Delatorre v. Richard J Donovan

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RICARDO DELATORRE, Case No. 21cv59-MMA-KSC CDCR #D-74486, 12 ORDER DISMISSING FIRST Plaintiff, 13 AMENDED COMPLAINT FOR vs. FAILURE TO STATE A CLAIM 14 PURSUANT TO 28 U.S.C.

15 § 1915(e)(2)(B)(ii) AND 28 U.S.C. DR. SHAKIBA and DR. CLAYTON, § 1915A(b)(1) 16 Defendants. 17 [Doc. No. 4] 18 19 20 I. Procedural History 21 On January 11, 2021, Ricardo Delatorre (“Plaintiff” or “Delatorre”), currently 22 incarcerated at Ironwood State Prison (“ISP”) located in Blythe, California, and 23 proceeding pro se, filed a civil rights complaint pursuant to 42 U.S.C. § 1983. See 24 Compl., Doc. No. 1. Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 25 1914(a); instead, he filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 26 U.S.C. § 1915(a). See Doc. No. 2. 27 In his original Complaint, Delatorre claimed that Defendants R.J. Donovan State 28 Prison (“RJD”), Dr. Shakiba, and Dr. Clayton violated his Eighth Amendment rights by 1 delaying and denying medical care. Compl., Doc. No. 1 at 3–4. Delatorre further 2 claimed Defendants Shakiba and Clayton did so in retaliation for a 602 grievance he filed 3 against them. Id. at 5. On May 5, 2021, the Court granted Delatorre’s Motion to Proceed 4 in Forma Pauperis and dismissed his Complaint for failing to state a claim pursuant to 28 5 U.S.C. § 1915(e) and § 1915A. See Doc. No. 3. The Court dismissed RJD as a 6 Defendant without leave to amend but as to Drs. Shakiba and Clayton, the Court granted 7 Delatorre leave to file an amended complaint. See id. He did so on June 7, 2021. See 8 FAC, Doc. No. 4. 9 II. Screening per 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) 10 A. Standard of Review 11 Because Delatorre is a prisoner, his First Amended Complaint requires a pre- 12 answer screening pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b). Under these 13 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of 14 it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants 15 who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) 16 (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 17 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that 18 the targets of frivolous or malicious suits need not bear the expense of responding.’” 19 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (citation omitted). 20 “The standard for determining whether [a] Plaintiff has failed to state a claim upon 21 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 22 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 23 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 24 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 25 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 26 12(b)(6).”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, 27 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 28 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 1 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 2 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 3 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for 4 relief [is] . . . a context-specific task that requires the reviewing court to draw on its 5 judicial experience and common sense.” Id. The “mere possibility of misconduct” or 6 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting 7 this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 8 (9th Cir. 2009). 9 B. Plaintiff’s Allegations 10 In his First Amended Complaint (“FAC”), Delatorre claims his right hand was 11 painful and Defendants Drs. Shakiba and Clayton “wait[ed] [un]til the last minute to send 12 [him] to the hospital.” FAC, Doc. No. 4 at 1. Delatorre alleges that when he arrived at 13 Alvarado Hospital, the doctor there asked him “why RJD medical took so long to send 14 you to the hospital?” Id. After taking x-rays, the doctor at Alvarado Hospital diagnosed 15 Delatorre with a “big infection” and performed surgery. Id. Delatorre states that as a 16 result of the delay in treatment, his hand is numb, and he experiences a tingling and 17 burning sensation. Id. He cannot close his fist to “its full capacity” and often drops 18 things when attempting to hold them in his right hand. Id. He asserts he is “going to live 19 the rest of my life with my right hand damaged” because Shakiba and Clayton “denied 20 [him] medical attention.” Id. 21 C. 42 U.S.C. § 1983 22 “Section 1983 creates a private right of action against individuals who, acting 23 under color of state law, violate federal constitutional or statutory rights.” Devereaux v. 24 Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of 25 substantive rights, but merely provides a method for vindicating federal rights elsewhere 26 conferred.” Graham v. Connor, 490 U.S. 386, 393‒94 (1989) (internal quotation marks 27 and citations omitted). “To establish § 1983 liability, a plaintiff must show both (1) 28 deprivation of a right secured by the Constitution and laws of the United States, and (2) 1 that the deprivation was committed by a person acting under color of state law.” Tsao v. 2 Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). 3 D. Discussion 4 Delatorre alleges Drs. Shakiba and Clayton violated his Eighth Amendment rights 5 when they failed to provide prompt and adequate medical care for his hand. FAC, Doc. 6 No. 4 at 1. Threats to both Plaintiff’s safety and health are subject to the Eighth 7 Amendment’s demanding deliberate indifference standard. See Farmer v. Brennan, 511 8 U.S. 825, 834, 837 (1994). Where a prisoner’s constitutional claim is one for inadequate 9 medical care, he must allege “acts or omissions sufficiently harmful to evidence 10 deliberate indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 11 (1976); Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). The plaintiff must first 12 establish a “serious medical need by demonstrating that [the] failure to treat [his] 13 condition could result in further significant injury or the unnecessary and wanton 14 infliction of pain.” Jett, 439 F.3d at 1096 (citation omitted). Next, Plaintiff must show 15 that the defendant’s response to his objectively serious medical need was deliberately 16 indifferent. Id. To establish deliberate indifference, a prisoner must allege facts to show: 17 (1) a purposeful act or failure to respond to the prisoner’s pain or possible medical need; 18 and (2) harm caused by the indifference. Id. “Deliberate indifference is a high legal 19 standard.” Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). “Under this 20 standard, the prison official must not only ‘be aware of the facts from which the inference 21 could be drawn that a substantial risk of serious harm exists,’ but that person ‘must also 22 draw the inference.’” Id. at 1057 (quoting Farmer, 511 U.S. at 837). 23 The allegations raised in the First Amended Complaint are extremely vague.1 24 Delatorre states only that Drs. Shakiba and Clayton “waited til the last minute to send me 25 26 1 Plaintiff’s original Complaint contained specific factual allegations regarding Drs. Shakiba and 27 Clayton that are not re-alleged in the First Amended Complaint. As discussed in the Court’s previous Order, an amended complaint must be complete in itself, without reference to any prior pleading, 28 1 to the hospital” for a hand injury. When he finally arrived at Alvarado Hospital, the 2 doctor there examined Delatorre and asked him “why RJD medical took so long to send 3 you to the hospital?” FAC, Doc. No. 4. at 1. Taken together, these facts do not plausibly 4 allege Drs. Shakiba or Clayton violated Delatorre’s Eighth Amendment rights. Iqbal, 5 556 U.S. at 678. Even assuming Delatorre’s vague allegations are sufficient to suggest 6 Drs. Shakiba and Clayton were aware his hand was injured, Delatorre does not plausibly 7 allege that Drs. Shakiba and/or Clayton “drew the inference” that there was a substantial 8 risk to Delatorre’s health and safety. See Jett, 439 F.3d at 1096; Toguchi, 391 F.3d at 9 1057; Iqbal, 556 U.S. at 678. 10 For the foregoing reasons, Delatorre’s Eighth Amendment claims against 11 Defendants Shakiba and Clayton must be dismissed for failing to state a claim upon 12 which § 1983 can be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii); Watison, 668 F.3d 13 1108, 1112 (9th Cir. 2012). 14 III. Conclusion and Order 15 For the reasons explained above, the Court DISMISSES Plaintiff’s First 16 Amended Complaint, pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b) and 17 GRANTS him forty-five (45) days leave from the date of this Order in which to file a 18 Second Amended Complaint against Defendants Shakiba and Clayton only which cures 19 all the deficiencies of pleading noted. Plaintiff’s Second Amended Complaint must be 20 complete by itself without reference to his original pleading. Defendants not named and 21 any claim not re-alleged in his Second Amended Complaint will be considered waived. 22 See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 23 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the original.”); 24 Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed 25 with leave to amend which are not re-alleged in an amended pleading may be “considered 26 waived if not repled.”). 27 If Plaintiff fails to file a Second Amended Complaint within the time provided, the 28 Court will enter a final Order dismissing this civil action based both on Plaintiff’s failure 1 || to state a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B) 2 1915A(b), and his failure to prosecute in compliance with a court order requiring 3 |}amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff 4 || does not take advantage of the opportunity to fix his complaint, a district court may 5 || convert the dismissal of the complaint into dismissal of the entire action.’’). 6 IT IS SO ORDERED. 7 || DATE: August 11, 2021 Led , La _ / / Vp, 8 HON. MICHAEL M. ANELLO 9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6