1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 DANIEL PINEDA ZELAYA, Case No. 5:22-cv-01917-MCS (AFM)

12 Plaintiff,

ORDER DISMISSING

13 v. COMPLAINT WITH LEAVE TO 14 AMEND DR. MICHAEL MANK, et al., 15 Defendants. 16 17 18 On October 28, 2022, plaintiff, proceeding pro se, filed this civil rights action 19 pursuant to 42 U.S.C. § 1983. (ECF No. 1.) Plaintiff is a federal prisoner who is 20 presently incarcerated at the USP in Pollock, LA. The incident giving rise to this 21 action occurred on September 9, 2021, while plaintiff was incarcerated in California 22 at USP Victorville. (Id. at 2-3.) Because plaintiff is a federal prisoner, any civil 23 rights claims that he may wish to raise against a federal employee must be brought 24 pursuant to Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), and 25 not pursuant to 42 U.S.C. § 1983. See, e.g., Ziglar v. Abbasi, 582 U.S. 120, 137 S. Ct. 26 1843, 1854-55 (2017) (noting that 42 U.S.C. § 1983 “entitles an injured person to 27 money damages if a state official violates his or her constitutional right” while Bivens 28 provides an implied cause of action for money damages against individual federal 1 officials for some constitutional violations (emphasis added)). Plaintiff also filed a 2 Request to Proceed Without Prepayment of Filing Fees, which subsequently was 3 granted. (ECF Nos. 2, 13.) Plaintiff names as defendants: Dr. Mank, identified as a 4 doctor at USP Victorville; Dr. Nguyen; Officer Torres, identified as an “emergency 5 room doctor”; Robert Gomez; Captain Stickles; Warden Gutierrez; and several “doe” 6 defendants. (ECF No. 1 at 1-2.) Plaintiff purports to raise only one claim in this 7 action, under the Eighth Amendment’s Cruel and Unusual Punishment Clause, for 8 constitutionally inadequate medical care. (Id. at 3.) Plaintiff appears to be seeking 9 injunctive relief in the form of a surgical procedure as well as monetary damages. 10 (Id. at 5.) 11 In accordance with the mandate of the Prison Litigation Reform Act of 1995 12 (“PLRA”), the Court has screened the Complaint prior to ordering service to 13 determine whether the action is frivolous or malicious; fails to state a claim on which 14 relief may be granted; or seeks monetary relief against a defendant who is immune 15 from such relief. See 28 U.S.C. §§ 1915A, 1915(e)(2); 42 U.S.C. § 1997e(c)(1). 16 The Court’s screening of the pleading is governed by the following standards. 17 A complaint may be dismissed as a matter of law for failure to state a claim for two 18 reasons: (1) lack of a cognizable legal theory; or (2) insufficient facts alleged under 19 a cognizable legal theory. See, e.g., Kwan v. SanMedica Int’l, 854 F.3d 1088, 1093 20 (9th Cir. 2017); see also Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) 21 (when determining whether a complaint should be dismissed for failure to state a 22 claim under the PLRA, the court applies the same standard as applied in a motion to 23 dismiss pursuant to Fed. R. Civ. P. 12(b)(6)). In determining whether the pleading 24 states a claim on which relief may be granted, its allegations of fact must be taken as 25 true and construed in the light most favorable to plaintiff. See, e.g., Soltysik v. 26 Padilla, 910 F.3d 438, 444 (9th Cir. 2018). However, the “tenet that a court must 27 accept as true all of the allegations contained in a complaint is inapplicable to legal 28 conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Rather, a court first 1 “discount[s] conclusory statements, which are not entitled to the presumption of 2 truth, before determining whether a claim is plausible.” Salameh v. Tarsadia Hotel, 3 726 F.3d 1124, 1129 (9th Cir. 2013); see also Chavez v. United States, 683 F.3d 1102, 4 1108 (9th Cir. 2012). Nor is the Court “bound to accept as true a legal conclusion 5 couched as a factual allegation or an unadorned, the-defendant-unlawfully-harmed- 6 me accusation.” Keates v. Koile, 883 F.3d 1228, 1243 (9th Cir. 2018) (internal 7 quotation marks and citations omitted). 8 Because plaintiff is appearing pro se, the Court must construe the allegations 9 of the pleading liberally and must afford plaintiff the benefit of any doubt. See Hebbe 10 v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010); see also Alvarez v. Hill, 518 F.3d 1152, 11 1158 (9th Cir. 2008) (because plaintiff was proceeding pro se, “the district court was 12 required to ‘afford [him] the benefit of any doubt’ in ascertaining what claims he 13 ‘raised in his complaint’”) (alteration in original). Nevertheless, the Supreme Court 14 has held that “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to 15 relief’ requires more than labels and conclusions, and a formulaic recitation of the 16 elements of a cause of action will not do. . . . Factual allegations must be enough to 17 raise a right to relief above the speculative level . . . on the assumption that all the 18 allegations in the complaint are true (even if doubtful in fact).” Bell Atlantic Corp. 19 v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted, alteration in 20 original); see also Iqbal, 556 U.S. at 678 (To avoid dismissal for failure to state a 21 claim, “a complaint must contain sufficient factual matter, accepted as true, to ‘state 22 a claim to relief that is plausible on its face.’ . . . A claim has facial plausibility when 23 the plaintiff pleads factual content that allows the court to draw the reasonable 24 inference that the defendant is liable for the misconduct alleged.” (internal citation 25 omitted)). 26 In addition, Fed. R. Civ. P. 8(a) (“Rule 8”) states: 27 A pleading that states a claim for relief must contain: (1) a short and plain statement of the grounds for the court’s 28 1 jurisdiction . . .; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a 2 demand for the relief sought, which may include relief in 3 the alternative or different types of relief. 4 5 (Emphasis added.) Rule 8(d)(1) provides: “Each allegation must be simple, concise, 6 and direct. No technical form is required.” Although the Court must construe a 7 pro se plaintiff’s pleadings liberally, a plaintiff nonetheless must allege a minimum 8 factual and legal basis for each claim that is sufficient to give each defendant fair 9 notice of what plaintiff’s claims are and the grounds upon which they rest. See, e.g., 10 Brazil v. U.S. Dep’t of the Navy, 66 F.3d 193, 199 (9th Cir. 1995); McKeever v. Block, 11 932 F.2d 795, 798 (9th Cir. 1991) (a complaint must give defendants fair notice of 12 the claims against them). If a plaintiff fails to clearly and concisely set forth factual 13 allegations sufficient to provide defendants with notice of which defendant is being 14 sued on which theory and what relief is being sought against them, the pleading fails 15 to comply with Rule 8. See, e.g., McHenry v. Renne, 84 F.3d 1172, 1177-79 (9th Cir. 16 1996); Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 674 (9th Cir. 1981). A 17 claim has “substantive plausibility” if a plaintiff alleges “simply, concisely, and 18 directly [the] events” that entitle him to damages. Johnson v. City of Shelby, 574 19 U.S. 10, 12 (2014). Failure to comply with Rule 8 constitutes an independent basis 20 for dismissal of a pleading that applies even if the claims are not found to be “wholly 21 without merit.” See McHenry, 84 F.3d at 1179. 22 Following careful review of the Complaint, the Court finds that plaintiff’s 23 pleading does not comply with Rule 8 because it fails to include a short and plain 24 statement of each claim that is sufficient to give each of the named defendants fair 25 notice of what plaintiff’s claims are and the grounds upon which each claim rests. 26 Further, as currently pled, the factual allegations appear insufficient to state a federal 27 civil rights claim on which relief may be granted against any defendant. Accordingly, 28 1 the Complaint is dismissed with leave to amend to correct the deficiencies as 2 discussed in this Order. See Rosati, 791 F.3d at 1039 (“A district court should not 3 dismiss a pro se complaint without leave to amend unless it is absolutely clear that 4 the deficiencies of the complaint could not be cured by amendment.”) (internal 5 quotation marks omitted). 6 If plaintiff desires to pursue this action, he is ORDERED to file a First 7 Amended Complaint no later than thirty (30) days after the date of this Order, 8 remedying the deficiencies discussed herein. Plaintiff is admonished that, if he 9 fails to timely file a First Amended Complaint or fails to remedy the deficiencies of 10 his pleading, the Court will recommend that this action be dismissed with prejudice 11 and without further leave to amend.1 12 A. RULE 8 13 Plaintiff’s pleading violates Rule 8 in that it fails to allege a minimum factual 14 and legal basis for each claim that is sufficient to give any defendant fair notice of 15 what federal claim(s) plaintiff is raising in this action and which factual allegations 16 in the pleading give rise to each such claim. 17 Initially, plaintiff is admonished that, irrespective of his pro se status, he must 18 comply with the Federal Rules of Civil Procedure and the Local Rules of the United 19 States District Court for the Central District of California (“L.R.”). See, e.g., Briones 20 v. Riviera Hotel & Casino, 116 F.3d 379, 382 (9th Cir. 1997) (“pro se litigants are 21 not excused from following court rules”); L.R. 1-3; L.R. 83-2.2.3 (“Any person

22 1 Plaintiff is advised that this Court’s determination herein that the allegations in the Complaint 23 are insufficient to state a particular claim should not be seen as dispositive of that claim. 24 Accordingly, although this Court believes that you have failed to plead sufficient factual matter in your pleading, accepted as true, to state a claim to relief that is plausible on its face, you are not 25 required to omit any claim or defendant in order to pursue this action. However, if you decide to pursue a claim in a First Amended Complaint that this Court has found to be insufficient, then this 26 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, 27 subject to your right at that time to file Objections with the district judge as provided in the Local 28 Rules Governing Duties of Magistrate Judges. 1 appearing pro se is required to comply with these Local Rules” and with all Federal 2 Rules.). Plaintiff’s Complaint violates, inter alia, L.R. 11-3.3 requiring that each 3 page of a pleading be numbered consecutively, and L.R. 83-2.2.1, which prohibits a 4 person proceeding pro se from delegating his or her pro se representation to any other 5 person. In the Complaint filed in this action, a non-party identified as “pro se 6 litigator, Nikko Krohn,” indicates that he has filed the action “on behalf” of plaintiff. 7 (ECF No. 1 at 2.) A non-attorney, however, may not bring any claims on behalf of 8 any other party. See, e.g., See Johns v. Cnty. of San Diego, 114 F.3d 874, 876 (9th 9 Cir. 1997); United States v. Mitchell, 915 F.2d 521, 526 n.8 (9th Cir. 1990) (a pro se 10 litigant does not have standing to raise the claims of other persons whose rights may 11 have been violated); C.E. Pope Equity Trust v. United States, 818 F.2d 696, 697 (9th 12 Cir. 1987) (a non-attorney may appear pro se on his own behalf, but “has no authority 13 to appear as an attorney for others”). If plaintiff wishes to proceed with any claims 14 in this action, then he must raise those claims on his own behalf. 15 In addition, plaintiff appears to be bringing only one claim in this action, and 16 plaintiff appears to be alleging that all defendants deprived plaintiff of his right to 17 constitutionally adequate medical care under the Eighth Amendment. (ECF No. 1 at 18 3.) Plaintiff’s factual allegations concerning his medical treatment, however, appear 19 to primarily be limited to actions taken or not taken by one defendant, Dr. Mank. (Id. 20 at 3-5.) To state a federal civil rights claim against a specific defendant, plaintiff 21 must allege that the specific defendant deprived him of a right guaranteed under the 22 United States Constitution. See West v. Atkins, 487 U.S. 42, 48 (1988). In his 23 Complaint, plaintiff fails to allege “simply, concisely, and directly [the] events” that 24 entitle him to damages from each named defendant. Johnson, 574 U.S. at 12. Most 25 of the factual allegations in the pleading appear to pertain to an incident on 26 September 9, 2021, when plaintiff received medical treatment from Dr. Mank for 27 about an hour after plaintiff fell from a top bunk in plaintiff’s cell. (Id.) Otherwise, 28 plaintiff merely states the entirely unsupported allegations that defendant Dr. Nguyen 1 “reffered [sic] plaintiff for [unspecified] surgery on October 15, 2021,” (id. at 2); that 2 an emergency room doctor, Dr. Torres, “ordered plaintiff return [sic] for oral 3 surgery” (id.); that defendant Gomez, who is alleged to have been “acting in the role 4 of UR Committee [sic],” denied “plaintiff [an] oral surgery consult [sic]” (id.). It is 5 not clear how any of these conclusory allegations pertain to the medical care that 6 plaintiff received on the date of the incident. In addition, Captain Stickles is not 7 alleged to have taken any action; instead plaintiff merely states that this defendant 8 was “responsible for smooth daily opperations [sic] of all departments including 9 medical.” (Id.) Similarly, the only allegation pertaining to Warden Gutierrez is that 10 he was “responsible for all inmates [sic] health and safety.” (Id.) 11 Because plaintiff fails to set forth any facts in the pleading to connect the 12 allegedly “denied” surgery or actions allegedly taken by the other named defendants 13 to the incident on September 9, 2021, plaintiff’s pleading fails to allege “simply, 14 concisely, and directly events” that are sufficient to inform each defendant of the 15 factual grounds giving rise to plaintiff’s claims against each defendant. Johnson, 574 16 U.S. at 12; see also Kwai Fun Wong v. United States, 373 F.3d 952, 966 (9th Cir. 17 2004) (dismissing a Bivens claim where the pleading “fail[ed] to identify what role, 18 if any, each individual defendant had in” the alleged unconstitutional conduct). 19 Further, plaintiff appears to be naming Warden Gutierrez, Captain Stickles, 20 and Robert Gomez in their supervisory capacities. To the extent that plaintiff is 21 intending to name any of these defendants in his or her role as a supervisor, “vicarious 22 liability is inapplicable to [a] Bivens” claim. Rather, plaintiff “must plead that each 23 Government-official defendant, through the official’s own individual actions, has 24 violated the Constitution.” Iqbal, 556 U.S. at 676 (“Government officials may not 25 be held liable for the unconstitutional conduct of their subordinates under a theory of 26 respondeat superior”); Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 70 (2001) (“The 27 purpose of Bivens is to deter individual federal officers from committing 28 constitutional violations.”). Here, plaintiff does not allege facts raising a plausible 1 inference that Warden Gutierrez, Captain Stickles, or Robert Gomez took an action 2 or failed to take an action that he or she was legally required to do at any relevant 3 time that violated plaintiff’s Constitutional rights under the Eighth Amendment. 4 Also, within his one claim, plaintiff alleges that Dr. Mank falsified documents 5 “by purposely neglecting to mention he was the staff member who witnessed 6 [plaintiff] fall off the top bunk.” (ECF No. 1 at 5.) However, plaintiff’s only claim 7 in this action appears to arise under the Eighth Amendment, and plaintiff does not 8 allege any facts to show how his allegation that Dr. Mank falsified documents is 9 relevant to a claim under the Eighth Amendment. Accordingly, it is unclear to the 10 Court how plaintiff’s allegation that Dr. Mank “falsified documents” pertains to 11 whatever claims plaintiff is purporting to raise in herein. 12 Because plaintiff is appearing pro se, the Court must construe his allegations 13 liberally and must afford him the benefit of any doubt, but the Court does not accept 14 as true conclusory allegations that are unsupported by specific facts. See, e.g., 15 Salameh, 726 F.3d at 1129; Hebbe, 627 F.3d at 342. Accordingly, plaintiff’s 16 unsupported allegations that he was denied “oral surgery” for an unspecified medical 17 condition at an unspecified time, or that he was denied an “oral surgery” consultation 18 (ECF No. 1 at 2), are disregarded in determining whether the factual allegations in 19 plaintiff’s Complaint are sufficient to state any plausible claim under the Eighth 20 Amendment. See, e.g., Keates, 883 F.3d at 1243. A pleading such as the Complaint 21 herein that alleges “naked assertion[s] devoid of further factual enhancement” is 22 insufficient to comply with Rule 8. Iqbal, 556 U.S. at 678 (alteration in original, 23 internal quotation marks omitted). 24 Plaintiff’s claim(s) arose from an incident while plaintiff was incarcerated in a 25 Federal Prison, and, as noted above, any claims against federal prison officials may 26 only be raised pursuant to Bivens. To the extent that plaintiff is purporting to raise 27 any constitutional claims pursuant to Section 1983, this law “only provides a remedy 28 against persons acting under color of state law” and not against federal officials. 1 See, e.g., Ibrahim v. Dep’t of Homeland Sec., 538 F.3d 1250, 1257 (9th Cir. 2008). 2 Rather, a Bivens claim in some circumstances allows for “an implied right of action 3 for damages against federal officers alleged to have violated a citizen’s constitutional 4 rights.” Vega v. United States, 881 F.3d 1146, 1152 (9th Cir. 2018); see also Abassi, 5 137 S. Ct. at 1854-55. However, a cause of action pursuant to Bivens has been 6 extended to cover only limited constitutional violations. The Supreme Court has 7 made clear that the Court must determine the availability of a Bivens remedy at the 8 earliest possible stage in litigation. Hernandez v. Mesa, 137 S. Ct. 2003, 2006 (2017). 9 In addition, the Supreme Court “has made clear that expanding the Bivens remedy is 10 now a ‘disfavored’ judicial activity.” Abassi, 137 S. Ct. at 1857 (citing Iqbal, 556 11 U.S. at 675); Pettibone v. Russell, 59 F.4th 449, 2023 U.S. App. Lexis 2649 at *15 12 (9th Cir. 2023) (the Supreme Court also has instructed lower courts to look only to 13 “the three cases in which the [Supreme] Court has implied a damages action”) (citing 14 Egbert v. Boule, 142 S. Ct. 1793, 1803 (2022)). Because the Court has found that 15 plaintiff’s pleading violates Rule 8, it is not possible to discern exactly what 16 constitutional violation(s) plaintiff is purporting to allege in this action. Accordingly, 17 the Court cannot determine if the Supreme Court has found an implied right of action 18 in a similar case. Plaintiff, however, may be able to raise a Bivens claim alleging that 19 specific prison officials acted with deliberate indifference in providing plaintiff with 20 medical care for a serious medical need. See, e.g., Carlson v. Green, 446 U.S. 14, 21 17-18 (1980) (recognizing an Eighth Amendment Bivens claim for deliberate 22 indifference to serious medical needs). 23 Plaintiff is a pro se prisoner, and the Court has liberally construed the pleading 24 as attempting to raise a claim or claims pursuant to Bivens. Following careful review 25 of the Complaint, however, it is unclear to the Court what and how many federal civil 26 rights claims plaintiff intends to allege in this action against which defendant(s). To 27 state any federal claim against an individual defendant, plaintiff must allege 28 sufficient factual allegations to nudge each claim plaintiff wishes to raise against a 1 particular defendant “across the line from conceivable to plausible.” See Twombly, 2 550 U.S. at 570; see also McHenry, 84 F.3d at 1177 (Rule 8 requires at a minimum 3 that a pleading allow each defendant to discern what he or she is being sued for). In 4 addition, the Supreme Court has held that, while a plaintiff need not plead the exact 5 legal basis for a claim, plaintiff must allege “simply, concisely, and directly events” 6 that are sufficient to inform a defendant of the factual grounds for each claim. 7 Johnson, 574 U.S. at 12. That said, the Supreme Court has made clear that the Court 8 has “no obligation to act as counsel or paralegal to pro se litigants.” Pliler v. Ford, 9 542 U.S. 225, 231 (2004). Here, even construing the factual allegations of the 10 pleading liberally and affording plaintiff the benefit of any doubt, as currently pled, 11 it is not clear how many claims plaintiff is purporting to raise in this action, which 12 claim he is raising against which defendant, or the factual basis for any claim. 13 Accordingly, the Court finds that plaintiff has failed to meet his pleading 14 burden of clearly and concisely setting forth a minimal factual and legal basis 15 sufficient to provide each defendant with fair notice of which defendant is being sued 16 on which theory and what relief is being sought against them. Therefore, the Court 17 finds that plaintiff’s Complaint fails to comply with Rule 8. See, e.g., McHenry, 84 18 F.3d at 1177-79. To the extent that plaintiff wishes to state one or more federal civil 19 rights claims against a specific defendant in this action, plaintiff should set forth in a 20 First Amended Complaint “simply, concisely, and directly” the actions that each such 21 defendant took that caused plaintiff to suffer a specific constitutional deprivation. 22 See, e.g., Johnson, 574 U.S. at 12. 23 B. EIGHTH AMENDMENT CLAIM(S) 24 Plaintiff appears to be raising his sole claim under the Eighth Amendment 25 against all defendants arising from medical treatment that Dr. Mank provided to 26 plaintiff during one hour on September 9, 2021, after plaintiff fell from his top bunk 27 in his cell. The Court notes that plaintiff sets forth no facts to plausibly support his 28 assertion that Dr. Mank witnessed plaintiff “fall from a top bunk.” (ECF No. 1 at 3.) 1 To state a claim for constitutionally inadequate medical care under the Eighth 2 Amendment, a prisoner must show that a specific defendant was deliberately 3 indifferent to his serious medical needs. See Helling v. McKinney, 509 U.S. 25, 32 4 (1993); Estelle v. Gamble, 429 U.S. 97, 106 (1976). “This includes both an objective 5 standard—that the deprivation was serious enough to constitute cruel and unusual 6 punishment—and a subjective standard—deliberate indifference.” Colwell v. 7 Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014) (internal quotation marks omitted). 8 First, to meet the objective element of a deliberate indifference claim, a 9 prisoner “must demonstrate the existence of a serious medical need.” Colwell, 763 10 F.3d at 1066. “A medical need is serious if failure to treat it will result in significant 11 injury or the unnecessary and wanton infliction of pain.” Peralta v. Dillard, 744 F.3d 12 1076, 1081 (9th Cir. 2014) (en banc) (internal quotation marks omitted). In his 13 Complaint, plaintiff does not set forth any facts showing that he suffered from a 14 specific and serious medical need at the time that he was treated by Dr. Mank. 15 Plaintiff alleges that he fell from a top bunk, but he does not set forth facts alleging 16 what serious injuries he sustained from the fall. Further, plaintiff alleges that he 17 received immediate treatment from Dr. Mank at the federal facility where the fall 18 occurred, and he was sent to an outside hospital for further treatment about an hour 19 after his fall. Plaintiff does not allege what treatment he received at the outside 20 hospital, what medical diagnoses he received at any relevant time, or what serious 21 medical need he feels was not adequately treated by the named defendants. 22 Accordingly, plaintiff’s Complaint fails to allege sufficient facts to allow the Court 23 to draw a plausible inference that plaintiff was suffering from a serious medical need 24 at the time that he received medical treatment from any of the named defendants. 25 Second, to meet the subjective element of a deliberate indifference claim, a 26 prisoner must demonstrate that a specific official acted with deliberate indifference. 27 See Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004). Deliberate indifference 28 may be manifest by the intentional denial, delay, or interference with a prisoner’s 1 medical care. See Estelle, 429 U.S. at 104-05. The official, however, “must not only 2 ‘be aware of facts from which the inference could be drawn that a substantial risk of 3 serious harm exists,’ but that person ‘must also draw the inference.’” Toguchi, 391 4 F.3d at 1057 (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)); see also 5 Colwell, 763 F.3d at 1066 (a “prison official is deliberately indifferent . . . only if the 6 official knows of and disregards an excessive risk to inmate health and safety” 7 (internal quotation marks omitted)). Thus, an inadvertent failure to provide adequate 8 medical care, negligence, a mere delay in medical care (without more), or a difference 9 of opinion over proper medical treatment, are all insufficient to constitute an Eighth 10 Amendment violation. See Estelle, 429 U.S. at 105-07; Toguchi, 391 F.3d at 1057- 11 60; Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); Shapley v. Nevada Bd. of 12 State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). “Medical malpractice does 13 not become a constitutional violation merely because the victim is a prisoner.” 14 Estelle, 429 U.S. at 106. 15 Here, plaintiff’s Complaint fails to set forth any factual allegations showing 16 that Dr. Mank (or any other named defendant) was aware that plaintiff suffered from 17 a serious medical need during the approximately one hour in which Dr. Mank is 18 alleged to have treated plaintiff at CSP-LAC, that Dr. Mank was “aware of facts from 19 which the inference could be drawn that a substantial risk of serious harm” to plaintiff 20 existed in the absence of additional and immediate medical treatment, or that 21 Dr. Mank knew of and disregarded an excessive risk to plaintiff’s health arising from 22 his failure to provide such additional treatment for plaintiff’s serious medical need(s). 23 See, e.g., Toguchi, 391 F.3d at 1057. To the contrary, it appears that plaintiff is 24 alleging in this lawsuit that he received prompt medical treatment from Dr. Mank. 25 Plaintiff alleges, without any supporting facts, that Dr. Mank somehow witnessed 26 plaintiff fall from a top bunk while plaintiff was in his cell at approximately 12:30 27 p.m. Accepting plaintiff’s factual allegations as true for the purpose of determining 28 whether plaintiff’s pleading states any plausible claim upon which relief may be 1 granted, the pleading alleges that: Dr. Mank was present when plaintiff fell, Dr. Mank 2 provided treatment to plaintiff at least six times between 12:30 p.m. and 1:25 p.m., 3 including ordering an EKG at 1:12 p.m., and Dr. Mank referred plaintiff to an outside 4 medical facility for additional treatment at 1:25 p.m. (ECF No. 1 at 3-5.) 5 Plaintiff appears to disagree with the type of medication and treatment that 6 he was provided by Dr. Mank during the initial hour following plaintiff’s fall. 7 Plaintiff states the confusing allegation that Dr. Mank “went against all legal [sic] 8 training in the Medical field” when he placed plaintiff “into a sitting position without 9 previous x-rays.” (Id. at 3, 5 (capitalization in original).) However, plaintiff does 10 not allege that he has any experience in the medical field or with relevant medical 11 training. A mere “difference of opinion” between a prisoner and a medical provider 12 concerning what medical care is appropriate does not amount to deliberate 13 indifference. See, e.g., Edmo v. Corizon, Inc., 949 F.3d 489, 495 (9th Cir. 2020); 14 Toguchi, 391 F.3d at 1058-60. Plaintiff’s Complaint altogether fails to set forth any 15 facts from which a plausible inference could be drawn that a substantial risk of 16 serious harm existed from Dr. Mank’s alleged failure to provide additional or 17 different medical treatment before plaintiff was sent to an outside medical facility or 18 that Dr. Mank drew such an inference. Plaintiff’s mere speculation that Dr. Mank 19 was “aware” that plaintiff had had (at unspecified times) “episodes of vomiting” 20 (ECF No. 1 at 4) does not show that Dr. Mank was aware that a substantial risk to 21 plaintiff’s health existed by having plaintiff “placed on his back via [sic] stretcher 22 with a cirvical [sic] collar.” (ECF No. 1 at 4.) Moreover, plaintiff sets forth no facts 23 raising a plausible inference that the treatment that his medical caregivers at CSP- 24 LAC provided “was medically unacceptable under the circumstances” or that any 25 named defendant selected such treatment “in conscious disregard of an excessive risk 26 to plaintiff’s health.” See, e.g., Edmo, 949 F.3d at 495. 27 In addition, plaintiff mentions the denial of “oral surgery consut [sic]” by 28 defendant Gomez and an order issued at an unspecified time by an unspecified 1 “Emergency Room Doctor” that plaintiff “return for oral surgery,” but plaintiff fails 2 to allege what serious medical need the “oral surgery” was intended to treat, what 3 connection the surgery had to plaintiff’s fall from an upper bunk, or how any 4 defendant named in this action was aware that the failure to provide plaintiff with 5 “oral surgery” at any relevant time caused plaintiff to be exposed to an excessive risk 6 of harm. (See ECF No. 1 at 2.) Further, plaintiff does not allege in his Complaint 7 that he ever sought, or was denied, additional medical treatment from Dr. Mank at 8 any time in connection with a serious medical need that was caused by plaintiff’s fall. 9 Nothing in the limited factual allegations in the Complaint raises a plausible inference 10 that any action (or failure to take any action) by Dr. Mank caused plaintiff to suffer 11 significant injury or unnecessary pain. See, e.g., Peralta, 744 F.3d at 1086. 12 To the contrary, plaintiff appears to be alleging that Dr. Mank was negligent 13 or failed to provide medical care in accordance with medical standards during the 14 approximately one hour in which he treated plaintiff before plaintiff was referred to 15 an outside medical center. Mere negligence or “[m]edical malpractice does not 16 become a constitutional violation merely because the victim is a prisoner.” Estelle, 17 429 U.S. at 106. Even if plaintiff were to set forth sufficient facts to show that 18 Dr. Mank provided objectively unreasonable medical care, as the Ninth Circuit has 19 repeatedly emphasized: “[M]ere ‘indifference,’ ‘negligence,’ or ‘medical 20 malpractice’ is not enough to constitute deliberate indifference.” Edmo, 949 F.3d at 21 495 (some internal quotation marks omitted, alteration in original). 22 Because plaintiff is a prisoner proceeding pro se in this action, the Court has 23 accepted as true the factual allegations in the pleading and construed them in 24 plaintiff’s favor for the purpose of determining whether plaintiff’s Complaint states 25 any plausible claim upon which relief may be granted. As currently pled, plaintiff’s 26 pleading fails to allege that Dr. Mank was aware that plaintiff was suffering from a 27 serious medical need that required additional or different treatment while Dr. Mank 28 was treating plaintiff in the hour immediately following plaintiff’s fall from a top 1 bunk. Nor does plaintiff’s pleading allege that he ever sought and was refused further 2 medical treatment from Dr. Mank. 3 To the extent that plaintiff is purporting to raise a claim for medical 4 malpractice against any medical official named as a defendant in this action, this 5 Court does not have original jurisdiction over a claim that arises under state law. 6 “‘Federal courts are courts of limited jurisdiction,’ possessing ‘only that power 7 authorized by Constitution and statute.’” Gunn v. Minton, 568 U.S. 251, 256 (2013) 8 (quoting Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994)). “Absent a 9 substantial federal question,” a district court lacks subject matter jurisdiction, and 10 claims that are “wholly insubstantial” or “obviously frivolous” are insufficient to 11 “raise a substantial federal question for jurisdictional purposes.” Shapiro v. 12 McManus, 577 U.S. 39, 45-46 (2015). A “plaintiff bears the burden of proving” the 13 existence of subject matter jurisdiction and “must allege facts, not mere legal 14 conclusions” to invoke the court’s jurisdiction. Leite v. Crane Co., 749 F.3d 1117, 15 1121 (9th Cir. 2014). From the very few specific factual allegations in the Complaint, 16 it appears that plaintiff may be attempting to raise a claim for medical malpractice 17 against Dr. Mank, but this Court lacks subject matter jurisdiction over such a claim. 18 Further, the Court appears to lack subject matter jurisdiction over any Eighth 19 Amendment claim that plaintiff may be purporting to raise against any other 20 defendant because plaintiff fails to set forth facts showing that any claim under the 21 Eighth Amendment against any named defendant is more than wholly insubstantial. 22 If plaintiff wishes to state a federal civil rights claim pursuant to the Eighth 23 Amendment against any defendant, then plaintiff should set forth in a First Amended 24 Complaint a short and plain statement of the actions that each named defendant is 25 alleged to have taken, or failed to have taken, that caused plaintiff to suffer a specific 26 constitutional deprivation. 27 ************ 28 1 If plaintiff still desires to pursue this action, he is ORDERED to file a First 2 || Amended Complaint no later than thirty (30) days after the date of this Order, 3 || remedying the pleading deficiencies discussed above. The First Amended 4 || Complaint should bear the docket number assigned in this case; be labeled “First 5 || Amended Complaint”; and be complete in and of itself without reference to the 6 || original Complaint or any other pleading or document. Plaintiff is admonished that, 7 || irrespective of his pro se status, if plaintiff wishes to proceed with this action, then 8 || he must comply with the Federal Rules of Civil Procedure and the Local Rules of the 9 || United States District Court for the Central District of California. 10 The clerk is directed to send plaintiff a blank Central District civil rights 11 || complaint form, which plaintiff is encouraged to utilize. Plaintiff is admonished that 12 || he must sign the civil rights complaint form, and he must use the space provided in 13 || the form to set forth all of the claims that he wishes to assert in a First Amended 14 || Complaint. Further, if plaintiff feels that any document is integral to any of his 15 || claims, then he should attach such document as an exhibit at the end of the First 16 || Amended Complaint and clearly allege the relevance of each attached document to 17 || the applicable claim raised in the First Amended Complaint. In addition, if plaintiff 18 || no longer wishes to pursue this action, then he may request a voluntary dismissal of 19 || the action pursuant to Federal Rule of Civil Procedure 41(a). The clerk also is 20 || directed to attach a Notice of Dismissal form for plaintiff's convenience. 21 Plaintiff is further admonished that, if he fails to timely file a First 22 || Amended Complaint, or if he fails to remedy the deficiencies of this pleading as 23 || discussed herein, then the Court will recommend that the action be dismissed 24 || on the grounds set forth above and for failure to diligently prosecute. 25 IT IS SO ORDERED. ° 26 || DATED: 3/30/2023 (Wy □ ALEXANDER F. MacKINNON 28 UNITED STATES MAGISTRATE JUDGE 16