Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983.*fn1 By order filed January 14, 2009, defendant Carter was directed to file a response to plaintiff's complaint within thirty days. On January 28, 2009, the parties filed a stipulation and proposed order to stay discovery in this action until a scheduling order and a discovery order are issued in this action. On January 30, 2009, the court issued an order pursuant to that stipulation. Also on January 30, 2009, plaintiff filed an amended complaint as of right. See Fed. R. Civ. P. 15(a). On February 9, 2009, plaintiff filed a request for twenty-four subpoenas. Plaintiff is requesting the subpoenas pursuant to Fed. R. Civ. P. 45, but he asserts that he requires the subpoenas in order to serve defendants named in the amended complaint.
The court is required to screen plaintiff's amended complaint, see 28 U.S.C. § 1915A, and will, as appropriate, make necessary orders for service of process on any defendant named in the amended complaint against whom a cognizable claim for relief is stated. Plaintiff's request for subpoenas is unnecessary and will therefore be denied.
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).
A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.
Rule 8(a)(2) of the Federal Rules of Civil Procedure "requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). In order to survive dismissal for failure to state a claim a complaint must contain more than "a formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic, id. However, "[s]pecific facts are not necessary; the statement [of facts] need only '"give the defendant fair notice of what the . . . claim is and the grounds upon which it rests."'" Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 2200 (2007) (quoting Bell, 127 S.Ct. at 1964, in turn quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Erickson, id., and construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
Plaintiff's amended complaint contains the following allegations. On the afternoon of August 7, 2007, plaintiff called "man down." Amended Complaint, filed January 30, 2009, at 2. A unidentified nurse arrived driving a medical gurney. She instructed plaintiff to get into a wheelchair and he told her wouldn't. The nurse asked defendant Carter for help, but he declined, stating that it was a medical issue and he "couldn't and would not help." Id. The nurse called for medical help. Three unidentified staff arrived to help, but failed to "restrain" plaintiff's back or neck. Id. The four unknown staff proceeded to try to move plaintiff from his bed, and they dropped him on his back in the presence of defendant Carter, who "gasped." Id. at 5. The medical staff got plaintiff onto the gurney, but it wouldn't move, so staff had to call for another gurney. After it arrived, plaintiff was taken to the emergency room. Nurse Practitioner Reyes, who is named as a defendant, examined plaintiff but did not take any x-rays or an MRI. Plaintiff was then taken back to his dorm and told to "push [him]self to chow." Id. Plaintiff told the officers he had a chrono for an attendant. One of the officers told plaintiff to get someone from G Wing. Plaintiff's initial requests were ignored, but after plaintiff had slowly pushed himself 10 or 15 feet an officer came to push plaintiff. Plaintiff was seen by a doctor a day later. He told the doctor his back was still bothering him, but no x-ray or MRI was done until plaintiff was transferred to another facility.
Plaintiff claims that defendant Carter and three other unknown correctional officers "failed to protect" plaintiff from medical staff, and that they committed "professional negligence." Plaintiff also claims that the unnamed medical staff committed professional negligence when they failed to restrain plaintiff's back and neck and dropped him during the transfer to the gurney. Plaintiff names twenty-six individuals as defendants in the complaint in addition to the three unknown correctional officers and four unknown medical staff. Sgt. Carter is not listed as a defendant in any of the sections for defendants on the form amended complaint.
There are no charging allegations against any of the individuals named as defendants with the exception of Nurse Practitioner Reyes. The sole charging allegation against defendant Reyes is that no MRI or x-rays were done as part of defendant Reyes' examination of plaintiff after the fall.
In Estelle v. Gamble, 429 U.S. 97, 106 (1976), the Supreme Court held that inadequate medical care did not constitute cruel and unusual punishment cognizable under § 1983 unless the mistreatment rose to the level of "deliberate indifference to serious medical needs." In applying this standard, the Ninth Circuit has held that before it can be said that a prisoner's civil rights have been abridged, "the indifference to his medical needs must be substantial. Mere 'indifference,' 'negligence,' or 'medical malpractice' will not support this cause of action." Broughton v. Cutter Lab., 622 F.2d 458, 460 (9th Cir. 1980), citing Estelle, 429 U.S. at 105-06. Plaintiff's allegations against defendant Reyes state no more than a claim for negligence, which is not cognizable in this § 1983 action.
The Civil Rights Act under which this action was filed provides as follows: Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). "A person 'subjects' another to the deprivation of a constitutional right, within the meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Plaintiff has not alleged any acts or omissions by any of the other twenty-five named defendants, nor tied them in any way to a violation of plaintiff's constitutional rights.
Finally, with respect to defendant Carter, in order to state a claim for violation of plaintiff's Eighth Amendment rights under the circumstances of this case, plaintiff must allege facts which suggest that defendant Carter knew of and disregarded an excessive risk of harm to plaintiff's health or safety. See Farmer v. Brennan, 511 U.S. 825, 837 (1994). The facts alleged by plaintiff in the amended complaint do not state a cognizable Eighth Amendment claim based on an alleged failure to protect plaintiff from a known risk of harm.
For all of the foregoing reasons, the amended complaint does not state a cognizable claim for relief against any of the defendants named therein. Because it is possible that one or more of the defects in the amended complaint could be cured by amendment, however, the court will grant leave to file a second amended complaint.
If plaintiff chooses to file a second amended complaint, plaintiff must demonstrate how the conditions complained of have resulted in a deprivation of plaintiff's constitutional rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, the second amended complaint must named all of the defendants who were involved in the alleged deprivation and must allege in specific terms how each named defendant is involved. There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a defendant's actions and the claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. ...