United States District Court, E.D. California
ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND (DOC.
JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE.
apparently seeks to proceed in this action on claims of
deliberate indifference to his serious medical needs.
However, because he fails to state a cognizable claim, the
Complaint is DISMISSED with leave to amend.
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,
malicious, fail to state a claim upon which relief may be
granted, or that seek monetary relief from a defendant who is
immune from such relief. 28 U.S.C. § 1915A(b)(1), (2);
28 U.S.C. § 1915(e)(2)(B)(i)-(iii).
Summary of Plaintiff's Complaint
alleges that, on March 6, 2015, he was seen by Dr. Ghotra. At
that time, he told her that his left top tooth had been
hurting for two weeks. (Doc. 1, p. 3.) Dr. Ghotra took x-rays
and told Plaintiff nothing was wrong and that the pain would
go away. (Id.) Plaintiff saw Dr. Luga about a month
later, on April 7, 2015, and Dr. Luga told him that Dr.
Ghotra misread the x-rays and that he needed a root canal or
the tooth pulled. (Id.) Dr. Luga gave Plaintiff
prescribed amoxicillin and clindamycin, which were too potent
and killed the good bacteria in Plaintiff's stomach.
(Id.) Plaintiff “had to advocate” for
himself as Dr. Toor (his primary care physician
“PCP”) ignored him. (Id.) Five months
later, on September 7, 2015, Plaintiff was diagnosed with
clostridium difficile (“C.Diff”). (Id.,
p. 8.) Plaintiff thereafter lists various of his medical
records which reflect or lack notation of his allergies to
omeprazole, sulfa, and trimethoprim which were apparently,
initially noted by Plaintiff's previous PCP back in 2014.
appears that Plaintiff intends to allege that Dr. Toor, Dr.
Ghotra, and Dr. Luga were deliberately indifferent to his
serious medical needs in violation of the Eighth Amendment.
However, at most, his allegations may amount to medical
negligence, which as discussed below is not actionable under
§ 1983. Thus, Plaintiff is provided the pleading
requirements, the legal standards for deliberate indifference
to his serious medical needs, and leave to file a first
Federal Rule of Civil Procedure 8(a)
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).
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.
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), 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, 556 U.S.
at 678, quoting Twombly, 550 U.S. at 555. Factual
allegations are accepted as true, but legal conclusions are
not. Iqbal. at 678; see also Moss v. U.S. Secret
Service, 572 F.3d 962, 969 (9th Cir. 2009);
Twombly, 550 U.S. at 556-557.
“plaintiffs [now] face a higher burden of pleadings
facts . . ., ” Al-Kidd v. Ashcroft, 580 F.3d
949, 977 (9th Cir. 2009), the pleadings of pro se
prisoners are still construed liberally and are afforded the
benefit of any doubt. Hebbe v. Pliler, 627 F.3d 338,
342 (9th Cir. 2010). 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), and courts are not required to
indulge unwarranted inferences, Doe I v. Wal-Mart Stores,
Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal
quotation marks and citation omitted). The “sheer
possibility that a defendant has acted unlawfully” is
not sufficient, and “facts that are ‘merely
consistent with' a defendant's liability” fall
short of satisfying the plausibility standard.
Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949;
Moss, 572 F.3d at 969.
chooses to file a first amended complaint, Plaintiff should
make it as concise as possible. He should simply state which
of his constitutional rights he feels were violated by each
Defendant and its factual basis. The amended complaint should
be clearly legible (see Local Rule 130(b)), and
double-spaced pursuant to Local Rule 130(c).