Opinion
3:22-cv-00018-RCJ-CLB
10-06-2022
WILLIAM WILLIAMS, Plaintiff, v. DR. HULKI, Defendant.
SCREENING ORDER ON FIRST AMENDED COMPLAINT (ECF No. 8)
On July 26, 2022, the Court screened Plaintiff's civil rights complaint under 28 U.S.C. § 1915A. (ECF No. 6.) The Court dismissed the complaint in its entirety with leave to amend by August 25, 2022. (Id. at 8.) Plaintiff subsequently filed a first amended complaint (“FAC”). (ECF No. 8.) The Court accepts the FAC as the operative complaint in this case. The Court now screens the FAC under 28 U.S.C. § 1915A.
I. SCREENING STANDARD
Federal courts must conduct a preliminary screening in any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Pro se pleadings, however, must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) the violation of a right secured by the Constitution or laws of the United States, and (2) that the alleged violation was committed by a person acting under color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).
In addition to the screening requirements under § 1915A, pursuant to the Prison Litigation Reform Act (PLRA), a federal court must dismiss a prisoner's claim, if “the allegation of poverty is untrue,” or if the action “is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2). Dismissal of a complaint for failure to state a claim upon which relief can be granted is provided for in Federal Rule of Civil Procedure 12(b)(6), and the court applies the same standard under § 1915 when reviewing the adequacy of a complaint or an amended complaint. When a court dismisses a complaint under § 1915(e), the plaintiff should be given leave to amend the complaint with directions as to curing its deficiencies, unless it is clear from the face of the complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).
Review under Rule 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Lab. Corp. of America, 232 F.3d 719, 723 (9th Cir. 2000). Dismissal for failure to state a claim is proper only if it is clear that the plaintiff cannot prove any set of facts in support of the claim that would entitle him or her to relief. See Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 1999). In making this determination, the court takes as true all allegations of material fact stated in the complaint, and the court construes them in the light most favorable to the plaintiff. See Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th Cir. 1996). Allegations of a pro se complainant are held to less stringent standards than formal pleadings drafted by lawyers. See Hughes v. Rowe, 449 U.S. 5, 9 (1980). While the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must provide more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A formulaic recitation of the elements of a cause of action is insufficient. Id.
Additionally, a reviewing court should “begin by identifying pleadings [allegations] that, because they are no more than mere conclusions, are not entitled to the assumption of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “While legal conclusions can provide the framework of a complaint, they must be supported with factual allegations.” Id. “When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id. “Determining whether a complaint states a plausible claim for relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id.
Finally, all or part of a complaint filed by a prisoner may be dismissed sua sponte if the prisoner's claims lack an arguable basis either in law or in fact. This includes claims based on legal conclusions that are untenable (e.g., claims against defendants who are immune from suit or claims of infringement of a legal interest which clearly does not exist), as well as claims based on fanciful factual allegations (e.g., fantastic or delusional scenarios). See Neitzke v. Williams, 490 U.S. 319, 327-28 (1989); see also McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991).
II. SCREENING OF FAC
In the FAC, Plaintiff sues Dr. Hulki for events that took place while he was incarcerated at Northern Nevada Correctional Center (“NNCC”). (ECF No. 8 at 1-2.) Plaintiff brings one claim and seeks monetary, declaratory, and injunctive relief. (Id. at 4, 9.)
The FAC alleges the following. As of December 2020, Plaintiff suffered from a “serious medical condition” that required “immediate surgery.” (Id. at 3.) Plaintiff does not describe the “serious medical condition” in the FAC. Dr. Hulki, the “Doctor of Orthopedics at NNCC Regional Medical Facility,” refused to give Plaintiff “medical attention” because of his “age” and “sentence structure.” (Id. at 2-3.) Dr. Hulki also “denied” treatment because the surgery would be “expensive.” (Id. at 3.) The delay in scheduling the surgery has caused Plaintiff to suffer injuries to his “left arm and hand,” as well as “pain, mental anguish, and loss of daily activities.” (Id. at 4.)
Based on these allegations, Plaintiff asserts an Eighth Amendment claim against Dr. Hulki for deliberate indifference to serious medical needs. (Id.) The Eighth Amendment prohibits the imposition of cruel and unusual punishment and “embodies ‘broad and idealistic concepts of dignity, civilized standards, humanity, and decency.'” Estelle v. Gamble, 429 U.S. 97, 102 (1976). A prison official violates the Eighth Amendment when he acts with “deliberate indifference” to the serious medical needs of an inmate. Farmer v. Brennan, 511 U.S. 825, 828 (1994). “To establish an Eighth Amendment violation, a plaintiff must satisfy both an objective standard-that the deprivation was serious enough to constitute cruel and unusual punishment-and a subjective standard-deliberate indifference.” Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012).
To establish the first prong, “the plaintiff must show a serious medical need by demonstrating that failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (internal quotations omitted). To satisfy the deliberate indifference prong, a plaintiff must show “(a) a purposeful act or failure to respond to a prisoner's pain or possible medical need and (b) harm caused by the indifference.” Id. “Indifference may appear when prison officials deny, delay or intentionally interfere with medical treatment, or it may be shown by the way in which prison physicians provide medical care.” Id. (internal quotations omitted). When a prisoner alleges that delay of medical treatment evinces deliberate indifference, the prisoner must show that the delay led to further injury. See Shapley v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985) (holding that “mere delay of surgery, without more, is insufficient to state a claim of deliberate medical indifference”).
Plaintiff fails to state a colorable claim for deliberate indifference to serious medical needs. First, Plaintiff fails to sufficiently allege that he had serious medical needs. He vaguely asserts that he suffered from a “serious medical condition” that required “immediate surgery.” (ECF No. 8 at 3.) But he includes no information about the nature of his condition. Thus, Plaintiff has not alleged facts sufficient to show that the “failure to treat [his] condition could result in further significant injury or the unnecessary and wanton infliction of pain.” Jett, 439 F.3d at 1096. Second, Plaintiff fails to adequately allege that Dr. Hulki was deliberately indifferent to his serious medical needs. Plaintiff does not describe how and when he made Dr. Hulki aware of his need for treatment. Nor does he elaborate on his conclusory assertion that Dr. Hulki declined to give him “medical attention” because of his “age” and “sentence structure.” (ECF No. 8 at 3.) In short, Plaintiff's allegations are too vague to state a colorable Eighth Amendment claim. See Ramirez v. Corizon Health, No. 19-cv-05799-DGC-JZB, 2020 WL 1866127, at *4 (D. Ariz. Apr. 14, 2020) (dismissing Eighth Amendment claim because plaintiff failed to “clearly describe the conditions for which he sought treatment, when and how he made Defendant [ ] aware of his need for treatment, and how (or when) Defendant [ ] responded”). Thus, the Court dismisses the Eighth Amendment claim without prejudice and with leave to amend.
Plaintiff is granted leave to file a second amended complaint to cure the deficiencies of the FAC. If Plaintiff chooses to file a second amended complaint, he is advised that a second amended complaint supersedes (replaces) the FAC and, thus, the second amended complaint must be complete in itself. See Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (holding that “[t]he fact that a party was named in the original complaint is irrelevant; an amended pleading supersedes the original”); see also Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (holding that for claims dismissed with prejudice, a plaintiff is not required to reallege such claims in a subsequent amended complaint to preserve them for appeal). Plaintiff's second amended complaint must contain all claims, defendants, and factual allegations that Plaintiff wishes to pursue in this lawsuit. Moreover, Plaintiff should file the second amended complaint on this Court's approved prisoner civil rights form, and it must be entitled “Second Amended Complaint.”
The Court notes that if Plaintiff chooses to file a second amended complaint curing the deficiencies outlined in this order, he must file the second amended complaint within 30 days from the date of entry of this order. If Plaintiff chooses not to file a second amended complaint curing the stated deficiencies, the Court will dismiss this case without prejudice for failure to state a claim.
III. CONCLUSION
It is therefore ordered that the FAC (ECF No. 8) is the operative complaint in this action.
It is further ordered that the FAC (ECF No. 8) is dismissed in its entirety without prejudice and with leave to amend.
It is further ordered that, if Plaintiff chooses to file a second amended complaint curing the deficiencies of the FAC, as outlined in this order, Plaintiff must file the second amended complaint within 30 days from the date of entry of this order.
It is further ordered that the Clerk of Court will send to Plaintiff the approved form for filing a § 1983 complaint, instructions for the same, and a copy of his FAC (ECF No. 8). If Plaintiff chooses to file a second amended complaint, he should use the approved form and he will write the words “Second Amended” above the words “Civil Rights Complaint” in the caption.
It is further ordered that, if Plaintiff chooses to file a second amended complaint, the Court will screen the second amended complaint in a separate screening order. The screening process will take several months.
It is further ordered that, if Plaintiff fails to file a second amended complaint curing the deficiencies outlined in this order, this action will be dismissed without prejudice for failure to state a claim.
A. Who May Use This Form
If you are incarcerated, you must use the attached form (unless you are challenging your sentence or conviction, see next paragraph). The attached civil rights complaint form is designed to help you prepare a complaint seeking relief for alleged violations of your federal civil rights. These complaints are usually about the conditions of your confinement, but they may relate to other issues (except for your sentence and conviction, see next paragraph).
Do not use this form if you are challenging the length of your sentence or the validity of your conviction. If you want to challenge a state conviction or sentence, you should file a petition under 28 U.S.C. § 2254 for writ of habeas corpus by a person in state custody. If you want to challenge a federal conviction or sentence, you should file a motion under 28 U.S.C. § 2255 to vacate sentence in the federal court that entered judgment.
B. Filing a Civil Rights Action
To initiate a civil rights action, you must submit:
1) a completed complaint form
and
2) a check or money order for $402 (which includes the $350 filing fee and the $52 administrative fee), or an inmate application to proceed in forma pauperis.
If you can pay the full $402 filing fee, please send a check or money order made payable to “CLERK, U.S. DISTRICT COURT” with your complaint. If you cannot pay the entire filing fee when you submit your complaint, please complete an inmate's application to proceed in forma pauperis, which is available at your institution. You may request the packet titled “Information for Filing an Application to Proceed In Forma Pauperis by an Inmate under 28 U.S.C. § 1915.”
You must file your complaint in the unofficial division where you are incarcerated. See Local Rules of Practice for the United States District Court for the District of Nevada (“LR”) IA 1-6, 1-8. The Clerk of the Court maintains offices in Las Vegas and Reno at these addresses:
Unofficial Southern Division (Clark, Esmeralda, Lincoln, & Nye counties):
U.S. District Court Office of the Clerk
333 Las Vegas Boulevard, South, Room #1334
Las Vegas, NV 89101
Unofficial Northern Division (all other counties):
U.S. District Court Office of the Clerk
400 S. Virginia Street, Room #301
Reno, NV 89501
Please continue to use electronic filing if it is available at your facility or institution. C. Completing the Civil Rights Complaint Form
General Information
• You must complete the form in its entirety. All questions must be answered in order for your action to proceed. Your responses must be typewritten or legibly handwritten. You must sign page 6 of the form and declare under penalty of perjury that the facts stated in the complaint are true and correct.
• Do not write on the back of any of the pages. All information must be clearly and concisely written in the space provided on the form. Do not write in the margins. If you attach additional pages to the form, you must identify which section of the complaint is being continued and number the pages accordingly (e.g., 2-A, 2-B, 3-A, 3-B, etc.).
• All incarcerated litigants are required to follow the Local Rules of Practice for the United States District Court for the District of Nevada. A copy of the Local Rules is maintained at each Nevada Department of Corrections Facility.
• All incarcerated litigants are required to follow General Order 2021-05 for the United States District Court for the District of Nevada.
• A civil cover sheet is not required in prisoner civil rights cases.
Length • Your complaint or amended complaint may not be more than 30 pages long.
• It is not necessary to attach exhibits or affidavits to the complaint or any amended complaint. Rather, the complaint or any amended complaint must sufficiently state the facts and claims without reference to exhibits or affidavits. Failure to state the facts and claims within the body of the complaint or amended complaint, without reference to any attached exhibits or affidavits, may result in dismissal.
• If you believe that you need to file a complaint or amended complaint that is longer than 30 pages, you must file a motion seeking permission to exceed the page limit and explain your reasons for exceeding the 30-page limit. Your motion to exceed the page limit may not be longer than 3 pages.
Heading/Caption
• Your Name: Print your full name, prison or inmate number, and institutional mailing address on the lines provided.
• Defendants: If there are five or fewer defendants, print the name of each. If you are suing more than five defendants, print the name of the first defendant on the first line and write “see additional pages for defendants” on the second line. On an additional page, you must list the names of all defendants. Insert this additional page after page 1 and number the page “1-A” at the bottom.
• Identify Complaint: You must mark the box identifying whether the instant complaint is the original, first amended, or second amended complaint.
• Jury Demand: If you want a jury trial, you must check the box for “Jury Trial Demanded.”
Part A: Jurisdiction
• 42 U.S.C. § 1983 Action: If you are filing a complaint naming a state, county, or city official as a defendant, mark the box for “28 U.S.C. § 1343(a)(3); 42 U.S.C. § 1983.”
• Bivens Action: If you are filing a complaint naming a federal officer as a defendant, mark the box for “28 U.S.C. § 1331; Bivens v. Six Unknown Named Agents.”
• Fill in the requested information about your current institution/city and the institution/city where the violations occurred.
Part B: Defendants
• Fill in the requested information about each of the defendants in the spaces provided. If you are naming more than five defendants, you must provide the necessary information about each additional defendant on separate pages labeled “2-A”, “2-B”, etc. at the bottom of the page. Insert the additional page(s) immediately behind page 2.
Part C: Nature of the Case
• Briefly give an overview of your case by providing general facts about your case. This is not the place to provide detailed information about what each defendant did to violate your rights (see Part D).
Part D: Cause(s) of Action • This is where you identify what rights you claim the defendant(s) violated. The form provides three pages for alleging three claims. If you are alleging more than three claims, then attach an additional page for each additional claim (so that there is only one claim per page). Number the additional pages “5-A,” “5-B,” etc. and insert the pages immediately behind page 5. Remember, your complaint may not exceed 30 pages.
o Claims: You must identify which civil right was violated.You may allege the violation of only one civil right per claim.
o Issues Involved: Check the box that most closely identifies the issue involved in your claim. You may check only one box per claim. If you mark the box “Other,” you must identify the specific issue involved.
o Date(s): Identify the date(s) or date range of the alleged violation.
o Supporting Facts: You must state facts supporting the violation. You should be as specific as possible and describe what each individual defendant did to violate your rights. You should name the individual defendants and include dates when possible.
• You must follow the Federal Rules of Civil Procedure when drafting your claims and allegations.
o Your complaint must contain “a short and plain statement of the claim showing that [you are] entitled to relief.” Fed.R.Civ.P. 8(a)(2).
o “Each allegation must be simple, concise, and direct.” Fed.R.Civ.P. 8(d)(1).
o “A party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances.” Fed.R.Civ.P. 10(b). Each claim founded on a separate transaction or occurrence must be stated in a separate claim. Id.
o You may add multiple claims to a lawsuit when those claims are against the same defendant. Fed.R.Civ.P. 18(a).
o You may add multiple parties to a lawsuit where the right to relief arises out of the “same transaction, occurrence, or series of transactions or occurrences.” Fed.R.Civ.P. 20(a)(2)(A).
o Unrelated claims that involve different defendants must be brought in separate lawsuits.
Part E: Previous Lawsuits
• You must answer the questions in this section by marking “yes” or “no.”
Part F: Request for Relief
• Print the relief you are seeking in the space provided.
Signature
• You must sign your name and print the date you signed the complaint. Failure to sign the complaint will delay the processing of your action. If someone wrote this civil rights complaint for you (such as an inmate law clerk), that person must write their name on the line next to your signature.
D. Amended Complaints
If you need to change any information in the initial complaint, you must file an amended complaint. The amended complaint must be written on a new, blank copy of the attached civil rights complaint form. The amended complaint must be complete and may not incorporate by reference any part of your prior complaint. Any allegations or defendants not included in the amended complaint are considered abandoned. Please refer to LR 15-1 and Fed.R.Civ.P. 15 for how and when a party may move the court to file an amended complaint.