Delatorre v. Richard J Donovan ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RICARDO DELATORRE, Case No.: 21-cv-59-MMA (KSC) CDCR #D-74486, 12 ORDER DISMISSING SECOND Plaintiff, 13 AMENDED COMPLAINT FOR vs. FAILURE TO STATE A CLAIM 14 PURSUANT TO 28 U.S.C. 15 § 1915(e)(2)(B)(ii) AND 28 U.S.C. DR. SHAKIBA and DR. CLAYTON, § 1915A(b)(1) 16 Defendants. 17 [Doc. No. 6] 18 19 20 On January 11, 2021, Ricardo Delatorre (“Plaintiff”), a state inmate currently 21 incarcerated at Ironwood State Prison (“ISP”) and proceeding pro se, filed a civil rights 22 complaint pursuant to 42 U.S.C. § 1983. See Doc. No. 1 (“Compl.”). Plaintiff also filed 23 a motion to proceed in forma pauperis (“IFP”) under 28 U.S.C. § 1915(a). See Doc. 24 No 2. 25 In his original Complaint, Plaintiff claimed that Defendants R.J. Donovan State 26 Prison (“RJD”), Dr. Shakiba, and Dr. Clayton violated his Eighth Amendment rights by 27 delaying and denying medical care. See Compl. at 3–4. Plaintiff further claimed 28 Defendants Shakiba and Clayton did so in retaliation for a 602 grievance he filed against 1 them. See id. at 5. On May 5, 2021, the Court granted Plaintiff’s motion to proceed IFP 2 but dismissed his Complaint for failing to state a claim pursuant to 28 U.S.C. § 1915(e) 3 and § 1915A. See Doc. No. 3. The Court dismissed RJD as a Defendant without leave to 4 amend but as to Dr. Shakiba and Dr. Clayton, the Court granted Plaintiff leave to file an 5 amended complaint. See id. 6 On June 7, 2021, Plaintiff filed a First Amended Complaint (“FAC”). See Doc. 7 No. 4. In his FAC, Plaintiff again alleged Shakiba and Clayton violated his Eighth 8 Amendment right to adequate medical case and his First Amendment right to be free 9 from retaliation for filing administrative grievances. On August 11, 2021, the Court 10 dismissed the FAC without prejudice for failing to state a claim upon which § 1983 relief 11 can be granted. See Doc. No. 5 at 4–5 (citing 28 U.S.C. § 1915(e)(2)(B)(ii)). The Court 12 granted Plaintiff leave to file a Second Amended Complaint, see id. at 5, and he did so on 13 September 9, 2021. See Doc. No. 6 (“SAC”). 14 I. SCREENING PER 28 U.S.C. §§ 1915(E)(2)(B) AND 1915A(B) 15 A. Standard of Review 16 Plaintiff’s SAC requires a pre-answer screening pursuant to 28 U.S.C. 17 § 1915(e)(2)(B) and § 1915A(b). Under these statutes, the Court must sua sponte dismiss 18 a prisoner’s IFP complaint, or any portion of it, which is frivolous, malicious, fails to 19 state a claim, or seeks damages from defendants who are immune. See Lopez v. Smith, 20 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)); 21 Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. 22 § 1915A(b)). “The purpose of [screening] is ‘to ensure that the targets of frivolous or 23 malicious suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 24 903, 920 n.1 (9th Cir. 2014) (citation omitted). 25 “The standard for determining whether [a] Plaintiff has failed to state a claim upon 26 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 27 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 28 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 1 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 2 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 3 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, 4 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 5 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 6 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 7 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 8 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for 9 relief [is] . . . a context-specific task that requires the reviewing court to draw on its 10 judicial experience and common sense.” Id. The “mere possibility of misconduct” or 11 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting 12 this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 13 (9th Cir. 2009). 14 B. 42 U.S.C. § 1983 15 “Section 1983 creates a private right of action against individuals who, acting 16 under color of state law, violate federal constitutional or statutory rights.” Devereaux v. 17 Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of 18 substantive rights, but merely provides a method for vindicating federal rights elsewhere 19 conferred.” Graham v. Connor, 490 U.S. 386, 393‒94 (1989) (internal quotation marks 20 and citations omitted). “To establish § 1983 liability, a plaintiff must show both 21 (1) deprivation of a right secured by the Constitution and laws of the United States, and 22 (2) that the deprivation was committed by a person acting under color of state law.” Tsao 23 v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). 24 C. Plaintiff’s Allegations 25 In his SAC, Plaintiff claims he had a “big infection” in his right hand, but that 26 Defendants Dr. Shakiba and Dr. Clayton “ignored” him. See SAC at 1. Plaintiff alleges 27 by the time Dr. Shakiba ordered the nurse to transfer him to Alvarado Hospital, “it was 28 too late [and his] hand was real damaged.” Id. He contends Dr. Shakiba and Dr. Clayton 1 acted with deliberate indifference in failing to provide him with prompt and adequate 2 care for his hand infection. See id. 3 D. Discussion 4 Plaintiff alleges Dr. Shakiba and Dr. Clayton violated his Eighth Amendment 5 rights when the failed to provide prompt and adequate medical care for his hand. See 6 SAC at 1. As discussed in this Court’s previous dismissal order, threats to both 7 Plaintiff’s safety and health are subject to the Eighth Amendment’s demanding deliberate 8 indifference standard. See Farmer v. Brennan, 511 U.S. 825, 834, 837 (1994). Where a 9 prisoner’s constitutional claim is one for inadequate medical care, he must allege “acts or 10 omissions sufficiently harmful to evidence deliberate indifference to serious medical 11 needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976); Jett v. Penner, 439 F.3d 1091, 1096 12 (9th Cir. 2006). Plaintiff must first establish a “serious medical need by demonstrating 13 that [the] failure to treat [his] condition could result in further significant injury or the 14 unnecessary and wanton infliction of pain.” Jett, 439 F.3d at 1096 (citation omitted). 15 Next, Plaintiff must show that the defendant’s response to his objectively serious medical 16 need was deliberately indifferent. Id. To establish deliberate indifference, a prisoner 17 must allege facts to show: (1) a purposeful act or failure to respond to the prisoner’s pain 18 or possible medical need; and (2) harm caused by the indifference. Id. 19 The factual allegations raised in the SAC are extremely vague and sparse. Plaintiff 20 states only that Dr. Shakiba and Dr. Clayton “ignored” his complaints about his right 21 hand and delayed sending him to the hospital, resulting in “real damage.” See SAC at 1. 22 Taken together, these facts do not plausibly allege Dr. Shakiba or Dr. Clayton violated 23 Plaintiff’s Eighth Amendment rights. See Iqbal, 556 U.S. at 678. Even assuming 24 Plaintiff’s vague allegations are sufficient to suggest Dr. Shakiba and Dr. Clayton were 25 aware his hand was injured, he does not plausibly allege that they drew an inference there 26 was a substantial risk to Plaintiff’s health and safety. See Jett, 439 F.3d at 1096; Toguchi, 27 391 F.3d at 1057; Iqbal, 556 U.S. at 678. Accordingly, Plaintiff’s Eighth Amendment 28 claims against Defendants Dr. Shakiba and Dr. Clayton must be dismissed for failing to 1 state a claim upon which § 1983 relief can be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii); 2 Watison, 668 F.3d 1108, 1112 (9th Cir. 2012). 3 II. CONCLUSION 4 For the foregoing reasons, the Court DISMISSES Plaintiff’s Second Amended 5 Complaint, pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b). Plaintiff explains had 6 difficulty preparing his SAC because he did not finish school and English is his second 7 language. See Doc. No. 6 at 4. In light of his pro se status, the Court GRANTS Plaintiff 8 thirty (30) days leave from the date of this Order to file a Third Amended Complaint 9 against Defendants Dr. Shakiba and Dr. Clayton that cures all the pleading deficiencies 10 noted. See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court 11 should not dismiss a pro se complaint without leave to amend [pursuant to 28 U.S.C. 12 § 1915(e)(2)(B)(ii)] unless ‘it is absolutely clear that the deficiencies of the complaint 13 could not be cured by amendment.’”) (quoting Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th 14 Cir. 2012)). Further, the Court DIRECTS the Clerk of Court to provide Plaintiff with a 15 blank, court-approved form Third Amended Civil Rights Complaint pursuant to 42 16 U.S.C. § 1983, which includes some basic instructions for pro se litigants, for Plaintiff’s 17 use and convenience. To assist in preparing the amended complaint, the Court 18 recommends Plaintiff used the court-approved form attached to this Order. Any 19 defendants not named and any claim not re-alleged in his Third Amended Complaint will 20 be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard 21 Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading 22 supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) 23 (noting that claims dismissed with leave to amend which are not re-alleged in an 24 amended pleading may be “considered waived if not repled.”). 25 If Plaintiff fails to file a Third Amended Complaint within the time provided, the 26 Court will enter a final Order dismissing this civil action based both on Plaintiff’s failure 27 to state a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B) 28 and 1915A(b), and his failure to prosecute in compliance with a court order requiring 1 |}amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff 2 || does not take advantage of the opportunity to fix his complaint, a district court may 3 || convert the dismissal of the complaint into dismissal of the entire action.’). 4 IT IS SO ORDERED. 5 || Dated: September 27, 2021 6 BWMaidul Ta - (ikl 7 HON. MICHAEL M. ANELLO g United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6