Lawrence EuGene Gomes v. Mathis MD et al, No. 2:2017cv07022 - Document 8 (C.D. Cal. 2018)
Court Description: MEMORANDUM DECISION AND ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND by Magistrate Judge Suzanne H. Segal. The Complaint is DISMISSED with leave to amend. If Plaintiff still wishes to pursue this action, he is granted thirty (30) days from the dat e of this Memorandum and Order in which to file a First Amended Complaint. Plaintiff is further advised that if he no longer wishes to pursue this action, he may voluntarily dismiss it by filing a Notice of Dismissal in accordance with Federal Rule of Civil Procedure 41(a)(1). A form Notice of Dismissal is attached for Plaintiff's convenience. (See document for further details). (Attachments: # 1 Civil Rights Complaint Form, # 2 Notice of Dismissal Form) (mr)
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Lawrence EuGene Gomes v. Mathis MD et al Doc. 8 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 LAWRENCE EUGENE GOMES, Plaintiff, 12 13 14 Case No. CV 17-7022 SVW (SS) MEMORANDUM DECISION AND ORDER v. DISMISSING COMPLAINT WITH DAVID M. MATHIS, MD, et al., LEAVE TO AMEND Defendants. 15 16 17 I. 18 INTRODUCTION 19 20 Lawrence Eugene proceeding Gomes pro (“Plaintiff”), se, has filed a a California complaint state 21 prisoner alleging 22 violations of his civil rights pursuant to 42 U.S.C. § 1983. 23 (“Complaint,” Dkt. No. 1). 24 perform an initial screening of complaints in civil actions where 25 a prisoner seeks redress from a governmental entity or employee. 26 28 U.S.C. § 1915A(a). 27 any portion, before service of process if it concludes that the 28 complaint (1) is frivolous or malicious, (2) fails to state a claim Congress mandates that district courts This Court may dismiss such a complaint, or Dockets.Justia.com 1 upon which relief can be granted, or (3) seeks monetary relief from 2 a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1- 3 2); see also Lopez v. Smith, 203 F.3d 1122, 1126-27 & n.7 (9th Cir. 4 2000) (en banc). 5 DISMISSED with leave to amend.1 For the reasons stated below, the Complaint is 6 7 II. 8 ALLEGATIONS OF THE COMPLAINT 9 10 Plaintiff asserts claims of deliberate indifference to serious 11 medical needs against the following defendants in their individual 12 and official capacities: two state prison physicians, David M. 13 Mathis and Mariana Lotersctain; J. Clark Kelso, federal court- 14 appointed Receiver for the California prison medical health care 15 system (“Receiver”); and the “SACCO/WICC Unit”2 of the California 16 Department of Corrections and Rehabilitation (“CDCR”). 17 at 3-9). 18 Dr. Lotersctain, failed to provide adequate medical treatment for 19 a variety of conditions and injuries. 20 alleged injuries caused when a corrections officer raped Plaintiff 21 in an Arizona prison, where he was housed pursuant to the Western 22 Interstate Corrections Compact. 23 that the Receiver and the SACC/WICC Unit failed to intervene and 24 help him when he was being raped in the Arizona facility. 25 26 (Complaint Plaintiff alleges that the physicians, Dr. Mathis and (Id. at 5-6). (See id.). This includes Plaintiff also claims (Id. at Magistrate judges may dismiss a complaint with leave to amend without approval of the district judge. See McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). 1 27 “SACCO” apparently refers to the Sacramento Control Office, and “WICC” stands for the “Western Interstate Corrections Compact.” 2 28 2 1 7-8). From each defendant, Plaintiff seeks $100,000 in 2 compensatory damages, $100,000 in punitive damages and $100,000 in 3 “nominal damages,” in addition to $100,000 for “past or future 4 medical costs.” (Id. at 9). 5 6 III. 7 DISCUSSION 8 9 Plaintiff’s Complaint defendants. defective under plaintiff must plead that a “person” acting under color of state 12 law 13 Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). 14 agencies and state officials are not considered “persons” under 15 section 1983. 16 2007). 17 in 18 receivership, but he cannot be sued in his individual capacity for 19 such acts. 20 F.3d 1211, 1213, 1219 (9th Cir. 2009). constitutional or section contains 11 federal relief it improper his gain because 10 violated To is 1983, statutory a rights. State Flint v. Dennison, 488 F.3d 816, 824-25 (9th Cir. A court-appointed receiver, on the other hand, can be sued his official capacity for his acts in conducting the Med. Dev. Int'l v. Cal. Dep’t of Corr. & Rehab., 585 21 22 Accordingly, Plaintiff cannot maintain his claims against the 23 state prison physicians in their official capacities or the 24 “SACCO/WICC Unit” of the CDCR. 25 his individual capacity. 26 Complaint under 28 U.S.C. § 1915A(b). 27 may cure these defects, the Court dismisses the Complaint with 28 leave to amend. He also cannot sue the Receiver in These defects warrant dismissal of the Because an amended pleading See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 3 1 2012) (a court must grant a pro se litigant leave to amend his 2 defective 3 deficiencies of the complaint could not be cured by amendment”) 4 (citation and internal quotation marks omitted). complaint unless “it is absolutely clear that the 5 6 IV. 7 CONCLUSION 8 9 For the reasons stated above, the Complaint is DISMISSED with 10 leave to amend. If Plaintiff still wishes to pursue this action, 11 he is granted thirty (30) days from the date of this Memorandum 12 and Order in which to file a First Amended Complaint. 13 amended complaint, the Plaintiff shall cure the defects described 14 above. 15 allegations that are not reasonably related to the claims asserted 16 in the original Complaint. 17 shall be complete in itself and shall bear both the designation 18 “First Amended Complaint” and the case number assigned to this 19 action. 20 complaint in this matter. Plaintiff shall not include new defendants In any or new The First Amended Complaint, if any, It shall not refer in any manner to any previously filed 21 22 In any amended complaint, Plaintiff should confine his 23 allegations to those operative facts supporting each of his claims. 24 Plaintiff 25 Procedure 8(a), all that is required is a “short and plain statement 26 of the claim showing that the pleader is entitled to relief.” 27 Plaintiff is strongly encouraged to utilize the standard civil 28 rights complaint form when filing any amended complaint, a copy of is advised that pursuant 4 to Federal Rule of Civil 1 which is attached. In any amended complaint, Plaintiff should 2 clearly identify the nature of each separate legal claim, the 3 Defendant or Defendants he believes are liable for each claim, and 4 the facts showing what each Defendant did to cause Plaintiff harm. 5 Plaintiff is strongly encouraged to keep his statements concise 6 and to omit irrelevant details. 7 to cite case law, include legal argument, or attach exhibits at 8 this stage of the litigation. 9 any claims for which he lacks a sufficient factual basis. It is not necessary for Plaintiff Plaintiff is also advised to omit 10 11 Plaintiff is explicitly cautioned that failure to timely file 12 a First Amended Complaint, or failure to correct the deficiencies 13 described above, will result in a recommendation that this action 14 be dismissed with prejudice for failure to prosecute and obey court 15 orders 16 Plaintiff is further advised that if he no longer wishes to pursue 17 this action, he may 18 Dismissal in accordance 19 41(a)(1). A form Notice of Dismissal is attached for Plaintiff’s 20 convenience. pursuant to Federal Rule of Civil Procedure 41(b). voluntarily dismiss it by filing a Notice of with Federal Rule of Civil Procedure 21 22 DATED: January 5, 2017 23 /S/ __________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 5 1 NOTICE 2 3 4 THIS DECISION IS NOT INTENDED FOR PUBICATION IN LEXIS, WESTLAW OR 5 ANY OTHER LEGAL DATABASE. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6
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