Case Information
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA ) ANTHONY HOSKINS, Case No.: 1:17-cv-01133-SAB (PC) ) Plaintiff, ) ORDER DISMISSING COMPLAINT, WITH ) LEAVE TO AMEND, FOR FAILURE TO STATE v. ) A COGNIZABLE CLAIM FOR RELIEF ) L. NGYEN, ) [ECF No. 1] ) Defendant. ) )
Plaintiff Anthony Hoskins is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Currently before the Court is Plaintiff’s complaint, filed on August 23, 2017. I. SCREENING REQUIREMENT 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. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally “frivolous or malicious,” that “fail[] to state a claim on which relief may be granted,” or that “seek[] monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).
A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but *2 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, 1 do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate that each defendant personally participated in the deprivation of Plaintiff’s rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).
Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, and “facts that are ‘merely consistent with’ a defendant’s liability” falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.
II. COMPLAINT ALLEGATIONS Plaintiff names Doctor L. Ngyen as the sole Defendant in the complaint regarding the conditions of confinement at California Correctional Institution (CCI). In 2007, Plaintiff developed cystic acne. Plaintiff informed medical that during the time he was awaiting prescription medication, he developed an immunity to the medication, and eventually developed keloids along the jaw line, buttocks and arm pits. Dr. Ngyen was Plaintiff’s primary care provider and was aware of the problem, including the diet that is necessary because he has no longer digest milk. Plaintiff also developed shingles as a result of the stress from the pain and lack of medication.
III. DISCUSSION A. Deliberate Indifference to a Serious Medical Need A prisoner’s claim of inadequate medical care does not constitute cruel and unusual
punishment in violation of the Eighth Amendment unless the mistreatment rises to the level of *3 “deliberate indifference to serious medical needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) 1 (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two part test for deliberate indifference requires Plaintiff to show (1) “a ‘serious medical need’ by demonstrating that failure to treat a prisoner’s condition could result in further significant injury or the ‘unnecessary and wanton infliction of pain,’” and (2) “the defendant’s response to the need was deliberately indifferent.” Jett, 439 F.3d at 1096. A defendant does not act in a deliberately indifferent manner unless the defendant “knows of and disregards an excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 837 (1994).
“Deliberate indifference is a high legal standard,” Simmons v. Navajo County Ariz., 609 F.3d 1011, 1019 (9th Cir. 2010); Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004), and is shown where there was “a purposeful act or failure to respond to a prisoner’s pain or possible medical need” and the indifference caused harm. Jett, 439 F.3d at 1096. Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this cause of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 105-06). “Medical malpractice does not become a constitutional violation merely because the victim is a prisoner.” Estelle, at 106; Snow v. McDaniel, 681 F.3d at 987-88, overruled in part on other grounds, Peralta v. Dillard, 744 F.3d 1076, 1082-83 (9th Cir. 2014); Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (“The deliberate indifference doctrine is limited in scope.”).
Further, “[a] difference of opinion between a physician and the prisoner—or between medical professionals—concerning what medical care is appropriate does not amount to deliberate indifference.” Snow, 681 F.3d at 987 (citing Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989)); Wilhelm, 680 F.3d at 1122-23 (citing Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1986)). Rather, a plaintiff is required to show that the course of treatment selected was “medically unacceptable under the circumstances” and that the defendant “chose this course in conscious disregard of an excessive risk to plaintiff’s health.” Snow v. McDaniel, 681 F.3d 978, 988 (9th Cir. 2012) (quoting Jackson, 90 F.3d at 332).
Here, Plaintiff alleges that he has cystic acne and keloids, but he does not state any facts showing that a failure to treat the condition will result in a significant injury. As stated above, a *4 difference in medical opinion, or even negligence, is not sufficient to state an Eighth Amendment 1 violation. Plaintiff must meet the standards explained above. Plaintiff’s conclusory allegations that his medical care is not appropriate, or that the delay in treatment is causing harm, are not sufficient. Plaintiff must allege sufficient facts to show that Defendant is aware of a serious medical need and was deliberately indifferent to that need. Plaintiff will be granted leave amend his allegations to cure these deficiencies.
IV. CONCLUSION AND ORDER For the reasons stated, Plaintiff’s complaint fails to state a claim upon which relief may be granted. The Court strongly doubts that Plaintiff will plead a viable claim based on the allegations here, but will nevertheless allow him an opportunity to file an amended complaint to attempt to state a cognizable claim. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff’s amended complaint must be filed within thirty (30) days, and Plaintiff may not change the nature of this suit by adding new, unrelated claims in his amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” complaints).
Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but must state what each named defendant did that led to the deprivation of Plaintiff’s constitutional or other federal rights. Iqbal, 556 U.S. 662, 678. “The inquiry into causation must be individualized and focus on the duties and responsibilities of each individual defendant whose acts or omissions are alleged to have caused a constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988). Although accepted as true, the “[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level. . . .” Twombly, 550 U.S. at 555 (citations omitted).
Finally, an amended complaint supersedes the original complaint, Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), and must be “complete in itself without reference to the prior or superseded pleading,” Local Rule 220. “All causes of action alleged in an original complaint which are not alleged in an amended complaint are waived.” King, 814 F.2d at 567 (citing to London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981)); accord Forsyth, 114 F.3d at 1474. *5 Based on the foregoing, it is HEREBY ORDERED that: 1
1. The Clerk’s Office shall send to Plaintiff a civil rights complaint form; 2. Plaintiff’s complaint, filed August 23, 2017, is dismissed for the failure to state a claim
upon which relief may be granted, with leave to amend; 3. Within thirty (30) days from the date of service of this order, Plaintiff shall file an amended complaint; and 4. If Plaintiff fails to file an amended complaint, this action will be dismissed for failure to state a claim and the failure to obey a court order.
IT IS SO ORDERED.
Dated: September 5, 2017