(PC) Merino v. Vuong ( 2021 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 FRANCISCO MERINO, No. 2:21-CV-0826-KJM-DMC-P 12 Plaintiff, 13 v. ORDER 14 VIVIAN VUONG, et al., 15 Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action under 42 18 U.S.C. § 1983. Pending before the Court is Plaintiff’s original complaint, ECF No. 1. 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 complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon which it 1 rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because Plaintiff must allege 2 with at least some degree of particularity overt acts by specific defendants which support the 3 claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is 4 impossible for the Court to conduct the screening required by law when the allegations are vague 5 and conclusory. 6 7 I. PLAINTIFF’S ALLEGATIONS 8 Plaintiff brings suit against one Defendant, Vivian Vuong, the “Chief Clinic 9 Ophthalmolog[ist]” at the UC Davis Eye Center. See ECF No. 1, page 2. Plaintiff claims the 10 events that gave rise to the complaint happened at UC Davis Eye Center. Id. at 1. Plaintiff alleges 11 Defendant Vuong damaged Plaintiff’s eye in a negligent surgery. See id. According to Plaintiff’s 12 complaint, Plaintiff was hit in the left eye, sent to the emergency room where Vuong operated or 13 ordered an operation on Plaintiff’s left eye, and was subsequently blinded in the left eye. See id. 14 At no time does Plaintiff cite a constitutional provision or claim a right under federal law. 15 Instead, Plaintiff alleges “malpractice of surgery.” Id. at 3, 4, 5. 16 17 II. DISCUSSION 18 Plaintiff makes a claim based on the results of the surgeries conducted or ordered 19 by Defendant Vuong. While Plaintiff shows serious injury, Plaintiff does not allege enough to 20 demonstrate deliberate indifference for medical needs violation under the Eighth Amendment. 21 The Court finds that Plaintiff fails to state a constitutional claim upon relief can be granted, as 22 explained below. 23 The treatment a prisoner receives in prison and the conditions under which the 24 prisoner is confined are subject to scrutiny under the Eighth Amendment, which prohibits cruel 25 and unusual punishment. See Helling v. McKinney, 509 U.S. 25, 31 (1993); Farmer v. Brennan, 26 511 U.S. 825, 832 (1994). The Eighth Amendment “. . . embodies broad and idealistic concepts 27 of dignity, civilized standards, humanity, and decency.” Estelle v. Gamble, 429 U.S. 97, 102 28 (1976). Conditions of confinement may, however, be harsh and restrictive. See Rhodes v. 1 Chapman, 452 U.S. 337, 347 (1981). Nonetheless, prison officials must provide prisoners with 2 “food, clothing, shelter, sanitation, medical care, and personal safety.” Toussaint v. McCarthy, 3 801 F.2d 1080, 1107 (9th Cir. 1986). A prison official violates the Eighth Amendment only when 4 two requirements are met: (1) objectively, the official’s act or omission must be so serious such 5 that it results in the denial of the minimal civilized measure of life’s necessities; and (2) 6 subjectively, the prison official must have acted unnecessarily and wantonly for the purpose of 7 inflicting harm. See Farmer, 511 U.S. at 834. Thus, to violate the Eighth Amendment, a prison 8 official must have a “sufficiently culpable mind.” See id. 9 Deliberate indifference to a prisoner’s serious illness or injury, or risks of serious 10 injury or illness, gives rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at 105; 11 see also Farmer, 511 U.S. at 837. This applies to physical as well as dental and mental health 12 needs. See Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982), abrogated on other grounds by 13 Sandin v. Conner, 515 U.S. 472 (1995). An injury or illness is sufficiently serious if the failure to 14 treat a prisoner’s condition could result in further significant injury or the “. . . unnecessary and 15 wanton infliction of pain.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled 16 on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc); see 17 also Doty v. County of Lassen, 37 F.3d 540, 546 (9th Cir. 1994). Factors indicating seriousness 18 are: (1) whether a reasonable doctor would think that the condition is worthy of comment; (2) 19 whether the condition significantly impacts the prisoner’s daily activities; and (3) whether the 20 condition is chronic and accompanied by substantial pain. See Lopez v. Smith, 203 F.3d 1122, 21 1131-32 (9th Cir. 2000) (en banc). 22 The requirement of deliberate indifference is less stringent in medical needs cases 23 than in other Eighth Amendment contexts because the responsibility to provide inmates with 24 medical care does not generally conflict with competing penological concerns. See McGuckin, 25 974 F.2d at 1060. Thus, deference need not be given to the judgment of prison officials as to 26 decisions concerning medical needs. See Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir. 27 1989). The complete denial of medical attention may constitute deliberate indifference. See 28 Toussaint v. McCarthy, 801 F.2d 1080, 1111 (9th Cir. 1986). Delay in providing medical 1 treatment, or interference with medical treatment, may also constitute deliberate indifference. See 2 Lopez, 203 F.3d at 1131. Where delay is alleged, however, the prisoner must also demonstrate 3 that the delay led to further injury. See McGuckin, 974 F.2d at 1060. 4 Negligence in diagnosing or treating a medical condition does not, however, give 5 rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at 106. Moreover, a 6 difference of opinion between the prisoner and medical providers concerning the appropriate 7 course of treatment does not give rise to an Eighth Amendment claim. See Jackson v. McIntosh, 8 90 F.3d 330, 332 (9th Cir. 1996). 9 In this case, Vuong operated on or ordered operations on Plaintiff’s eye in 10 response to Plaintiff’s serious medical needs. The result of the surgery is not a showing of 11 deliberate indifference. Rather, Plaintiff’s claim shows a difference in medical opinion and 12 dissatisfaction with the results of the surgery. Finally, negligence, if there was indeed medical 13 malpractice, does not violate the Eighth Amendment unless Plaintiff can allege facts to show that 14 Vuong was deliberately indifferent to Plaintiff’s serious medical needs in the context of the eye 15 surgery. Plaintiff will be provided an opportunity to do so, but is cautioned that the failure to do 16 so will result in a recommendation that this action be dismissed for failure to state a cognizable 17 claim. 18 19 III. CONCLUSION 20 Because it is possible that the deficiencies identified in this order may be cured by 21 amending the complaint, Plaintiff is entitled to leave to amend prior to dismissal of the entire 22 action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc). Plaintiff is 23 informed that, as a general rule, an amended complaint supersedes the original complaint. See 24 Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Thus, following dismissal with leave to 25 amend, all claims alleged in the original complaint which are not alleged in the amended 26 complaint are waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Therefore, if 27 Plaintiff amends the complaint, the Court cannot refer to the prior pleading in order to make 28 Plaintiff's amended complaint complete. See Local Rule 220. An amended complaint must be 1 | complete in itself without reference to any prior pleading. See id. 2 If Plaintiff chooses to amend the complaint, Plaintiff must demonstrate how the 3 | conditions complained of have resulted in a deprivation of Plaintiff's constitutional rights. See 4 | Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms how 5 | each named defendant is involved, and must set forth some affirmative link or connection 6 | between each defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d 7 | 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 8 Finally, Plaintiff is warned that failure to file an amended complaint within the 9 | time provided in this order may be grounds for dismissal of this action. See Ferdik, 963 F.2d at 10 || 1260-61; see also Local Rule 110. Plaintiff is also warned that a complaint which fails to comply 11 || with Rule 8 may, in the Court’s discretion, be dismissed with prejudice pursuant to Rule 41(b). 12 | See Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981). 13 Accordingly, IT IS HEREBY ORDERED that: 14 1. Plaintiff's complaint is dismissed with leave to amend; and 15 2. Plaintiff shall file a first amended complaint within 30 days of the date of 16 || service of this order. 17 | Dated: June 23, 2021 18 DENNIS M. COTA 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28