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Brian Herron v. D. Wiltchik

November 18, 2011

BRIAN HERRON,
PLAINTIFF,
v.
D. WILTCHIK, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS DISMISSING CERTAIN CLAIMS AND DEFENDANTS (Doc. 28)

Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights action pursuant to 42 U.S.C. § 1983. On May 23, 2011, the Court screened Plaintiff's second amended complaint pursuant to 28 U.S.C. § 1915A and found that it stated a cognizable claim as to Defendant Veja for providing inadequate medical care under the Eight Amendment. (Doc. 22.) However, the Court also found that Plaintiff's remaining allegations failed to state cognizable claims as to all other defendants. (Doc. 22.)

Plaintiff was therefore afforded two options. First, Plaintiff was given the option of filing a third amended complaint that cured the deficiencies identified by the Court in its screening order. (Doc. 22.) Second, Plaintiff was given the option of filing notice with the Court indicating that he wished to proceed only as to the claim found cognizable by the Court. On July 13, 2011, Plaintiff chose the first option by filing a motion for an extension of time with which to file his third amended complaint. (Doc. 24.) On July 18, 2011, the Court granted Plaintiff's motion for extension of time to file his third amended complaint, providing Plaintiff an additional thirty day period with which to file his amended complaint. (Doc. 25.) Plaintiff filed his third amended complaint on August 4, 2011. (Doc. 28.)

I. SCREENING

A. Screening Requirement

The Court is required to review a case in which a prisoner seeks redress from a governmental entity or officer. 28 U.S.C. § 1915A(a). The Court must review the complaint and dismiss any portion thereof that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915A(b). If the Court determines the complaint fails to state a claim, leave to amend should be granted to the extent that the deficiencies in the complaint can be cured by amendment. Lopez v. Smith, 203 F.3d 1122, 1127-28 (9th Cir. 2000) (en banc).

B. Section 1983

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.

To plead a § 1983 violation, the plaintiff must allege facts from which it may be inferred that (1) plaintiff was deprived of a federal right, and (2) the person who deprived plaintiff of that right acted under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Collins v. Womancare, 878 F.2d 1145, 1147 (9th Cir. 1989). To warrant relief under § 1983, the plaintiff must allege and show that the defendants' acts or omissions caused the deprivation of the plaintiff's constitutionally protected rights. Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1993). "A person deprives another of a constitutional right, within the meaning of section 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 [the plaintiff complains]." Id. There must be an actual causal connection or link between the actions of each defendant and the deprivation alleged to have been suffered by the plaintiff. Monell v. Dept. of Social Services, 436 U.S. 658, 691-92 (1978) (citing Rizzo v. Goode, 423 U.S. 362, 370-71(1976)).

C. Rule 8(a)

Section 1983 complaints are governed by the notice pleading standard in Federal Rule of Civil Procedure 8(a), which provides in relevant part that:

A pleading that states a claim for relief must contain:

(1) a short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support;

(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and

(3) a demand for the relief sought, which may include relief in the alternative or different types of relief.

The Federal Rules of Civil Procedure adopt a flexible pleading policy. Nevertheless, a complaint must "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, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). "[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[.]" Twombly, 550 U.S. at 555 (citations and quotations omitted). Rather, the complaint "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868, 883 (2009) (quoting Twombly, 550 U.S. at 570). Vague and conclusory allegations are insufficient to state a claim under § 1983. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

II. THE AMENDED COMPLAINT

Though Plaintiff's third amended complaint ("TAC"), generally repeats the claims asserted in his second amended complaint, it omits many of the earlier factual allegations. In addition, Plaintiff now brings two additional claims as to an "unknown correctional officer" and a "chief medical officer." (Doc. 28 at 1, 12.) The TAC identifies as defendants Veja, R.N., K. Hemela, M.D., J. Ashby, D.O., A. Klang, M.D. and John Doe's for a "chief medical officer" and "correctional officer." (Id.) Plaintiff asserts the following claims. First, Plaintiff claims that Defendants acted with deliberate indifference to his medical needs in violation of the Eight Amendment. (Id. at 4.) As to the "Chief Medical Officer," Plaintiff asserts that the medical officer acted with deliberate indifference because he refused to permit a surgical procedure due to a lack of funds. (Id. at 12.) Plaintiff additionally raises state law negligence claims against Defendants, for failing to provide appropriate ...


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