January 15, 2014
Cedric R. Jordan, Plaintiff,
Joseph M. Arpaio, et al., Defendants.
DAVID G. CAMPBELL, District Judge.
On June 12, 2013, Plaintiff Cedric R. Jordan, who is confined in the Maricopa County Fourth Avenue Jail, filed a pro se civil rights complaint pursuant to 42 U.S.C. § 1983 and an Application to Proceed In Forma Pauperis. On August 5, 2013, he filed a Notice for Status. On August 13, 2013, he filed a Motion to Expedite Service. On September 23, 2013, he filed a First Amended Complaint.
In an October 16, 2013 Order, the Court granted the Application to Proceed, partially granted the Notice for Status, dismissed the First Amended Complaint because Plaintiff had failed to state a claim, and denied as premature the Motion to Expedite Service. The Court gave Plaintiff 30 days to file a second amended complaint that cured the deficiencies identified in the Order.
On November 5, 2013, Plaintiff filed his Second Amended Complaint (Doc. 10). On November 13, 2013, he filed a Notice (Doc. 11). On December 5, 2013, he filed a Notice of Status (Doc. 12). On December 17, 2013, he filed a Motion to Expedite Service of Complaint (Doc. 13). On December 24, 2013, he filed a Notice of Status of Case (Doc. 14).
I. Statutory Screening of Prisoner Complaints
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised claims that are legally frivolous or malicious, that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).
A pleading 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) (emphasis added). While Rule 8 does not demand detailed factual allegations, "it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.
"[A] complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "Determining whether a complaint states a plausible claim for relief [is]... a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679. Thus, although a plaintiff's specific factual allegations may be consistent with a constitutional claim, a court must assess whether there are other "more likely explanations" for a defendant's conduct. Id. at 681.
But as the United States Court of Appeals for the Ninth Circuit has instructed, courts must "continue to construe pro se filings liberally." Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A "complaint [filed by a pro se prisoner] must be held to less stringent standards than formal pleadings drafted by lawyers.'" Id. (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) ( per curiam )).
If the Court determines that a pleading could be cured by the allegation of other facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal of the action. See Lopez v. Smith, 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 type of advice "would undermine district judges' role as impartial decisionmakers." Pliler v. Ford, 542 U.S. 225, 231 (2004); see also Lopez, 203 F.3d at 1131 n.13 (declining to decide whether the court was required to inform a litigant of deficiencies). Plaintiff's Second Amended Complaint will be dismissed for failure to state a claim, but because it may possibly be amended to state a claim, the Court will dismiss it with leave to amend.
II. Second Amended Complaint
In his three-count Second Amended Complaint, Plaintiff sues Defendants Joseph M. Arpaio and Doctor Berardi. Plaintiff's three counts are essentially the same: Plaintiff contends that Defendant Berardi violated Plaintiff's Eighth Amendment rights when, during a surgery in September 2012 to repair Plaintiff's fractured jaw, Defendant Berardi allegedly "maliciously & sadistically jammed a device in the Plaintiff's left ear, " causing Plaintiff's left eardrum to be severely ruptured. Plaintiff claims that eight months later, a health care provider at the jail diagnosed Plaintiff as having a ruptured eardrum and stated that "it appeared to him that someone stuck something down the Plaintiff's ear." Plaintiff seeks monetary damages.
III. Failure to State a Claim
Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 520-21 (1972), conclusory and vague allegations will not support a cause of action. Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Further, a liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled. Id. ....
A. Defendant Arpaio
To state a valid claim under § 1983, plaintiffs must allege that they suffered a specific injury as a result of specific conduct of a defendant and show an affirmative link between the injury and the conduct of that defendant. See Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976). There is no respondeat superior liability under § 1983, and, therefore, a defendant's position as the supervisor of persons who allegedly violated Plaintiff's constitutional rights does not impose liability. Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 691-92 (1978); Hamilton v. Endell, 981 F.2d 1062, 1067 (9th Cir. 1992); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). "Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Iqbal, 556 U.S. at 676.
Plaintiff has not alleged that Defendant Arpaio personally participated in a deprivation of Plaintiff's constitutional rights, was aware of a deprivation and failed to act, or formed policies that resulted in Plaintiff's injuries. Plaintiff only lists Defendant Arpaio on the caption of his Second Amended Complaint and makes no allegations at all against Defendant Arpaio in the Second Amended Complaint. Thus, the Court will dismiss without prejudice Defendant Arpaio.
B. Defendant Berardi
"Like the state-action requirement of the Fourteenth Amendment, the under-color-of-state-law element of § 1983 excludes from its reach merely private conduct, no matter how discriminatory or wrongful.'" American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (quoting Blum v. Yaretsky, 457 U.S. 991, 1002 (1982)). "[S]tate action requires both an alleged constitutional deprivation caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible, ' and that the party charged with the deprivation must be a person who may fairly be said to be a state actor.'" Id. (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982)). Alternatively, private parties who are jointly engaged with state officials in the challenged action are acting under color of law. Collins v. Womancare, 878 F.2d 1145, 1154 (9th Cir. 1989).
Plaintiff has stated nothing in his Second Amended Complaint to suggest that he was in custody at the time Defendant Berardi performed the surgery and had been sent to Defendant Berardi by prison or jail officials. Nor has he alleged that Defendant Berardi was acting under color of state law or was anything more than a private party at the time he performed the surgery.
Even if Defendant Berardi was acting under color of state law when he performed the surgery, Plaintiff has failed to state a claim against him. Not every claim by a prisoner relating to inadequate medical treatment states a violation of the Eighth or Fourteenth Amendment. To state a § 1983 medical claim, a plaintiff must show that the defendants acted with "deliberate indifference to serious medical needs." Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). A plaintiff must show (1) a "serious medical need" by demonstrating that failure to treat the condition could result in further significant injury or the unnecessary and wanton infliction of pain and (2) the defendant's response was deliberately indifferent. Jett, 439 F.3d at 1096 (quotations omitted).
"Deliberate indifference is a high legal standard." Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). To act with deliberate indifference, a prison official must both know of and disregard an excessive risk to inmate health; "the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer v. Brennan, 511 U.S. 825, 837 (1994). Deliberate indifference in the medical context may be shown by a purposeful act or failure to respond to a prisoner's pain or possible medical need and harm caused by the indifference. Jett, 439 F.3d at 1096. Deliberate indifference may also be shown when a prison official intentionally denies, delays, or interferes with medical treatment or by the way prison doctors respond to the prisoner's medical needs. Estelle, 429 U.S. at 104-05; Jett, 439 F.3d at 1096.
Deliberate indifference is a higher standard than negligence or lack of ordinary due care for the prisoner's safety. Farmer, 511 U.S. at 835. "Neither negligence nor gross negligence will constitute deliberate indifference." Clement v. California Dep't of Corr., 220 F.Supp.2d 1098, 1105 (N.D. Cal. 2002); see also Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980) (mere claims of "indifference, " "negligence, " or "medical malpractice" do not support a claim under § 1983). The indifference must be substantial. The action must rise to a level of "unnecessary and wanton infliction of pain." Estelle, 429 U.S. at 105.
Plaintiff's allegations are too vague and conclusory to state a plausible claim for relief. It is unclear from Plaintiff's Second Amended Complaint whether Plaintiff was awake during the surgery and, if he was not, how he knows it was Defendant Berardi who allegedly jammed a device in his ear. It also is not clear whether an item was actually inserted into Plaintiff's ear at all-Plaintiff simply alleges that a health care provider stated eight months after the surgery that "it appeared to him that someone stuck something down the Plaintiff's ear." Moreover, if something was stuck in Plaintiff's ear during his surgery, Plaintiff does not give any factual details about what happened, such as what that item was, and if that item was being legitimately used in the surgical procedure. And it is also unclear when Plaintiff's eardrum was actually punctured and when Plaintiff developed symptoms of a punctured eardrum-presumably Plaintiff could have incurred the alleged injury anytime during the eight months between his surgery and his diagnosis. Because Plaintiff has not alleged enough facts to state a claim for deliberate indifference to serious medical needs against Defendant Berardi, the Court will dismiss without prejudice Plaintiff's claim against Defendant Berardi.
IV. Leave to Amend
For the foregoing reasons, Plaintiff's Second Amended Complaint will be dismissed for failure to state a claim upon which relief may be granted. Within 30 days, Plaintiff may submit a third amended complaint to cure the deficiencies outlined above. The Clerk of Court will mail Plaintiff a court-approved form to use for filing a third amended complaint. If Plaintiff fails to use the court-approved form, the Court may strike the third amended complaint and dismiss this action without further notice to Plaintiff.
Plaintiff must clearly designate on the face of the document that it is the "Third Amended Complaint." The third amended complaint must be retyped or rewritten in its entirety on the court-approved form and may not incorporate any part of the original, First Amended, or Second Amended Complaints by reference. Plaintiff may include only one claim per count.
A third amended complaint supersedes the original, First Amended, and Second Amended Complaints. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the Court will treat the original, First Amended, and Second Amended Complaints as nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised in the original, First Amended, or Second Amended Complaints and that was voluntarily dismissed or was dismissed without prejudice is waived if it is not alleged in a third amended complaint. Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc).
V. Plaintiff's Other Filings
In his November 13 Notice, Plaintiff states that Defendant Berardi's name is correctly spelled "Bernardi, " states that he is awaiting a service packet, and requests that the Court place the case on the "fast-track." Plaintiff should take note that he can correct the spelling of Defendant Berardi/Bernardi's name if Plaintiff files a third amended complaint that raises a claim against this individual. In light of the Court's dismissal of the second amended complaint, the Court will deny as moot the request to place this case on the "fast-track."
In his December 5 Notice of Status, Plaintiff appears to seek the status of the case and states that he is "very anxious to serve Doctor Bernardi." Plaintiff's Notice of Status is granted to the extent this Order provides him with the status of his case. The Notice of Status is denied to the extent Plaintiff is seeking any other relief in that document.
Plaintiff's December 17 Motion to Expedite Service of Complaint is premature. Plaintiff's Second Amended Complaint has been dismissed. If he files a third amended complaint, the Court will screen it pursuant to 28 U.S.C. § 1915A. If the Court determines that an answer is required, the Court will direct the Clerk of Court to send Plaintiff a service packet containing summonses and request for waiver forms for Plaintiff to complete and return to the Court. The United States Marshal will effect service if Plaintiff timely completes the service packet and returns it to the Court.
In his December 24 Notice of Status, Plaintiff appears to seek the status of the case. Plaintiff's Notice of Status is granted to the extent this Order provides him with the status of his case. The Notice of Status is denied to the extent Plaintiff is seeking any other relief in that document.
Plaintiff must pay the unpaid balance of the filing fee within 120 days of his release. Also, within 30 days of his release, he must either (1) notify the Court that he intends to pay the balance or (2) show good cause, in writing, why he cannot. Failure to comply may result in dismissal of this action.
B. Address Changes
Plaintiff must file and serve a notice of a change of address in accordance with Rule 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other relief with a notice of change of address. Failure to comply may result in dismissal of this action.
Plaintiff must submit an additional copy of every filing for use by the Court. See LRCiv 5.4. Failure to comply may result in the filing being stricken without further notice to Plaintiff.
D. Possible "Strike"
Because the Second Amended Complaint has been dismissed for failure to state a claim, if Plaintiff fails to file a third amended complaint correcting the deficiencies identified in this Order, the dismissal may count as a "strike" under the "3-strikes" provision of 28 U.S.C. § 1915(g). Under the 3-strikes provision, a prisoner may not bring a civil action or appeal a civil judgment in forma pauperis under 28 U.S.C. § 1915 "if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury." 28 U.S.C. § 1915(g).
E. Possible Dismissal
If Plaintiff fails to timely comply with every provision of this Order, including these warnings, the Court may dismiss this action without further notice. See Ferdik, 963 F.2d at 1260-61 (a district court may dismiss an action for failure to comply with any order of the Court).
IT IS ORDERED:
(1) The Second Amended Complaint (Doc. 10) is dismissed for failure to state a claim. Plaintiff has 30 days from the date this Order is filed to file a third amended complaint in compliance with this Order.
(2) If Plaintiff fails to file a third amended complaint within 30 days, the Clerk of Court must, without further notice, enter a judgment of dismissal of this action with prejudice that states that the dismissal may count as a "strike" under 28 U.S.C. § 1915(g).
(3) Plaintiff's Notice (Doc. 11) is denied as moot to the extent he is requesting that the Court place this case on the "fast-track."
(4) Plaintiff's Notices of Status (Docs. 12 and 14) are granted in part, to the extent this Order provides Plaintiff with the status of his case, and are denied in part as to any other relief Plaintiff may be requesting.
(5) Plaintiff's Motion to Expedite Service of Complaint (Doc. 13) is denied as premature.
(6) The Clerk of Court must mail Plaintiff a court-approved form for filing a civil rights complaint by a prisoner.