Opinion
2:22-cv-2027-MWF (MAR)
08-09-2022
DAMON WITHERBEE, Plaintiff, v. DAN DOW, ET AL., Defendants.
ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND
MARGO A. ROCCONI UNITED STATES MAGISTRATE JUDGE
I.
INTRODUCTION
On July 10, 2022, Damon Lloyd Witherbee (“Plaintiff”'), proceeding pro se, constructively filed the instant First Amended Complaint (“FAC”). ECF Docket No. (“Dkt.”) 11 at 1, 6. For the reasons discussed below, the Court dismisses the FAC with leave to amend.
Under the “mailbox rule,” when a pro se inmate gives prison authorities a pleading to mail to court, the court deems the pleading constructively “filed” on the date it is signed. Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010) (citation omitted); Douglas v. Noelle, 567 F.3d 1103, 1107 (9th Cir. 2009) (stating the “mailbox rule applies to § 1983 suits filed by pro se prisoners”).
If Plaintiff desires to pursue this action, he is ORDERED to respond by no later than September 5, 2022, by choosing one of the three (3) options discussed in Part V, below. Further, Plaintiff is admonished that, if he fails to timely respond, the Court will recommend that this action be dismissed without further leave to amend and with prejudice for failure to state a claim and follow the Court's orders.
II.
SUMMARY OF THE COMPLAINT
A. Factual allegations
Plaintiff, currently an inmate at Mule Creek State Prison, constructively filed a First Amended Complaint that when liberally construed appears to bring claims under 42 U.S.C. § 1983for excessive force and inadequate medical care. Id. at 3-4. Plaintiff brings claims against Dan Dow, a district attorney; the San Luis Obispo County Sherriff; Does 1-10, unidentified sheriffs at the San Luis Obispo County Jail; J. Tonani, a correctional officer at Norco State Prison (“NSP”); and Bell, a correctional officer at Mule Creek State Prison (“MCSP”) (collectively “Defendants”). Id.
Plaintiff checked a box on the Civil Rights Complaint Form indicating the FAC is being filed pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Dkt. 11 at 1. However, all the listed Defendants appear to be either state or local government entities or officers. Thus, Plaintiff's claims would arise under § 1983, not Bivens. Accordingly, the Court construes the FAC as a § 1983 action. See Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991) (noting that § 1983 and Bivens action are the same, except for replacement of state actor under § 1983 with federal actor under Bivens); see also Woods v. Carey, 525 F.3d 886, 889-90 (9th Cir. 2008) (holding that courts should liberally construe pro se documents).
Plaintiff alleges the following: Dow put Plaintiff's life at risk by “not listening to [his] pleas about [his] health.” Id. at 3. The San Luis Obispo County Sheriff forcibly clamped handcuffs on Plaintiff's left hand and forced Plaintiff down to the ground. Id. Unidentified sheriffs at the County Jail put Plaintiff in “dangerous areas,” even though they were aware of Plaintiff's poor health. Id. Tonani denied Plaintiff s request to receive breathing treatments for his COPD. Id. at 4. Lastly, Plaintiff alleges that Bell denied Plaintiff medical attention when he was experiencing chest pain. Id.
B. Relief sought
Plaintiff seeks damages to compensate him for pain and suffering, and lost wages. Id. at 6.
III.
STANDARD OF REVIEW
Where a plaintiff is incarcerated, a court must screen the complaint under 28 U.S.C. § 1915A and is required to dismiss the case at any time if it concludes the action is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. § 1915A; see Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998).
A complaint may be dismissed for failure to state a claim “where there is no cognizable legal theory or an absence of sufficient facts alleged to support a cognizable legal theory.” Zamani v. Carnes, 491 F.3d 990, 996 (9th Cir. 2007). When considering whether a complaint states a claim, a court must accept as true all of the material factual allegations in it. Hamilton v. Brown, 630 F.3d 889, 892-93 (9th Cir. 2011). However, a court need not accept as true “allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). Although a complaint need not include detailed factual allegations, it “must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Cook v. Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011) (citation and internal quotation marks omitted). A claim is facially plausible when it “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The complaint “must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).
“A document filed pro se is ‘to be liberally construed,' and a ‘pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'” Woods v. Carey, 525 F.3d 886, 889-90 (9th Cir. 2008). However, liberal construction should only be afforded to “a plaintiff's factual allegations,” Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989), and a court need not accept as true “unreasonable inferences or assume the truth of legal conclusions cast in the form of factual allegations,” Ileto v. Glock Inc., 349 F.3d 1191, 1200 (9th Cir. 2003).
If a court finds the complaint should be dismissed for failure to state a claim, a court has discretion to dismiss with or without leave to amend. Lopez v. Smith, 203 F.3d 1122, 1126-30 (9th Cir. 2000). Leave to amend should be granted if it appears possible the defects in the complaint could be corrected, especially if the plaintiff is pro se. Id. at 1130-31; see also Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995). However, if, after careful consideration, it is clear a complaint cannot be cured by amendment, a court may dismiss without leave to amend. Cato, 70 F.3d at 1107-11; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 972 (9th Cir. 2009).
IV.
DISCUSSION
A. THE FAC IMPROPERLY JOINS DISTINCT CLAIMS
1. Applicable law
Federal Rule of Civil Procedure 18(a) allows a plaintiff to add multiple claims to a lawsuit when they are against the same defendant. Fed.R.Civ.P. 18(a). Rule 20(a)(2) allows a plaintiff to join multiple defendants to a lawsuit where the right to relief arises out of the same “transaction, occurrence, or series of transactions” and “any question of law or fact common to all defendants will arise in the action.” Fed.R.Civ.P. 20(a)(2); see also League to Save Lake Tahoe v. Tahoe Reg'l Plan. Agency, 558 F.2d 914, 917 (9th Cir. 1977). However, “[u]nrelated claims against different defendants belong in different suits . . . to prevent the sort of morass that [a multiclaim, multi-defendant suit] produce[s.]” Billie v. Brown, No. CV 19-03078-VAP (SK), 2019 WL 6792806, at *1 (C.D. Cal. Aug. 28, 2019) (citing George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007)). When several claims are misjoined, the court can generally dismiss all but the first named defendant without prejudice to any new, separate lawsuits against some or all of the present defendants based on the claim or claims brought in the present complaint. Coughlin v. Rogers, 130 F.3d 1348, 1350 (9th Cir. 1997); Kirakosian v. J&L Sunset Wholesale & Tobacco, No. CV 16-06097-CAS (AJWx), 2017 WL 3038307, at *3 (C.D. Cal. July 18, 2017) (“An accepted practice under Rule 21 is to dismiss all defendants except for the first defendant named in the complaint.”).
2. Analysis
Here, the FAC contains an allegation of excessive force and potentially two allegations of inadequate medical care. See Dkt. 11 at 3-4. Plaintiff's allegations all appear to arise out of separate incidents, each occurring at separate facilities: the San Luis Obispo County Jail, NSP, and MCSP. Id. Plaintiff's claims against each defendant “relate to distinct events occurring at different locations and times, involving different individuals.” Kerstein v. Antelope Valley Hosp., No. CV 18-8960-PA (JPRx), 2018 WL 10111361, at *2. “Mere proximity in time and similarity in the types of problems Plaintiff encountered are not enough to satisfy Rule 20(a)(2) and bring in one suit otherwise unrelated claims against different defendants.” Martin v. Muniz, No. 17-01690 BLF (PR), 2018 WL 2902091, at *4 (N.D. Cal. June 5, 2018) (citing Coughlin, 130 F.3d at 1350-51).
Accordingly, the Court finds that Defendants are improperly joined. See Fed.R.Civ.P. 20(a)(2); see also Coughlin, 130 F.3d at 1351 (finding misjoinder where “[e]ach claim raises potentially different issues, and must be viewed in a separate and individual light by the Court.”). Plaintiff's various unrelated claims against different defendants must be brought in separate lawsuits.
If, for example, Plaintiff choses to pursue his claims against Bell at MCSP in an amended complaint, any claims regarding his treatment while at NSP must be brought in a separate lawsuit. In the event that Plaintiff files an amended complaint that once again improperly joins unrelated claims and defendants, the Court will be inclined to dismiss all but the first named defendant, Dan Dow, without prejudice based on improper joinder. See Kirakosian v. J&L Sunset Wholesale & Tobacco, No. CV 16-06097-CAS (AJWx), 2017 WL 3038307, at *3 (C.D. Cal. July 18, 2017).
B. THE FAC FAILS TO COMPLY WITH RULE 8
1. Applicable law
Rule 8 requires a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief”' and “a demand for the relief sought.” Fed.R.Civ.P. 8. Rule 8(a) “requires a ‘showing,' rather than a blanket assertion, of entitlement to relief.” See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 n.3 (2007). “[T]he ‘short and plain statement' [required by Rule 8] must provide the defendant with ‘fair notice of what the plaintiff's claim is and the grounds upon which it rests.'” Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 346 (2005).
A court may dismiss a complaint because it is unintelligible or frivolous “where it lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). Further, Rule 8 requires that a complaint clearly establish the claims and parties such that a defendant would have “no difficulty in responding to the claims with an answer and/or with a Rule 12(b)(6) motion to dismiss.” Hearns v. San Bernardino Police Dep't, 530 F.3d 1124, 1131-32 (9th Cir. 2008); Conley v. Gibson, 355 U.S. 41, 47 (1957).
To comply with Rule 8, a plaintiff must link each defendant to specific instances of unlawful conduct. See Est. of Bock ex rel. Bock v. Cnty. of Sutter, No. 2:11-CV-00536-MCE, 2012 WL 423704, at *6 (E.D. Cal. Feb. 8, 2012). Where a plaintiff sues multiple defendants, “[s]pecific identification of the parties to the activities alleged by [a plaintiff] is required . . . to enable the defendant to plead intelligently.” Sherrell v. Bank of Am., N.A., No. CV F 11-1785-LJO (JLT), 2011 WL 6749765, at *4 (E.D. Cal. Dec. 22, 2011) (internal quotations omitted). If the Complaint does not specify which conduct is attributable to which defendant, it is subject to dismissal. See id. (dismissing complaint where it “lack[ed] cognizable facts of defendants' purported wrongdoing to provide fair notice as to what each defendant is to defend.”).
2. Analysis
Here, the FAC does not contain a short, plain statement of Plaintiff's claims. As pleaded, it is difficult to determine from the FAC “who is being sued, for what relief, and on what theory[.]” McHenry v. Renne, 84 F.3d 1172, 1178 (9th Cir. 1996). Plaintiff makes several allegations concerning a number of different incidents involving many different defendants; however, it is not clear which facts give rise to which claim. Accordingly, the FAC fails to provide any purported Defendants “fair notice of what the plaintiff s claim[s] [are] and the grounds upon which [they rest].” Dura Pharms., Inc., 544 U.S. at 346 (internal quotation marks omitted).
Additionally, Plaintiff does not link any of the individual defendants' conduct to the alleged constitutional violations. See Estate of Bock ex rel. Bock, 2012 WL 423704, at *6. Ultimately, unclear pleadings, like the FAC, “leav[e] it to the Court to figure out what the full array of [Plaintiff's] claims is and upon what federal law, and upon what facts, each claim is based.” Little v. Baca, No. CV 13-0373-PA (RZ), 2013 WL 436018, at *3 (C.D. Cal. Feb. 1, 2013). Thus, the Court cannot determine whether Plaintiff has alleged sufficient facts to state a particular claim, nor could any purported defendant effectively respond to Plaintiff's claims. Accordingly, the FAC is subject to dismissal for failure to comply with Rule 8. See McHenry, 84 F.3d at 1177.
If Plaintiff chooses to file a Second Amended Complaint, he must identify the legal and factual basis for each defendants' alleged liability. Plaintiff should be aware that in order to state a claim for a civil rights violation under § 1983, he must allege that each defendant, acting under the color of state law, deprived him of a right guaranteed under the United States Constitution or a federal statute. See West v. Atkins, 487 U.S. 42, 48 (1988). Suits against government officials under § 1983 in their individual capacities “seek to impose personal liability upon a government official for actions he takes under color of state law.” Kentucky v. Graham, 473 U.S. 159, 165 (1985). “A person deprives another ‘of a constitutional right, within the meaning of section 1983, if he does an affirmative act, participates in another's affirmative acts, or omits to perform an act which he is legally required to do that causes the deprivation of which [the plaintiff complains].'” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (emphasis and alteration in original) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)).
For each claim, to properly state a claim against Defendants in their individual capacities, Plaintiff must explain:
(1) the constitutional right that Plaintiff believes was violated;
(2) the name of the Defendant(s) who violated the right;
(3) exactly what the Defendant(s) did or failed to do;
(4) how the action or inaction of the Defendant(s) is connected to the violation of Plaintiff's constitutional right; and
(5) what specific injury Plaintiff suffered because of the Defendant(s)' conduct.
The court acknowledges that Plaintiff may not know the name of every involved individual. However, to the extent Plaintiff brings this action against specific officers or facility staff, Plaintiff must at least identify each individual as a separate John Doe defendant (“John Doe 1,” “John Doe 2,” etc.) and properly attribute specific acts of illegal conduct to each defendant. Under such circumstances, the Court may allow the Plaintiff to conduct limited discovery to learn the names of the individuals.
See Tucker v. Stewart, 72 Fed.Appx. 597, 598 (9th Cir. 2003) (denying plaintiff's claims for failing to satisfy Rule 8 where he failed to allege these elements as instructed by the district court).
C. TO THE EXTENT PLAINTIFF SEEKS MONETARY DAMAGES, THE CLAIMS AGAINST DEFENDANTS IN THEIR OFFICIAL CAPACITIES SHOULD BE DISMISSED
1. Applicable law
An “official-capacity suit is, in all respects other than name, to be treated as a suit against the entity.” Graham, 473 U.S. at 166 (citations and internal quotation marks omitted); see also Cmty. House, Inc. v. City of Boise, Idaho, 623 F.3d 945, 966-67 (9th Cir. 2010) (an official capacity suit is treated as a suit against the entity). A plaintiff may seek monetary damages under § 1983 from state employees in their individual capacity. See Adler v. Lewis, 675 F.2d 1085, 1098 (9th Cir. 1982) (“State officials must be sued in their individual capacity in an action for monetary damages.”). However, because “a suit against a state official in his or her official capacity . . . is no different from a suit against the State itself,” state officials sued in their official capacity, like the State itself, are generally entitled to immunity in a § 1983 action. Flint v. Dennison, 488 F.3d 816, 824-25 (9th Cir. 2007) (citation omitted).
“The Eleventh Amendment prohibits federal courts from hearing suits brought against an unconsenting state.” Brooks v. Sulphur Springs Valley Elec. Co-op., 951 F.2d 1050, 1053 (9th Cir. 1991) (citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984)). The Eleventh Amendment also prohibits “suits naming state agencies and departments as defendants,” regardless of whether the plaintiff seeks damages or injunctive relief. Id.
To state a cognizable § 1983 claim against a municipality or local government officer in his or her official capacity, a plaintiff must show the alleged constitutional violation was committed “pursuant to a formal governmental policy or a longstanding practice or custom which constitutes the standard operating procedure of the local governmental entity.” Gillette v. Delmore, 979 F.2d 1342, 1346 (9th Cir. 1992) (citations and internal quotation marks omitted). A plaintiff must show that the policy, practice, or custom was: “(1) the cause in fact and (2) the proximate cause of the constitutional deprivation.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). Proof of random acts or isolated events is insufficient to establish a custom or practice. Thompson v. City of Los Angeles, 885 F.2d 1439, 1444 (9th Cir. 1989). Rather, a plaintiff must prove widespread, systematic constitutional violations which have become the force of law. Bd. of Cnty. Comm'rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 404 (1997).
2. Analysis
Here, Plaintiff sues Defendants in their official capacities and appears to seek monetary damages. Dkt. 11 at 3-4, 6. Although it is not entirely clear, all Defendants appear to be either state or local government officers or entities. All state officer defendants are immune to official capacity suits for damages. See Flint, 488 F.3d at 824-25.
With regard to any Defendants who are local government officers or entities, Plaintiff's official capacity claims must also fail. Plaintiff does not identify “any custom or policy that could serve as the basis for an official capacity claim against the defendants.” Smith v. G. Delacruz, No. EDCV 20-841-SVW (KS), 2020 WL 7060198, at *3 (C.D. Cal. April 22, 2020) (dismissing plaintiff s official capacity claims because plaintiff failed to connect the alleged violations to a custom or policy). Accordingly, Plaintiff's official capacity claims must be dismissed. Id.
D. THE FAC NAMES DEFENDANTS THAT ARE IMMUNE FROM SUIT
1. Applicable law
To state a claim under § 1983, a plaintiff must allege a deprivation of a right secured by the Constitution and laws of the United States “by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988) (citations omitted).
However, prosecutors have absolute immunity to suits under § 1983 when the prosecutor acts within the scope of his or her authority and in a quasi-judicial capacity. Ybarra v. Reno Thunderbird Mobile Home Vill., 723 F.2d 675, 678 (9th Cir. 1984) (citing Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976)). Prosecutors are not immune to suits for actions outside of this scope. Bly-Magee v. California, 236 F.3d 1014, 1018 (9th Cir. 2001) (finding that prosecutors were not “immune for any actions that [were] wholly unrelated to or outside of their official duties.”). Therefore, whether a prosecutor is entitled to absolute immunity turns on the nature of their actions, not necessarily whether they have committed misconduct. See, e.g., Broam v. Bogan, 320 F.3d 1023, 1030 (9th Cir. 2003) (“A prosecutor's decision not to preserve or turn over exculpatory material before trial, during trial, or after conviction is a violation of due process[.] . . . It is, nonetheless, an exercise of the prosecutorial function and entitles the prosecutor to absolute immunity from a civil suit for damages.” (citing Imbler, 424 U.S. at 431-32 n.34)).
In addition, “[t]he doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal quotations and citation omitted). To determine whether qualified immunity applies a court considers: (1) “whether there has been a violation of a constitutional right” and (2) “whether that right was clearly established at the time of the officer's alleged misconduct.” Lopez v. City of Glendora, 811 Fed.Appx. 1016, 1018 (9th Cir. 2020).
2. Analysis
Here, Plaintiff names Defendants in both their official and individual capacities. Dkt. 11 at 3-4. As discussed above, all of Plaintiff s official capacity claims must fail. Even if this Court were to construe Plaintiff s claims for monetary damages as individual capacity claims only, several Defendants are immune from suit.
a. District attorney
Here, Plaintiff sues District Attorney Dan Dow in both his official and individual capacity. Dkt. 11 at 3. Plaintiff alleges that Dow did not listen to Plaintiff's pleas about his health. Id. Although Plaintiff did not provide any further details, his sparse allegations appear to concern acts within Dow's role as a prosecutor during Plaintiff's criminal proceedings. See id. Thus, any claims against Dow are barred by prosecutorial immunity and subject to dismissal.
b. San Luis Obispo County Sheriff and unidentified sheriffs
Plaintiff sues the San Luis Obispo County Sheriff and unidentified sheriffs at the San Luis Obispo County Jail. Dkt. 11 at 3. Plaintiff alleges that the Sheriff forcibly clamped handcuffs on him, and when he told the Sheriff that he has a metal bar in his hand, the Sheriff “forced [him] down.” Id. Additionally, Plaintiff alleges that individual County sheriffs knew that Plaintiff was in poor health, but still “put [him] in dangerous areas.” Id.
Absent more specific factual allegations, these sheriffs appear to be protected by qualified immunity. Compare Krainski v. Nevada ex rel. Bd. of Regents of Nevada Sys. of Higher Educ., 616 F.3d 963 (9th Cir. 2010) (finding that plaintiff's conclusory allegations against officers were insufficient to state a claim for violation of plaintiff s Fourth Amendment rights, and therefore qualified immunity applied), with Milke v. Ryan, 711 F.3d 998, 1008 (9th Cir. 2013) (granting relief because plaintiff had presented “hundreds of pages of court records from cases where [the officer] had committed misconduct, either by lying under oath or by violating suspects' Miranda and other constitutional rights”). Thus, Plaintiff s claims against the sheriffs are subject to dismissal.
E. PLAINTIFF FAILS TO STATE AN INADEQUATE MEDICAL CARE CLAIM UNDER THE EIGHTH AMENDMENT
1. Applicable law
Prison officials or private physicians under contract to treat state inmates “violate the Eighth Amendment if they are deliberately indifferent to a prisoner's serious medical needs.” Peralta v. Dillard, 744 F.3d 1076, 1081 (9th Cir. 2014) (citation, internal quotation marks, and alterations omitted); Farmer v. Brennan, 511 U.S. 825, 828 (1994); West v. Atkins, 487 U.S. 42, 54 (1988). To assert a deliberate indifference claim, a prisoner plaintiff must show the defendant: (1) deprived him of an objectively serious medical need, and (2) acted with a subjectively culpable state of mind. Wilson v. Seiter, 501 U.S. 294, 297 (1991). “A medical need is serious if failure to treat it will result in significant injury or the unnecessary and wanton infliction of pain.” Peralta, 744 F.3d at 1081 (citations and internal quotation marks omitted).
“A prison official is deliberately indifferent to [a serious medical] need if he knows of and disregards an excessive risk to inmate health.” Peralta, 744 F.3d at 1082 (citation and internal quotation marks omitted). This “requires more than ordinary lack of due care.” Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014) (citations and internal quotation marks omitted). 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.” Id. (citation and internal quotation marks omitted).
“Deliberate indifference may appear when prison officials deny, delay, or intentionally interfere with medical treatment, or it may be shown by the way in which prison physicians provide medical care.” Id. (citation and internal quotation marks omitted). In either case, however, the indifference to the inmate's medical needs must be purposeful and substantial; negligence, inadvertence, or differences in medical judgment or opinion do not rise to the level of a constitutional violation. See Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996), overruled in part on other grounds by Peralta, 744 F.3d at 1076; Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004) (negligence constituting medical malpractice is not sufficient to establish an Eighth Amendment violation); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); Franklin v. State of Or., State Welfare Div., 662 F.2d 1337, 1344 (9th Cir. 1981) (“A difference of opinion between a prisoner-patient and prison medical authorities regarding treatment does not give rise to a [section] 1983 claim.”). A plaintiff “must show that the course of treatment the doctors chose was medically unacceptable under the circumstances, and . . . that they chose this course in conscious disregard of an excessive risk to plaintiff s health.” Jackson, 90 F.3d at 331.
2. Analysis
Here, Plaintiff appears to allege that Defendants denied him medical care on at least two occasions. See Dkt. 11 at 3-4. First, Plaintiff alleges that Tonani, a correctional officer at NSP, would not let him receive breathing treatments for his COPD. Id. at 4. Plaintiff claims that Defendants would have had access to his health records, which documented his COPD. Id. at 5. Next, Plaintiff alleges that Bell, a correctional officer at MCSP, denied him medical attention when he was experiencing chest pain. Id. at 4.
Although Plaintiff has partially described the type of care he was denied, he does not describe whether or how his injuries worsened as a result. Further, Plaintiff has not shown that the lack of medical care exceeded mere negligence or a difference of opinion in care. In other words, Plaintiff has not alleged facts that could support an inference that Defendants made a conscious choice to deny him care, despite the risk to Plaintiff's health.
If possible, any amended complaint should include additional details about Plaintiff's ailments at the time of the alleged violation, the specific conduct of the medical personnel each facility, any resulting injuries, and should clearly restate relevant information from the FAC.
F. PLAINTIFF FAILS TO STATE A CLAIM FOR EXCESSIVE FORCE
1. Applicable law
To the extent Plaintiff claims the Sheriff used excessive force after his arrest, this claim is properly analyzed under the Due Process Clause of the Fourteenth Amendment. Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015); Mendiola-Martinez v. Arpaio, 836 F.3d 1239, 1246 n.5 (9th Cir. 2016). To state a claim for excessive force under the Fourteenth Amendment, a pretrial detainee must show that “the force purposely or knowingly used against him was objectively unreasonable.” Kingsley, 576 U.S. at 389.
2. Analysis
Here, Plaintiff alleges that after he was arrested, the Sheriff forcibly applied handcuffs and forced Plaintiff to get on the ground. Dkt. 11 at 5. Without more, such allegations do not show that force was knowingly used and was objectively unreasonable. See Kingsley, 576 U.S. at 389; Dkt. 11 at 3. Therefore, to the extent Plaintiff claims that the Sheriff used excessive force in violation of the Fourteenth Amendment, this claim fails.
It is not clear whether the Sheriff used physical force to bring Plaintiff to the ground or whether he instead ordered Plaintiff to do so. See Dkt. 11 at 3, 5.
V.
LEAVE TO FILE A SECOND AMENDED COMPLAINT For the foregoing reasons, the FAC is subject to dismissal. As the Court is unable to determine whether amendment would be futile, leave to amend is granted. See Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam).
Accordingly, IT IS ORDERED THAT by September 5, 2022, Plaintiff must choose one of the following three (3) options:
1. Plaintiff may file a Second Amended Complaint to attempt to cure the deficiencies discussed above. If Plaintiff chooses to file a Second Amended Complaint, he must clearly designate on the face of the document that it is the “Second Amended Complaint,” it must bear the docket number assigned to this case, and it must be retyped or rewritten in its entirety, preferably on the court-approved form. Plaintiff shall not include new defendants or allegations that are not reasonably related to the claims asserted in the Complaint. In addition, the Second Amended Complaint must be complete without reference to the FAC, or any other pleading, attachment, or document.
The Clerk of Court is directed to mail Plaintiff a blank Central District civil rights complaint form to use for filing the Second Amended Complaint, which the Court encourages Plaintiff to use. The Clerk of Court is also directed to mail Plaintiff a copy of his FAC (Dkt. 11) for his reference.
Plaintiff is advised that this Court's determination that the allegations in the FAC are insufficient to state a particular claim should not be seen as dispositive of that claim. Accordingly, although this Court believes that Plaintiff has failed to plead sufficient factual matter in his pleading, accepted as true, to state a claim to relief that is plausible on its face, Plaintiff is not required to omit any claim or defendant in order to pursue this action. However, if Plaintiff decides to pursue a claim in a Second Amended Complaint that this Court has found to be insufficient, then this Court, pursuant to the provisions of 28 U.S.C. § 636, ultimately may submit to the assigned district judge a recommendation that such claim be dismissed with prejudice for failure to state a claim, subject to Plaintiff's right at that time to file Objections with the district judge as provided in the Local Rules Governing Duties of Magistrate Judges.
2. Alternatively, Plaintiff may file a notice with the Court that he intends to stand on the allegations in his FAC. If Plaintiff chooses to stand on the FAC despite the deficiencies in the claims identified above, then the Court will submit a recommendation to the assigned district judge that the FAC be dismissed with prejudice for failure to state a claim, subject to Plaintiff's right at that time to file Objections with the district judge as provided in the Local Rules Governing Duties of Magistrate Judges.
3. Finally, Plaintiff may voluntarily dismiss the action without prejudice, pursuant to Federal Rule of Civil Procedure 41(a). The Clerk of Court is directed to mail Plaintiff a blank Notice of Dismissal Form, which the Court encourages Plaintiff to use if they choose to voluntarily dismiss the action.
Plaintiff is explicitly cautioned that failure to timely file a Second Amended Complaint will result in this action being dismissed with prejudice for failure to state a claim, or for failure to prosecute and/or obey Court orders pursuant to Federal Rule of Civil Procedure 41(b).