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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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9 10 XAVIER M. FLESHER, Case No. CV 20-3937-AB (KK) 11 Plaintiff, 12 v. ORDER DISMISSING COMPLAINT

WITH LEAVE TO AMEND

13 LOS ANGELES COUNTY JAIL

MEDICAL STAFF, ET AL.,

14 Defendant(s). 15 16 17 I. 18 INTRODUCTION 19 Plaintiff Xavier M. Flesher (“Plaintiff”), proceeding pro se and in forma 20 pauperis, filed a Complaint pursuant to 42 U.S.C. § 1983 (“Section 1983”) alleging his 21 “civil rights were violated”. For the reasons discussed below, the Court dismisses the 22 Complaint with leave to amend. 23 /// 24 /// 25 /// 26 /// 27 /// 1 II. 2 ALLEGATIONS IN THE COMPLAINT 3 On April 21, 2020, Plaintiff, who is currently detained at Wasco State Prison, 4 constructively filed1 the Complaint against Los Angeles County Jail Medical Staff2 and 5 Dr. Ryu, a physician at “JWCH Medical Clinic,”3 (collectively, “Defendants”) in their 6 official capacity. ECF Docket No. (“Dkt.”) 1. Plaintiff alleges his “civil rights were 7 violated on two separate occasions [by] medical malpractice.” Id. at 5. He alleges he 8 was “violated morally physically and character defamed.” Id. Plaintiff alleges he was 9 “given a diagnoses of HIV antibody on two separate occasions by medical staff.” Id. 10 at 3. He also alleges he was “prescribed medications that deteriorated [his] body and 11 are harmful to health for over a year [after the] medical malpractice on two separate 12 13 1 Under the “mailbox rule,” when a pro se prisoner gives prison authorities a 14 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); see 15 Douglas v. Noelle, 567 F.3d 1103, 1107 (9th Cir. 2009) (stating the “mailbox rule applies to Section 1983 suits filed by pro se prisoners”). 16 2 “As a general rule, the use of ‘John[/Jane] Doe’ to identify a defendant is not 17 favored.” Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). Because Plaintiff is unaware of the true names of the unnamed Doe defendants, Plaintiff will be given the 18 opportunity to discover the names of the Doe defendants. Plaintiff is cautioned that if he is unable to timely identify the Doe defendants, the claims against the Doe 19 defendants will be subject to dismissal because the Court will not be able to order service against defendants who are unidentified. See Augustin v. Dep’t of Public 20 Safety, 2009 WL 2591370, at *3 (D. Hawai’i Aug. 24, 2009); Williams v. Schwarzenegger, 2006 WL 3486957, at *1 (E.D. Cal. Dec. 1, 2006). 21 3 “JWCH Medical Clinic” may be referring to the JWCH Institute, Inc., which appears to be a “private non-profit health agency.” See http://jwchinstitute.org/. In 22 order to state a claim for a civil rights violation under Section 1983, a plaintiff must allege a particular defendant, acting under color of state law, deprived the plaintiff of a 23 right guaranteed under the United States Constitution or a federal statute. 42 U.S.C. § 1983 (emphasis added); see West v. Atkins, 487 U.S. 42, 48, 108 S. Ct. 2250, 101 L. 24 Ed. 2d 40 (1988). Thus, private parties generally cannot be held liable under Section 1983. See Monroe v. Pape, 365 U.S. 167, 172, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961), 25 overruled in part by Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). Accordingly, if Plaintiff seeks to pursue a Section 1983 claim 26 against the JWCH Institute, Inc. or Dr. Ryu, Plaintiff must present specific facts to support the claim that a private party is acting under color of state law. See Price v. 27 State of Hawaii, 939 F.2d 702, 707-08 (9th Cir. 1991) (holding conclusory allegations 1 occasions.” Id. at 5. Plaintiff seeks “monetary relief d[ue] to medical malpractice.” 2 Id. at 6. 3 III. 4 STANDARD OF REVIEW 5 Where a plaintiff is incarcerated and/or proceeding in forma pauperis, a court 6 must screen the complaint under 28 U.S.C. §§ 1915 and 1915A and is required to 7 dismiss the case at any time if it concludes the action is frivolous or malicious, fails to 8 state a claim on which relief may be granted, or seeks monetary relief against a 9 defendant who is immune from such relief. 28 U.S.C. §§ 1915(e)(2)(B), 1915A; see 10 Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). 11 Under Federal Rule of Civil Procedure 8 (“Rule 8”), a complaint must contain a 12 “short and plain statement of the claim showing that the pleader is entitled to relief.” 13 Fed. R. Civ. P. 8(a)(2). In determining whether a complaint fails to state a claim for 14 screening purposes, a court applies the same pleading standard as it would when 15 evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). See 16 Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). 17 A complaint may be dismissed for failure to state a claim “where there is no 18 cognizable legal theory or an absence of sufficient facts alleged to support a 19 cognizable legal theory.” Zamani v. Carnes, 491 F.3d 990, 996 (9th Cir. 2007). In 20 considering whether a complaint states a claim, a court must accept as true all of the 21 material factual allegations in it. Hamilton v. Brown, 630 F.3d 889, 892-93 (9th Cir. 22 2011). However, the court need not accept as true “allegations that are merely 23 conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re 24 Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). Although a complaint 25 need not include detailed factual allegations, it “must contain sufficient factual matter, 26 accepted as true, to state a claim to relief that is plausible on its face.” Cook v. 27 Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 1 “allows the court to draw the reasonable inference that the defendant is liable for the 2 misconduct alleged.” Id. The complaint “must contain sufficient allegations of 3 underlying facts to give fair notice and to enable the opposing party to defend itself 4 effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). 5 “A document filed pro se is ‘to be liberally construed,’ and a ‘pro se complaint, 6 however inartfully pleaded, must be held to less stringent standards than formal 7 pleadings drafted by lawyers.’” Woods v. Carey, 525 F.3d 886, 889-90 (9th Cir. 2008). 8 However, liberal construction should only be afforded to “a plaintiff’s factual 9 allegations,” Neitzke v. Williams, 490 U.S. 319, 330 n.9, 109 S. Ct. 1827, 104 L. Ed. 2d 10 339 (1989), and a court need not accept as true “unreasonable inferences or assume 11 the truth of legal conclusions cast in the form of factual allegations,” Ileto v. Glock 12 Inc., 349 F.3d 1191, 1200 (9th Cir. 2003). 13 If a court finds the complaint should be dismissed for failure to state a claim, 14 the court has discretion to dismiss with or without leave to amend. Lopez v. Smith, 15 203 F.3d 1122, 1126-30 (9th Cir. 2000). Leave to amend should be granted if it 16 appears possible the defects in the complaint could be corrected, especially if the 17 plaintiff is pro se. Id. at 1130-31; see also Cato v. United States, 70 F.3d 1103, 1106 18 (9th Cir. 1995). However, if, after careful consideration, it is clear a complaint cannot 19 be cured by amendment, the court may dismiss without leave to amend. Cato, 70 20 F.3d at 1107-11; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 972 (9th Cir. 2009). 21 IV. 22 DISCUSSION 23 A. THE COMPLAINT FAILS TO COMPLY WITH RULE 8 24 1. Applicable Law 25 Rule 8 requires a complaint contain “a short and plain statement of the claim 26 showing that the pleader is entitled to relief” and “a demand for the relief sought.” 27 Fed. R. Civ. P. 8. Rule 8(a) “requires a ‘showing,’ rather than a blanket assertion, of 1 Ct. 1955, 167 L. Ed. 2d 929 (2007). “[T]he ‘short and plain statement’ [required by 2 Rule 8] must provide the defendant with ‘fair notice of what the plaintiff’s claim is 3 and the grounds upon which it rests.’” Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 4 346, 125 S. Ct. 1627, 161 L. Ed. 2d 577 (2005). “Experience teaches that, unless cases 5 are pled clearly and precisely, issues are not joined, discovery is not controlled, the 6 trial court’s docket becomes unmanageable, the litigants suffer, and society loses 7 confidence in the court’s ability to administer justice.” Bautista v. L.A. Cty., 216 F.3d 8 837, 841 (9th Cir. 2000). 9 2. Analysis 10 Here, the conclusory allegations in the Complaint prevent the Court, and any 11 defendants, from deciphering the factual and legal basis for each defendant’s alleged 12 liability. See Clayburn v. Schirmer, 2008 WL 564958, at *4 (E.D. Cal. Feb. 28, 2008) 13 (“The court (and any defendant) should be able to read and understand Plaintiff’s 14 pleading within minutes.” (citing McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 15 1996))). The Complaint leaves the Court with a barebones statement that his rights 16 have been violated and the Court cannot determine who the defendants are, what 17 specific law(s) each defendant is alleged to have violated, or what specific actions each 18 defendant took. See id. 19 Plaintiff fails to provide any specific facts regarding what alleged actions taken 20 by each defendant resulted in a violation of his civil rights. For example, it is not clear 21 whether it was Plaintiff’s diagnosis with HIV antibodies, see dkt. 1 at 3, or the 22 medication he received, see id. at 5, that caused his injuries. Absent specific 23 allegations identifying what actions each defendant took against Plaintiff and how 24 such actions violated Plaintiff’s rights, the Complaint fails to provide any defendant 25 with fair notice of Plaintiff’s claims or the grounds upon which they rest. Ultimately, 26 unclear pleadings, like the FAC, that “leav[e] it to the Court to figure out what the full 27 array of [Plaintiff’s] claims is and upon what federal law, and upon what facts, each 1 2013 WL 436018, at *3 (C.D. Cal. Feb. 1, 2013). Accordingly, Plaintiff’s Complaint 2 does not set forth a “short and plain statement” of his claims as required by Rule 8. 3 Dura Pharms., Inc., 544 U.S. at 346. 4 As such, the Complaint is subject to dismissal for failure to comply with Rule 8. 5 See McHenry, 84 F.3d at 1177. If Plaintiff chooses to file an amended complaint, he 6 must identify the legal and factual basis for each defendants’ alleged liability. 7 B. THE COMPLAINT FAILS TO STATE A SECTION 1983 CLAIM 8 AGAINST DEFENDANTS IN THEIR OFFICIAL CAPACITY 9 1. Applicable Law 10 A municipality can be liable under Section 1983 “when execution of a 11 government’s policy or custom” inflicts a constitutional injury. Monell v. Dep’t of 12 Soc. Servs. of City of N.Y., 436 U.S. 658, 694, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). 13 An “official-capacity suit is, in all respects other than name, to be treated as a suit 14 against the entity.” Kentucky v. Graham, 473 U.S. 159, 166, 105 S. Ct. 3099, 87 L. 15 Ed. 2d 114 (1985); see also Brandon v. Holt, 469 U.S. 464, 471-72, 105 S. Ct. 873, 83 16 L. Ed. 2d 878 (1985); Larez v. City of L.A., 946 F.2d 630, 646 (9th Cir. 1991). Such a 17 suit “is not a suit against the official personally, for the real party in interest is the 18 entity.” Graham, 473 U.S. at 166. 19 To state a cognizable Section 1983 claim against a municipality or local 20 government officer in his or her official capacity, a plaintiff must show the alleged 21 constitutional violation was committed “pursuant to a formal governmental policy or 22 a ‘longstanding practice or custom which constitutes the “standard operating 23 procedure” of the local governmental entity.’” Gillette v. Delmore, 979 F.2d 1342, 24 1346 (9th Cir. 1992). Proof of random acts or isolated events is insufficient to 25 establish a custom or practice. Thompson v. City of L.A., 885 F.2d 1439, 1444 (9th 26 Cir. 1989). Rather, a plaintiff must prove widespread, systematic constitutional 27 violations which have become the force of law. Board of Cty. Comm’rs of Bryan Cty. 1 plaintiff must show the policy, practice, or custom was “(1) the cause in fact and (2) 2 the proximate cause of the constitutional deprivation.” Trevino v. Gates, 99 F.3d 3 911, 918 (9th Cir. 1996). 4 2. Analysis 5 Here, Plaintiff fails to state a Section 1983 claim against Defendants in their 6 official capacity because Plaintiff fails to identify any widespread, systematic 7 constitutional violations that have become the force of law or formal governmental 8 policy pursuant to which Defendants acted. See Brown, 520 U.S. at 404; Gillette, 979 9 F.2d at 1346. In fact, Plaintiff alleges his “civil rights were violated on two separate 10 occasions”, dkt. 1 at 5, which is not sufficient to establish a custom or practice. 11 Thompson, 885 F.2d 1439. Plaintiff has, therefore, failed to allege a policy, practice, 12 or custom, that was “(1) the cause in fact and (2) the proximate cause of the 13 constitutional deprivation.” Trevino, 99 F.3d at 918. Accordingly, Plaintiff’s Section 14 1983 claims against Defendants in their official capacity are subject to dismissal. 15 C. THE COMPLAINT FAILS TO STATE A CLAIM FOR 16 INADEQUATE MEDICAL CARE OR DELIBERATE 17 INDIFFERENCE 18 1. Applicable Law 19 The Fourteenth Amendment governs claims for violations of the right to 20 adequate medical care brought by pretrial detainees. Gordon v. Cty. of Orange, 888 21 F.3d 1118, 1124-25 (9th Cir. 2018), cert. denied sub nom. Cty. of Orange, Cal. v. 22 Gordon, 139 S. Ct. 794, 202 L. Ed. 2d 571 (2019). A claim of denial of the right to 23 adequate medical care under the Fourteenth Amendment is analyzed under an 24 objective deliberate indifference standard. Id. The elements of such a claim are: 25 (i) the defendant made an intentional decision with respect to the 26 conditions under which the plaintiff was confined; (ii) those conditions 27 put the plaintiff at substantial risk of suffering serious harm; (iii) the 1 even though a reasonable official in the circumstances would have 2 appreciated the high degree of risk involved—making the consequences 3 of the defendant’s conduct obvious; and (iv) by not taking such 4 measures, the defendant caused the plaintiff’s injuries. 5 Id. 6 “With respect to the third element, the defendant’s conduct must be objectively 7 unreasonable, a test that will necessarily ‘turn[ ] on the facts and circumstances of each 8 particular case.’” Id. (quoting Castro v. County of Los Angeles, 833 F.3d 1060, 1071 9 (9th Cir. 2016)). The “‘mere lack of due care’” is insufficient. Id. (quoting Daniels v. 10 Williams, 474 U.S. 327, 330-31, 106 S. Ct. 662, 88 L. Ed. 2d 662 (1986)). A plaintiff 11 must “prove more than negligence but less than subjective intent – something akin to 12 reckless disregard.” Id.; Sarkiss v. Duncan, No. CV 17-06866-VAP (DFM), 2017 WL 13 10562979, at *6 (C.D. Cal. Sept. 22, 2017) (“[A] claim of medical malpractice or mere 14 negligence is insufficient to make out a Fourteenth Amendment claim.”). 15 2. Analysis 16 Here, Plaintiff4 appears to seek relief for “medical malpractice,” which is 17 insufficient to allege a Fourteenth Amendment claim. See Sarkiss, 2017 WL 18 10562979, at *6. Hence, Plaintiff’s Section 1983 claim for inadequate medical care is 19 subject to dismissal. 20 /// 21 /// 22

23 4 Plaintiff fails to allege whether the alleged constitutional violations occurred before or after he was convicted. Therefore, it is not entirely clear whether the 24 Fourteenth Amendment standards apply or whether the often harder-to-prove Eighth Amendment “subjective” standard would apply. Kingsley v. Hendrickson, 576 U.S. 25 389, 135 S. Ct. 2466, 192 L. Ed. 2d 416 (2015) (noting the standard applicable to Fourteenth Amendment excessive force cases is the same as the Fourth Amendment 26 “objective” test, rather than the often harder-to-prove Eighth Amendment “subjective” standard). Nevertheless, because Plaintiff has failed to state a claim 27 under the Fourteenth Amendment, a claim under the Eighth Amendment would also 1 V. 2 LEAVE TO FILE A FIRST AMENDED COMPLAINT 3 For the foregoing reasons, the Complaint is subject to dismissal. As the Court 4 is unable to determine whether amendment would be futile, leave to amend is granted. 5 See Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam). Plaintiff is 6 advised that the Court’s determination herein that the allegations in the Complaint are 7 insufficient to state a particular claim should not be seen as dispositive of that claim. 8 Accordingly, while the Court believes Plaintiff has failed to plead sufficient factual 9 matter in his pleading, accepted as true, to state a claim to relief that is viable on its 10 face, Plaintiff is not required to omit any claim in order to pursue this action. 11 However, if Plaintiff asserts a claim in his First Amended Complaint that has been 12 found to be deficient without addressing the claim’s deficiencies, then the Court, 13 pursuant to the provisions of 28 U.S.C. § 636, ultimately will submit to the assigned 14 district judge a recommendation that such claim be dismissed with prejudice for 15 failure to state a claim, subject to Plaintiff’s right at that time to file Objections with 16 the district judge as provided in the Local Rules Governing Duties of Magistrate 17 Judges. 18 Accordingly, IT IS ORDERED THAT within twenty-one (21) days of the 19 service date of this Order, Plaintiff choose one of the following three options: 20 1. Plaintiff may file a First Amended Complaint to attempt to cure the 21 deficiencies discussed above. The Clerk of Court is directed to mail Plaintiff a blank 22 Central District civil rights complaint form to use for filing the First Amended 23 Complaint, which the Court encourages Plaintiff to use. 24 If Plaintiff chooses to file a First Amended Complaint, he must clearly 25 designate on the face of the document that it is the “First Amended Complaint,” it 26 must bear the docket number assigned to this case, and it must be retyped or 27 rewritten in its entirety, preferably on the court-approved form. Plaintiff shall not 1 asserted in the Complaint. In addition, the First Amended Complaint must be 2 complete without reference to the Complaint, or any other pleading, attachment, or 3 document. 4 An amended complaint supersedes the preceding complaint. Ferdik v. 5 Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). After amendment, the Court will treat 6 all preceding complaints as nonexistent. Id. Because the Court grants Plaintiff 7 leave to amend as to all his claims raised here, any claim raised in a preceding 8 complaint is waived if it is not raised again in the First Amended Complaint. 9 Lacey v. Maricopa Cty., 693 F.3d 896, 928 (9th Cir. 2012). 10 The Court advises Plaintiff that it generally will not be well-disposed toward 11 another dismissal with leave to amend if Plaintiff files a First Amended Complaint 12 that continues to include claims on which relief cannot be granted. “[A] district 13 court’s discretion over amendments is especially broad ‘where the court has already 14 given a plaintiff one or more opportunities to amend his complaint.’” Ismail v. Cty. 15 of Orange, 917 F. Supp. 2d 1060, 1066 (C.D. Cal. 2012); see also Ferdik, 963 F.2d at 16 1261. Thus, if Plaintiff files a First Amended Complaint with claims on which 17 relief cannot be granted, the First Amended Complaint will be dismissed 18 without leave to amend and with prejudice. 19 2. Alternatively, Plaintiff may file a notice with the Court that he intends to 20 stand on the allegations in his Complaint. If Plaintiff chooses to stand on the 21 Complaint despite the deficiencies in the claims identified above, then the Court will 22 submit a recommendation to the assigned district judge that the entire action be 23 dismissed with prejudice for failure to state a claim, subject to Plaintiff’s right at 24 that time to file Objections with the district judge as provided in the Local Rules 25 Governing Duties of Magistrate Judges. 26 3. Finally, Plaintiff may voluntarily dismiss the action without prejudice, 27 pursuant to Federal Rule of Civil Procedure 41(a). The Clerk of Court is directed to 1 mail Plaintiff a blank Notice of Dismissal Form, which the Court encourages Plaintiff 2 to use if he chooses to voluntarily dismiss the action. 3 Plaintiff is explicitly cautioned that failure to timely respond to this 4 Order will result in this action being dismissed with prejudice for failure to 5 state a claim, or for failure to prosecute and/or obey Court orders pursuant to 6 Federal Rule of Civil Procedure 41(b). 7 8 Dated: May 18, 2020

9 HONORABLE KENLY KIYA KATO United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27