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Thierry v. Smilovitz

May 14, 2010

DEVERY THIERRY, PLAINTIFF,
v.
DR. SMILOVITZ, ET AL., DEFENDANTS.



The opinion of the court was delivered by: David T. Bristow United States Magistrate Judge

ORDER DISMISSING FOURTH AMENDED COMPLAINT WITH LEAVE TO AMEND

Plaintiff, a state prisoner currently incarcerated at the California Institute for Men, in Chino, California, filed a pro se civil rights Complaint ("Complaint") herein pursuant to 42 U.S.C. § 1983, on December 2, 2009, in the Eastern District of California. After initial review, it was determined that venue was proper in the Central District of California, and the case was subsequently transferred to the Central District. Named as defendants in the Complaint were two physicians, Dr. Smilovitz, M.D., and Dr. Gallagher, M.D., both of whom were alleged to be employees at the California Mens Colony ("CMC") in San Luis Obispo.

The gravamen of plaintiff's allegations in the Complaint was that he suffers from HIV/AIDS, and that he was "discriminated against and treated poorly" when he was sent to CMC, where he contracted Valley Fever. (Complaint at ¶ IV) As a result of contracting Valley Fever, plaintiff alleged that he will be required to take medication for the remainder of his life, and that the condition remains life-threatening. (Id.) Plaintiff further alleged that he should never have been sent to CMC, and, inferentially, that he contracted Valley Fever as a result of being sent to CMC. While the Complaint was styled as being brought pursuant to 42 U.S.C. § 1983, plaintiff did not specify a right or rights which he claims were violated by the facts alleged in the Complaint. Referenced in the Complaint by plaintiff (and attached to the Complaint) were copies of plaintiff's medical records from CMC, which indicate that he was admitted to the prison hospital facility at CMC on August 3, 2002, and was discharged on August 13, 2002.

Pursuant to the requirements of the "Prison Litigation Reform Act of 1995" ("PLRA"), the Court screened the Complaint to determine whether the action was frivolous or malicious; or whether it failed to state a claim on which relief may be granted; or whether it sought monetary relief against a defendant who is immune from such relief. See 28 U.S.C. §§ 1915(e)(2), 1915A(b); see also 42 U.S.C. § 1997e(c)(1).

Following its initial screening, the Court determined that the Complaint was deficient as pled, and, in an Order dated January 19, 2010, ordered it dismissed with leave to amend pursuant to 28 U.S.C. § 1915(e)(2), and gave plaintiff 30 days in which to file a First Amended Complaint.

On March 4, 2010, plaintiff filed a First Amended Complaint ("FAC"). Named as defendants in the FAC were Dr. Smilovitz and the California Department of Corrections and Rehabilitation ("CDCR"). Dr. Gallagher was not named in the FAC. The FAC alleged a single cause of action against both Dr. Smilovitz and the CDCR, again arising out of plaintiff's medical care while in the custody of CDCR. Specifically, plaintiff alleged that the defendants violated his rights under the Fifth, Eighth and Fourteenth Amendments to the Constitution when they were deliberately indifferent to his medical needs. The Court determined that the FAC was deficient as pled, and, in an Order dated February 12, 2010, ordered it dismissed with leave to amend pursuant to 28 U.S.C. § 1915(e)(2), and gave plaintiff 30 days in which to file a Second Amended Complaint.

On March 4, 2010, plaintiff filed a Second Amended Complaint ("SAC"). Named as defendants in the SAC were Dr. Smilovitz and the CDCR. The SAC alleged a single cause of action against both Dr. Smilovitz and the CDCR, again arising out of plaintiff's medical care while in the custody of CDCR. Specifically, plaintiff alleges that the defendants violated his rights under the Fifth, Eighth and Fourteenth Amendments to the Constitution when they were deliberately indifferent to his medical needs. Once again, the Court determined that the SAC was deficient as currently pled, and, in an Order dated March 15, 2010, ordered it dismissed with leave to amend pursuant to 28 U.S.C. § 1915(e)(2), and gave plaintiff 30 days in which to file a Third Amended Complaint.

On March 31, 2010, plaintiff filed a Third Amended Complaint ("TAC"). Named as defendants in the TAC were (in his individual and official capacity) and Dr. Gallagher (plaintiff failed to mark the capacity in which he is suing Dr. Gallagher). The TAC alleged a single cause of action against both Dr. Smilovitz and Dr. Gallagher, again arising out of plaintiff's medical care while in the custody of CDCR. Specifically, plaintiff alleges that the defendants violated his rights under the Fifth, Eighth and Fourteenth Amendments to the Constitution when they were deliberately indifferent to his medical needs. Once again, the Court determined that the TAC was deficient as currently pled, and, in an Order dated April 6, 2010, ordered it dismissed with leave to amend pursuant to 28 U.S.C. § 1915(e)(2), and gave plaintiff 30 days in which to file a Fourth Amended Complaint.

On May 3, 2010, plaintiff filed a Fourth Amended Complaint ("4thAC"). Named as defendants in the 4thAC are Dr. Smilovitz and "Jane Doe". The 4thAC appears to allege a single cause of action against both Dr. Smilovitz and Jane Doe, again arising out of plaintiff's medical care while in the custody of CDCR. Specifically, plaintiff alleges that the defendants violated his rights under the Eighth Amendment to the Constitution when they were deliberately indifferent to his medical needs. Insofar as the Court can glean from the 4thAC, plaintiff's claim is based on the defendants' alleged refusal to provide medical treatment when a request was submitted. (See 4thAC at 7).

Pursuant to Fed. R. Civ. P. 8(a), a complaint must contain "a short and complete statement of the claim showing that the pleader is entitled to relief." As the Supreme Court recently held, Rule 8(a) "requires a 'showing,' rather than a blanket assertion, of entitlement to relief." Further, "[A] plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. . . . Factual allegations must be enough to raise a right to relief above the speculative level." See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65, 167 L.Ed. 2d 929 (2007) (internal citations omitted). Thus, plaintiff must allege a minimum factual and legal basis for each claim that is sufficient to give each defendant fair notice of what plaintiff's claims are and the grounds upon which they rest. See, e.g., Brazil v. United States Dep't of the Navy, 66 F.3d 193, 199 (9th Cir. 1995); McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). Moreover, failure to comply with Rule 8(a) constitutes an independent basis for dismissal of a complaint that applies even if the claims in a complaint are not found to be wholly without merit. See McHenry v. Renne, 84 F.3d 1172, 1179 (9th Cir. 1996); Nevijel v. Northcoast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981).

After careful review and consideration of the 4thAC under the relevant standards, the Court finds that its allegations are insufficient to state a claim for violation of plaintiff's federal civil rights. Although the Court has concerns about whether the deficiencies of the 4thAC can be overcome, the Court will afford plaintiff one more opportunity to attempt to do so. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) (holding that a pro se litigant must be given leave to amend his complaint unless it is absolutely clear that the deficiencies of the complaint cannot be cured by amendment). The 4thAC therefore is dismissed with leave to amend. If plaintiff desires to pursue this action, he is ORDERED to file a Fifth Amended Complaint within thirty (30) days of the date of this Order, remedying the deficiencies discussed below. Plaintiff is again forewarned that if he fails to cure the defects identified in this Order, as well as those identified in the Court's previous Orders, in the event he files a Fifth Amended Complaint, the Court will recommend it be dismissed with prejudice.

DISCUSSION

I. The Allegations of the 4thAC are Insufficient to State a Claim Against Dr. Smilovitz and Jane Doe in their Official Capacities

In Will v. Michigan Dep't of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed. 2d 45 (1989), the Supreme Court held inter alia that state agencies sued in their official capacities are not persons subject to civil rights suits under 42 U.S.C. § 1983. See 491 U.S. at 64-66. Further, the Eleventh Amendment bars federal jurisdiction over suits by individuals against a State and its instrumentalities, unless wither the State consents to waive its sovereign immunity of Congress abrogates it. Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 99-100, 104 S.Ct. 900, 79 L.Ed. 2d 67 (1984). To overcome this Eleventh Amendment bar, the State's consent or Congress' intent must be "unequivocally expressed." Pennhurst, 465 U.S. at 99. While California has consented to e sued in its own courts pursuant to the California Tort Claims Act, such consent does not constitute consent to suit in federal court. See BV Engineering v. Univ. of Cal., Los Angeles, 858 F. 2d 1394, 1396 (9th Cir. 1988); see also Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241, 105 S.Ct. 3142, 87 L.Ed. 2d 171 (1985) (holding that Art. III, § 5 of the California Constitution did not constitute a waiver of California's Eleventh Amendment immunity). Furthermore, Congress has not abrogated State sovereign immunity against suits under 42 U.S.C. § 1983.

The Eleventh Amendment not only bars plaintiff's federal civil rights claims against Dr. Smilovitz and Jane Doe to the extent that plaintiff is seeking monetary damages from them, but also plaintiff's federal civil rights claims against Dr. Smilovitz and Jane Doe to the extent that plaintiff is seeking any other form of relief from them. See Pennhurst, 465 U.S. at 100 ("This jurisdictional bar applies regardless of the nature of the relief sought."); see also Alabama v. Pugh, 438 U.S. 781, 782, 98 S.Ct. 3057, 57 L.Ed. 2d 1114 (1978) (per curiam) (Eleventh Amendment bars claims for injunctive relief against Alabama and its Board of Corrections).

Thus, based on the authority above, to the extent the 4thAC names Dr. Smilovitz and Jane Doe in their official capacities, it fails to state a cause of action.

************

If plaintiff chooses to file a Fifth Amended Complaint, it should bear the docket number assigned in this case; be labeled "Fifth Amended Complaint"; and be complete in and of itself without reference to the original Complaint, the FAC, the SAC, the TAC, the 4thAC or any other pleading, attachment or document. The Clerk is directed to send plaintiff a blank Central District civil rights complaint form, which plaintiff is encouraged to utilize. Plaintiff is admonished that, if he fails to timely file a Fifth Amended Complaint, the Court will recommend that the action be dismissed with prejudice on the grounds set forth above and for failure to diligently prosecute.

COMMITTED NAME (if different)

FULL ADDRESS INCLUDING NAME OF INSTITUTION

PRISON NUMBER (if applicable)

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CASE NUMBER

To be supplied by the Clerk

PLAINTIFF,

...


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