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Rocha v. Marciano

United States District Court, C.D. California, Eastern Division

February 17, 2017

RICARDO ROCHA, Plaintiff,
v.
ORRY MARCIANO, et al., Defendants.

          ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND

          PAUL L ABRAMS UNITED STATES MAGISTRATE JUDGE.

         On August 22, 2016, plaintiff, a California state prisoner presently held at Chuckawalla Valley State Prison (“CVSP”), in Blythe, California, filed a pro se civil rights action herein pursuant to 42 U.S.C. § 1983. Plaintiff subsequently was granted leave to proceed without prepayment of the full filing fee. In his Complaint, it appeared that plaintiff was purporting to raise one claim alleging constitutionally inadequate medical care. Plaintiff named as defendants Orry Marciano, a physician's assistant at CVSP, and Dr. Santiago, an eye doctor at an outside clinic. Both defendants were named in their official capacities only. (ECF No. 1 at 3). Plaintiff appeared to be seeking only an investigation. (Id. at 6).

         In accordance with the mandate of the Prison Litigation Reform Act of 1995 (“PLRA”), the Court screened the Complaint prior to ordering service for the purpose of determining whether the action is frivolous or malicious; or fails to state a claim on which relief may be granted; or seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. §§ 1915A, 1915(e)(2); 42 U.S.C. § 1997e.

         After careful review of the Complaint, the Court found that plaintiff's allegations appeared insufficient to state a claim against any named defendant. Accordingly, the Complaint was dismissed with leave to amend. 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). Plaintiff was ordered, if he desired to pursue this action, to file a First Amended Complaint no later than December 30, 2016, remedying the deficiencies discussed in the Court's Order. Further, plaintiff was admonished that, if he failed to timely file a First Amended Complaint or failed to remedy the deficiencies of his pleading as discussed therein, then the Court would recommend that the action be dismissed with prejudice.

         On December 23, 2016, plaintiff filed a First Amended Complaint (“FAC”). The FAC names as defendants Orry Marciano, a physician's assistant at CVSP; Dr. Santiago, an eye doctor with an outside clinic; LVN Beatres, at CVSP; a “doe” doctor at the Riverside Hospital; and the Warden of CVSP. Plaintiff names all defendants except the Warden in both their individual and official capacities. (ECF No. 10 at 3-4). Plaintiff purports to raise one claim arising from inadequate medical treatment and plaintiff's “disability.” (Id. at 5). The FAC appears to be seeking an investigation. (Id. at 6). The Court has once again screened the FAC prior to ordering service.

         The Court's screening of the pleading 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. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990); see also Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (in determining whether a complaint should be dismissed under the PLRA, courts apply the standard of Fed.R.Civ.P. 12(b)(6)). Further, with respect to a plaintiff's pleading burden, the Supreme Court has held that: “a plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] 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.” 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, alteration in original); see also Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (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)); Lazy Y Ranch LTD v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008) (“To survive a motion to dismiss for failure to state a claim, the plaintiff must allege ‘enough facts to state a claim to relief that is plausible on its face.'” (citing Twombly, 550 U.S. at 570)). Since plaintiff is appearing pro se, the Court must construe the allegations of the pleading 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). Finally, in determining whether a complaint states a claim on which relief may be granted, allegations of material fact are taken as true and construed in the light most favorable to plaintiff. Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). However, the “tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678.

         After careful review of the FAC, the Court finds that plaintiff's allegations once again appear insufficient to state a claim against any named defendant. Accordingly, the FAC is dismissed with leave to amend. If plaintiff desires to pursue this action, he is ORDERED to file a Second Amended Complaint no later than March 17, 2017, remedying the deficiencies discussed below. Further, plaintiff is admonished that if he fails to timely file a Second Amended Complaint or fails to remedy the deficiencies of this pleading as discussed herein, the Court will recommend that the action be dismissed with prejudice.[1]

         DISCUSSION

         A. PLAINTIFF'S FAC FAILS TO SET FORTH A SHORT AND PLAIN STATEMENT IN COMPLIANCE WITH FEDERAL RULE OF CIVIL PROCEDURE 8.

         Plaintiff's FAC still fails to comply with Federal Rule of Civil Procedure 8(a) and 8(d). Fed.R. Civ. P. 8(a) states:

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.

(Emphasis added). Rule 8(d)(1) provides: “Each allegation must be simple, concise, and direct. No technical form is required.” (Emphasis added). Although the Court must construe a pro se plaintiff's pleadings liberally, a plaintiff nonetheless 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 Department of the Navy, 66 F.3d 193, 199 (9th Cir. 1995); McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991) (complaint must give defendants fair notice of the claims against them). If a plaintiff fails to clearly and concisely set forth allegations sufficient to provide defendants with notice of which defendant is being sued on which theory and what relief is being sought against them, the complaint fails to comply with Rule 8. See, e.g., McHenry v. Renne, 84 F.3d 1172, 1177-79 (9th Cir. 1996); Nevijel v. Northcoast Life Ins. Co., 651 F.2d 671, 674 (9th Cir. 1981). Moreover, failure to comply with Rule 8 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, 84 F.3d at 1179; Nevijel, 651 F.2d at 673.

         First, the cover page of the FAC names only Marciano as a defendant, but the body of the FAC lists several other defendants. Plaintiff once again is admonished that, irrespective of his pro se status, he must comply with the Federal Rules of Civil Procedure and the Local Rules of the United States District Court for the Central District of California. See, e.g., Briones v. Riviera Hotel & Casino, 116 F.3d 379, 382 (9th Cir. 1997) (“pro se litigants are not excused from following court rules”); L.R. 1-3. Pursuant to Fed.R.Civ.P. 10, the caption of the pleading must include all defendants listed in the body of the pleading.

         Additionally, plaintiff names most of the defendants in their official capacities. (ECF No. 10 at 3-4). It appears that defendants Marciano, Beatres, and the Warden are employees of the California Department of Corrections and Rehabilitation (“CDCR”), which is a state agency. In Will v. Michigan Department of State Police, 491 U.S. 58, 64-66, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989), the Supreme Court held that states, state agencies, and state officials sued in their official capacities are not persons subject to civil rights suits under 42 U.S.C. § 1983. In addition, the Eleventh Amendment bars federal jurisdiction over suits by individuals against a State and its instrumentalities, unless either the State consents to waive its sovereign immunity or 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 be 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 California, 858 F.2d 1394, 1396 (9th Cir. 1988); see also Atascadero State Hospital v. Scanlon, 473 U.S. 234, 241, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985) (holding that Art. III, ยง 5 of the California Constitution does not constitute a waiver of California's Eleventh Amendment immunity). Finally, ...


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