Foster v. Bhambi, et al.
Filing
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ORDER Dismissing Complaint, with Leave to File Amended Complaint within Thirty Days, signed by Magistrate Judge Gary S. Austin on 11/30/11. (Attachments: # 1 Amended Complaint form)(Verduzco, M)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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ALLEN FOSTER,
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Plaintiff,
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1:10-cv-01288 AWI GSA PC
ORDER DISMISSING COMPLAINT, WITH
LEAVE TO FILE AMENDED COMPLAINT
WITHIN THIRTY DAYS
v.
DR. BHAMBI, M.D., et al.,
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(ECF No. 1)
Defendants.
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Screening Order
I.
Screening Requirement
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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action
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pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant
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to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
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The Court is required to screen complaints brought by prisoners seeking relief against a
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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The
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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally
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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek
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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).
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“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall
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dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a
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claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).
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“Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited
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exceptions,” none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S.
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506, 512 (2002); Fed. R. Civ. P. 8(a). Pursuant to Rule 8(a), a complaint must contain “a short and
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plain statement of the claim showing that the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a).
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“Such a statement must simply give the defendant fair notice of what the plaintiff’s claim is and the
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grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512. However, “the liberal pleading
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standard . . . applies only to a plaintiff’s factual allegations.” Neitze v. Williams, 490 U.S. 319, 330
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n.9 (1989). “[A] liberal interpretation of a civil rights complaint may not supply essential elements
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of the claim that were not initially pled.” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 1257
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(9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).
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II.
Plaintiff’s Claim
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Plaintiff claims that he was subjected to inadequate medical care. Plaintiff’s allegations stem
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from a procedure he underwent at Bakersfield Memorial Hospital on September 22, 2006. Plaintiff
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was scheduled “to have an LHC catheterization exam to check the left side of his heart vessels, to
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see if any vessels had collapsed or if plaintiff’s prior stents were failing.” (Compl. p. 3.) Plaintiff
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alleges that, unknown to him, Dr. Bhambi actually implanted a new stent. Plaintiff alleges that Dr.
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Bhambi altered the consent form to make it appear as if Plaintiff approved the implementation of a
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new stent. Plaintiff alleges that the stent placement resulted in injury to his groin and “deteriorating
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mobility of his legs.”
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A.
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“[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate
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must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091, 1096
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(9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 295 (1976)). The two part
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test for deliberate indifference requires the plaintiff to show (1) “‘a serious medical need’ by
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demonstrating that ‘failure to treat a prisoner’s condition could result in further significant injury or
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the unnecessary and wanton infliction of pain,’” and (2) “the defendant’s response to the need was
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deliberately indifferent.” Jett, 439 F.3d at 1096 (quoting McGuckin v. Smith, 974 F.2d 1050, 1059
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(9th Cir. 1992), overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th
Eighth Amendment Medical Care Claim
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Cir. 1997) (en banc) (internal quotations omitted)). Deliberate indifference is shown by “a
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purposeful act or failure to respond to a prisoner’s pain or possible medical need, and harm caused
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by the indifference.” Id. (citing McGuckin, 974 F.2d at 1060).
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Although Plaintiff indicates that he did not approve of the implantation of the stent, he does
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not allege any facts indicating that the placement of the stent was medically inappropriate or
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unnecessary. Plaintiff does allege groin injury and resulting leg immobility, presumably because of
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the insertion of the stent. Plaintiff appears to claim that defendants were negligent. Before it can
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be said that a prisoner’s civil rights have been abridged with regard to medical care, however, “the
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indifference to his medical needs must be substantial. Mere ‘indifference,’ ‘negligence,’ or ‘medical
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malpractice’ will not support this cause of action.” Broughton v. Cutter Laboratories, 622 F.2d 458,
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460 (9th Cir.1980) (citing Estelle, 429 U.S. at 105-06). See also Toguchi v. Chung, 391 F.3d 1051,
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1060 (9th Cir.2004). Further, Plaintiff cannot prevail in a section 1983 action where only the quality
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of treatment is subject to dispute. Sanchez v. Vild, 891 F.2d 240 (9th Cir. 1989). Mere difference
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of opinion between a prisoner and prison medical staff as to appropriate medical care does not give
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rise to a section 1983 claim. Hatton v. Arpaio, 217 F.3d 845 (9th Cir. 2000); Franklin v. Oregon, 662
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F.2d 1337, 1344 (9th Cir. 1981).
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Plaintiff also names as a defendant the Chief of Administration at Bakersfield Memorial
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Hospital. To state a claim under section 1983, a plaintiff must allege that (1) the defendant acted
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under color of state law and (2) the defendant deprived him of rights secured by the Constitution or
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federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). “A person
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deprives another of a constitutional right, where that person ‘does an affirmative act, participates in
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another’s affirmative acts, or omits to perform an act which [that person] is legally required to do
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that causes the deprivation of which complaint is made.” Hydrick v. Hunter, 500 F.3d 978, 988 (9th
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Cir. 2007) (quoting Johnson v. Duffy, 588 F.2d 740, 743 9th Cir. 1978)). “[T]he ‘requisite causal
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connection can be established not only by some kind of direct, personal participation in the
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deprivation, but also by setting in motion a series of acts by others which the actors knows or
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reasonably should know would cause others to inflict the constitutional injury.’” Id. (quoting
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Johnson at 743.44). Here, Plaintiff fails to identify the Chief of Administration, and fails to charge
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that individual with any specific conduct. In order to state a claim, Plaintiff must charge each
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individual defendant with conduct that constitutes deliberate indifference. In order to hold an
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individual defendant liable, Plaintiff must name the individual defendant, describe where that
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defendant is employed and in what capacity, and explain how that defendant acted under color of
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state law. Plaintiff should state clearly, in his or her own words, what happened. Plaintiff must
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describe what each defendant, by name, did to violate the particular right described by Plaintiff.
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III.
Conclusion and Order
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The Court has screened Plaintiff’s complaint and finds that it does not state any claims upon
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which relief may be granted under section 1983. The Court will provide Plaintiff with the
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opportunity to file an amended complaint curing the deficiencies identified by the Court in this order.
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Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff is cautioned that he may not
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change the nature of this suit by adding new, unrelated claims in his amended complaint. George,
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507 F.3d at 607 (no “buckshot” complaints).
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Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but must state what each
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named defendant did that led to the deprivation of Plaintiff’s constitutional or other federal rights,
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Hydrick, 500 F.3d at 987-88. Although accepted as true, the “[f]actual allegations must be
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[sufficient] to raise a right to relief above the speculative level . . . .” Bell Atlantic Corp. v.
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Twombly, 127 S.Ct. 1955, 1965 (2007) (citations omitted).
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Finally, Plaintiff is advised that an amended complaint supercedes the original complaint,
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Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567
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(9th Cir. 1987), and must be “complete in itself without reference to the prior or superceded
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pleading,” Local Rule 15-220. Plaintiff is warned that “[a]ll causes of action alleged in an original
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complaint which are not alleged in an amended complaint are waived.” King, 814 F.2d at 567 (citing
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to London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981)); accord Forsyth, 114 F.3d at
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1474.
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Accordingly, based on the foregoing, it is HEREBY ORDERED that:
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1.
Plaintiff’s complaint is dismissed, with leave to amend, for failure to state a claim;
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2.
The Clerk’s Office shall send to Plaintiff a complaint form;
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3.
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Within thirty (30) days from the date of service of this order, Plaintiff shall file an
amended complaint;
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Plaintiff may not add any new, unrelated claims to this action via his amended
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complaint and any attempt to do so will result in an order striking the amended
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complaint; and
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5.
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If Plaintiff fails to file an amended complaint, the Court will recommend that this
action be dismissed, with prejudice, for failure to state a claim.
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IT IS SO ORDERED.
Dated:
6i0kij
November 30, 2011
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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