(PC) Penate v. Burton ( 2022 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 ROBERT MAURICIO PENATE, Case No. 2:22-cv-00329-JDP (PC) 11 Plaintiff, ORDER GRANTING PLAINTIFF’S APPLICATION TO PROCEED IN FORMA 12 v. PAUPERIS 13 R. BURTON, ECF No. 2 14 Defendant. SCREENING ORDER THAT PLAINTIFF: 15 (1) STAND BY HIS COMPLAINT SUBJECT TO A 16 RECOMMENDATION THAT IT BE DISMISSED; OR 17 (2) FILE AN AMENDED COMPLAINT 18 ECF No. 1 19 THIRTY-DAY DEADLINE 20 21 22 23 Plaintiff, a state prisoner, alleges that Warden Burton of the California Health Care 24 Facility violated his Eighth Amendment rights by failing to hire enough respiratory therapists. 25 ECF No. 1 at 3. That claim is, as stated, non-cognizable. I will give plaintiff leave to amend his 26 complaint before recommending it be dismissed. I will also grant his application to proceed in 27 forma pauperis. 28 1 Screening Order 2 I. Screening and Pleading Requirements 3 A federal court must screen a prisoner’s complaint that seeks relief against a governmental 4 entity, officer, or employee. See 28 U.S.C. § 1915A(a). The court must identify any cognizable 5 claims and dismiss any portion of the complaint that is frivolous or malicious, fails to state a 6 claim upon which relief may be granted, or seeks monetary relief from a defendant who is 7 immune from such relief. See 28 U.S.C. §§ 1915A(b)(1), (2). 8 A complaint must contain a short and plain statement that plaintiff is entitled to relief, 9 Fed. R. Civ. P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its 10 face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard does not 11 require detailed allegations, but legal conclusions do not suffice. See Ashcroft v. Iqbal, 556 U.S. 12 662, 678 (2009). If the allegations “do not permit the court to infer more than the mere 13 possibility of misconduct,” the complaint states no claim. Id. at 679. The complaint need not 14 identify “a precise legal theory.” Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 15 1038 (9th Cir. 2016). Instead, what plaintiff must state is a “claim”—a set of “allegations that 16 give rise to an enforceable right to relief.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1264 17 n.2 (9th Cir. 2006) (en banc) (citations omitted). 18 The court must construe a pro se litigant’s complaint liberally. See Haines v. Kerner, 404 19 U.S. 519, 520 (1972) (per curiam). The court may dismiss a pro se litigant’s complaint “if it 20 appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 21 would entitle him to relief.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017). 22 However, “‘a liberal interpretation of a civil rights complaint may not supply essential elements 23 of the claim that were not initially pled.’” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 24 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). 25 26 27 28 1 II. Analysis 2 Plaintiff alleges that, before being transferred to CHCF, he underwent a tracheotomy. 3 ECF No. 1 at 3. Consequently, he claims that he required the assistance of a respiratory therapist 4 seven days a week to operate a “Bipap machine.” Id. Plaintiff’s allegations fall short insofar as 5 they do not allege what personal involvement, if any, Warden Burton had in his care. 6 Importantly, plaintiff does not allege how Burton knew of the medical shortcomings at issue. 7 Plaintiff does claim to have filed a grievance, but he does explicitly allege that Burton was the 8 official responsible for handling that grievance. More broadly, I cannot tell whether Burton has 9 (or had) the responsibility or power to grant the relief that plaintiff requests: hire more respiratory 10 therapists or assign increased hours to those that already work at the facility. 11 Plaintiff may file an amended complaint that addresses these shortcomings. If he decides 12 to do so, the amended complaint will supersede the current complaint. See Lacey v. Maricopa 13 County, 693 F. 3d 896, 907 n.1 (9th Cir. 2012) (en banc). This means that the amended 14 complaint will need to be complete on its face without reference to the prior pleading. See E.D. 15 Cal. Local Rule 220. Once an amended complaint is filed, the current complaint no longer serves 16 any function. Therefore, in an amended complaint, as in an original complaint, plaintiff will need 17 to assert each claim and allege each defendant’s involvement in sufficient detail. The amended 18 complaint should be titled “Amended Complaint” and refer to the appropriate case number. 19 Accordingly, it is ORDERED that: 20 1. Plaintiff’s application to proceed in forma pauperis, ECF No. 2, is GRANTED. 21 2. Within thirty days of service of this order, plaintiff must either file an amended 22 complaint or state his intent to stand by the current complaint, subject to a recommendation that it 23 be dismissed for failure to state a claim. 24 3. Failure to comply with this order may result in dismissal of this action. 25 4. The Clerk of Court is directed to send plaintiff a complaint form. 26 27 28 1 > IT IS SO ORDERED. 3 ( | { Wine Dated: _ June 30, 2022 4 JEREMY D. PETERSON 5 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