United States District Court, D. Arizona
STEVEN P. LOGAN, District Judge.
Plaintiff Carl Dean Schlobom, who is confined in the Arizona State Prison Complex-Lewis, Bachman Unit in Buckeye, Arizona, filed a pro se Complaint in Maricopa County Superior Court. (Doc. 1, Attach. 4.) In it, Plaintiff named as Defendants Charles Ryan, Director of the Arizona Department of Corrections ("ADC"), and Richard Pratt, the Interim Division Director of the Division of Health Services for ADC, among others. Ryan and Pratt were served with the Complaint on May 16, 2013. On June 20, 2013, Ryan and Pratt removed the case to federal court based on federal question jurisdiction. (Doc. 1.) They represented that all of the other then-served Defendants consented to the removal. ( Id. ) Following removal, the Stryker Corporation filed a motion to dismiss the case. (Doc. 5.) In addition, Plaintiff filed a motion for appointment of counsel and later filed a response to a motion to dismiss that had been filed by Defendant Mountain Vista Medical Center ("Mountain Vista") while the case was in state court. (Docs. 6, 8.) Mountain Vista then filed a motion to strike Plaintiff's "second response to the Motion to Dismiss filed by [Mountain Vista]" because Plaintiff had previously filed a response to the motion in state court. (Doc. 10.) Defendant Vasiq also filed a motion to dismiss. (Doc. 12.)
In an Order filed on November 20, 2013, the Court found that the case had been properly removed to this Court, but dismissed the Complaint for failure to state a claim, or as duplicative of claims in a previously filed case, Schlobom v. Ryan, No. CV11-1753-PHX-SPL (MEA), with leave to amend. (Doc. 13.) The Court denied the parties' motions. ( Id. )
Plaintiff has filed a First Amended Complaint. (Doc. 14.) Stryker Corporation and Mountain Vista have each filed motions to dismiss and Plaintiff has filed an ostensible motion for appointment of counsel. The Court will dismiss the First Amended Complaint for failure to state a claim with leave to amend within 30 days. Defendants' motions to dismiss will be denied as moot. Plaintiff's motion for appointment of counsel in which Plaintiff seeks the appointment of a guardian ad litem will also be denied.
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). Plaintiff's First 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. First Amended Complaint
In his First Amended Complaint, Plaintiff alleges one count for constitutionally deficient medical care as well as state law claims for medical malpractice and product liability. Plaintiff sues Mountain Vista Medical Center ("Mountain Vista"); Stryker Medical Corporation ("Stryker"); Yvel Moreau, M.D.; John Doe 1, a sales representative for Stryker; and Charles L. Ryan, the Director of ADC. Plaintiff seeks declaratory, injunctive, compensatory, and punitive relief.
Plaintiff alleges the following facts in his First Amended Complaint: on September 5, 2010, emergency surgery was performed on Plaintiff at Mountain Vista, with which Ryan had contracted to provide medical care for inmates, and titanium rods, screws, and cables were used to repair a compound fracture of Plaintiff's left leg. Dr. Moreau was a licensed orthopedic physician with privileges at Mountain Vista who performed the surgery. Plaintiff contends that the medical hardware used to repair his leg was defective and malfunction; specifically, he contends the hardware is bent, broken, and displaced in his leg. In the alternative, Plaintiff alleges that Moreau used bent, broken, or displaced hardware to repair his leg. Plaintiff contends that Stryker manufactured defective hardware, which was sold to Mountain Vista by Doe. Plaintiff also asserts that Doe was present in the operating room during his surgery.
In July 2011, x-rays were taken of Plaintiff's left leg. An orthopedic physician who reviewed the x-rays recommended that the hardware be removed. Since then, Plaintiff has used a wheelchair and suffers continuous pain. Plaintiff contends that Stryker's hardware was defective, Stryker sold defective hardware to Mountain Vista, and Moreau used the defective hardware to repair Plaintiff's leg. Plaintiff has suffered chronic and extreme pain and suffered permanent injuries as a result. Plaintiff contends that Director Ryan has a policy and practice of failing to provide adequate medical care to inmates and is deliberately indifferent to systemic failures.
III. Failure to State a Federal Claim
To state a claim under § 1983, a plaintiff must allege facts supporting that (1) the conduct about which he complains was committed by a person acting under the color of state law and (2) the conduct deprived him of a federal constitutional or statutory right. Wood v. Ostrander, 879 F.2d 583, 587 (9th Cir. 1989). In addition, a plaintiff must allege that he suffered a specific injury as a result of the conduct of a particular defendant and he must allege an ...