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Florence Walker v. California Department of Corrections and Rehabilitation

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


April 18, 2011

FLORENCE WALKER,
PLAINTIFF,
v.
CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, ET AL.,
DEFENDANTS.

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

SECOND SCREENING ORDER ORDER DISMISSING FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM, WITH LEAVE TO AMEND WITHIN THIRTY DAYS

(Doc. 9.)

I. RELEVANT PROCEDURAL HISTORY

Florence Walker ("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 the Complaint commencing this action on September 10, 2009. (Doc. 1.) On February 24, 2010, the Court dismissed the Complaint for failure to state a claim, with leave to amend. (Doc. 8.) On March 18, 2010, Plaintiff filed the First Amended Complaint, which is now before the Court for screening. (Doc. 9.)

II. 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).

A complaint must only contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Id. While factual allegations are accepted as true, legal conclusions are not. Id. at 1949.

III. SUMMARY OF FIRST AMENDED COMPLAINT

Plaintiff is incarcerated at the Central California Women's Facility in Chowchilla, California, where the events at issue in the First Amended Complaint allegedly occurred. Plaintiff names as defendants Dr. Hermosia, Dr. Sakata, RN-MTA Williams, and RN-MTA Green.

Plaintiff complains of inadequate medical care between May 2008 and September 2008, alleging as follows. Dr. Hermosia saw Plaintiff at least twice in the infirmary for open-wound sores and watery, blistery skin lesions, failed to provide Plaintiff with antibacterial preparations or other treatment, and failed to send orders to the C-Yard doctor to perform diagnostic tests or provide further treatment. Plaintiff asked Dr. Hermosia for bandages and preventative measures, but these were refused. Dr. Sakata failed to respond to repeated requests by Plaintiff to be seen. On two occasions, Dr. Sakata refused to see Plaintiff on an emergency basis when notified by RN-MTA Williams. RN-MTA Williams misdiagnosed Plaintiff's condition and was unwilling to seek immediate medical attention for Plaintiff on at least two occasions, when Plaintiff was vomiting in the medical foyer, and when Plaintiff's open-wound sores were oozing pus. Plaintiff was refused treatment and told she would be scheduled to be seen by the doctor in two to three weeks, but she was not seen for months. RN-MTA Green threatened Plaintiff with disciplinary action for initiating an emergency alarm when Plaintiff was having difficulty breathing and her blood pressure was elevated. Plaintiff requests monetary damages and injunctive relief.

IV. PLAINTIFF'S EIGHTH AMENDMENT MEDICAL CLAIM

The Civil Rights Act under which this action was filed provides: 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. "Section 1983 . . . creates a cause of action for violations of the federal Constitution and laws." Sweeney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997) (internal quotations omitted). "To the extent that the violation of a state law amounts to the deprivation of a state-created interest that reaches beyond that guaranteed by the federal Constitution, Section 1983 offers no redress." Id.

"[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate must show 'deliberate indifference to serious medical needs.'" Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285 (1976)). The two-part test for deliberate indifference requires the plaintiff to show (1) "'a serious medical need' by demonstrating that 'failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain,'" and (2) "the defendant's response to the need was deliberately indifferent." Jett, 439 F.3d at 1096 (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc) (internal quotations omitted)). Deliberate indifference is shown by "a purposeful act or failure to respond to a prisoner's pain or possible medical need, and harm caused by the indifference." Id. (citing McGuckin, 974 F.2d at 1060). Deliberate indifference may be manifested "when prison officials deny, delay or intentionally interfere with medical treatment, or it may be shown by the way in which prison physicians provide medical care." Id.

"Under [the deliberate indifference] standard, the prison official must not only 'be aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists,' but that person 'must also draw the inference.'" Id. at 1057 (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994). "'If a prison official should have been aware of the risk, but was not, then the official /// has not violated the Eighth Amendment, no matter how severe the risk.'" Id. (quoting Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)).

Plaintiff states that she was denied proper medical treatment by defendants, but her allegations do not give rise to a cognizable Eighth Amendment claim for relief. Plaintiff does not demonstrate that any of the defendants were deliberately indifferent when treating her for medical conditions. To state an Eighth Amendment medical claim, Plaintiff must allege facts showing that the defendant deliberately acted or failed to act, knowing that Plaintiff was at a substantial risk of serious harm, and causing harm as a result of the defendant's actions. Plaintiff has not done so. Therefore, Plaintiff fails to state any cognizable claims in the First Amended Complaint. Plaintiff shall be granted leave to file a Second Amended Complaint.

V. CONCLUSION

The Court finds that Plaintiff's First Amended Complaint fails to state any claims upon which relief can be granted under section 1983 against any of the defendants. Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend 'shall be freely given when justice so requires.'" Therefore, although the Court shall dismiss the First Amended Complaint for failure to state a claim, Plaintiff shall be provided with time to file a Second Amended Complaint curing the deficiencies identified above.

Plaintiff must demonstrate in the Second Amended Complaint how the conditions complained of resulted in a deprivation of her constitutional rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). Plaintiff must set forth "sufficient factual matter . . . to 'state a claim that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)); Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 129 S.Ct. at 1949-50; Moss, 572 F.3d at 969. Plaintiff must also demonstrate that each defendant personally participated in the deprivation of her rights. Jones v. Williams, 297 F.3d, 930, 934 (emphasis added).

Plaintiff should also note that although she has been given the opportunity to amend, it is not for the purposes of adding unrelated claims. In addition, Plaintiff should take care to include only those claims for which she has exhausted her administrative remedies.

Finally, Plaintiff is advised that Local Rule 220 requires that an amended complaint must be complete in itself without reference to any prior pleading. As a general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once an amended complaint is filed, the original complaint no longer serves any function in the case. Therefore, in an amended complaint, as in an original complaint, each claim and the involvement of each defendant must be sufficiently alleged. The amended complaint should be clearly and boldly titled "Second Amended Complaint," refer to the appropriate case number, and be an original signed under penalty of perjury

Based on the foregoing, it is HEREBY ORDERED that:

1. Plaintiff's First Amended Complaint, filed on March 18, 2010, is dismissed for failure to state a claim, with leave to file a Second Amended Complaint within thirty days from the date of service of this order;

2. The Clerk's Office shall send Plaintiff a § 1983 civil rights complaint form; 3. The amended complaint should be clearly and boldly titled "Second Amended Complaint," and refer to the case number 1:09-cv-01602-LJO-GSA-PC; and

4. If Plaintiff fails to comply with this order, this action will be dismissed for failure to state a claim.

IT IS SO ORDERED.

6i0kij

20110418

© 1992-2011 VersusLaw Inc.



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