Opinion
ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND
ALKA SAGAR, Magistrate Judge.
I. INTRODUCTION
On February 9, 2015, Plaintiff Herbert Wolff, a prisoner at the California Institution for Men ("CIM") in Chino, California, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983. (Docket Entry No. 1 ("Compl.").) Plaintiff alleges that prison medical staff have failed to properly treat his cancer, which is now terminal. In his Complaint, Plaintiff names the State of California, the California Department of Corrections and Rehabilitation ("CDCR"), and several individual state-employee Defendants. (Compl. 3-4.) The employee Defendants are J. Lewis, Deputy Director of Policy and Risk Management Services; T. Le, the Chief Physician and Surgeon at CIM; M. Farooq, a CIM doctor; K. Torres, a CIM doctor; L.D. Zamora, the Chief of the Division of Health Care Services; and T. Perez, Warden of CIM. (Id.) The employee Defendants are all being sued in their individual and official capacities. (Id.)
Plaintiff initially sought court approval to proceed in forma pauperis. The Court denied his application for failure to provide the appropriate documentation under 28 U.S.C. § 1915 and ordered Plaintiff to amend his application and resubmit the Complaint within 30 days. (Docket Entry No. 6.) However, Plaintiff has since paid the filing fee, mooting the issue.
The Court has screened the Complaint as prescribed by 28 U.S.C. § 1915A and 42 U.S.C. § 1997e. For the reasons discussed below, the Court DISMISSES Plaintiff's Complaint WITH LEAVE TO AMEND.
Magistrate Judges may dismiss a complaint with leave to amend without approval from the district judge. McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991).
II. PLAINTIFF'S ALLEGATIONS
Plaintiff identifies six claims for relief in the Complaint: (1) negligence; (2) intentional infliction of emotional distress ("IIED"); (3) "civil rights violations"; (4) "intentional infliction of pain and suffering causing permanent injury and near death"; (5) "failure to summons and provide adequate medical care" under California Government Code section 845.6; and (6) "failure to summons medical care" under 42 U.S.C. § 1983. Plaintiff alleges that all six claims apply against all Defendants.
Plaintiff alleges that he suffers from renal cell carcinoma that has spread from his kidneys to his lungs. (See Compl. ¶ 18.) Plaintiff was informed that his cancer is terminal. (Id.) As a result of the cancer, Plaintiff suffers from difficulty breathing, night sweats, weakness in his extremities, vomiting, migraines, a loss of appetite, and severe pain. (Id.) Although the exact timeframe is not clear from the Complaint, Plaintiff alleges that Defendants have entirely failed to provide him with medical treatment or have failed to provide him appropriate medical treatment in light of his diagnosis. (Id. ¶¶ 18-26.) For example, Plaintiff alleges that Defendants - and in particular Dr. Torres - refuse to provide Plaintiff with his prescribed pain medication. (See id. ¶¶ 22-23.) Beyond identifying Defendants in the initial paragraphs and referring to Defendants generally, the substantive factual allegations in the Complaint refer only to Dr. Torres. (See id. 17-26.)
It is not clear whether Plaintiff alleges actionable conduct beginning in November 2011, May 2010, or as far back as 2007, or whether Plaintiff's alleged mistreatment began at Mule Creek State Prison or upon transfer to CIM. (See Compl. ¶¶ 17-18.)
Plaintiff specifically seeks damages, including punitive damages, for his claims. It also appears that Plaintiff may be seeking injunctive and declaratory relief to obtain his desired medical treatment.
III. STANDARD OF REVIEW
Congress mandates that district courts initially screen civil complaints filed by prisoners seeking redress from a governmental entity or employee. 28 U.S.C. § 1915A. A court may dismiss such a complaint, or any portion thereof, before service of process, if the court concludes that the complaint (1) is frivolous or malicious; (2) fails to state a claim upon which relief may be granted; or (3) seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1)-(2); see also Lopez v. Smith, 203 F.3d 1122, 1126-27 & n.7 (9th Cir. 2000) (en banc).
Dismissal for failure to state a claim is appropriate if a plaintiff fails to proffer "enough facts to state a claim for relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "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." Iqbal, 556 U.S. at 678; see also Hartmann v. Cal. Dep't of Corr. & Rehab., 707 F.3d 1114, 1122 (9th Cir. 2013). A plaintiff must provide "more than labels and conclusions" or a "formulaic recitation of the elements" of his claim. Twombly, 550 U.S. at 555; Iqbal, 556 U.S. at 678. However, "[s]pecific facts are not necessary; the [complaint] need only give the defendant fair notice of what the... claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) ( per curiam ) (quoting Twombly, 550 U.S. at 555).
In considering whether to dismiss a complaint, a court is generally limited to the pleadings and must construe all "factual allegations set forth in the complaint... as true and... in the light most favorable" to the plaintiff. Lee v. City of L.A., 250 F.3d 668, 688 (9th Cir. 2001). Moreover, pro se pleadings are "to be liberally construed" and held to a less stringent standard than those drafted by a lawyer. Erickson, 551 U.S. at 94; see also Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) ("Iqbal incorporated the Twombly pleading standard and Twombly did not alter courts' treatment of pro se filings; accordingly, we continue to construe pro se filings liberally when evaluating them under Iqbal."). Nevertheless, dismissal for failure to state a claim can be warranted based on either the lack of a cognizable legal theory or the absence of factual support for a cognizable legal theory. Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). A complaint may also be dismissed for failure to state a claim if it discloses some fact or complete defense that will necessarily defeat the claim. Franklin v. Murphy, 745 F.2d 1221, 1228-29 (9th Cir. 1984).
IV. DISCUSSION
Plaintiff's Complaint contains numerous deficiencies warranting dismissal, although leave to amend should be granted with respect to certain claims and Defendants. See 28 U.S.C. 1915A(b)(1).
A. State, State Agency, and Official Capacity Defendants
Plaintiff has identified the State of California and CDCR as Defendants. Plaintiff has also sued all employee Defendants in both their individual and official capacities. However, a suable "person" under 42 U.S.C. § 1983 does not include a state, a state agency, or a state official sued in their official capacity for damages. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 70-71 (1989); Romano v. Bible, 169 F.3d 1182, 1185 (9th Cir. 1999); Bair v. Krug, 853 F.2d 672, 675-76 (9th Cir. 1998). Accordingly, Plaintiff's § 1983 claims against the State of California and CDCR are DISMISSED WITH PREJUDICE. To the extent that Plaintiff seeks damages under § 1983 against the employee Defendants in their official capacities, Plaintiff's claims are also DISMISSED WITH PREJUDICE.
B. Individual Defendants
A plaintiff must plead that each defendant, through his own individual actions, has violated the Constitution. See Iqbal, 556 U.S. at 676. However, the only substantive factual allegations in Plaintiff's Complaint relate to the conduct of Dr. Torres. The remainder of the individual Defendants - Lewis, Le, Farooq, Zamora, and Perez - are merely identified as parties in the Complaint. This is far from sufficient.
The Court notes that Plaintiff may be seeking to hold Defendants Lewis, Le, Farooq, Zamora, and Perez liable as supervisors. However, a plaintiff may not sue any official on the theory that the official is liable for the unconstitutional conduct of his or her subordinates. See Iqbal, 556 U.S. at 676. Rather, supervisors can only be held liable in their individual capacity for: "1) their own culpable action or inaction in the training, supervision, or control of subordinates; 2) their acquiescence in the constitutional deprivation of which a complaint is made; or 3) for conduct that showed a reckless or callous indifference to the rights of others." Cunningham v. Gates, 229 F.3d 1271, 1292 (9th Cir. 2000); see also Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) ("[A] plaintiff may state a claim against a supervisor for deliberate indifference based upon the supervisor's knowledge of and acquiescence in unconstitutional conduct by his or her subordinates."). Here, to properly state a claim, Plaintiff must allege conduct on the part of each Defendant that amounts to "more than labels and conclusions, and a formulaic recitation of the elements." Twombly, 550 U.S. at 556.
For these reasons, the Court DISMISSES Defendants Lewis, Le, Farooq, Zamora, and Perez WITH LEAVE TO AMEND.
he Court is satisfied that Plaintiff has sufficiently pled a § 1983 claim against Defendant Torres at the screening stage.
C. Redundant Claims
Plaintiff's third claim for "civil rights violations, " fourth claim for "intentional infliction of pain and suffering causing permanent injury and near death, " and sixth claim for "failure to summon immediate medical care" under § 1983 appear to be redundant as alleged in the Complaint. The Court construes these three claims as identical § 1983 claims for violating Plaintiff's rights under the Eighth Amendment based on a lack of necessary medical treatment.
Accordingly, the Court DISMISSES Claims Four and Six as redundant. However, dismissal is WITH LEAVE TO AMEND so that Plaintiff may clarify and distinguish these claims if necessary.
V. CONCLUSION
For the reasons discussed above, the Court DISMISSES Plaintiff's § 1983 claims against the State of California and CDCR WITH PREJUDICE and WITHOUT LEAVE TO AMEND. All § 1983 damages claims against employee Defendants in their official capacity are also DISMISSED WITH PREJUDICE and WITHOUT LEAVE TO AMEND. The Court further DISMISSES Defendants Lewis, Le, Farooq, Zamora, and Perez in their individual capacities WITH LEAVE TO AMEND. In addition, Claims Four and Six are DISMISSED WITH LEAVE TO AMEND.
The Court makes no findings with respect to the state-law claims brought against these Defendants.
If Plaintiff still wishes to pursue this action, he shall file a First Amended Complaint no later than 30 days from the date of this order.The First Amended Complaint must cure the pleading defects discussed above and shall be complete in itself without reference to the original Complaint. See L.R. 15-2 ("Every amended pleading filed as a matter of right or allowed by order of the Court shall be complete including exhibits. The amended pleading shall not refer to the prior, superseding pleading."). This means that Plaintiff must allege and plead any viable claims in the original Complaint again.
In any amended complaint, Plaintiff should identify the nature of each separate legal claim and confine his allegations to those operative facts supporting each of his claims. Pursuant to Federal Rule of Civil Procedure 8(a), all that is required is a "short and plain statement of the claim showing that the pleader is entitled to relief." However, Plaintiff is advised that the allegations in the First Amended Complaint should be consistent with the authorities discussed above. In addition, the First Amended Complaint may not include new Defendants or claims not reasonably related to the allegations in the previously filed complaints. Plaintiff is strongly encouraged to once again utilize the standard civil rights complaint form when filing any amended complaint, a copy of which is attached.
Plaintiff is explicitly cautioned that failure to timely file a First Amended Complaint, or failure to correct the deficiencies described above, may result in a recommendation that this action, or portions thereof, be dismissed with prejudice for failure to prosecute and/or failure to comply with court orders. See Fed.R.Civ.P. 41(b). Plaintiff is further advised that if he no longer wishes to pursue this action in its entirety or with respect to particular Defendants or claims, he may voluntarily dismiss all or any part of this action by filing a Notice of Dismissal in accordance with Federal Rule of Civil Procedure 41(a)(1). A form Notice of Dismissal is attached for Plaintiff's convenience.
IT IS SO ORDERED.