Quezada v. Bastian et al

Filing 13

ORDER Plaintiff's First Amended Complaint 12 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 for failure to state a claim may count as a strike under 28:1915(g). The docket shall reflect that any appeal of this decision would not be taken in good faith. Signed by Judge David G Campbell on 5/17/13. (TLJ)

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MDR

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Virginia Reyes Quezada,

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No. CV 12-1654-PHX-DGC (MEA)

Plaintiff,
vs.

ORDER

Dr. Steven D. Bastian, et al.,

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Defendants.

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On August 3, 2012, Plaintiff Virginia Reyes Quezada, who is confined in the

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Arizona State Prison Complex-Perryville in Goodyear, Arizona, filed a pro se civil rights

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Complaint pursuant to 42 U.S.C. § 1983 and an Application to Proceed In Forma

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Pauperis. In September 7 and October 30, 2012 Orders, the Court denied the deficient

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Application to Proceed and a second, deficient Application to Proceed. In a January 28,

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2013 Order, the Court granted Plaintiff’s third Application to Proceed and dismissed the

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Complaint because Plaintiff had failed to state a claim. The Court gave Plaintiff 30 days

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to file an amended complaint that cured the deficiencies identified in the Order.

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On February 28, 2013, Plaintiff filed a First Amended Complaint (Doc. 12). The
Court will dismiss the First Amended Complaint and this action.

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I.

Statutory Screening of Prisoner Complaints

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The Court is required to screen complaints brought by prisoners seeking relief

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against a governmental entity or an officer or an employee of a governmental entity. 28

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U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff

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has raised claims that are legally frivolous or malicious, that fail to state a claim upon

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which relief may be granted, or that seek monetary relief from a defendant who is

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immune from such relief. 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

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does not demand detailed factual allegations, “it demands more than an unadorned, the-

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defendant-unlawfully-harmed-me accusation.”

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(2009). “Threadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Id.

Ashcroft v. Iqbal, 556 U.S. 662, 678

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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

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

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

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claim for relief [is] . . . a context-specific task that requires the reviewing court to draw

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on its judicial experience and common sense.” Id. at 679. Thus, although a plaintiff’s

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specific factual allegations may be consistent with a constitutional claim, a court must

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assess whether there are other “more likely explanations” for a defendant’s conduct. Id.

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at 681.

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

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

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342 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less

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stringent standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v.

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Pardus, 551 U.S. 89, 94 (2007) (per curiam)).

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II.

First Amended Complaint

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In her one-count First Amended Complaint, Plaintiff sues Defendant Dr. Steven D.

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Bastian. Plaintiff alleges a violation of her First Amendment rights regarding medical

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care. She contends that Dr. Bastian performed a surgery on her right hand and that at a

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follow-up appointment, she told Defendant Bastian that she was experiencing pain and

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“locking” in her right thumb. She asserts that Defendant Bastian determined that she was

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suffering from a “trigger” in her right thumb and that he would give her a steroid

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injection, rather than a surgery, and would schedule a follow-up appointment. Plaintiff

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contends that she experienced excruciating pain when Defendant Bastian’s nurse

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administered the injection and Plaintiff believes the nurse hit a nerve.

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At a follow-up appointment, Defendant Bastian examined Plaintiff’s thumb,

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ordered a magnetic resonance imaging (MRI) test to “see what went wrong from the prior

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steroid injection,” and stated that he was going to prescribe an anesthetic cream to help

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ease the pain. However, when Plaintiff returned to prison and inquired about the cream,

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she was told that no cream had been ordered. Plaintiff alleges that the MRI results were

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normal and that she has not received any further medical treatment for the injury to her

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thumb from the injection.

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Plaintiff claims her thumb is permanently stiff and she feels Defendant Bastian is

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clearly aware of the significance of her injury, the pain she has endured, and her loss of

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her ability to use her thumb. She asserts that Defendant Bastian is “not fully meeting up

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to his oath as a doctor, an[d] not appropriately conducting himself as a professional”

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because he did not follow through and make sure that Plaintiff received the cream. She

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alleges that Defendant Bastian’s conduct “perfectly meets the standards of deliberate

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indifference.”

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In her Request for Relief, Plaintiff seeks monetary damages and her court costs

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and fees.

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III.

Failure to State a Claim

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Plaintiff’s claim arises, if at all, under the Eighth or Fourteenth Amendment, not

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the First Amendment. However, not every claim by a prisoner relating to inadequate

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medical treatment states a violation of the Eighth or Fourteenth Amendment. To state a

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§ 1983 medical claim, a plaintiff must show that the defendants acted with “deliberate

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indifference to serious medical needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir.

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2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). A plaintiff must show (1) a

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“serious medical need” by demonstrating that failure to treat the condition could result in

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further significant injury or the unnecessary and wanton infliction of pain and (2) the

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defendant’s response was deliberately indifferent. Jett, 439 F.3d at 1096 (quotations

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omitted).

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

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1051, 1060 (9th Cir. 2004). To act with deliberate indifference, a prison official must

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

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aware of facts from which the inference could be drawn that a substantial risk of serious

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harm exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825,

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837 (1994).

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purposeful act or failure to respond to a prisoner’s pain or possible medical need and

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harm caused by the indifference. Jett, 439 F.3d at 1096. Deliberate indifference may

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also be shown when a prison official intentionally denies, delays, or interferes with

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medical treatment or by the way prison doctors respond to the prisoner’s medical needs.

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Estelle, 429 U.S. at 104-05; Jett, 439 F.3d at 1096.

Deliberate indifference in the medical context may be shown by a

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

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

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gross 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). The indifference must be

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

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pain.” Estelle, 429 U.S. at 105.

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Although Plaintiff’s allegations may support a claim of negligence or medical

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malpractice by Defendant Bastian, they do not support a claim that Defendant Bastian

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acted with deliberate indifference. Thus, the Court will dismiss without prejudice Count

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One.

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IV.

Dismissal without Leave to Amend

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Because Plaintiff has failed to state a claim in her First Amended Complaint, the

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Court will dismiss her First 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,

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Inc., 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 her complaint.

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

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

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

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Plaintiff has made two efforts at crafting a viable complaint. The Court finds that

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further opportunities to amend would be futile because Defendant Bastian’s conduct does

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not rise to the level of deliberate indifference. Therefore, the Court, in its discretion, will

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dismiss Plaintiff’s First Amended Complaint without leave to amend.

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IT IS ORDERED:

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(1)

Plaintiff’s First Amended Complaint (Doc. 12) and this action are

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dismissed for failure to state a claim, and the Clerk of Court must enter judgment

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accordingly.

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(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).

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(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

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this decision would not be taken in good faith.

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Dated this 17th day of May, 2013.

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