Opinion
Case No. 1:15-cv-01393 DLB PC
05-17-2016
CHAZ NELSON, Plaintiff, v. CDCR, et al., Defendants.
ORDER DISMSSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND
THIRTY-DAY DEADLINE
Plaintiff Chaz Nelson ("Plaintiff") is a state prison proceeding pro se and in forma pauperis in this civil rights action. Plaintiff filed this action on September 14, 2015. Pursuant to Court order, he filed a First Amended Complaint on March 18, 2016. He names John Doe as the sole Defendant.
Plaintiff consented to the jurisdiction of the United States Magistrate Judge on November 19, 2015.
LEGAL STANDARD
The 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 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). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).
A 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, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. 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.'" Id. (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id.
To state a claim, Plaintiff must demonstrate that each defendant personally participated in the deprivation of his rights. Id. at 1949. This requires the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 129 S.Ct. at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 129 S.Ct. at 1949-50; Moss, 572 F.3d at 969. B. SUMMARY OF PLAINTIFF'S ALLEGATIONS
Plaintiff is currently incarcerated at California State Prison in Lancaster, California.
He alleges that he became unexpectedly sick, and when he woke up, he was sweating and could barely breathe. He was rushed to medical, where he was told that his temperature was 105 degrees. Plaintiff was then sent out to San Joaquin Memorial Hospital, where he had blood tests and other diagnostic testing performed.
He was diagnosed with Valley Fever on August 28, 2009.
"Later on down the line," Plaintiff was hospitalized because his arteries were being eaten by the fungus. ECF No. 17, at 4. He had some form of surgery in 2013, while at Mercy Hospital.
Based on these allegations, Plaintiff alleges a violation of the Eighth and Fourteenth Amendments. C. ANALYSIS
1. Linkage
As explained above, section 1983 provides a cause of action for the violation of 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). To state a claim, Plaintiff must demonstrate that each defendant personally participated in the deprivation of his rights. Iqbal, 556 U.S. at 676-77, 129 S.Ct. at 1949; Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones, 297 F.3d at 934.
Here, Plaintiff names John Doe as the sole Defendant. He does not, however, include Defendant Doe in the factual allegations, and he therefore fails to explain how Defendant Doe was involved in the alleged deprivation of his rights.
The Court explained this deficiency in the prior screening order, but Plaintiff has not corrected it. His allegations continue to be vague, and do not sufficiently connect any individual with the actions complained of. Although Plaintiff attaches his appeals as exhibits, the Court will not attempt to guess Plaintiff's claims.
Plaintiff therefore fails to link any Defendant with specific acts and fails to state a claim.
2. Eighth Amendment
While the Eighth Amendment of the United States Constitution entitles Plaintiff to medical care, the Eighth Amendment is violated only when a prison official acts with deliberate indifference to an inmate's serious medical needs. Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012), overruled in part on other grounds, Peralta v. Dillard, 744 F.3d 1076, 1082-83 (9th Cir. 2014); Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012); Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). Plaintiff "must show (1) a serious medical need by demonstrating that failure to treat [his] condition could result in further significant injury or the unnecessary and wanton infliction of pain," and (2) that "the defendant's response to the need was deliberately indifferent." Wilhelm, 680 F.3d at 1122 (citing Jett, 439 F.3d at 1096). Deliberate indifference is shown by "(a) a purposeful act or failure to respond to a prisoner's pain or possible medical need, and (b) harm caused by the indifference." Wilhelm, 680 F.3d at 1122 (citing Jett, 439 F.3d at 1096). The requisite state of mind is one of subjective recklessness, which entails more than ordinary lack of due care. Snow, 681 F.3d at 985 (citation and quotation marks omitted); Wilhelm, 680 F.3d at 1122.
Plaintiff's prior complaint alleged that Defendants placed him in a prison where Valley Fever is endemic. He now omits this claim, but he does not adequately explain the claim now before the Court. Plaintiff alleges deliberate indifference, but he does not provide any facts describing his medical treatment, nor does he explain why he believes that his treatment was unconstitutional. Without additional facts, the Court cannot determine whether Defendant "[knew] of and disregard[ed] an excessive risk to [plaintiff's] health or safety." Farmer, 511 U.S. at 837. The Court need not accept his legal conclusions.
Plaintiff therefore fails to state a claim under the Eighth Amendment.
3. Fourteenth Amendment
Plaintiff again attempts to assert a cause of action under the Fourteenth Amendment. However, as the Court explained in the prior screening order, his claim is properly addressed under the Eighth Amendment. The concept of substantive due process is expanded only reluctantly and therefore, if a constitutional claim is covered by a specific constitutional provision, the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process. County of Sacramento v. Lewis, 523 U.S. 833, 843, 118 S.Ct. 1708 (1998) (quotation marks and citation omitted).
Finally, to the extent that Plaintiff cites the Fourteenth Amendment to support some type of discrimination claim, he has failed to allege any facts suggesting that any Defendant discriminated against him because of his race. Hartmann, 707 F.3d at 1123; Furnace, 705 F.3d at 1030; Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003); Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001).
Plaintiff therefore fails to state a claim under the Fourteenth Amendment. /// D. CONCLUSION AND ORDER
Plaintiff does not state any cognizable claims. The Court will provide Plaintiff with one final the opportunity to file an amended complaint, if he believes, in good faith, he can cure the identified deficiencies. Akhtar v. Mesa, 698 F.3d 1202, 1212-13 (9th Cir. 2012); Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000); Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). If Plaintiff amends, he may not change the nature of this suit by adding new, unrelated claims in his amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).
If Plaintiff files an amended complaint, it should be brief, Fed. R. Civ. P. 8(a), but under section 1983, it must state what each named defendant did that led to the deprivation of Plaintiff's constitutional rights and liability may not be imposed on supervisory personnel under the mere theory of respondeat superior, Iqbal, 556 U.S. at 676-77; Starr v. Baca, 652 F.3d 1202, 1205-07 (9th Cir. 2011), cert. denied, 132 S.Ct. 2101 (2012). Although accepted as true, the "[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level. . ." Twombly, 550 U.S. at 555 (citations omitted).
Finally, an amended complaint supercedes the original complaint, Lacey v. Maricopa County, 693 F.3d 896, 907 (9th Cir. 2012) (en banc), and it must be "complete in itself without reference to the prior or superceded pleading," Local Rule 220.
Based on the foregoing, it is HEREBY ORDERED that:
1. Plaintiff's First Amended Complaint is dismissed with leave to amend;/// /// /// ///
2. The Clerk's Office shall send Plaintiff a complaint form;
3. Within thirty (30) days from the date of service of this order, Plaintiff must file an amended complaint curing the deficiencies identified by the Court in this order, and
4. If Plaintiff fails to comply with this order, this action will be dismissed, without prejudice, for failure to obey a court order.IT IS SO ORDERED.
Dated: May 17 , 2016
/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE