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Mora v. Law Offices of Wolff

August 10, 2008

MICHAEL FREDRIC MORA, PLAINTIFF,
v.
LAW OFFICES OF WOLFF, KINSLER, AND SITTIG, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

ORDER DISMISSING AMENDED COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED UNDER SECTION 1983 (Doc. 9) SECOND AMENDED COMPLAINT DUE WITHIN THIRTY DAYS

Screening Order

I. Screening Requirement

Plaintiff Michael Fredric Mora ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action for damages on December 18, 2007. Plaintiff neglected to sign his complaint and it was stricken pursuant to order filed July 2, 2008. Plaintiff filed a signed amended complaint on July 17, 2008.

The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).

"Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions," none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002); Fed. R. Civ. P. 8(a). Pursuant to Rule 8(a), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a). "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512. However, "the liberal pleading standard . . . applies only to a plaintiff's factual allegations." Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989). "[A] liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled." Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).

II. Plaintiff's Claims

Plaintiff is currently housed at the California Correctional Institution ("CCI"). Plaintiff alleges the failure to provide appropriate medical care for his shoulder injury, in violation of the Eighth Amendment of the United States Constitution, arising from events which occurred at CCI. Plaintiff also alleges a claim against Defendant Law Offices of Wolff, Kinsler, and Sittig arising from the handling of his worker's compensation claim following an injury he received on the job prior to his incarceration.

A. Legal Malpractice Claim Against Law Offices of Wolff, Kinsler, and Sittig

Plaintiff has filed suit in federal court under section 1983. A cognizable section 1983 claim requires allegations that (1) the defendant acted under color of state law and (2) the defendant deprived him of rights secured by the Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). Section 1983 does not provide a remedy for the mishandling of Plaintiff's worker's compensation claim by the law firm he hired because the firm was not acting under color of state law and the firm did not violate a constitutional or other federal right. Therefore, Plaintiff fails to state a claim under section 1983 against Defendant Law Offices of Wolff, Kinsler, and Sittig.

Further, federal courts are courts of limited jurisdiction. E.g. Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546, 552, 125 S.Ct. 2611, 2617 (2005). To the extent that Plaintiff has alleged a valid legal malpractice claim, the claim is one arising under state law claim and must be raised in state court. There is no basis for federal subject matter jurisdiction over the claim. Supplemental jurisdiction over the claim is not available because the malpractice claim is not related to Plaintiff's Eighth Amendment claims such that they form part of the same case or controversy. 28 U.S.C. § 1367(a); Bahrampour v. Lampert, 356 F.3d 969, 978 (9th Cir. 2004).

B. Eighth Amendment Medical Care Claims

Plaintiff's claims arise from a shoulder injury. Plaintiff entered prison with a pre-existing shoulder injury and was transferred to CCI on July 8, 2004. X-rays of his left knee and shoulder were taken on August 5, 2004, and on August 17, 2004, Plaintiff injured his left shoulder while performing his job duties. Plaintiff alleges that he experienced a popping sensation and severe pain, but Defendant Sands refused his request for a pass to the medical clinic.

On August 19, 2004, Plaintiff was seen by Defendant Hirsch, a doctor, who went over Plaintiff's x-rays with him and told him he would be monitored for an AC separation. Plaintiff alleges that his request for pain medication was refused. On August 25, 2004, Plaintiff again saw Defendant Hirsch for complaints of left shoulder pain and difficulty moving the shoulder. Defendant Hirsch ordered an MRI and said he would monitor the shoulder. On September 1, 2004, Plaintiff ...


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