of service of this order; and 28 ///// COVEY EAINT RT MMV UPTO ICA MMI OME TP Ye VI 1 4. Failure to comply with this order may result in dismissal of this action for the reasons 2 stated herein. 3 | DATED: September 29, 2020. 4 EDMUND F. BRENNAN 5 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