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Atkins v. Brewer

January 5, 2009

CHARLES ATKINS, PLAINTIFF,
v.
BREWER, ET. AL., DEFENDANTS.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND

(Doc. 1)

I. SCREENING ORDER

Charles Atkins ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis. Plaintiff filed his complaint on July 19, 2007 -- which is presently before the Court for screening.

A. Screening Requirement

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)).

B. Summary of Plaintiff's Complaint

Plaintiff is a state prisoner at Pleasant Valley State Prison ("PVSP") in Coalinga, California -- where the acts he complains of occurred.

Plaintiff names defendants: Medical Technical Assistants Brewer ("MTA Brewer") and Harper ("MTA Harper"); Doctors Duenas, James C. Thomas, Ortiz, and Flores; Chief Medical Officer F. Igbinoza ("CMO Igbinoza"); and Warden James A. Yates ("Warden Yates").

Plaintiff generally alleges that on July 6, 2005, while playing basketball, he injured his right middle finger. He was seen by MTA Brewer who told him to return to the clinic after institutional count cleared. Plaintiff did as instructed, and received an x-ray, full arm cast, and Motrin for pain. Plaintiff continued to have pain and discomfort in his right hand and finger. On July 25, 2005, Plaintiff filed a 602 "because Plaintiff was a victim of deliberately indifferent inadequate medical attention," "needed to be examined by a hand sergeon (sic) because Plaintiff's fracture was unhealed and the finger was still swollen," and though Plaintiff had been seen by a registered nurse, "the medical care was inadequate leaving Plaintiff in severe chronic pain because the 800 mg of Motrin was not working to relief (sic) the pain." (Doc. 1, pg. 8.) MTA Brewer partially granted Plaintiff's 602 by informing Plaintiff that he would be on a doctor's list and that the doctor would determine what Plaintiff needed. Plaintiff was referred to an orthopedic specialist on September 23, 2005, and on October 20, 2005, Plaintiff had an appointment with Dr. Salazar. On November 14, 2005, Plaintiff had another x-ray taken and no further orthopedic intervention was deemed necessary at that time. Plaintiff alleges that he has deformity of his right third finger.

Plaintiff seeks monetary damages.

Plaintiff has not stated any cognizable claims, but may be able to amend to correct deficiencies in his pleading. Thus, he is being given leave to file a first amended complaint along with the standards that appear applicable based on his supporting facts.

C. Pleading Requirements

1. Federal Rule of Civil Procedure 8(a)

"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. Pro. 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. Pro. 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. A court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. Id. at 514. "'The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test.'" Jackson v. Carey, 353 F.3d 750, 755 (9th Cir. 2003) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)); see also Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004) ("'Pleadings need suffice only to put the opposing party on notice of the claim . . . .'" (quoting Fontana v. Haskin, 262 F.3d 871, 977 (9th Cir. 2001))). 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)).

2. Federal Rule of Civil Procedure 18(a)

"The controlling principle appears in Fed.R.Civ.P. 18(a) 'A party asserting a claim to relief as an original claim, counterclaim, cross-claim, or third-party claim, may join, either as independent or as alternate claims, as many claims, legal, equitable, or maritime, as the party has against an opposing party.' Thus multiple claims against a single party are fine, but Claim A against Defendant 1 should not be joined with unrelated Claim B against Defendant 2. Unrelated claims against different defendants belong in different suits, not only to prevent the sort of morass [a multiple claim, multiple defendant] suit produce[s], but also to ensure that prisoners pay the required filing fees-for the Prison Litigation Reform Act limits to 3 the number of frivolous suits or appeals that any prisoner may file without prepayment of the required fees. 28 U.S.C. § 1915(g)." George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).

It should be noted that Plaintiff's complaint contains a page enumerating a number of civil rights that he alleges were infringed/violated. This page is written in different handwriting and lists a number of constitutional amendments, statutes, and case law. Plaintiff follows this list with a semi-chronological rendition of facts -- without delineating which facts he feels show that the "constitutional rights" he listed were violated. The Court provides Plaintiff with the following law that appears to apply to his claims. However, the Court is simply unable to ascertain any factual basis for a number of Plaintiff's listed "constitutional rights" which he alleges were violated. The Court will not guess as to which facts Plaintiff believes show any given constitutional violation(s). It is Plaintiff's duty to correlate his claims for relief with their alleged factual basis. If Plaintiff chooses to amend the complaint, Plaintiff would do well to link his factual allegations to all constitutional amendments, statutes, and/or case law that he feels show that his constitutional rights were violated.

Plaintiff is advised that if he chooses to file an amended complaint, and fails to comply with Rule 18(a), the Court will count all frivolous/non-cognizable unrelated claims that are dismissed therein as strikes such that he ...


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