Rodenhurst v. Corrections Corporation of America et al, No. 2:2008cv01655 - Document 5 (D. Ariz. 2008)

Court Description: ORDER granting 3 Motion for Leave to Proceed in forma pauperis. The complaint 1 is dismissed for failure to state a claim. Pla has 30 days to file a 1st amended complaint in compliance with this order. If pla fails to file an amended complaint wi thin 30 days, the Clerk must without further notice enter a judgment of dismissal of this action with prejudice that states that the dismissal counts as a "strike" under 28 USC section 1915(g). Signed by Judge G Murray Snow on 10/10/2008. (Attachments: # 1 Civil Rights Complaint form)(LAD)

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Rodenhurst v. Corrections Corporation of America et al 1 Doc. 5 WO KM 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 12 13 14 ) ) ) Plaintiff, ) ) vs. ) Corrections Corporation of America, et ) ) al., ) ) Defendants. ) Walter V. Rodenhurst, III, No. CV 08-1655-PHX-GMS (MHB) ORDER Plaintiff Walter V. Rodenhhurst, III, who is confined in the Corrections 15 16 Corporation of America–Saguaro Correctional Center, has filed a pro se civil rights 17 Complaint pursuant to 42 U.S.C. § 1983 and an Application to Proceed In Forma 18 Pauperis. The Court will dismiss the Complaint with leave to amend. 19 I. Application to Proceed In Forma Pauperis and Filing Fee Plaintiff’s Application to Proceed In Forma Pauperis will be granted. 28 U.S.C. 20 21 § 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. § 1915(b)(1). 22 The Court will assess an initial partial filing fee of $20.00. The remainder of the fee will 23 be collected monthly in payments of 20% of the previous month’s income each time the 24 amount in the account exceeds $10.00. 28 U.S.C. § 1915(b)(2). The Court will enter a 25 separate Order requiring the appropriate government agency to collect and forward the 26 fees according to the statutory formula. 27 II. 28 Statutory Screening of Prisoner Complaints The Court is required to screen complaints brought by prisoners seeking relief JDDL-K 1 against a governmental entity or an officer or an employee of a governmental entity. 28 2 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 3 has raised claims that are legally frivolous or malicious, that fail to state a claim upon 4 which relief may be granted, or that seek monetary relief from a defendant who is 5 immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). If the Court determines that a 6 pleading could be cured by the allegation of other facts, a pro se litigant is entitled to an 7 opportunity to amend a complaint before dismissal of the action. See Lopez v. Smith, 8 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). The Court should not, however, advise the litigant how to cure the defects. This 9 10 type of advice “would undermine district judges’ role as impartial decisionmakers.” 11 Pliler v. Ford, 542 U.S. 225, 231 (2004); see also Lopez, 203 F.3d at 1131 n.13 (declining 12 to decide whether the court was required to inform a litigant of deficiencies). Plaintiff’s 13 Complaint will be dismissed for failure to state a claim, with leave to amend because the 14 Complaint may possibly be saved by amendment. 15 III. 16 Plaintiff names 33 individuals as Defendants to the Complaint as well as “John 17 and/or Jane Does 1-10.” Plaintiff appears to raise seven grounds for relief which stem 18 from his inability to consistently obtain his prescribed medical diet and medications. 19 Plaintiff seeks money damages and injunctive relief. 20 IV. Failure to Use Court-Approved Form Local Rule of Civil Procedure 3.4(a) requires that “complaints . . . by incarcerated 21 22 persons shall be signed and legibly written or typewritten on forms approved by the 23 Court." Plaintiff has not filed his Complaint on a court-approved form but has instead 24 submitted a lengthy factual narrative followed by seven conclusory “causes of action.” 25 The Court will dismiss the Complaint with leave to file an amended Complaint on the 26 court-approved form. 27 V. 28 JDDL-K Complaint Failure to State a Claim A. Statute of Limitations and Venue -2- 1 2 limitations for personal injury actions. Wilson v. Garcia, 471 U.S. 261, 266, 274-76 3 (1985); Vaughan v. Grijalva, 927 F.2d 476, 478 (9th Cir. 1991). The Arizona statute of 4 limitations for personal injury actions is two years. See Ariz. Rev. Stat. § 12-542(1); 5 Madden-Tyler v. Maricopa County, 943 P.2d 822, 824 (Ariz. Ct. App. 1997); Vaughan, 6 927 F.2d at 478. 7 Plaintiff filed the present action on September 8, 2008. That means that to comply 8 with the two-year statute of limitations, Plaintiff’s claims must have accrued on or after 9 September 8, 2006. A large portion of Plaintiff’s factual allegations concern medical 10 treatment he received while incarcerated in the Halawa Correctional Facility in Hawaii 11 from 2003 to 2006. These allegations appear to be barred by the statute of limitations. 12 B. 13 To maintain a claim under the Eighth Amendment based on prison medical 14 treatment, a prisoner must show deliberate indifference to serious medical needs. Estelle 15 v. Gamble, 429 U.S. 97, 104 (1976). To act with deliberate indifference, a prison official 16 must both know of and disregard an excessive risk to inmate health. Farmer v. Brennan, 17 511 U.S. 825, 837 (1994). The official must both be aware of facts from which the 18 inference could be drawn that a substantial risk of serious harm exists and he must also 19 draw the inference. Id. This subjective approach focuses upon the mental attitude of the 20 defendant. Id. at 839. 21 Medical Claims “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 22 1051, 1060 (9th Cir. 2004). In the medical context, deliberate indifference may be shown 23 by (1) a purposeful act or failure to respond to a prisoner’s pain or possible medical need 24 and (2) harm caused by the indifference. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 25 2006) (citing Estelle, 429 U.S. at 104). The harm need not be substantial. Id. (citing 26 Estelle, 429 U.S. at 104). 27 28 JDDL-K In § 1983 actions, the applicable statute of limitations is the forum state’s statute of Medical malpractice or negligence is insufficient to establish a violation. Toguchi, 391 F.3d at 1060. Thus, mere negligence in diagnosing or treating a condition does not -3- 1 violate the Eighth Amendment. Toguchi, 391 F.3d at 1057. Also, an inadvertent failure 2 to provide adequate medical care alone does not rise to the Eighth Amendment level. Jett, 3 429 F.3d at 1096. A difference in medical opinion also does not amount to deliberate 4 indifference. Toguchi, 391 F.3d at 1058. To prevail on a claim involving choices 5 between alternative courses of treatment, a prisoner must show that the chosen course was 6 medically unacceptable under the circumstances and was chosen in conscious disregard 7 of an excessive risk to the prisoner’s health. Id. In this case, Plaintiff’s lengthy factual description of his medical treatment from 8 9 2003 to the present suggests that Plaintiff received substantial medical treatment, but that 10 that treatment did not consistently conform to what he believed he should receive and that 11 he was frequently unable to see his preferred physician. This is not sufficient to establish 12 a claim of medical deliberate indifference. Moreover, to the extent that Plaintiff’s 13 allegations arise from negligent acts of the Defendants, negligence is insufficient to 14 establish an Eighth Amendment violation. 15 VI. 16 For the foregoing reasons, Plaintiff’s Complaint will be dismissed for failure to 17 state a claim upon which relief may be granted. Within 30 days, Plaintiff may submit a 18 first amended complaint to cure the deficiencies outlined above. The Clerk of Court will 19 mail Plaintiff a court-approved form to use for filing a first amended complaint. If 20 Plaintiff fails to use the court-approved form, the Court may strike the amended 21 complaint and dismiss this action without further notice to Plaintiff. 22 In any amended complaint, Plaintiff must write short, plain statements telling the 23 Court: (1) the constitutional right Plaintiff believes was violated; (2) name of the 24 Defendant who violated the right; (3) exactly what that Defendant did or failed to do; (4) 25 how the action or inaction of that Defendant is connected to the violation of Plaintiff’s 26 constitutional right; and (5) what specific injury Plaintiff suffered because of that 27 Defendant’s conduct. Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976). 28 JDDL-K Leave to Amend Plaintiff must repeat this process for each person he names as a Defendant. If -4- 1 Plaintiff fails to affirmatively link the conduct of each named Defendant with the specific 2 injury suffered by Plaintiff, the allegation against that Defendant will be dismissed for 3 failure to state a claim. Further, Plaintiff must comply with any specific directions set out 4 by the Court in its discussion of individual claims. Conclusory allegations that a 5 Defendant or group of Defendants have violated a constitutional right are not 6 acceptable, and will be dismissed. 7 Plaintiff must clearly designate on the face of the document that it is the “First 8 Amended Complaint.” The first amended complaint must be retyped or rewritten in its 9 entirety on the court-approved form and may not incorporate any part of the original 10 Complaint by reference. Plaintiff may include only one claim per count. 11 12 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 13 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the Court will treat an original 14 complaint as nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised 15 in the original complaint is waived if it is not raised in a first amended complaint. King v. 16 Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). 17 VII. Warnings 18 A. 19 Plaintiff must pay the unpaid balance of the filing fee within 120 days of his Release 20 release. Also, within 30 days of his release, he must either (1) notify the Court that he 21 intends to pay the balance or (2) show good cause, in writing, why he cannot. Failure to 22 comply may result in dismissal of this action. 23 B. 24 Plaintiff must file and serve a notice of a change of address in accordance with Address Changes 25 Rule 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion 26 for other relief with a notice of change of address. Failure to comply may result in 27 dismissal of this action. 28 JDDL-K A first amended complaint supersedes the original complaint. Ferdik v. Bonzelet, C. Copies -5- 1 2 LRCiv 5.4. Failure to comply may result in the filing being stricken without further 3 notice to Plaintiff. 4 D. 5 Because the Complaint has been dismissed for failure to state a claim, if Plaintiff Possible “Strike” 6 fails to file an amended complaint correcting the deficiencies identified in this Order, the 7 dismissal will count as a “strike” under the “3-strikes” provision of 28 U.S.C. § 1915(g). 8 Under the 3-strikes provision, a prisoner may not bring a civil action or appeal a civil 9 judgment in forma pauperis under 28 U.S.C. § 1915 “if the prisoner has, on 3 or more 10 prior occasions, while incarcerated or detained in any facility, brought an action or appeal 11 in a court of the United States that was dismissed on the grounds that it is frivolous, 12 malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is 13 under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). 14 E. 15 If Plaintiff fails to timely comply with every provision of this Order, including Possible Dismissal 16 these warnings, the Court may dismiss this action without further notice. See Ferdik, 963 17 F.2d at 1260-61 (a district court may dismiss an action for failure to comply with any 18 order of the Court). 19 IT IS ORDERED: 20 (1) Plaintiff’s Application to Proceed In Forma Pauperis (Doc. #3) is granted. 21 (2) As required by the accompanying Order to the appropriate government 22 agency, Plaintiff must pay the $350.00 filing fee and is assessed an initial partial filing fee 23 of $20.00. 24 (3) The Complaint (Doc. #1) is dismissed for failure to state a claim. Plaintiff 25 has 30 days from the date this Order is signed to file a first amended complaint in 26 compliance with this Order. 27 28 JDDL-K Plaintiff must submit an additional copy of every filing for use by the Court. See (4) If Plaintiff fails to file an amended complaint within 30 days, the Clerk of Court must, without further notice, enter a judgment of dismissal of this action with -6- 1 2 3 4 prejudice that states that the dismissal counts as a “strike” under 28 U.S.C. § 1915(g). (5) The Clerk of Court must mail Plaintiff a court-approved form for filing a civil rights complaint by a prisoner. DATED this 10th day of October, 2008. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JDDL-K -7-

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