Jones v. Choudhury et al
Filing
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ORDER DISMISSING Complaint WITH LEAVE TO AMEND 1 ; Amended Complaint Due Within Thirty Days, signed by Magistrate Judge Gerald B. Cohn on 6/23/11. (Attachments: # 1 Amended Complaint (blank form))(Hellings, J)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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LARRY D. JONES,
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Plaintiff,
JAYANTA CHOUDHURY, M.D., et al.,
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Defendants.
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1:10-cv-02063-GBC (PC)
ORDER DISMISSING COMPLAINT WITH
LEAVE TO AMEND
v.
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CASE NO.
(ECF No. 1)
AMENDED COMPLAINT DUE WITHIN
/ THIRTY DAYS
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SCREENING ORDER
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I.
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PROCEDURAL HISTORY
Plaintiff Larry D. Jones (“Plaintiff”), an inmate in the custody of the California
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Department of Corrections and Rehabilitation (“CDCR”), is proceeding pro se and in forma
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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action
on November 8, 2010. (ECF No. 1.) No other parties have appeared.
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Plaintiff’s Complaint is now before this Court for screening. For the reasons set forth
below, the Court finds that Plaintiff has failed to state any cognizable claims.
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II.
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SCREENING REQUIREMENTS
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.
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§ 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has
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raised claims that are legally “frivolous or malicious,” that fail to state a claim upon which
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relief may be granted, or that seek monetary relief from a defendant who is immune from
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such relief. 28 U.S.C. § 1915A(b)(1), (2). “Notwithstanding any filing fee, or any portion
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thereof, that may have been paid, the court shall dismiss the case at any time if the court
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determines that . . . the action or appeal . . . fails to state a claim upon which relief may be
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granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).
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A complaint must contain “a short and plain statement of the claim showing that the
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pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are
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not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by
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mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949
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(2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set
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forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its
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face.’” Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). While factual
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allegations are accepted as true, legal conclusions are not. Iqbal, 129 S.Ct. at 1949.
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III.
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SUMMARY OF COMPLAINT
Plaintiff brings this action for inadequate medical care in violation of the Eighth
Amendment. Plaintiff names the following individuals as Defendants: Jayanta Choudhury,
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M.D. and Community Regional Medical Center.
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Plaintiff alleges as follows: On October 27, 2008, Plaintiff had a colonoscopy
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performed by Defendant Choudhury at Fresno Community Hospital. Unbeknownst to
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anyone, during the procedure, Plaintiff’s intestinal organs were lacerated. After the
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procedure, Plaintiff returned to prison and became very ill, suffering severe pain, and
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throwing up. Plaintiff was taken back to the hospital. Defendant Choudhury said everything
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was fine and sent Plaintiff back to the prison. The following day Plaintiff was again taken
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back to the hospital where he received a blood transfusion, and another colonoscopy which
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discovered that his intestines had been lacerated during the first procedure. Plaintiff went
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into surgery to repair the damage. Two permanent clamps were used to stop the bleeding.
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Plaintiff was also given another blood transfusion from which he contracted Hepatitis C.
Plaintiff seeks compensatory damages.
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IV.
ANALYSIS
The Civil Rights Act under which this action was filed provides:
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Every person who, under color of [state law] . . . subjects, or
causes to be subjected, any citizen of the United States . . . to
the deprivation of any rights, privileges, or immunities secured
by the Constitution . . . shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for
redress.
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42 U.S.C. § 1983. “Section 1983 . . . creates a cause of action for violations of the federal
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Constitution and laws.” Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir.
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1997) (internal quotations omitted).
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A.
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Plaintiff alleges that Defendant Choudhury failed to provide adequate medical care
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Eighth Amendment Claims
in violation of the Eighth Amendment.
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“[T]o maintain an Eighth Amendment claim based on prison medical treatment, an
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inmate must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439
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F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). The
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two part test for deliberate indifference requires the plaintiff to show (1) “‘a serious medical
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need’ by demonstrating that ‘failure to treat a prisoner’s condition could result in further
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significant injury or the unnecessary and wanton infliction of pain,’” and (2) “the defendant’s
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response to the need was deliberately indifferent.” Jett, 439 F.3d at 1096 (quoting
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McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds,
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WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc) (internal quotations
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omitted)). Deliberate indifference is shown by “a purposeful act or failure to respond to a
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prisoner’s pain or possible medical need, and harm caused by the indifference.” Jett, 439
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F.3d at 1096 (citing McGuckin, 974 F.2d at 1060). In order to state a claim for violation of
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the Eighth Amendment, a plaintiff must allege sufficient facts to support a claim that the
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named defendants “[knew] of and disregard[ed] an excessive risk to [Plaintiff’s] health . .
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. .” Farmer v. Brennan, 511 U.S. 825, 837 (1994).
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In applying this standard, the Ninth Circuit has held that before it can be said that
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a prisoner’s civil rights have been abridged, “the indifference to his medical needs must be
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substantial. Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this
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cause of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980)
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(citing Estelle, 429 U.S. at 105-06). “[A] complaint that a physician has been negligent in
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diagnosing or treating a medical condition does not state a valid claim of medical
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mistreatment under the Eighth Amendment. Medical malpractice does not become a
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constitutional violation merely because the victim is a prisoner.” Estelle, 429 U.S. at 106;
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see also Anderson v. County of Kern, 45 F.3d 1310, 1316 (9th Cir. 1995); McGuckin, 974
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F.2d at 1050, overruled on other grounds, WMX, 104 F.3d at 1136. Even gross negligence
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is insufficient to establish deliberate indifference to serious medical needs. See Wood v.
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Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990).
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Also, “a difference of opinion between a prisoner-patient and prison medical
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authorities regarding treatment does not give rise to a § 1983 claim.” Franklin v. Oregon,
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662 F.2d 1337, 1344 (9th Cir. 1981) (internal citation omitted). To prevail, Plaintiff “must
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show that the course of treatment the doctors chose was medically unacceptable under
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the circumstances . . . and . . . that they chose this course in conscious disregard of an
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excessive risk to plaintiff’s health.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1986)
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(internal citations omitted). A prisoner’s mere disagreement with diagnosis or treatment
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does not support a claim of deliberate indifference. Sanchez v. Vild, 891 F.2d 240, 242
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(9th Cir. 1989).
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Plaintiff alleges that he had a routine colonoscopy during which his intestines were
lacerated, was returned to the prison, became ill and suffered severe pain, came back to
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the hospital only to be turned away again, and finally had another surgery to repair the
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damage caused by the first surgery.
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As currently pleaded, Plaintiff has failed to allege facts sufficient to show deliberate
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indifference to a serious medical need. As currently stated Plaintiff appears to be alleging
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negligence or perhaps medical malpractice neither of which support a claim under Section
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1983. The Court will grant Plaintiff leave to amend this claim and attempt to set forth
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sufficient facts to state such a claim.
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B.
State Law Claims
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Plaintiff appears to be alleging that Defendant Choudhury committed medical
malpractice, which is a state law claim.
To establish medical negligence (malpractice), a plaintiff must state (and
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subsequently prove) all of the following: (1) that the defendant was negligent; (2) that the
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plaintiff was harmed; and (3) that the defendant’s negligence was a substantial factor in
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causing the plaintiff’s harm. Ladd v. County of San Mateo, 12 Cal.4th 913, 917 (1996);
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Ann M. v. Pacific Plaza Shopping Center, 6 Cal.4th 666, 673 (1993); Restatement Second
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of Torts, section 328A; and Judicial Council Of California Civil Jury Instruction 400,
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Summer 2008 Supplement Instruction.
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Medical professionals are negligent if they fail to use the level of skill, knowledge,
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and care in diagnosis and treatment that other reasonably careful medical professionals
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would use in the same or similar circumstances. This level of skill, knowledge, and care
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is sometimes referred to as “the standard of care.” Landeros v. Flood, 17 Cal.3d 399, 408
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(1976); see also Brown v. Colm, 11 Cal.3d 639, 642–643 (1974); Mann v. Cracchiolo, 38
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Cal.3d 18, 36 (1985); and Judicial Council Of California Civil Jury Instruction 500, Summer
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2008 Supplement Instruction.
“[M]edical personnel are held in both diagnosis and
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treatment to the degree of knowledge and skill ordinarily possessed and exercised by
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members of their profession in similar circumstances.” Hutchinson v. United States, 838
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F.2d 390, 392-93 (9th Cir. 1988) (internal citations omitted).
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The Court does not reach the viability of Plaintiff’s state law as it will not exercise
supplemental jurisdiction over state law claims unless Plaintiff is able to state a cognizable
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federal claim. 28 U.S.C. § 1367(a); Herman Family Revocable Trust v. Teddy Bear, 254
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F.3d 802, 805 (9th Cir. 2001).
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The Court also notes that if Plaintiff does state a cognizable Eighth Amendment
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claim and pursues the medical malpractice claim, he must demonstrate compliance with
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the California Tort Claims Act. Under the California Tort Claims Act (“CTCA”), a plaintiff
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may not maintain an action for damages against a public employee unless he has
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presented a written claim to the state Victim Compensation and Government Claims Board
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within six months of accrual of the action. See Cal. Gov’t Code §§ 905, 911.2(a), 945.4
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& 950.2; Mangold v. California Pub. Utils. Comm’n, 67 F.3d 1470, 1477 (9th Cir. 1995).
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A plaintiff may file a written application for leave to file a late claim up to one year after the
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cause of action accrues. Cal. Gov’t Code § 911.4. The purpose of CTCA’s presentation
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requirement is “to provide the public entity sufficient information to enable it to adequately
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investigate claims and to settle them, if appropriate, without the expense of litigation.” City
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of San Jose v. Superior Court, 525 P.2d 701, 706 (1974). Thus, in pleading a state law
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claim, plaintiff must allege facts demonstrating that he has complied with CTCA’s
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presentation requirement. State of California v. Superior Court (Bodde), 90 P.3d 116, 119
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(2004). Failure to demonstrate compliance constitutes a failure to state a cause of action
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and will result in the dismissal of plaintiff’s state law claims. Id.
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The Court will allow Plaintiff one opportunity to amend his complaint. If he chooses
to do so, Plaintiff must demonstrate compliance with the CTCA.
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C.
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Plaintiff names Community Regional Medical Center as a Defendant but does not
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Linkage
attribute action or inaction to it. In fact, Community Regional Medical Center is not
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mentioned at all in Plaintiff’s statement of claim. Plaintiff could be arguing that Defendant
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Community Regional Medical Center is somehow supervisorily responsible for Defendant
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Choudhury’s actions.
Under Section 1983, Plaintiff must demonstrate that each named Defendant
personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930,
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934 (9th Cir. 2002). The Supreme Court has emphasized that the term “supervisory
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liability,” loosely and commonly used by both courts and litigants alike, is a misnomer.
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Iqbal, 129 S.Ct. at 1949.
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unconstitutional conduct of their subordinates under a theory of respondeat superior.” Id.
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at 1948. Rather, each government official, regardless of his or her title, is only liable for
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“Government officials may not be held liable for the
his or her own misconduct, and therefore, Plaintiff must demonstrate that each defendant,
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through his or her own individual actions, violated Plaintiff’s constitutional rights. Id. at
1948-49.
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When examining the issue of supervisor liability, it is clear that the supervisors are
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not subject to vicarious liability, but are liable only for their own conduct. Jeffers v. Gomez,
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267 F.3d 895, 915 (9th Cir. 2001); Wesley v. Davis, 333 F.Supp.2d 888, 892 (C.D.Cal.
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2004). In order to establish liability against a supervisor, a plaintiff must allege facts
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demonstrating (1) personal involvement in the constitutional deprivation, or (2) a sufficient
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causal connection between the supervisor’s wrongful conduct and the constitutional
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violation. Jeffers, 267 F.3d at 915; Wesley, 333 F.Supp.2d at 892. The sufficient causal
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connection may be shown by evidence that the supervisor implemented a policy so
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deficient that the policy itself is a repudiation of constitutional rights.
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Wesley, 333
F.Supp.2d at 892 (internal quotations omitted). However, an individual’s general
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responsibility for supervising the operations of a prison is insufficient to establish personal
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involvement. Id. (internal quotations omitted).
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Supervisor liability under Section 1983 is a form of direct liability. Munoz v.
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Kolender, 208 F.Supp.2d 1125, 1149 (S.D.Cal. 2002). Under direct liability, Plaintiff must
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show that Defendant breached a duty to him which was the proximate cause of his injury.
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Id. “‘The requisite causal connection can be established . . . by setting in motion a series
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of acts by others which the actor knows or reasonably should know would cause others to
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inflict the constitutional injury.’” Id. (quoting Johnson v. Duffy, 588 F.2d 740, 743-744 (9th
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Cir. 1978)).
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Plaintiff has not alleged facts demonstrating that Defendant Community Regional
Medical Center personally acted to violate his rights. In his Amended Complaint, Plaintiff
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needs to specifically link each Defendant to a violation of his rights. Plaintiff shall be given
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the opportunity to file an amended complaint curing the deficiencies in this respect.
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V.
CONCLUSION AND ORDER
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The Court finds that Plaintiff’s Complaint fails to state any Section 1983 claims upon
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which relief may be granted. The Court will provide Plaintiff time to file an amended
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complaint to address the potentially correctable deficiencies noted above. See Noll v.
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Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). In his Amended Complaint, Plaintiff must
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demonstrate that the alleged incident or incidents resulted in a deprivation of his
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constitutional rights. Iqbal, 129 S.Ct. at 1948-49. Plaintiff must set forth “sufficient factual
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matter . . . to ‘state a claim that is plausible on its face.’” Iqbal, 129 S.Ct. at 1949 (quoting
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Twombly, 550 U.S. at 555). Plaintiff must also demonstrate that each defendant personally
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participated in the deprivation of his rights. Jones, 297 F.3d at 934.
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Plaintiff should note that although he has been given the opportunity to amend, it
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is not for the purposes of adding new defendants or claims. Plaintiff should focus the
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amended complaint on claims and defendants relating solely to the issues discussed
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herein.
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Finally, Plaintiff is advised that Local Rule 220 requires that an amended complaint
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be complete in itself without reference to any prior pleading. As a general rule, an
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amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55,
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57 (9th Cir. 1967). Once an amended complaint is filed, the original complaint no longer
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serves any function in the case. Therefore, in an amended complaint, as in an original
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complaint, each claim and the involvement of each defendant must be sufficiently alleged.
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The amended complaint should be clearly and boldly titled “First Amended Complaint,”
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refer to the appropriate case number, and be an original signed under penalty of perjury.
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Based on the foregoing, it is HEREBY ORDERED that:
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1.
Plaintiff’s Complaint is dismissed for failure to state a claim, with leave to file
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an amended complaint within thirty (30) days from the date of service of this
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order;
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2.
Plaintiff shall caption the amended complaint “First Amended Complaint” and
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refer to the case number 1:10-cv-2063-GBC (PC); and
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3.
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failure to state a claim upon which relief may be granted.
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If Plaintiff fails to comply with this order, this action will be dismissed for
IT IS SO ORDERED.
Dated:
1j0bbc
June 23, 2011
UNITED STATES MAGISTRATE JUDGE
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