United States District Court, C.D. California, Eastern Division
MEMORANDUM AND ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND
DOUGLAS F. McCORMICK, Magistrate Judge.
On January 6, 2015, Plaintiff Juan Gutierrez filed a pro se civil rights complaint pursuant to 42 U.S.C. § 1983. Dkt. 1 ("Complaint"). On March 3, 2015, after the Court dismissed the Complaint with leave to amend, Plaintiff filed a first amended complaint. Dkt. 6 ("FAC"). Whereas the original Complaint named Clark Kelso, Jeffrey Beard, Dr. Wade Faerber, and A. Maurice Gonzalez, as Defendants, the FAC names Dr. S. Murakonda as the sole Defendant in her individual capacity only. Id. at 3. Plaintiff contends that Dr. Murakonda violated his Eighth and Fourteenth Amendment rights by her deliberate indifference to his serious medical needs. Id. at 2, 7.
In accordance with 28 U.S.C. §§ 1915(e)(2) and 1915A, the Court must screen the Complaint before ordering service for purposes of determining whether the action is frivolous or malicious; or fails to state a claim on which relief might be granted; or seeks monetary relief against a defendant who is immune from such relief.
SUMMARY OF PLAINTIFF'S ALLEGATIONS
On May 4, 2014, Plaintiff dislocated his right shoulder while playing softball. FAC at 6. Plaintiff was taken to the hospital, where his shoulder was relocated to its original position. Id. A CT scan taken the same day showed no evidence of shoulder dislocation or fracture. Id. Over the next five months, Plaintiff complained repeatedly about continued pain in his right shoulder and other problems with his right arm, such as numbness in his fingers. Id. An MRI was taken of Plaintiff's shoulder on July 2, 2014; this MRI showed a torn tendon and partially torn muscle in Plaintiff's shoulder. Id.
On September 11, 2014, Dr. Faerber performed surgery on Plaintiff's shoulder. Id. After the surgery, Plaintiff received little or no post-surgery care, physical therapy, or other treatment. Id. On October 14, 2014, Plaintiff wrote a letter to Dr. Faerber asking him some questions regarding his surgery and treatment, to which Dr. Faerber did not respond. Id. Some time later, Plaintiff had a follow-up appointment with Dr. Faerber, who scolded Plaintiff by saying, "You do not write to me! You are a prisoner! You are not my type!" Id. Dr. Faerber's comments, which humiliated Plaintiff, were overheard by correctional officers. Id.
Dr. Murakonda, his primary care physician at the prison, was deliberately indifferent to his serious medical needs because she (1) delayed Plaintiff's shoulder surgery for four months; and (2) only authorized surgery to relieve pain, not to remedy the "root problem." Id.
STANDARD OF REVIEW
The Court's screening of the FAC under the foregoing statutes is governed by the following standards. A complaint may be dismissed as a matter of law for failure to state a claim for two reasons: (1) lack of a cognizable legal theory; or (2) insufficient facts under a cognizable legal theory. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). In determining whether the complaint states a claim on which relief may be granted, its allegations of material fact must be taken as true and construed in the light most favorable to Plaintiff. See Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). Further, since Plaintiff is appearing pro se, the Court must construe the allegations of the complaint liberally and must afford Plaintiff the benefit of any doubt. See Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). 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)). Moreover, with respect to Plaintiff's pleading burden, the Supreme Court has held that "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... on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted, alteration in original); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (holding that to avoid dismissal for failure to state a claim, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.' A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." (internal citation omitted)).
If the Court finds that a complaint should be dismissed for failure to state a claim, the Court has discretion to dismiss with or without leave to amend. Lopez v. Smith, 203 F.3d 1122, 1126-30 (9th Cir. 2000) (en banc). Leave to amend should be granted if it appears possible that the defects in the complaint could be corrected, especially if a plaintiff is pro se. Id. at 1130-31; see also Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (noting that "[a] pro se litigant must be given leave to amend his or her complaint, and some notice of its deficiencies, unless it is absolutely clear that the deficiencies of the complaint could not be cured by amendment") (citing Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)). However, if, after careful consideration, it is clear that a complaint cannot be cured by amendment, the Court may dismiss without leave to amend. Cato, 70 F.3d at 1105-06; see, e.g., Chaset v. Fleer/Skybox Int'l, 300 F.3d 1083, 1088 (9th Cir. 2002) (holding that "there is no need to prolong the litigation by permitting further ...