United States District Court, E.D. California
GUILLERMO G. PAEZ, JR., Plaintiff,
COMMUNITY REGIONAL MEDICAL CENTER, et al., Defendants.
ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND FOR
FAILURE TO STATE A CLAIM (ECF No. 5)
Guillermo G. Paez, Jr., an inmate in the Fresno County Jail,
is appearing pro se in this civil rights action pursuant to
42 U.S.C. § 1983. On February 15, 2017, Plaintiff filed
a complaint in this action which was dismissed for failure to
allege facts that any defendant was acting under color of
law. (ECF Nos. 1, 4.) Currently before the Court is
Plaintiff's first amended complaint, filed March 6, 2017.
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 on
which relief may be granted, ” or that “seek
monetary relief against a defendant who is immune from such
relief.” 28 U.S.C. § 1915(e)(2)(B).
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, 556 U.S. 662, 678 (2009) (citing Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
Moreover, Plaintiff must demonstrate that each defendant
personally participated in the deprivation of Plaintiff's
rights. Jones v. Williams, 297 F.3d 930, 934 (9th
proceeding pro se in civil rights actions are entitled to
have their pleadings liberally construed and to have any
doubt resolved in their favor. Wilhelm v. Rotman,
680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). To
survive screening, Plaintiff's claims must be facially
plausible, which requires sufficient factual detail to allow
the Court to reasonably infer that each named defendant is
liable for the misconduct alleged. Iqbal, 556 U.S.
at 678-79; Moss v. U.S. Secret Service, 572 F.3d
962, 969 (9th Cir. 2009). The “sheer possibility that a
defendant has acted unlawfully” is not sufficient, and
“facts that are ‘merely consistent with' a
defendant's liability” falls short of satisfying
the plausibility standard. Iqbal, 556 U.S. at 678;
Moss, 572 F.3d at 969.
Plaintiff Has Not Stated a Claim Under Section 1983
Plaintiff was advised in the February 17, 2017 order
dismissing his complaint with leave to amend, section 1983
provides a cause of action for the violation of a
plaintiff's constitutional or other federal rights by
persons acting under color of state law. Nurre v.
Whitehead, 580 F.3d 1087, 1092 (9th Cir 2009); Long
v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir.
2006); Jones v. Williams, 297 F.3d 930, 934 (9th
Cir. 2002). In the first amended complaint, Plaintiff states
that he went to the hospital on November 16, 2016 for
treatment of a spider bite and an incision and drainage was
performed by an unknown doctor. (First Am. Compl. 3.)
Plaintiff ended up developing Methicillin Resistant Stah
Aureus which he alleges is from contact with an infected
medical instrument. (Id.) Plaintiff is seeking
compensation of $500, 000.00. (Id. at 5.)
does not set forth the theory on which he is bringing a
federal action in this case and there are no facts alleged
from which the Court can infer that the physician who treated
Plaintiff was acting under color of law at the time the he
February 17, 2017 order dismissing the complaint with leave
to amend, the Court found:
In this instance, although Plaintiff is currently
incarcerated at the Fresno County Jail, he does not allege
that he was a pretrial detainee or a prisoner on November 12,
2016. Further, it appears clear from the complaint that he
was not in custody on that date. Plaintiff states that on
November 12, 2016, he went to the emergency room to seek
treatment for the spider bite on his arm. (Compl. at 5.)
Plaintiff states that he has had to go back three times for
skin graphing but the wound closed up due to Fresno County
Jail's health care provider's limited funding.
(Compl. at 5.) However, Plaintiff includes a medical record
from December 29, 2016, which states:
HPI: 35 year old male s/p I and D of Right forearm abscess
11/13/16 by the orthopedic surgery team. Burns/plastics
consulted for skin graft. The patient was admitted for
surgical intervention on his large right forearm abscess. He
underwent wound vac placement by plastic surgery, then
decided to leave against medical advice. Lost to follow up.
Incarcerated, in general population, states is doing okay.
Was taken out of wound vac weeks ago. ...