Reimers v. CDCR et al
Filing
18
ORDER DISMISSING 11 Amended Complaint, WITH LEAVE TO AMEND, For Failure to State a Cliam, signed by Magistrate Judge Sheila K. Oberto on 6/8/2011. Amended Complaint due by 7/14/2011 (Attachments: # 1 Amended Complaint Form) (Marrujo, C)
<![CDATA[
1
2
3
4
5
6
UNITED STATES DISTRICT COURT
7
EASTERN DISTRICT OF CALIFORNIA
8
9
DIANE REIMERS,
10
Plaintiff,
11
12
CASE NO. 1:10-cv-00763-SKO PC
ORDER DISMISSING AMENDED
COMPLAINT, WITH LEAVE TO AMEND,
FOR FAILURE TO STATE A CLAIM
v.
CDCR, et al.,
13
(Doc. 11)
Defendants.
THIRTY-DAY DEADLINE
/
14
15
Screening Order
16
I.
Screening Requirement and Standard
17
Plaintiff Diane Reimers, a state prisoner proceeding pro se and in forma pauperis, filed this
18
civil rights action pursuant to 42 U.S.C. § 1983 on April 22, 2010. On May 20, 2010, the Court
19
dismissed Plaintiff’s complaint, with leave to amend. The case was dismissed after Plaintiff failed
20
to comply with the order to amend, but Plaintiff’s subsequent motion for reconsideration was granted
21
and the case was reopened on December 8, 2010. Now pending before the Court is Plaintiff’s
22
amended complaint, filed August 27, 2010.
23
The Court is required to screen complaints brought by prisoners seeking relief against a
24
governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The
25
Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally
26
“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek
27
monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).
28
1
1
“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall
2
dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a
3
claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).
4
A complaint must contain “a short and plain statement of the claim showing that the pleader
5
is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but
6
“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
7
do not suffice,” Ashcroft v. Iqbal, ___ U.S. ___, ___, 129 S.Ct. 1937, 1949 (2009) (citing Bell
8
Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)), and courts “are not required
9
to indulge unwarranted inferences,” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir.
10
2009) (internal quotation marks and citation omitted). While factual allegations are accepted as true,
11
legal conclusions are not. Iqbal, 129 S.Ct. at 1949.
12
Under section 1983, Plaintiff must demonstrate that each defendant personally participated
13
in the deprivation of her rights. Iqbal, 129 S.Ct. at 1949; Jones v. Williams, 297 F.3d 930, 934 (9th
14
Cir. 2002). This requires the presentation of factual allegations sufficient to state a plausible claim
15
for relief. Iqbal, 129 S.Ct. at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir.
16
2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal,
17
129 S.Ct. at 1949-50; Moss, 572 F.3d at 969.
18
II.
Plaintiff’s Claim
19
A.
20
Plaintiff, who is incarcerated at Valley State Prison for Women in Chowchilla, brings this
21
action against the California Department of Corrections and Rehabilitation (CDCR) for medical
22
injuries. Plaintiff alleges that she underwent emergency surgery on December 15, 2009, following
23
an MRI. Plaintiff had seven vertebrae removed and she was paralyzed on her right side for fourteen
24
months. Plaintiff alleges that for fourteen months, she complained of neck pain and high blood
25
pressure.1 Plaintiff thinks she was injured during a throat biopsy in which doctors had trouble
26
///
Summary of Allegations
27
1
28
It appears Plaintiff complained of neck pain for fourteen months before being injured and she was then
partially paralyzed for fourteen months after surgery, but the allegations are not entirely clear.
2
1
positioning her head and questioned her regarding whether she had arthritis. Plaintiff alleges that
2
she was severely compromised due to the doctors’ negligence.
3
B.
4
Negligence does not support a medical care claim under section 1983, Estelle v. Gamble, 429
5
U.S. 97, 106, 97 S.Ct. 285 (1977); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992),
6
overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en
7
banc), and CDCR is immune from suit, Aholelei v. Dept. of Public Safety, 488 F.3d 1144, 1147 (9th
8
Cir. 2007). Because Plaintiff has not alleged facts sufficient to support a claim that her constitutional
9
rights were violated and she has not named a proper party, she fails to state a claim upon which relief
10
may be granted under section 1983. The Court will provide Plaintiff with the opportunity to file a
11
second amended complaint naming the individual(s) responsible for the alleged violation of her
12
constitutional rights and setting forth sufficient facts to support a constitutional claim. The
13
applicable legal standard is as follows.
Discussion
14
To constitute cruel and unusual punishment in violation of the Eighth Amendment, prison
15
conditions must involve “the wanton and unnecessary infliction of pain.” Rhodes v. Chapman, 452
16
U.S. 337, 347, 101 S.Ct. 2392 (1981). A prisoner’s claim of inadequate medical care does not rise
17
to the level of an Eighth Amendment violation unless (1) “the prison official deprived the prisoner
18
of the ‘minimal civilized measure of life’s necessities,’” and (2) “the prison official ‘acted with
19
deliberate indifference in doing so.’” Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004)
20
(quoting Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) (citation omitted)). A prison official
21
does not act in a deliberately indifferent manner unless the official “knows of and disregards an
22
excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970
23
(1994).
24
“Deliberate indifference is a high legal standard.” Toguchi, 391 F.3d at 1060. “Under this
25
standard, the prison official must not only ‘be aware of the facts from which the inference could be
26
drawn that a substantial risk of serious harm exists,’ but that person ‘must also draw the inference.’”
27
Id. at 1057 (quoting Farmer, 511 U.S. at 837). “‘If a prison official should have been aware of the
28
risk, but was not, then the official has not violated the Eighth Amendment, no matter how severe the
3
1
risk.’” Id. (quoting Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)).
2
Further, neither a difference of opinion between Plaintiff and medical personnel nor a difference of
3
opinion between medical personnel regarding treatment will support a claim under section 1983.
4
Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); Franklin v. Oregon, 662 F.2d 1337, 1344 (9th
5
Cir. 1981) (quotation marks and citation omitted).
6
III.
Conclusion and Order
7
Plaintiff’s amended complaint fails to state a claim upon which relief may be granted under
8
section 1983. The Court will provide Plaintiff with one final opportunity to amend to cure the
9
deficiencies identified by the Court in this order.2 Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir.
10
2000); Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff may not change the nature
11
of this suit by adding new, unrelated claims in her second amended complaint. George v. Smith, 507
12
F.3d 605, 607 (7th Cir. 2007) (no “buckshot” complaints).
13
Plaintiff’s second amended complaint should be brief, Fed. R. Civ. P. 8(a), but it must state
14
what each named defendant did that led to the deprivation of Plaintiff’s constitutional rights, Iqbal,
15
129 S.Ct. at 1948-49. Although accepted as true, the “[f]actual allegations must be [sufficient] to
16
raise a right to relief above the speculative level. . . .” Twombly, 550 U.S. at 555 (citations omitted).
17
Finally, an amended complaint supercedes the prior complaint, Forsyth v. Humana, Inc., 114
18
F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), and it must be
19
“complete in itself without reference to the prior or superceded pleading,” Local Rule 220.
20
Therefore, “[a]ll causes of action alleged in an original complaint which are not alleged in an
21
amended complaint are waived.” King, 814 F.2d at 567 (citing to London v. Coopers & Lybrand,
22
644 F.2d 811, 814 (9th Cir. 1981)); accord Forsyth, 114 F.3d at 1474.
23
Based on the foregoing, it is HEREBY ORDERED that:
24
1.
25
The Clerk’s Office shall send Plaintiff a complaint form;
///
26
27
28
2
Plaintiff’s original complaint was unsigned and it did not set forth a statement of claim. Because this is the
first screening order which addresses Plaintiff’s factual allegations, the Court deems it in the interest of justice to
permit Plaintiff another opportunity to amend.
4
1
2.
2
Plaintiff’s amended complaint, filed August 27, 2010, is dismissed for failure to state
a claim upon which relief may be granted under section 1983;
3
3.
4
Within thirty (30) days from the date of service of this order, Plaintiff shall file a
second amended complaint; and
5
4.
6
If Plaintiff fails to file a second amended complaint in compliance with this order,
this action will be dismissed, with prejudice, for failure to state a claim.
7
8
IT IS SO ORDERED.
9
Dated:
ie14hj
June 8, 2011
/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5
]]>
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?
