(PC) Connor v. CDCR ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BARBARA A. CONNOR, No. 2:19-cv-2088-TLN-EFB P 12 Plaintiff, 13 v. ORDER 14 CALIFORNIA DEPARTMENT OF CORRECTIONS, et al., 15 Defendants. 16 17 18 Plaintiff is a former state prisoner proceeding without counsel in an action brought under 19 42 U.S.C. § 1983. The court screened plaintiff’s original complaint, found that plaintiff had 20 failed to state sufficient facts to support her constitutional claim and failed to allege facts that 21 would enable the court to determine the appropriate venue for the case, and directed plaintiff to 22 file an amended complaint. ECF No. 6. Plaintiff has filed an amended complaint, which is 23 before the court for screening under 28 U.S.C. § 1915(e)(2), as plaintiff proceeds in forma 24 pauperis. ECF No. 7. 25 I. Screening 26 A. Requirement and Standards 27 Pursuant to § 1915(e)(2), the court must dismiss the case at any time if it determines the 28 allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on 1 which relief may be granted, or seeks monetary relief against a defendant who is immune from 2 suit. 3 In screening a pro se pleading, the court must accept as true the allegations of the 4 complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), 5 construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the 6 plaintiff’s favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must satisfy 7 the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 8(a)(2) 8 requires a complaint to include “a short and plain statement of the claim showing that the pleader 9 is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds 10 upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citing Conley v. 11 Gibson, 355 U.S. 41 (1957)). 12 B. Factual Allegations 13 Plaintiff alleges that, while confined in prison, she was transported to the office of 14 defendant Dr. Jerry Weiner. She claims that Weiner diagnosed her with stage three breast cancer 15 despite a biopsy indicating that her cancer was only stage one, and that, due to this misdiagnosis, 16 performed an unnecessarily invasive mastectomy. Plaintiff sues the California Department of 17 Corrections and Rehabilitation along with defendant Weiner for violation of her Eighth 18 Amendment right to be free from cruel and unusual punishments. 19 C. Analysis 20 In screening plaintiff’s original complaint, the court informed her of the elements of an 21 Eighth Amendment claim and found that plaintiff had not stated facts supporting such a claim. In 22 particular, the court pointed out that the facts alleged by plaintiff did not show that Weiner acted 23 with the requisite mental state to establish deliberate indifference. 24 To succeed on an Eighth Amendment claim predicated on allegedly deficient medical 25 care, a plaintiff must establish that: (1) he had a serious medical need and (2) the defendant’s 26 response to that need was deliberately indifferent. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 27 2006); see also Estelle v. Gamble, 429 U.S. 97, 106 (1976). A serious medical need exists if the 28 failure to treat the condition could result in further significant injury or the unnecessary and 1 wanton infliction of pain. Jett, 439 F.3d at 1096. A deliberately indifferent response may be 2 shown by the denial, delay or intentional interference with medical treatment or by the way in 3 which medical care was provided. Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 4 1988). To act with deliberate indifference, a prison official must both be aware of facts from 5 which the inference could be drawn that a substantial risk of serious harm exists, and he must also 6 draw the inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). 7 Thus, a defendant will be liable for violating the Eighth Amendment if he knows that 8 plaintiff faces “a substantial risk of serious harm and disregards that risk by failing to take 9 reasonable measures to abate it.” Id. at 847. “[I]t is enough that the official acted or failed to act 10 despite his knowledge of a substantial risk of serious harm.” Id. at 842. Importantly (and as the 11 court has already informed plaintiff), the indifference to medical needs must be substantial; mere 12 malpractice, or even gross negligence, does not constitute cruel and unusual punishment. Estelle, 13 429 U.S. at 106. 14 Plaintiff again fails to state facts showing that defendant Weiner’s treatment of her cancer 15 amounted to substantial indifference over and above gross negligence. Accordingly, her claim 16 against him must be dismissed. The court will provide plaintiff one last opportunity to amend her 17 complaint to state a viable claim against Weiner. In that regard, plaintiff is again cautioned that 18 allegations of mere medical negligence is not adequate to establish a claim for deliberate 19 indifference under the Eighth Amendment. 20 Additionally, plaintiff’s claim against the California Department of Corrections and 21 Rehabilitation must be dismissed without leave to amend, as that agency is not a “person” who 22 may be sued under § 1983. That statute provides a cause of action against “[e]very person who, 23 under color of [state law] subjects, or causes to be subjected, any citizen of the United States or 24 other person within the jurisdiction thereof to the deprivation of any rights, privileges, or 25 immunities secured by the Constitution” or other federal law. States and state agencies are not 26 “persons” within the meaning of the statute. Gilbreath v. Cutter Biological, Inc., 931 F.2d 1320, 27 1327 (9th Cir. 1991) (citing Will v. Dep’t of State Police, 491 U.S. 58 (1989) and Mt. Healthy 28 City School Dist. Bd. Of Educ. v. Doyle, 429 U.S. 274 (1977)). 1 Lastly, the court instructed plaintiff to inform the court of the location in which the 2 allegations of her complaint took place so that the court can determine the appropriate venue for 3 her case. She has not done so. Plaintiff is again instructed that, in her second amended 4 complaint, she must inform the court of the location where the events of the complaint took place. 5 The court will provide plaintiff one last opportunity to amend the complaint to attempt to 6 state viable claims against defendant Weiner. 7 If plaintiff elects to file a second amended complaint, that pleading must identify as a 8 defendant only persons who personally participated in a substantial way in depriving him of a 9 federal constitutional right. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person 10 subjects another to the deprivation of a constitutional right if he does an act, participates in 11 another’s act or omits to perform an act he is legally required to do that causes the alleged 12 deprivation). 13 Plaintiff may not change the nature of this suit by alleging new, unrelated claims in the 14 amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). 15 Any amended complaint must be written or typed so that it so that it is complete in itself 16 without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended 17 complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the 18 earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114 19 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter 20 being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 21 1967)). 22 The court cautions plaintiff that failure to comply with the Federal Rules of Civil 23 Procedure, this court’s Local Rules, or any court order may result in this action being dismissed. 24 See E.D. Cal. L.R. 110. 25 II. Order 26 For the foregoing reasons, it is HEREBY ORDERED that: 27 1. Plaintiff’s amended complaint is dismissed with leave to amend within 30 days from 28 the date of service of this order. 2 A UV VEVOUOTTERINCR TD DO MVVUMETICIE OG PMC Vette vw VI 1 2. Failure to comply with any part of this this order may result in dismissal of this action. 2 | DATED: May 19, 2020. ; tid, PDEA 4 EDMUND F. BRENNAN ; UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28