(PC) Cross v. Doe 1 John-Jane ( 2021 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 YOHAN CROSS, Case No. 2:21-cv-00693-JAM-JDP (PC) 11 Plaintiff, ORDER GRANTING PLAINTIFF’S APPLICATION TO PROCEED IN FORMA 12 v. PAUPERIS 13 JOHN-JANE DOE #1, et al., ECF No. 2 14 Defendants. SCREENING ORDER THAT PLAINTIFF: 15 (1) FILE AN AMENDED COMPLAINT; OR 16 (2) NOTIFY THE COURT THAT HE 17 WISHES TO STAND BY HIS COMPLAINT, SUBJECT TO 18 DISMISSAL OF CLAIMS AND DEFENDANTS 19 ECF No. 1 20 SIXTY-DAY DEADLINE 21 22 Plaintiff Yohan Cross is a former state prisoner proceeding without counsel in this civil 23 rights action brought under 42 U.S.C. § 1983. He alleges that three “Doe” defendants violated his 24 Eighth Amendment rights by failing to provide adequate care for an injury to his thumb. ECF 25 No. 1 at 10. I find that the complaint does not state a cognizable claim, but I will give plaintiff 26 leave to amend. 27 Plaintiff has also filed an application to proceed in forma pauperis. ECF No. 2. It makes 28 the proper showing, and I will grant it. 1 Screening and Pleading Requirements 2 A federal court must screen a prisoner’s complaint that seeks relief against a governmental 3 entity, officer, or employee. See 28 U.S.C. § 1915A(a). The court must identify any cognizable 4 claims and dismiss any portion of the complaint that is frivolous or malicious, fails to state a 5 claim upon which relief may be granted, or seeks monetary relief from a defendant who is 6 immune from such relief. See 28 U.S.C. §§ 1915A(b)(1), (2). 7 A complaint must contain a short and plain statement that plaintiff is entitled to relief, 8 Fed. R. Civ. P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its 9 face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard does not 10 require detailed allegations, but legal conclusions do not suffice. See Ashcroft v. Iqbal, 556 U.S. 11 662, 678 (2009). If the allegations “do not permit the court to infer more than the mere 12 possibility of misconduct,” the complaint states no claim. Id. at 679. The complaint need not 13 identify “a precise legal theory.” Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 14 1038 (9th Cir. 2016). Instead, what plaintiff must state is a “claim”—a set of “allegations that 15 give rise to an enforceable right to relief.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1264 16 n.2 (9th Cir. 2006) (en banc) (citations omitted). 17 The court must construe a pro se litigant’s complaint liberally. See Haines v. Kerner, 404 18 U.S. 519, 520 (1972) (per curiam). But the court may dismiss a pro se litigant’s complaint “if it 19 appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 20 would entitle him to relief.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017). “‘A 21 liberal interpretation of a civil rights complaint may not supply essential elements of the claim 22 that were not initially pled.’” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 23 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). 24 25 26 27 28 1 Analysis 2 Plaintiff alleges that, on December 2, 2020, while incarcerated at California State Prison- 3 Sacramento, he broke a bone in his right thumb. ECF No. 1 at 10. Three days later, he sought 4 medical attention. Id. He claims, however, that he received no medical care for his thumb until 5 February 9, 2021—more than two months after the injury. Id. at 11. By that time, his thumb had 6 healed improperly, and he had lost full use of it. Id. at 12. 7 Plaintiff alleges that the three “Doe” defendants, two of whom were physicians and one of 8 whom was the Chief Medical Officer, were responsible for the delay in care. Id. at 13-14. He 9 does not, however, allege how they were responsible; he does not make specific allegations 10 against each defendant, as the pleading standard requires. See Chappell v. Newbarth, No. 1:06- 11 cv-01378-OWW-WMW (PC), 2009 U.S. Dist. LEXIS 41499, *7 (E.D. Cal. 2009) (“[A] 12 complaint must put each defendant on notice of Plaintiff’s claims against him or her, and their 13 factual basis.”). Instead, he attributes all wrongdoing to the defendants collectively and does not 14 describe what each did or failed to do. The complaint cannot proceed unless and until this 15 deficiency is corrected. Plaintiff is also advised that, even if a future complaint states cognizable 16 claims, I cannot order service on a defendant who cannot be identified. He should take whatever 17 steps are available to him to identify the “Doe” defendants in this action. 18 I will give plaintiff leave to amend his complaint before recommending dismissal of this 19 action. 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 will need to be complete on its face without 22 reference to the prior pleading. See E.D. Cal. Local Rule 220. When an amended complaint has 23 been filed, the current complaint will no longer serve any function. Therefore, in an amended 24 complaint, as in an original complaint, plaintiff will need to assert each claim and allege each 25 defendant’s involvement in sufficient detail. The amended complaint should be titled “Amended 26 Complaint” and refer to the appropriate case number. If plaintiff does not file an amended 27 complaint, I will recommend that this action be dismissed. 28 1 Accordingly, it is ORDERED that: 2 1. Plaintiff's application to proceed in forma pauperis, ECF No. 2, is granted. 3 2. Within sixty days from the service of this order, plaintiff must either file an 4 | Amended Complaint or advise the court he wishes stand by his current complaint. 5 3. Failure to comply with this order may result in the dismissal of this action. 6 4. The clerk’s office is directed to send plaintiff a complaint form. 4 g IT IS SO ORDERED. Dated: _ April 29, 2021 Q_——. 10 JEREMY D. PETERSON i UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28