(PC) Phillips v. Dowbak ( 2021 )


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  • 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 DAMIEN PHILLIPS, Case No. 2:20-cv-02369-WBS-JDP (PC) 11 Plaintiff, ORDER GRANTING PLAINTIFF’S APPLICATION TO PROCEED IN FORMA 12 v. PAUPERIS 13 JOHN M. DOWBAK, et al., ECF No. 2 14 Defendants. ORDER DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF 15 COUNSEL 16 ECF No. 3 17 SCREENING ORDER THAT PLAINTIFF: 18 (1) FILE AN AMENDED COMPLAINT; OR 19 (2) NOTIFY THE COURT THAT HE 20 WISHES TO STAND BY HIS COMPLAINT, SUBJECT TO 21 DISMISSAL OF CLAIMS AND DEFENDANTS CONSISTENT WITH 22 THIS ORDER 23 ECF No. 1 24 SIXTY-DAY DEADLINE 25 26 Plaintiff Damien Phillips is a state prisoner proceeding without counsel in this civil rights 27 action brought under 42 U.S.C. § 1983. He has filed a complaint alleging that all of the named 28 defendants violated his Eighth Amendment rights by failing to treat a metal pin that protruded 1 from his left hand. ECF No. 1 at 5. That complaint, for the reasons stated below, does not state a 2 viable claim. Plaintiff will be given leave to amend. Plaintiff has also filed an application to 3 proceed in forma pauperis, ECF No. 2, which will be granted.1 Finally, he has filed a motion for 4 the appointment of counsel, which will be denied. 5 I. Motion for Appointment of Counsel 6 Plaintiff does not have a constitutional right to appointed counsel in this action, see Rand 7 v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court lacks the authority to require an 8 attorney to represent plaintiff. See Mallard v. U.S. District Court for the Southern District of 9 Iowa, 490 U.S. 296, 298 (1989). I may request the voluntary assistance of counsel. See 28 10 U.S.C. § 1915(e)(1) (“The court may request an attorney to represent any person unable to afford 11 counsel”); Rand, 113 F.3d at 1525. However, without a means to compensate counsel, I will seek 12 volunteer counsel only in exceptional circumstances. In determining whether such circumstances 13 exist, “the district court must evaluate both the likelihood of success on the merits [and] the 14 ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the legal issues 15 involved.” Rand, 113 F.3d at 1525 (internal quotation marks and citations omitted). 16 I cannot conclude that exceptional circumstances requiring the appointment of counsel are 17 present here. The allegations in the complaint are not exceptionally complicated. Further, 18 plaintiff has not demonstrated that he is likely to succeed on the merits. For these reasons, 19 plaintiff’s motion to appoint counsel, ECF No. 3, is denied without prejudice. 20 I may revisit this issue at a later stage of the proceedings if the interests of justice so 21 require. If plaintiff later renews his request for counsel, he should provide a detailed explanation 22 of the circumstances that he believes justify appointment of counsel in this case. 23 24 25 26 27 28 1 Plaintiff will pay the filing fee in accordance with the concurrently filed collection order. 1 II. Screening 2 Screening and Pleading Requirements 3 A federal court must screen a prisoner’s complaint that seeks relief against a governmental 4 entity, officer, or employee. See 28 U.S.C. § 1915A(a). The court must identify any cognizable 5 claims and dismiss any portion of the complaint that is frivolous or malicious, fails to state a 6 claim upon which relief may be granted, or seeks monetary relief from a defendant who is 7 immune from such relief. See 28 U.S.C. §§ 1915A(b)(1), (2). 8 A complaint must contain a short and plain statement that plaintiff is entitled to relief, 9 Fed. R. Civ. P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its 10 face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard does not 11 require detailed allegations, but legal conclusions do not suffice. See Ashcroft v. Iqbal, 556 U.S. 12 662, 678 (2009). If the allegations “do not permit the court to infer more than the mere 13 possibility of misconduct,” the complaint states no claim. Id. at 679. The complaint need not 14 identify “a precise legal theory.” Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 15 1038 (9th Cir. 2016). Instead, what plaintiff must state is a “claim”—a set of “allegations that 16 give rise to an enforceable right to relief.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1264 17 n.2 (9th Cir. 2006) (en banc) (citations omitted). 18 The court must construe a pro se litigant’s complaint liberally. See Haines v. Kerner, 404 19 U.S. 519, 520 (1972) (per curiam). The court may dismiss a pro se litigant’s complaint “if it 20 appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 21 would entitle him to relief.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017). 22 However, “‘a liberal interpretation of a civil rights complaint may not supply essential elements 23 of the claim that were not initially pled.’” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 24 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). 25 Analysis 26 Plaintiff alleges that, on February 14, 2020, he had surgery on his left hand to repair a 27 “Bennett’s fracture.” ECF No. 1 at 5. Defendant Dowbak performed the surgery and explained 28 that several metal pins were being inserted into plaintiff’s hand, but they would be bent so as not 1 to protrude from the skin. Id. On March 9, 2020, one of the pins allegedly began to protrude 2 from plaintiff’s hand. Id. He saw defendant Gary Malet, a prison physician, and showed him the 3 problem. Id. Plaintiff alleges that Malet diagnosed him with a skin infection, but did nothing to 4 treat his injury. Id. On March 17, 2020, plaintiff saw another prison physician, defendant Francis 5 Ko, about the same issue. Id. He alleges that Ko said the injury was just a scab and implied 6 plaintiff was lying. Id. On March 19, 2020, plaintiff saw defendants Marie Klynstra and Vaneida 7 White, and they also failed to treat him. Id. Plaintiff submitted a grievance complaining of the 8 foregoing lack of medical care, but it was denied by defendants Awatani and Gates. Id. at 5-6. 9 As an initial matter, the complaint alleges no wrongdoing against defendant Dowbak, 10 despite naming him as a defendant. Even if I were to read the allegations as implying that the pin 11 came loose because of a surgical error on Dowbak’s part, plaintiff has not alleged that this 12 defendant acted with deliberate indifference. See Farmer v. Brennan, 511 U.S. 825, 835 (1994) 13 (“[D]eliberate indifference describes a state of mind more blameworthy than negligence.”). 14 Accordingly, plaintiff has failed to state a claim against this defendant. 15 Plaintiff’s allegations against Awatani and Gates also fail because denial of a grievance 16 does not, without more, state a constitutional claim. See Ramirez v. Galaza, 334 F.3d 850, 860 17 (9th Cir. 2003). 18 Plaintiff’s claims against Malet, Ko, Klynstra, and White fail because documents attached 19 to his complaint contradict his allegations that they failed to treat him. See Sprewell v. Golden 20 State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). The documents show that, on March 9, 2020, 21 defendant Malet recognized that “the distal pin is mildly reddened” and prescribed antibiotics. 22 ECF No. 1 at 21. On March 17, 2020, plaintiff saw defendant Ko who, as he alleges, diagnosed 23 the wound as a scab. Id. at 29. Nothing indicates that Ko’s assessment, which he put in his notes, 24 was made recklessly or in bad faith. Id. And Ko provided instructions for follow-up care, 25 including daily wound cleaning. Id. I note that the records show that, during their encounter, 26 plaintiff told Ko that the pain and redness of the surgical site had resolved. Id. On March 19, 27 2020, the day he alleges that he saw Klynstra and White, plaintiff’s registered care provider noted 28 the pin poking through the skin. Id. at 18. An x-ray was taken, an orthopedist was contacted, 1 another course of antibiotics was prescribed, and the pins were set for removal in two weeks. Id. 2 at 18, 21. The operation removing the pins was subsequently completed without complication.2 3 Id. at 18. On September 1, 2020, plaintiff’s primary provider noted that the hand had “excellent 4 progress in healing, function, and range of motion.” Id. These documents contradict plaintiff’s 5 claims that the foregoing defendants failed to treat him. 6 Plaintiff may choose to file an amended complaint which explains the inconsistencies 7 between his cursory allegations of non-treatment and the medical documents attached to his 8 complaint. If he chooses to stand on his complaint, I will recommend that it be dismissed. 9 Should plaintiff choose to amend the complaint, the amended complaint should be brief, 10 Fed. R. Civ. P. 8(a), but must state what actions each named defendant took that deprived plaintiff 11 of constitutional or other federal rights. See Iqbal, 556 U.S. at 678; Jones v. Williams, 297 F.3d 12 930, 934 (9th Cir. 2002). Plaintiff must set forth “sufficient factual matter . . . to ‘state a claim to 13 relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). 14 Plaintiff must allege that each defendant personally participated in the deprivation of his rights. 15 See Jones, 297 F.3d at 934. Plaintiff should note that a short, concise statement in which the 16 allegations are ordered chronologically will help the court identify his claims. Plaintiff should 17 describe how each defendant wronged him, the circumstances surrounding each of the claimed 18 violations, and any harm he suffered. 19 If plaintiff decides to file an amended complaint, the amended complaint will supersede 20 the current complaint. See Lacey v. Maricopa County, 693 F. 3d 896, 907 n.1 (9th Cir. 2012) (en 21 banc). This means that the amended complaint must be complete on its face without reference to 22 the prior pleading. See E.D. Cal. Local Rule 220. Once an amended complaint is filed, the 23 current complaint no longer serves any function. Therefore, in an amended complaint, as in an 24 original complaint, plaintiff must assert each claim and allege each defendant’s involvement in 25 sufficient detail. The amended complaint should be titled “Amended Complaint” and refer to the 26 appropriate case number. 27 2 Documents show that the pin removal surgery was set for April 2, 2020. ECF No. 1 at 28 21. The surgery was moved to April 10, 2020, however, due to COVID-19 related issues. Id. 1 Accordingly, it is ORDERED that: 2 1. Plaintiff's motion to proceed in forma pauperis (ECF No. 2) is granted. 3 2. Plaintiff's motion to appoint counsel (ECF No. 3) is denied without prejudice. 4 3. Within sixty days from the service of this order, plaintiff must either file an 5 | Amended Complaint or advise the court he wishes stand by his current complaint. 6 4. Failure to comply with this order may result in the dismissal of this action. 7 5. The clerk’s office is directed to send plaintiff a complaint form. 8 9 IT IS SO ORDERED. 10 ( 1 Ow — Dated: _ January 28, 2021 Q_——_. 11 JEREMY D. PETERSON Db UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Document Info

Docket Number: 2:20-cv-02369

Filed Date: 1/29/2021

Precedential Status: Precedential

Modified Date: 6/19/2024