Woods v. Ryan et al

Filing 15

ORDER Plaintiff's Second Amended Complaint 14 and this action are dismissed for failure to state a claim, and the Clerk of Court must enter judgment accordingly. The Clerk of Court must make an entry on the docket stating that the dismissal fo r failure to state a claim may count as a strike under 28:1915(g). The docket shall reflect that the Court certifies, pursuant to 28:1915(a)(3) and Federal Rules of Appellate Procedure 24(a)(3)(A), that any appeal of this decision would not be taken in good faith. Signed by Judge Robert C Broomfield on 10/21/11. (TLJ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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CHRISTOPHER L. WOODS,

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Plaintiff,

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vs.

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CHARLES L. RYAN, et al.,
Defendants.

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No. CV 11-1085-PHX-RCB (LOA)
ORDER

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Plaintiff Christopher L. Woods, who is confined in the Arizona State Prison Complex-

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Yuma in San Luis, Arizona, filed a pro se civil rights Complaint pursuant to 42 U.S.C.

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§ 1983. In a July 28, 2011 Order, the Court dismissed the Complaint because Plaintiff had

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failed to state a claim. The Court gave Plaintiff 30 days to file an amended complaint that

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cured the deficiencies identified in the Order.

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On September 6, 2011, Plaintiff filed his First Amended Complaint. In a September

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9, 2011 Order, the Court dismissed the First Amended Complaint because Plaintiff had failed

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to state a claim. The Court gave Plaintiff 30 days to file a second amended complaint that

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cured the deficiencies identified in the Order.
On October 17, 2011, Plaintiff filed a Second Amended Complaint (Doc. 14). The

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Court will dismiss the Second Amended Complaint and this action.

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I.

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Statutory Screening of Prisoner Complaints
The Court is required to screen complaints brought by prisoners seeking relief against

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a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised

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claims that are legally frivolous or malicious, that fail to state a claim upon which relief may

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be granted, or that seek monetary relief from a defendant who is immune from such relief.

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28 U.S.C. § 1915A(b)(1), (2).

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A pleading must contain a “short and plain statement of the claim showing that the

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pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does not

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demand detailed factual allegations, “it demands more than an unadorned, the-defendant-

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unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).

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“Threadbare recitals of the elements of a cause of action, supported by mere conclusory

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statements, do not suffice.” Id.

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“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a

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claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly,

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550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content

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that allows the court to draw the reasonable inference that the defendant is liable for the

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misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for

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relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial

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experience and common sense.” Id. at 1950. Thus, although a plaintiff’s specific factual

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allegations may be consistent with a constitutional claim, a court must assess whether there

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are other “more likely explanations” for a defendant’s conduct. Id. at 1951.

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But as the United States Court of Appeals for the Ninth Circuit has instructed, courts

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must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th

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Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent standards

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than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 U.S. 89,

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94 (2007) (per curiam)).

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II.

Second Amended Complaint

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A second amended complaint supersedes the original Complaint and First Amended

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Complaint. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v.
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Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the Court

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treats the original Complaint and First Amended Complaint as nonexistent. Ferdik, 963 F.2d

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at 1262. Thus, the Court will consider only those claims raised in the Second Amended

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Complaint against only those Defendants named in the Second Amended Complaint.

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In his one-count Second Amended Complaint, Plaintiff sues the following Defendants:

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Doctors Jeffreya Sharp, Ronolfo Macabunay, Justin F. Weiss, Michael J. Milazzo, and E.

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Vinluan.

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Plaintiff alleges that he has been subjected to medical deliberate indifference in

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violation of the Eighth and Fourteenth Amendments. He claims that he was seen by

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Defendant Sharp in January 2008 because he was having headaches and bone pain, but

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Defendant Sharp failed to provide him with “proper medical care for sinusitis and

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degenerative finding in lumbar spine that was and still is causing [P]laintiff pain.” He alleges

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that he saw Defendant Macabunay in December 2009 because Plaintiff was having

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headaches and back pain, x-rays were taken, Plaintiff was informed that there was an

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“increased density in ethmoid sinus,” and Defendant Macabunay issued a medication “but

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nothing for pain and the way the [P]laintiff[’s] head had [taken] shape.”

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Plaintiff asserts that he saw Defendant Vinluan in June 2010 because he was having

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lower back pain, x-rays were taken, Plaintiff was informed of “degenerating findings in lower

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lumbar spine,” but Defendant Vinluan “failed to provide [P]laintiff with proper medical care

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for di[ag]nosis and pain and for follow[]up treat[]ment.” Plaintiff contends that Defendant

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Weiss has “diagnosis information to the MDs at the [L]ewis facility has been wrong and

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i[m]proper.” Plaintiff also alleges that he saw Defendant Milazzo in March 2011 because

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of continued headaches and back pain, but Defendant Milazzo stated that there was nothing

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he could do.
In his Request for Relief, Plaintiff seeks monetary damages and injunctive relief.

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III.

Failure to State a Claim

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Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519,

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520-21 (1972), conclusory and vague allegations will not support a cause of action. Ivey v.
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Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Further,

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a liberal interpretation of a civil rights complaint may not supply essential elements of the

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claim that were not initially pled. Id.

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Not every claim by a prisoner relating to inadequate medical treatment states a

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violation of the Eighth or Fourteenth Amendment. To state a § 1983 medical claim, a

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plaintiff must show that the defendants acted with “deliberate indifference to serious medical

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needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429

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U.S. 97, 104 (1976)). A plaintiff must show (1) a “serious medical need” by demonstrating

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that failure to treat the condition could result in further significant injury or the unnecessary

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and wanton infliction of pain and (2) the defendant’s response was deliberately indifferent.

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Jett, 439 F.3d at 1096 (quotations omitted).

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“Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051,

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1060 (9th Cir. 2004). To act with deliberate indifference, a prison official must both know

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of and disregard an excessive risk to inmate health; “the official must both be aware of facts

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from which the inference could be drawn that a substantial risk of serious harm exists, and

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he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). Deliberate

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indifference in the medical context may be shown by a purposeful act or failure to respond

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to a prisoner’s pain or possible medical need and harm caused by the indifference. Jett, 439

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F.3d at 1096. Deliberate indifference may also be shown when a prison official intentionally

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denies, delays, or interferes with medical treatment or by the way prison doctors respond to

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the prisoner’s medical needs. Estelle, 429 U.S. at 104-05; Jett, 439 F.3d at 1096.

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Deliberate indifference is a higher standard than negligence or lack of ordinary due

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care for the prisoner’s safety. Farmer, 511 U.S. at 835. “Neither negligence nor gross

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negligence will constitute deliberate indifference.” Clement v. California Dep’t of

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Corrections, 220 F. Supp. 2d 1098, 1105 (N.D. Cal. 2002); see also Broughton v. Cutter

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Labs., 622 F.2d 458, 460 (9th Cir. 1980) (mere claims of “indifference,” “negligence,” or

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“medical malpractice” do not support a claim under § 1983). “A difference of opinion does

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not amount to deliberate indifference to [a plaintiff’s] serious medical needs.” Sanchez v.
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Vild, 891 F.2d 240, 242 (9th Cir. 1989). A mere delay in medical care, without more, is

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insufficient to state a claim against prison officials for deliberate indifference. See Shapley

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v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). The indifference

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must be substantial. The action must rise to a level of “unnecessary and wanton infliction

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of pain.” Estelle, 429 U.S. at 105.

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Plaintiff’s allegations do not support a claim that any of the Defendants acted with

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deliberate indifference. Thus, the Court will dismiss without prejudice Plaintiff’s Second

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Amended Complaint.

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IV.

Dismissal without Leave to Amend

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Because Plaintiff has failed to state a claim in his Second Amended Complaint, the

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Court will dismiss his Second Amended Complaint. “Leave to amend need not be given if

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a complaint, as amended, is subject to dismissal.” Moore v. Kayport Package Express, Inc.,

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885 F.2d 531, 538 (9th Cir. 1989). The Court’s discretion to deny leave to amend is

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particularly broad where Plaintiff has previously been permitted to amend his complaint.

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Sisseton-Wahpeton Sioux Tribe v. United States, 90 F.3d 351, 355 (9th Cir. 1996). Repeated

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failure to cure deficiencies is one of the factors to be considered in deciding whether justice

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requires granting leave to amend. Moore, 885 F.2d at 538.

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Plaintiff has made three efforts at crafting a viable complaint and appears unable to

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do so despite specific instructions from the Court. In fact, his Second Amended Complaint

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is virtually identical to his First Amended Complaint. The Court finds that further

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opportunities to amend would be futile. Therefore, the Court, in its discretion, will dismiss

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Plaintiff’s Second Amended Complaint without leave to amend.

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IT IS ORDERED:

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(1)

Plaintiff’s Second Amended Complaint (Doc. 14) and this action are dismissed

for failure to state a claim, and the Clerk of Court must enter judgment accordingly.
(2)

The Clerk of Court must make an entry on the docket stating that the dismissal

for failure to state a claim may count as a “strike” under 28 U.S.C. § 1915(g).
(3)

The docket shall reflect that the Court certifies, pursuant to 28 U.S.C.
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§ 1915(a)(3) and Federal Rules of Appellate Procedure 24(a)(3)(A), that any appeal of this

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decision would not be taken in good faith.

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DATED this 21st day of October, 2011.

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