ORDER
ALLISON CLAIRE, Magistrate Judge.
Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this case, in which he seeks to challenge the alleged failure of his knee replacement surgery and inability to obtain restorative post-surgical medical care. By order filed November 28, 2017, the undersigned informed plaintiff of the deficiencies in his original complaint, and dismissed the complaint with leave to file a First Amended Complaint (FAC) within thirty days.
The court construes plaintiff's objections as a late request for extended time to file a FAC, and grants the request. Plaintiff will be given 30 days to file a First Amended Complaint. The pending findings and recommendations will accordingly be withdrawn.
The original screening order, ECF No. 10, informed plaintiff of the requirements for stating a claim for deliberate indifference to serious medical needs under the Eighth Amendment. In summary, the original complaint is deficient in two significant ways: (1) it does not identify the challenged conduct of each defendant (it contains "no charging allegations"); and (2) the facts plaintiff provided, if true, might establish medical malpractice but do not establish an Eighth Amendment violation. A medical malpractice case may be filed in state court. In order to proceed in federal court under 42 U.S.C. § 1983, the federal civil rights statute, plaintiff's claim must involve his constitutional rights.
In drafting his First Amended Complaint, plaintiff should review the Order dated November 28, 2017 (attached). He should do his best to follow the court's instructions. Amending the complaint does not require legal research or knowledge. To amend, plaintiff needs to provide
It is particularly important for the First Amended Complaint to identify who was (or is) responsible for the medical care or medical decisions he is challenging. The First Amended Complaint must also clearly identify the challenged conduct of each defendant — it is helpful to consider "who did what, when, and where" — and specifically describe how this challenged conduct caused or otherwise relates to plaintiff's knee problems. Also, in order to state an Eighth Amendment claim, plaintiff must allege specific facts, showing that each defendant
It may be helpful for plaintiff to consider two time frames: (1) his surgery and any complications arising directly from the surgery, and (2) his medical care afterwards. This framework may assist plaintiff in the identification of appropriate defendants and their respective challenged conduct.
Plaintiff is also reminded that he will only be allowed to proceed against San Joaquin General Hospital as a defendant if he can allege facts showing that a specific policy, practice or custom of the hospital was the "moving force" that resulted in the violation of plaintiff's constitutional rights. The hospital cannot be liable under § 1983 for the actions of its doctors or other employees unless a particular hospital policy caused those actions.
Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendations issued January 10, 2018 (ECF No. 13) are withdrawn.
2. Plaintiff's objections to the findings and recommendations (ECF No. 14) are construed as a request for extended to time to file a First Amended Complaint, which is granted.
3. Plaintiff is directed to file a First Amended Complaint within thirty (30) days after service of this order.
4. Failure to timely file a First Amended Complaint will result in a recommendation that this action be dismissed without prejudice.
5. The Clerk of Court is directed to send plaintiff, together with a copy of this order, the following: (i) a copy of plaintiff's original complaint (ECF No. 1); (ii) a copy of this court's order filed November 28, 2017 (ECF No. 10); and (iii) a blank complaint form used by prisoners in this district to pursue a civil rights action.
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