(PC) Gosztyla v. Ly ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RICHARD JOSEPH GOSZTYLA, No. 2:21-cv-1717 CKD P 12 Plaintiff, 13 v. ORDER 14 B. LY, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se and seeking relief pursuant to 42 U.S.C. § 18 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 19 636(b)(1). 20 Plaintiff requests leave to proceed in forma pauperis. As plaintiff has submitted a 21 declaration that makes the showing required by 28 U.S.C. § 1915(a), his request will be granted. 22 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 23 1914(a), 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the 24 initial partial filing fee from plaintiff’s trust account and forward it to the Clerk of the Court. 25 Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding 26 month’s income credited to plaintiff’s prison trust account. These payments will be forwarded by 27 the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s account 28 exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2). 1 The court is required to screen complaints brought by prisoners seeking relief against a 2 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 3 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 4 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 5 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 6 In order to avoid dismissal for failure to state a claim a complaint must contain more than 7 “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause 8 of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, 9 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 10 statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim 11 upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A 12 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 13 the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. 14 at 678. When considering whether a complaint states a claim upon which relief can be granted, 15 the court must accept the allegations as true, Erickson v. Pardus, 551 U.S. 89, 93-94 (2007), and 16 construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 17 U.S. 232, 236 (1974). 18 The court has reviewed plaintiff’s complaint and finds that it fails to state a claim upon 19 which relief can be granted under federal law. Plaintiff’s complaint must be dismissed. The 20 court will, however, grant leave to file an amended complaint, and provides the following 21 information to plaintiff. 22 Plaintiff complains about dental care. Denial or delay of appropriate medical care can 23 violate the Eighth Amendment if it amounts to cruel and unusual punishment. See Estelle v. 24 Gamble, 429 U.S. 97, 104-05 (1976). More specifically, a violation occurs when a prison official 25 causes injury as a result of his or her deliberate indifference to a prisoner’s serious medical needs. 26 Id. 27 A plaintiff can show a “serious medical need” by demonstrating that “failure to treat a 28 prisoner’s condition could result in further significant injury or the ‘unnecessary and wanton 1 infliction of pain.’” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) citing Estelle, 429 U.S. at 2 104. “Examples of serious medical needs include ‘[t]he existence of an injury that a reasonable 3 doctor or patient would find important and worthy of comment or treatment; the presence of a 4 medical condition that significantly affects an individual’s daily activities; or the existence of 5 chronic and substantial pain.’” Lopez v. Smith, 203 F.3d 1122, 1131-32 (9th Cir. 2000) citing 6 McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1991). 7 “Deliberate indifference” includes a purposeful act or failure to respond to a prisoner’s 8 pain or possible medical need. Jett, 439 F.3d at 1096. 9 A showing of merely negligent medical care is not enough to establish a constitutional 10 violation. Frost v. Agnos, 152 F.3d 1124, 1130 (9th Cir. 1998), citing Estelle, 429 U.S. at 105- 11 106. A difference of opinion about the proper course of treatment is not deliberate indifference, 12 nor does a dispute between a prisoner and prison officials over the necessity for or extent of 13 medical treatment amount to a constitutional violation. See, e.g., Toguchi v. Chung, 391 F.3d 14 1051, 1058 (9th Cir. 2004); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). Furthermore, 15 mere delay of medical treatment, “without more, is insufficient to state a claim of deliberate 16 medical indifference.” Shapley v. Nev. Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 17 1985). Where a prisoner alleges that delay of medical treatment evinces deliberate indifference, 18 the prisoner must show that the delay caused “significant harm and that defendants should have 19 known this to be the case.” Hallett v. Morgan, 296 F.3d 732, 745-46 (9th Cir. 2002); see 20 McGuckin, 974 F.2d at 1060. 21 Plaintiff is informed that the court cannot refer to a prior pleading in order to make 22 plaintiff’s amended complaint complete. Local Rule 220 requires that an amended complaint be 23 complete in itself without reference to any prior pleading. This is because, as a general rule, an 24 amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th 25 Cir. 1967). Once plaintiff files an amended complaint, the original pleading no longer serves any 26 function in the case. Therefore, in an amended complaint, as in an original complaint, each claim 27 and the involvement of each defendant must be sufficiently alleged. 28 ///// 1 In accordance with the above, IT IS HEREBY ORDERED that: 2 1. Plaintiff's request for leave to proceed in forma pauperis (ECF No. 2) is granted. 3 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. All fees 4 || shall be collected and paid in accordance with this court’s order to the Director of the California 5 || Department of Corrections and Rehabilitation filed concurrently herewith. 6 3. Plaintiff's complaint is dismissed. 7 4. Plaintiff is granted thirty days from the date of service of this order to file an amended 8 | complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil 9 || Procedure, and the Local Rules of Practice. The amended complaint must bear the docket 10 || number assigned this case and must be labeled “Amended Complaint.” Failure to file an 11 || amended complaint in accordance with this order will result in a recommendation that this action 12 || be dismissed. 13 | Dated: September 29, 2021 / ae □□ / a Ly a 4 CAROLYN K DELANEY 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 | 4 19 gosz1717.14 20 21 22 23 24 25 26 27 28