United States District Court, D. Montana, Helena Division
FINDINGS AND RECOMMENDATIONS OF UNITED STATES
JOHNSTON UNITED STATES MAGISTRATE JUDGE
Court screened Plaintiff Michael Drummond's Complaint as
required by 28 U.S.C. § 1915 and 28 U.S.C. § 1915A
determine if it was frivolous or malicious, fails to state a
claim upon which relief may be granted, or seeks monetary
relief from a defendant who is immune from such relief. (Doc.
8.) The Court determined that Mr. Drummond's allegations
were insufficient to state a claim and were subject to
dismissal. (Doc. 8.) Mr. Drummond was given an opportunity to
file an amended complaint which he has now done. The Amended
Complaint, however, contains the same allegations as the
original Complaint and therefore fails to state a claim.
Drummond continues to allege that on September 2, 2017 he
started having pain on his right side. He claims he submitted
numerous medical requests and was seen twice by Dr. Rees. Dr.
Rees told him the pain was caused by bowel problems and
prescribed two different medications. He claims the
medications were ineffective and he is still suffering from
Drummond's allegations against Dr. Rees are insufficient
to state an Eighth Amendment claim. Mr. Drummond alleges that
Dr. Rees has tried two different medications in an attempt to
resolve his medical issues. He also alleges that numerous
tests have been done which have come back negative. (Amended
Complaint, Doc. 9 at 7.) The fact that those medications have
been ineffective does not establish deliberate indifference.
Mr. Drummond has only alleged that Dr. Rees provided medical
care but was unsuccessful at relieving Mr. Drummond's
pain. He has not alleged sufficient facts to permit the court
to infer more than the mere possibility of misconduct.
See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009);
Fed.R.Civ.P. 8(a)(2). His allegations still fail to state a
claim for relief.
Drummond did not name the MSP Medical Department in his
Amended Complaint. He was specifically advised in the
Court's prior Order that once he files an amended
complaint, it replaces the original complaint, and the
original complaint no longer serves a function in the case.
Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir.
1992). Therefore, all claims against the MSP Medical
Department should be dismissed.
Court has considered whether Mr. Drummond could further amend
the complaint to state a claim upon which relief can be
granted. “Valid reasons for denying leave to amend
include undue delay, bad faith, prejudice, and
futility.” California Architectural Bldg. Prod. v.
Franciscan Ceramics, 818 F.2d 1466, 1472 (9th Cir.
1988); see also Klamath-Lake Pharm. Ass'n v. Klamath
Med. Serv. Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983)
(holding that while leave to amend shall be freely given, the
court does not have to allow futile amendments).
party's “repeated failure to cure
deficiencies” constitutes “a strong indication
that the [party] has no additional facts to plead” and
“that any attempt to amend would be futile[.]”
See Zucco Partners, LLC v. Digimarc Corp., 552 F.3d
981, 988, 1007 (9th Cir. 2009) (internal quotation marks
omitted) (upholding dismissal of complaint with prejudice
when there were “three iterations of [the]
allegations-none of which, according to [the district] court,
was sufficient to survive a motion to dismiss”);
see also Simon v. Value Behavioral Health, Inc., 208
F.3d 1073, 1084 (9th Cir. 2000) (affirming dismissal without
leave to amend where plaintiff failed to correct deficiencies
in complaint, where court had afforded plaintiff
opportunities to do so, and had discussed with plaintiff the
substantive problems with his claims), amended by
234 F.3d 428, overruled on other grounds by Odom
v. Microsoft Corp., 486 F.3d 541, 551 (9th Cir. 2007);
Plumeau v. Sch. Dist. # 40 Cnty. of Yamhill, 130
F.3d 432, 439 (9th Cir. 1997) (denial of leave to amend
appropriate where further amendment would be futile).
Mr. Drummond was advised that his allegations were
insufficient to state a claim and he was provided with the
relevant legal standards to consider in drafting his amended
pleading. His Amended Complaint, however, fails to add
relevant facts to proceed on his claims, suggesting that
there are no additional facts to plead. Thus, the Court finds
that amendment would be futile and will recommend that leave
to amend be denied.
“Strike” under 28 U.S.C. § 1915(g)
Prison Litigation Reform Act prohibits prisoners from
bringing forma pauperis civil actions if the prisoner has
brought three or more actions in federal court that were
dismissed for frivolousness, maliciousness, or for failure to
state a claim. 28 U.S.C. § 1915(g). The Court should
designate this case as a “strike” under this
provision because Mr. Drummond failed to state a claim.
Certification Regarding Appeal
Federal Rules of Appellate Procedure provide as follows:
[A] party who was permitted to proceed in forma pauperis in
the district-court action, or who was determined to be
financially unable to obtain an adequate defense in a
criminal case, may proceed on appeal in forma pauperis
without further authorization, unless: (A) the district
court-before or after the notice of appeal is filed-certifies
that the appeal is not taken in good faith or finds that the
party is not otherwise ...