(PC) Jones v. Aung ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LEROY NAPOLEON JONES, No. 2:18-cv-2940-EFB P 12 Plaintiff, 13 v. ORDER 14 FRANK KENNEDY, et al., 15 Defendants. 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 No. 3). 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 court directs the agency having custody of plaintiff to collect 22 and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C. 23 § 1915(b)(1) 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 The complaint concerns the medical care, or lack thereof, that plaintiff received at Mule 25 Creek State Prison following the surgical removal of a cyst on December 18, 2017 at San Joaquin 26 General Hospital. ECF No. 1 at 3. Plaintiff alleges that the doctors at San Joaquin General 27 should have sent him to an after-care facility until his wound – which required seven stitches – 28 was completely healed. Id. at 3, 7. Instead, plaintiff was returned to his cell and his after-care 1 consisted of nothing more than a “three day lay in.” Id. He received no pain medication despite 2 excruciating pain, had no donut to sit on or a mobility vest, did not see a doctor or nurse for ten 3 days, did not have his dressings changed for ten days, did not receive sitz baths, and had to walk 4 to breakfast and lunch with bloody, smelly fluid leaking from his stitches. Id. at 3-5. The doctors 5 at San Joaquin apparently e-mailed unspecified after-care instructions to plaintiff’s primary care 6 physician at Mule Creek, but the physician told plaintiff that she had not received any such 7 instructions. Id. at 4. Plaintiff alleges that his pain persisted for over five months and that he 8 endured at least two more lengthy periods of time between dressing changes. Id. at 4, 6. 9 Ultimately, plaintiff’s wound became infected and the stitches were not removed until April. Id. 10 at 6. According to plaintiff, “[a]ll of the defendants in this complaint blamed each other for all of 11 the mistakes made.” Id. at 4. Plaintiff asserts Eighth Amendment deliberate indifference to 12 medical needs claims and state law negligence claims against various physicians and “Doe” 13 defendants. 14 To act with deliberate indifference, a prison official must be aware of facts from which the 15 inference could be drawn that a substantial risk of serious harm exists, and he must also draw the 16 inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). Negligence will not support a cause of 17 action under 42 U.S.C. § 1983. Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 18 1980) (citing Estelle v. Gamble, 429 U.S. 97, 105-106 (1976)); see also Toguchi v. Chung, 391 19 F.3d 1051, 1057 (9th Cir. 2004). 20 Plaintiff’s disagreement with the decision made by the physicians at San Joaquin General 21 Hospital to return him to Mule Creek is insufficient to establish deliberate indifference. See 22 Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989) (“A difference of opinion does not amount to a 23 deliberate indifference to [the inmate’s] medical needs.”). And the claim against his primary care 24 physician, as currently articulated, sounds in negligence rather than deliberate indifference. That 25 is, plaintiff does not allege that his primary care physician intentionally ignored any after-care 26 instructions, only that she did not know about them. See Lemire v. Cal. Dep’t of Corr. & Rehab., 27 726 F.3d 1062, 1082 (9th Cir. 2013) (negligence or gross negligence does not constitute 28 deliberate indifference). If plaintiff wishes to proceed, he must file an amended complaint which 1 allege facts showing that a specific defendant knowingly denied him adequate medical care 2 following his surgery. If plaintiff complained about inadequate medical care, he should allege 3 when he complained, to whom he complained, and how his complaints were responded to. 4 Claims against “Doe” defendants cannot survive screening because unknown persons cannot be 5 served with process until they are identified by their real names and the court will not investigate 6 the names and identities of unnamed defendants. 7 Lastly, the court notes that plaintiff’s request for relief includes a request to be 8 immediately released from custody. ECF No. 1 at 11. Any claim seeking such relief can only be 9 brought by way of a habeas action and not as part of a civil rights complaint. See Nettles v. 10 Grounds, 830 F.3d 922, 927-931 (9th Cir. 2016) (claims which would result in immediate release 11 if successful fall within core of habeas corpus). 12 Leave to Amend 13 Plaintiff will be given an opportunity to amend his complaint. He is cautioned that any 14 amended complaint must identify as a defendant only persons who personally participated in a 15 substantial way in depriving him of his constitutional rights. Johnson v. Duffy, 588 F.2d 740, 743 16 (9th Cir. 1978) (a person subjects another to the deprivation of a constitutional right if he does an 17 act, participates in another’s act or omits to perform an act he is legally required to do that causes 18 the alleged deprivation). Plaintiff may also include any allegations based on state law that are so 19 closely related to his federal allegations that “they form the same case or controversy.” See 28 20 U.S.C. § 1367(a). 21 The amended complaint must also contain a caption including the names of all defendants. 22 Fed. R. Civ. P. 10(a). 23 Plaintiff may not change the nature of this suit by alleging new, unrelated claims. See 24 George, 507 F.3d at 607. Nor, as he was warned above, may he bring multiple, unrelated claims 25 against more than one defendant. Id. 26 Any amended complaint must be written or typed so that it so that it is complete in itself 27 without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended 28 complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the 1 | earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114 2 | F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter 3 || being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 4 | 1967)). 5 Any amended complaint should be as concise as possible in fulfilling the above 6 || requirements. Fed. R. Civ. P. 8(a). Plaintiff should avoid the inclusion of procedural or factual 7 || background which has no bearing on his legal claims. He should also take pains to ensure that his 8 || amended complaint is as legible as possible. This refers not only to penmanship, but also spacing 9 || and organization. Plaintiff should carefully consider whether each of the defendants he names 10 | actually had involvement in the constitutional violations he alleges. A “scattershot” approach in 11 | which plaintiff names dozens of defendants will not be looked upon favorably by the court. 12 Conclusion 13 Accordingly, it is ORDERED that: 14 1. Plaintiff’ s application to proceed in forma pauperis (ECF No. 3) is GRANTED; 15 2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected 16 || in accordance with the notice to the California Department of Corrections and Rehabilitation filed 17 || concurrently herewith; 18 3. Plaintiffs complaint (ECF No. 1) is dismissed with leave to amend within 30 19 || days from the date of service of this order; and 20 4. Failure to file an amended complaint that complies with this order may result in 21 | the dismissal of this action for the reasons stated herein. 22 || DATED: February 24, 2020. tid, PDEA EDMUND F. BRENNAN 24 UNITED STATES MAGISTRATE JUDGE 25 26 27 28