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Case 1:12-cv-01914-AWI-JLT Document 15 Filed 07/30/13 Page 1 of 6

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

Case No.: 1:12-cv-01914 - AWI - JLT

ORDER DISMISSING THE COMPLAINT WITH
LEAVE TO AMEND

(Doc. 1)


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RUMALDO BARBOZA,

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Plaintiff,

v.

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BARRY J. GREEN,



Defendant.
























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Plaintiff Rumaldo Barboza (“Plaintiff”) is a state prisoner proceeding pro se with a civil rights

complaint pursuant to 42 U.S.C. § 1983. As required by 28 U.S.C. § 1915A, the Court presently

screens Plaintiff’s 95-page complaint. (Doc. 1). Having read and considered the pleadings, and for the

following reasons, the Court DISMISSES the complaint with leave to amend.

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I.

SCREENING REQUIREMENT

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Under 28 U.S.C. § 1915(e)(2)(B), the Court must dismiss a case in which the plaintiff proceeds

in forma pauperis if the court determines that the case “fails to state a claim on which relief may be

granted” or is “frivolous.” A claim is frivolous “when the facts alleged rise to the level of the

irrational or the wholly incredible, whether or not there are judicially noticeable facts available to

contradict them.” Denton v. Hernandez, 504 U.S. 25, 32-33 (1992).

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II. PLEADING STANDARDS

A. Federal Rule of Civil Procedure 8(a)



“Pro se documents are to be liberally construed” and “‘must be held to ‘less stringent standards

than formal pleadings drafted by lawyers.’” Estelle v. Gamble, 429 U.S. 97, 106 (1976) (quoting

Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). “[They] can only be dismissed for failure to state a

claim if it appears ‘beyond doubt that the plaintiff can prove no set of facts in support of his claim

which would entitle him to relief.’” (Id.) Under Federal Rule of Civil Procedure 8(a), “[a] pleading

that states a claim for relief must contain: (1) a short and plaint statement of the grounds for the court’s

jurisdiction, . . . ; (2) a short and plain statement of the claim showing that the pleader is entitled to

relief; and (3) a demand for the relief sought.” Fed. R. Civ. P. 8(a). Each allegation must be simple,

concise, and direct. Fed. R. Civ. P. 8(d)(1). While a complaint “does not need detailed factual

allegations, a plaintiff’s obligation to provide the ‘grounds’ of his entitlement to relief requires more

than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not

do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007) (internal quotation marks and citations

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omitted).

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In analyzing a pleading, the Court sets conclusory factual allegations aside, accepts all non-

conclusory factual allegations as true, and determines whether those non-conclusory factual

allegations accepted as true state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 129

S. Ct. 1937, 1949-52 (2009). “The plausibility standard is not akin to a probability requirement, but it

asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. at 1949 (internal

quotation marks and citation omitted). In determining plausibility, the Court is permitted “to draw on

its judicial experience and common sense.” Id. at 1950.

Plaintiff submits a 4-page complaint with 91 pages of exhibits, which add little to the factual

allegations contained in the complaint. (Doc. 1). These exhibits do not comport with the precepts of

Fed. R. Civ. P. 8(a). Similarly, requiring the Court to comb through 90 pages of documents to

ascertain the factual basis of Plaintiff’s complaint wastes judicial time and resources. Therefore, the

Court considers only Plaintiff’s complaint (Doc. 1 at 1-4) to determine the substantive allegations of

Plaintiff’s complaint.



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B.

42 U.S.C. § 1983





In order to sustain a cause of action under 42 U.S.C. § 1983, a plaintiff must show (i) that he

suffered a violation of rights protected by the Constitution or created by federal statute, and (ii) that

the violation was proximately caused by a person acting under color of state law. See Crumpton v.

Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). The causation requirement of § 1983 is satisfied only if a

plaintiff demonstrates that a defendant did an affirmative act, participated in another's affirmative act,

or omitted to perform an act which he was legally required to do that caused the deprivation

complained of. Arnold v. IBM, 637 F.2d 1350, 1355 (9th Cir. 1981) (quoting Johnson v. Duffy, 588

F.2d 740, 743-44 (9th Cir. 1978)).

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III.

FACTUAL ALLEGATIONS

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Plaintiff names Barry J. Green (“PA Green”), a physician assistant at Pleasant Valley State

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Prison as the sole defendant in this matter. (Doc. 1 at 2). Plaintiff alleges that in January 2010, while

working as a “scullery helper” in the kitchen at PVSP, he severely injured his elbow. (Doc. 1 at 3-4).

At that time, unnamed physicians prescribed him 50 milligrams of Tramadol to be taken three times a

day. Id. at 3. PA Green subsequently discontinued Plaintiff’s prescription on August 18, 2010,

without referring Plaintiff “to pain management or a [s]pecialist for other alternatives.” Id. Plaintiff

experienced severe pain as a result. Id.

IV. DISCUSSION AND ANALYSIS

A. Eighth Amendment – Inadequate Medical Care1



Plaintiff seemingly alleges that PA Green provided him inadequate medical care when he

discontinued Plaintiff’s Tramadol. To establish a violation of the Eighth Amendment based on



1 In addition to his Eighth Amendment claim, Plaintiff alleges that PA Green acted in contravention of state law,
the Fourteenth Amendment, and “Article II, Section [2]” of an unnamed treaty. With regard to the Fourteenth
Amendment, Plaintiff provides no facts on which the Court may analyze Plaintiff’s alleged due process claim. Similarly,
Plaintiff fails to indicate which treaty PA Green allegedly violated.

To the extent that Plaintiff asserts a California tort claim against PA Green, the Court can find no evidence that
Plaintiff complied with the California Tort Claims Act (“CTCA”). Under the CTCA, a plaintiff may not maintain an action
for damages against a public employee unless he has presented a written claim to the state Victim Compensation and
Government Claims Board within six months of accrual of the action. See Cal. Gov’t Code §§ 905, 911.2(a), 945.4 &
950.2; Mangold v. California Pub. Utils. Comm’n, 67 F.3d 1470, 1477 (9th Cir. 1995). Consequently, failure to allege
compliance constitutes a failure to state a cause of action and will result in the dismissal of plaintiff’s state law claims.
State of California v. Superior Court (Bodde), 32 Cal.4th 1234, 1243-44 (2004). Thus, Plaintiff’s state tort claim is
dismissed.



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inadequate medical care, a plaintiff must demonstrate “acts or omissions sufficiently harmful to

evidence deliberate indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106

(1976). In other words, the plaintiff must show the existence of (1) a serious medical need and (2) a

deliberately indifferent response by the defendant. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir.

2006).



A medical need is serious “if the failure to treat the condition could result in further significant

injury or the ‘unnecessary and wanton infliction of pain.’” McGuckin v. Smith, 974 F.2d 1050, 1059

(9th Cir. 1992), overruled on other grounds, WMX Technologies v. Miller, 104 F.3d 1133 (9th Cir.

1997). Indications that a person has a serious need for medical treatment include: the existence of an

injury that a reasonable doctor or patient would find worthy of comment or treatment; the presence of

a medical condition that significantly affects an individual’s daily activities; or the existence of

chronic and substantial pain. McGuckin, 974 F.2d at 1059-60 (citations omitted).

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A defendant acts with deliberate indifference when he knowingly fails to respond to a serious

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medical need, thereby inflicting harm on the plaintiff. See Farmer v. Brennan, 511 U.S. 825, 837-42

(1994); Jett, 439 F.3d at 1096. Deliberate indifference may appear when a defendant denies, delays,

or otherwise interferes with medical treatment. See Hutchinson v. United States, 838 F.2d 390, 394

(9th Cir. 1988). Nevertheless, “[d]eliberate indifference is a high legal standard.” Toguchi v. Chung,

391 F.3d 1051, 1060 (9th Cir. 2004). “Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will

not support this cause of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980)

(citing Estelle, 429 U.S. at 105-06).

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Here, the complaint lacks sufficient factual support to find that Plaintiff suffered from a serious

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medical need. Plaintiff alleges that he had “severe elbow pain” from an accident that occurred eight

months earlier. (Doc. 1 at 3). Nowhere does Plaintiff allege that he continued to suffer pain in August

of 2010 nor does he aver that this pain was chronic and substantial at that time. In filing his first

amended complaint, Plaintiff must set forth sufficient facts to demonstrate that he suffered from a

serious medical need at the time Defendant Green withdrew his medication.

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Similarly, Plaintiff seeks to dictate the course of his medical treatment by compelling PA

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Green to re-prescribe certain medication, which Plaintiff is not entitled to do. Quiroga v. Green, Case



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Number 1:11-CV-00989-GBC, 2012 WL 3704784 * 4 (E.D. Cal. Aug. 24, 2012). In fact, “[a]s a

matter of law, differences of opinion between prisoner and prison doctors fails to show deliberate

indifference to serious medical needs.” Quiroga, 2012 WL at 4(citing Jackson v. McIntosh, 90 F.3d

330, 332 (9th Cir. 1996)) (emphasis in original). While PA Green may have been aware of Plaintiff’s

elbow injury, it appears that PA Green may have exercised his professional judgment in withdrawing

the Tramadol prescription. Thus, Plaintiff fails to demonstrate that PA Green was deliberately

indifferent toward Plaintiff. Therefore, the complaint must be DISMISSED for failure to state a

cognizable claim.



V.

LEAVE TO AMEND

The Court will provide Plaintiff a final opportunity to amend his pleading to cure the

deficiencies noted in this order. See Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987) (“A pro

se litigant must be given leave to amend his or her complaint unless it is absolutely clear that the

deficiencies of the complaint could not be cured by amendment.”) (internal quotations omitted). In his

first amended complaint, Plaintiff must address the deficiencies noted in this Order. Plaintiff is

advised that his failure to do so will result in an order dismissing this action.

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Plaintiff is cautioned that in his amended complaint he may not change the nature of this suit

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by adding new, unrelated claims in his amended complaint. See George v. Smith, 507 F.3d 605, 607

(7th Cir. 2007) (no “buckshot” complaints). Plaintiff is also advised that once he files his first

amended complaint, his original pleadings are superceded and no longer serve any function in the

case. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Thus, the first amended complaint must be

“complete in itself without reference to the prior or superceded pleading.” Local Rule 220. “All

causes of action alleged in an original complaint which are not [re-]alleged in an amended complaint

are waived.” King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (citations omitted).

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Plaintiff is advised that federal courts are courts of limited jurisdiction, see Kokkonen v.

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Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994), and this Court lacks jurisdiction under

either 28 U.S.C. § 1331 or § 1332 to adjudicate Plaintiff’s state law claims. Therefore, should the

Court ultimately dismiss Plaintiff’s federal claims from this action, Plaintiff is advised that he must

pursue his state law claims in state court. See United Mine Workers v. Gibbs, 383 U.S. 715, 726



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(1966) (a district court should not exercise supplemental jurisdiction over state law claims when the

federal claims giving rise to supplemental jurisdiction are dismissed before trial).

Finally, Plaintiff’s first amended complaint SHALL comply with Fed. R. Civ. P. 8(a). While

Plaintiff admirably set forth his original complaint in four pages, Plaintiff unnecessarily attached 91

pages of exhibits to his original complaint. There is no need to attach exhibits to Plaintiff’s first

amended complaint. Therefore, Plaintiff’s first amended complaint, including the attached

exhibits, SHALL NOT exceed 20 pages.

ORDER



For the reasons stated above, the Court HEREBY ORDERS that:

1. The complaint (Doc. 1) is DISMISSED;

2. Plaintiff is GRANTED 21 days from the date of service of this Order, to file a first

amended complaint that addresses the deficiencies set forth in this Order. The first amended complaint

must bear the docket number assigned to this case and must be labeled “First Amended Complaint”;

3. The Clerk of the Court is DIRECTED to send Plaintiff the form complaint for use in a

civil rights action; and

4. Plaintiff is firmly cautioned that failure to comply with this order will result in an

order dismissing this action.

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IT IS SO ORDERED.

Dated: July 30, 2013





/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE





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