(PC) Morgan v. Brown

1

2

3

4

5

6

7 UNITED STATES DISTRICT COURT

8 FOR THE EASTERN DISTRICT OF CALIFORNIA

9

10 ARSENIO RUSSHON MORGAN, No. 2:20-cv-1433-EFB P

11 Plaintiff,

12 v. ORDER

13 MICHAEL BROWN, et al.,

14 Defendants.

15

16 Plaintiff, a state prisoner proceeding without counsel in an action brought under 42 U.S.C.

17 § 1983, seeks leave to proceed in forma pauperis. ECF No. 2.

18 Application to Proceed In Forma Pauperis

19 Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2).

20 Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect

21 and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C.

22 § 1915(b)(1) and (2).

23 Screening Requirements

24 The court is required to screen complaints brought by prisoners seeking relief against a

25 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

26 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

27 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

28 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).

1 A claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.”

2 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th

3 Cir. 1984). “[A] judge may dismiss [in forma pauperis] claims which are based on indisputably

4 meritless legal theories or whose factual contentions are clearly baseless.” Jackson v. Arizona,

5 885 F.2d 639, 640 (9th Cir. 1989) (citation and internal quotations omitted), superseded by statute

6 on other grounds as stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); Neitzke, 490

7 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded,

8 has an arguable legal and factual basis. Id.

9 “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the

10 claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of

11 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S.

12 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

13 However, in order to survive dismissal for failure to state a claim, a complaint must contain more

14 than “a formulaic recitation of the elements of a cause of action;” it must contain factual

15 allegations sufficient “to raise a right to relief above the speculative level.” Id. (citations

16 omitted). “[T]he pleading must contain something more . . . than . . . a statement of facts that

17 merely creates a suspicion [of] a legally cognizable right of action.” Id. (alteration in original)

18 (quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1216 (3d

19 ed. 2004)).

20 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to

21 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

22 Corp., 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content

23 that allows the court to draw the reasonable inference that the defendant is liable for the

24 misconduct alleged.” Id. (citing Bell Atl. Corp., 550 U.S. at 556). In reviewing a complaint

25 under this standard, the court must accept as true the allegations of the complaint in question,

26 Hospital Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976), as well as construe the pleading

27 in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, Jenkins v.

28 McKeithen, 395 U.S. 411, 421 (1969).

1 Screening Order

2 Plaintiff’s complaint (ECF No. 1) includes the following allegations: On November 21,

3 2018, Dr. Michael Brown of the Sonoma Valley Hospital performed surgery on plaintiff’s right

4 knee. Id. at 3. Prior to the surgery, Dr. Brown noted the presence of a “metallic fragment” that

5 was “just anterior to the distal femur,” and could “conceivably . . . lead to pain.” Id. Plaintiff,

6 who now lives in “constant pain,” alleges that it was “professional negligence to deliberately

7 engage [in] surgery without removing the metallic fragment . . . .” Id. Plaintiff claims that

8 despite physical therapy and medication, his pain is not going away. Id. at 5. He alleges that his

9 primary care provider at California State Prison, Solano, Dr. Jaime Cortes, has subjected him to

10 cruel and unusual punishment by failing to order the removal of the metal. Id. Plaintiff asserts

11 Eighth Amendment claims of deliberate indifference to medical needs against Drs. Brown and

12 Cortes. As discussed below, the allegations are not sufficient to survive screening.

13 “Prison officials are indifferent to prisoners’ serious medical needs when they deny, delay,

14 or intentionally interfere with medical treatment.” Hamilton v. Endell, 981 F.2d 1062, 1066 (9th

15 Cir. 1992). To establish deliberate indifference with respect to a physician’s treatment decision, a

16 plaintiff must allege that “the course of treatment the doctors chose was medically unacceptable

17 under the circumstances, and the plaintiff must show that they chose this course in conscious

18 disregard of an excessive risk to plaintiff’s health.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th

19 Cir. 1996) (internal citations and quotation marks omitted). Mere differences of medical opinion

20 are insufficient to establish deliberate indifference. See Sanchez v. Vild, 891 F.2d 240, 242 (9th

21 Cir. 1989) (“At most, Sanchez has raised a difference of medical opinion regarding his treatment.

22 A difference of opinion does not amount to a deliberate indifference to Sanchez’ serious medical

23 needs.”).

24 Here, the allegations demonstrate nothing further than a difference of opinion between

25 plaintiff and his medical providers. Plaintiff alleges that Dr. Brown viewed the metallic fragment

26 as “conceivably” leading to pain. There are no allegations suggesting that proceeding with the

27 surgery was medically unacceptable under those circumstances or posed an excessive risk to

28 plaintiff’s health. Similarly, plaintiff’s allegations against Dr. Cortes demonstrate nothing more

1 than a difference of opinion as to whether plaintiff needed surgery to remove the metallic

2 fragment. There are no allegations suggesting that Dr. Cortes acted with a culpable state of mind.

3 See Farmer v. Brennan, 511 U.S. 825, 835 (1994); Estelle v. Gamble, 429 U.S. 97, 106 (1976).

4 The required indifference for an Eighth Amendment claim must be substantial; mere malpractice,

5 or even gross negligence, does not constitute cruel and unusual punishment. Estelle, 429 U.S. at

6 106.

7 Leave to Amend

8 Plaintiff’s complaint is dismissed with leave to amend. If plaintiff chooses to file an

9 amended complaint it should observe the following:

10 Any amended complaint must identify as a defendant only persons who personally

11 participated in a substantial way in depriving him of a federal constitutional right. Johnson v.

12 Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a

13 constitutional right if he does an act, participates in another’s act or omits to perform an act he is

14 legally required to do that causes the alleged deprivation). The complaint should also describe,

15 in sufficient detail, how each defendant personally violated or participated in the violation of his

16 rights. The court will not infer the existence of allegations that have not been explicitly set forth

17 in the amended complaint.

18 The amended complaint must contain a caption including the names of all defendants.

19 Fed. R. Civ. P. 10(a).

20 Plaintiff may not change the nature of this suit by alleging new, unrelated claims. See

21 George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).

22 Any amended complaint must be written or typed so that it so that it is complete in itself

23 without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended

24 complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the

25 earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114

26 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter

27 being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.

28 1967)).

wOASe 2 EUV ETO YET MMU OI ee AY VI

1 Finally, the court notes that any amended complaint should be as concise as possible in

2 | fulfilling the above requirements. Fed. R. Civ. P. 8(a). Plaintiff should avoid the inclusion of

3 || procedural or factual background which has no bearing on his legal claims.

4 Conclusion

5 Accordingly, IT IS HEREBY ORDERED that:

6 1. Plaintiff’s application to proceed in forma pauperis (ECF No. 2) is GRANTED;

7 2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected

8 in accordance with the notice to the California Department of Corrections and

9 Rehabilitation filed concurrently herewith;

10 3. Plaintiff’s complaint is dismissed with leave to amend within 30 days from the

11 date of service of this order; and

12 4. Failure to comply with this order may result in dismissal of this action for the

13 reasons stated herein.

14 | DATED: September 29, 2020.

>

15 / EDMUND F. BRENNAN

16 UNITED STATES MAGISTRATE JUDGE

17

18

19

20

21

22

23

24

25

26

27

28