Case 2:22-cv-01801-SVW-JPR Document 9 Filed 05/27/22 Page 1 of 8 Page ID #:33

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 THOMAS GRAY, ) Case No. CV 22-1801-SVW (JPR) 12 ) Plaintiff, ) 13 ) ORDER DISMISSING FIRST AMENDED v. ) COMPLAINT WITH LEAVE TO AMEND 14 )

GRANT, )

15 ) Defendant. ) 16 ) 17 18 On March 17, 2022, Plaintiff, a state prisoner, filed pro se 19 a Complaint alleging a violation of his Eighth Amendment rights 20 under 42 U.S.C. § 1983. On May 12, 2022, he filed a First 21 Amended Complaint. He sues California State Prison - Los Angeles 22 County correctional officer Grant in his individual capacity.1 23 (See FAC at 4 (the Court used the pagination generated by its 24 Case Management/Electronic Case Filing system).) Plaintiff 25 claims that on February 19, 2022, he “found [him]self in a crisis 26 at which time [he] reached out for help by advising [Defendant] 27 28 1 Plaintiff doesn’t supply Defendant’s first name. 1 Case 2:22-cv-01801-SVW-JPR Document 9 Filed 05/27/22 Page 2 of 8 Page ID #:34

1 that [he] was suicidal and was going to try to kill [him]self.” 2 (Id. at 6.) Defendant replied, “Don’t tell me,” and “walked 3 away.” (Id.) Plaintiff “then proceeded to slice [his] wrist in 4 an attempt to take [his] life.” (Id.) 5 After screening the FAC under 28 U.S.C. §§ 1915(e)(2) and 6 1915A, the Court finds that its allegations fail to state a claim 7 on which relief might be granted. Because the FAC might be cured 8 by amendment, it is dismissed with leave to amend. See Lopez v. 9 Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc) (holding 10 that pro se litigant must be given leave to amend complaint 11 unless it is absolutely clear that deficiencies cannot be cured). 12 If Plaintiff desires to pursue his claim, he is ORDERED to file a 13 second amended complaint within 28 days of the date of this 14 order, remedying the deficiencies discussed below. 15 STANDARD OF REVIEW 16 A complaint may be dismissed as a matter of law for failure 17 to state a claim when “there is no cognizable legal theory or an 18 absence of sufficient facts alleged to support a cognizable legal 19 theory.” Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 20 1035, 1041 (9th Cir. 2010) (as amended) (citation omitted); 21 accord O’Neal v. Price, 531 F.3d 1146, 1151 (9th Cir. 2008). In 22 considering whether a complaint states a claim, a court must 23 generally accept as true the factual allegations in it. Ashcroft 24 v. Iqbal, 556 U.S. 662, 678 (2009); Hamilton v. Brown, 630 F.3d 25 889, 892-93 (9th Cir. 2011). The court need not accept as true, 26 however, “allegations that are merely conclusory, unwarranted 27 deductions of fact, or unreasonable inferences.” In re Gilead 28 Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (citation 2 Case 2:22-cv-01801-SVW-JPR Document 9 Filed 05/27/22 Page 3 of 8 Page ID #:35

1 omitted); see also Shelton v. Chorley, 487 F. App’x 388, 389 (9th 2 Cir. 2012) (finding that district court properly dismissed civil- 3 rights claim when plaintiff’s “conclusory allegations” did not 4 support it). 5 Although a complaint need not include detailed factual 6 allegations, it “must contain sufficient factual matter, accepted 7 as true, to ‘state a claim to relief that is plausible on its 8 face.’” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. 9 Twombly, 550 U.S. 544, 570 (2007)); Yagman v. Garcetti, 852 F.3d 10 859, 863 (9th Cir. 2017). A claim is facially plausible when it 11 “allows the court to draw the reasonable inference that the 12 defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. 13 at 678. “A document filed pro se is ‘to be liberally construed,’ 14 and ‘a pro se complaint, however inartfully pleaded, must be held 15 to less stringent standards than formal pleadings drafted by 16 lawyers.’” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per 17 curiam) (citation omitted) (quoting Estelle v. Gamble, 429 U.S. 18 97, 106 (1976)). 19 DISCUSSION 20 I. The FAC Violates Federal Rule of Civil Procedure 8 21 Rule 8(a)(2) of the Federal Rules of Civil Procedure 22 requires that a complaint contain “a short and plain statement of 23 the claim showing that the pleader is entitled to relief.” The 24 rule’s purpose is to “give the defendant fair notice of what the 25 claim is and the grounds upon which it rests.” Twombly, 550 U.S. 26 at 555 (cleaned up). To comply with Rule 8, a complaint must 27 allege sufficient facts “to enable the opposing party to defend 28 itself effectively,” and it “must plausibly suggest an 3 Case 2:22-cv-01801-SVW-JPR Document 9 Filed 05/27/22 Page 4 of 8 Page ID #:36

1 entitlement to relief, such that it is not unfair” to subject the 2 sued party “to the expense of discovery and continued 3 litigation.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011); 4 see also Brazil v. U.S. Dep’t of Navy, 66 F.3d 193, 199 (9th Cir. 5 1995) (Rule 8 requires that complaint provide “minimum threshold” 6 giving defendant “notice of what it is that it allegedly did 7 wrong”); McHenry v. Renne, 84 F.3d 1172, 1179 (9th Cir. 1996) 8 (violation of Rule 8 is independent basis for dismissal even when 9 complaint is not “wholly without merit”). 10 The FAC violates Rule 8(a)(2) because Plaintiff states 11 mostly conclusory allegations and very few facts. For example, 12 although he allegedly alerted Defendant that he “was suicidal and 13 was going to try to kill [him]self” (FAC at 6), he doesn’t state 14 exactly what he said to Defendant or that he even asked him for 15 help. And he claims that he “slice[d]” his wrist but doesn’t 16 state the extent or persistence of any injury or if he required 17 or received medical treatment for it. (Id.) Indeed, although he 18 claims that “it could have all been prevented,” he never explains 19 what “it” or “all” is. (See id.) The FAC therefore fails to put 20 Defendant on sufficient notice of the contours of Plaintiff’s 21 claim, thereby making it difficult for him to defend himself 22 effectively. See Starr, 652 F.3d at 1216. 23 The FAC also violates Rule 8(a)(3), which requires that a 24 claim for relief “contain . . . a demand for the relief sought.” 25 Plaintiff requests only that a jury “decide what awarded relief 26 [he is] entitled to.” (FAC at 7.) In any amended complaint, he 27 must state with more specificity the relief he seeks or the 28 amended complaint will be subject to dismissal on that basis 4 Case 2:22-cv-01801-SVW-JPR Document 9 Filed 05/27/22 Page 5 of 8 Page ID #:37

1 alone. See Seven Words LLC v. Network Sols., 260 F.3d 1089, 1098 2 (9th Cir. 2001) (observing that “useless statement, ‘I was 3 wronged and am entitled to judgment for everything to which I am 4 entitled,’” would violate Rule 8(a)(3)); Castillo v. Johnson, No. 5 EDCV 18-2187-VAP (KK), 2018 WL 5310840, at *4 (C.D. Cal. Oct. 25, 6 2018) (dismissing complaint under Rule 8(a)(3)). 7 II. The FAC Fails to State a Medical-Indifference Claim 8 Plaintiff apparently advances a medical-indifference claim. 9 (See FAC at 6 (claiming that Defendant violated Eighth Amendment 10 by “[f]ail[ing] to [a]ct” and was “indifferent to [Plaintiff’s] 11 health and saf[e]ty”).) 12 The Supreme Court has “treated medical care claims 13 substantially the same as other conditions of confinement 14 violations.” Gordon v. Cnty. of Orange, 888 F.3d 1118, 1124 (9th 15 Cir. 2018). To establish a constitutional claim based on 16 inadequate medical care, a plaintiff must show that the defendant 17 was deliberately indifferent to his serious medical needs. 18 Gamble, 429 U.S. at 104. A “serious” medical need exists when 19 failure to treat the plaintiff could result in “further 20 significant injury” or the “unnecessary and wanton infliction of 21 pain.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992) 22 (citing Gamble, 429 U.S. at 104), overruled on other grounds by 23 WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) 24 (en banc). 25 Deliberate indifference “may appear when prison officials 26 deny, delay or intentionally interfere with medical treatment, or 27 it may be shown by the way in which prison physicians provide 28 medical care.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 5 Case 2:22-cv-01801-SVW-JPR Document 9 Filed 05/27/22 Page 6 of 8 Page ID #:38

1 2006) (citing McGuckin, 974 F.2d at 1059). The defendant must 2 have purposefully ignored or failed to respond to the plaintiff’s 3 pain or medical needs. McGuckin, 974 F.2d at 1060. An 4 inadvertent failure to provide adequate medical care, negligence, 5 a mere delay in medical care, or a difference of opinion over 6 proper medical treatment does not violate the Eighth Amendment. 7 See Gamble, 429 U.S. at 105-07; Wilhelm v. Rotman, 680 F.3d 1113, 8 1122-23 (9th Cir. 2012); Sanchez v. Vild, 891 F.2d 240, 242 (9th 9 Cir. 1989). 10 To begin, Plaintiff doesn’t allege a serious medical need. 11 Although a “heightened suicide risk can present a serious medical 12 need,” Simmons v. Navajo Cnty., 609 F.3d 1011, 1018 (9th Cir. 13 2010), overruling on other grounds recognized by Rivera v. 14 Sheppard, 859 F. App’x 218, 219 (9th Cir. 2021), a “generalized 15 risk” cannot, Vivanco v. Cal. Dep’t of Corrs. & Rehab., No. 16 1:17-cv-00434-BAM, 2019 WL 2764397, at *6 (E.D. Cal. July 2, 17 2019), aff’d, 817 F. App’x 492 (9th Cir. 2020). Nothing suggests 18 a heightened suicide risk here. Although he claims to have 19 “found [him]self in a crisis” (FAC at 6), Plaintiff doesn’t 20 allege if he had ever experienced such a crisis before or even 21 what that crisis entailed. Nor does he allege that he had 22 previously attempted suicide, exhibited suicidal thoughts or 23 behaviors, or been diagnosed with a mental illness. At best, he 24 alleges a generalized suicide risk. See Vivanco, 2019 WL 25 2764397, at *6 (finding no serious medical need when plaintiff 26 “reported feeling better without” psychiatric medicine and 27 “appeared stable” during visits with mental-health staff); Harris 28 v. Kyle, No. 1:19-cv-00462-DAD-EPG, 2022 WL 977050, at *9 (E.D. 6 Case 2:22-cv-01801-SVW-JPR Document 9 Filed 05/27/22 Page 7 of 8 Page ID #:39

1 Cal. Mar. 31, 2022) (no serious medical need because medical 2 records didn’t note “suicidal ideations” or “particular suicide 3 risks”). And as noted, Plaintiff says nothing about the extent 4 of any injuries from “slic[ing]” his wrist. (FAC at 6.) 5 But even if Plaintiff had alleged a serious medical need, 6 nothing suggests Defendant knew about it, much less that he 7 purposely ignored it. For example, Plaintiff doesn’t allege what 8 exactly he told Defendant or what Defendant knew about his 9 “crisis” (FAC at 6) or suicide risk. Nor does he allege that 10 Defendant knew that he had some kind of blade available to 11 “slice” his wrist. (Id.); cf. Harmon v. Lewandowski, No. LACV 12 20-09437-VAP-MRWx, 2021 WL 1557745, at *4-5 (C.D. Cal. Mar. 8, 13 2021) (finding that complaint stated medical-indifference claim 14 because plaintiff “described” to defendant “how they intended to 15 commit suicide, namely by swallowing all of the Tylenol pills 16 they had in their cell”). Finally, given that Defendant 17 allegedly “walked away,” he apparently was not aware of any later 18 injury to Plaintiff’s wrist. (FAC at 6.) Indeed, Plaintiff 19 alleges that Defendant was only “negligent” (id.), which doesn’t 20 constitute deliberate indifference. See Farmer v. Brennan, 511 21 U.S. 825, 835 (1994) (observing that “deliberate indifference 22 entails something more than mere negligence”). 23 Finally, the FAC lacks specific allegations about the 24 injuries allegedly caused by any deliberate indifference. 25 Plaintiff doesn’t allege the extent or persistence of any injury 26 from his sliced wrist, whom he had told about the wrist and what 27 their response was, or what treatment he has received, if any. 28 Thus, the FAC fails to state a medical-indifference claim. 7 Case 2:22-cv-01801-SVW-JPR Document9 Filed 05/27/22 Page8of8 Page ID #:40

1 KEKE 2 If Plaintiff desires to pursue his lawsuit, he is ORDERED to 3 || file a second amended complaint within 28 days of the date of this order, remedying the deficiencies discussed above. The SAC 5 || should bear the docket number assigned to this case, be labeled 6] “Second Amended Complaint,” and be complete in and of itself, 7 without reference to the Complaint or FAC. Plaintiff is warned 8 || that if he fails to timely file a sufficient SAC, the Court may 9 | dismiss this action on the grounds set forth above or for failure 10 || to diligently prosecute, or for both reasons.’ 11 i Watt DATED: May 27, 2022 12 JEAN P. ROSENBLUTH

U.S. MAGISTRATE JUDGE

13 14 15 16 17 18 19 20 21 22 23 24 ° If Plaintiff believes this order erroneously disposes of any 55 of his claims, he may file objections with the district judge within 20 days of the date of the order. See Bastidas v. Chappell, 96) 791 F.3d 1155, 1162 (9th Cir. 2015) (“When a magistrate judge believes she is issuing a nondispositive order, she may warn the 27 |) litigants that, if they disagree and think the matter dispositive, they have the right to file an objection to that determination with 28 the district judge.”).