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Isabel Tubach v. Lahimore

May 13, 2011

ISABEL TUBACH,
PLAINTIFF,
v.
LAHIMORE, ET AL.
DEFENDANT.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

(Docs. 20, 22, 24, 25, 26)

ORDER DISMISSING SECOND AMENDED COMPLAINT ALLOWING LEAVE TO AMEND AND GRANTING PLAINTIFF'S MOTIONS TO AMEND THE COMPLAINT THIRTY DAY DEADLINE

I. SCREENING ORDER

Plaintiff, Isabel Tubach, ("Plaintiff") is a state prisoner who is currently proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed her original Complaint on May 21, 2010. (Doc. 1.) Plaintiff is a three-strikes filer under 28 U.S.C. § 1915(g).*fn1

In her original complaint, Plaintiff alleged that she had extremely high blood pressure, that the harassing circumstances under which she was housed were causing her blood pressure to rise placing her at risk of a heart attack and/or stroke, and attached copies of medical records showing high blood pressure readings. (Id.) This was accepted as a showing that Plaintiff was "under imminent danger of serious physical injury" and, pursuant to 28 U.S.C. § 1915(g), Plaintiff's IFP application was granted. (Doc. 4.) However, the Complaint was dismissed for Plaintiff's failure to sign the pleading and Plaintiff was provided the standards for the claims that it appeared she intended to pursue. (Doc. 9.)

Plaintiff filed the First Amended Complaint on September 8, 2010. (Doc. 13.) On screening, the court found that Plaintiff failed to state any cognizable claims and that the vast majority of her allegations would not state cognizable claims even if amendment were allowed. (Doc. 16.) Consequently, the First Amended Complaint was dismissed with leave to amend solely claims that Plaintiff might pursue against Officer Gonzales, as that was the only aspect of her allegations that appeared amenable to amendment. (Id.) In that same order, Plaintiff was directed that, if she chose to file a second amended complaint, she was required to either make a showing of imminent danger of serious physical injury in her allegations, or to show cause in a separate writing filed concurrently with any second amended complaint as to why her IFP status should not be revoked. (Id.)

Plaintiff filed the Second Amended Complaint on January 11, 2011, and has subsequently filed four motions to support and/or amend it. (Docs. 20, 22, 24, 25, 26.) In the Second Amended Complaint, Plaintiff names past Warden Mary Lahimore and Dr. A. Vasudeva as the defendants and only alleges:

I am in inminent [sic] danger of suffer [sic] an irreparable injury, I have cancer in my tongue and Doctor Vasudeva is refusing to do any treatment nor give [sic] ice chrono for the burning in my tongue. I am being victimized with harassment. It cause me mental distress and mental pain and I am in danger of suffer [sic] an [sic] heart attack. I have chest pain [sic] all of the time caused for [sic] this harassment. I have cancer in my foot and [sic] denied medical care. I am being housed with a mentally ill inmate and have no heat in my room. These 2 claims violate my federal rights of the 8th Amendment. (Doc. 20, 2nd AC, p. 3.) In Plaintiff's "Motion to Support the Complaint," she alleges that an outside dentist told her that she had symptoms of tongue cancer and that Dr. Vasudeva did not conduct an adequate examination and failed to order treatment, biopsy, or other specialized care for her condition. (Doc. 22, Mot. to Sup. 2nd AC, pp. 1-2.) Plaintiff sent a medical grievance on this condition to Dr. Vasudeva which was not answered. (Id., at p. 3.)

In Plaintiff's first "Motion Asking Permission to Amend the Complaint," she states that Officer Gonzales is not in charge of her and that M.Guzman is the officer who has been harassing her for ten years and has stopped the kitchen workers from giving out ice because he knows they give it to her and it is the only thing that relieves the burning sensation on her tongue. (Doc. 24, 1st Mot. To Amend 2nd AC, 1:17-2:6.) In that same motion, Plaintiff states that she needs the ice because the cancer has spread to her throat, palate, and gums. (Id., at 2:14-18.)

In Plaintiff's second "Motion Asking Permission to Amend the Complaint," she states that two other cell-mates are being paid*fn2 to place "a very poisonous-substance in [her] nose" which causes her tremendous pains throughout her body, mental distress, and chest pain which amount to attempted murder since she has heart problems. (Doc. 25, 2nd Mot. to Amend 2nd AC.)

In her third "Motion Asking Permission to Amend the Complaint," Plaintiff states that she has asked L. Frutos, F.N.P. and Dr. Ezenwngo to order a biopsy and to treat her tongue cancer, but that they refuse and have also denied issuing an "ice-chrono" to relieve the burning and pain that she experiences. (Doc. 26, 3rd. Mot. to Amend. 2nd AC, 1:19-2:6.) Plaintiff also states that "C/O M. Guzman is stopping the doctors" (id., at 2:6) and that she needs to name Nurse Furtos and Dr. Ezenwngo as defendants since Dr. Vasudeva was fired (id., at 2:7-9). Plaintiff also states that Dr. Ezenwngo told her that, even though she is in pain, her pain medicine would be stopped in thirty (30) days. (Id., at 2:12-18.)

Based on the foregoing, it is apparent that Plaintiff may be able to state cognizable claims under the Eighth Amendment both as to deliberate indifference to her medical condition and due to the conditions of her confinement. Accordingly, she is being given one last opportunity to file an amended complaint. However, leave to amend is limited to claims under the Eighth Amendment regarding both the care and treatment of Plaintiff's cancer and the conditions of her confinement that are aggravating her heart condition. To that end, Plaintiff's various motions to supplement and/or amend the Second Amended Complaint are granted and Plaintiff is, once again, given the applicable pleading and legal standards.

A. 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. 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)).

"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 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, ___ U.S. ___, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Iqbal. at 1949; see also Twombly, 550 U.S. at 556-557; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

If Plaintiff chooses to file a third amended complaint, she should endeavor to make it as concise as possible. Plaintiff should merely state which of her rights under the Eighth Amendment she believes were violated by Officer Guzman and any applicable medical providers.

2. Linkage Requirement

The Civil Rights Act under which this action was ...


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