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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1 2 MDR WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Virginia Reyes Quezada, 10 11 12 No. CV 12-1654-PHX-DGC (MEA) Plaintiff, vs. ORDER Dr. Steven D. Bastian, et al., 13 14 Defendants. 15 16 17 On August 3, 2012, Plaintiff Virginia Reyes Quezada, who is confined in the 18 Arizona State Prison Complex-Perryville in Goodyear, Arizona, filed a pro se civil rights 19 Complaint pursuant to 42 U.S.C. § 1983 and an Application to Proceed In Forma 20 Pauperis. In September 7 and October 30, 2012 Orders, the Court denied the deficient 21 Application to Proceed and a second, deficient Application to Proceed. In a January 28, 22 2013 Order, the Court granted Plaintiff’s third Application to Proceed and dismissed the 23 Complaint because Plaintiff had failed to state a claim. The Court gave Plaintiff 30 days 24 to file an amended complaint that cured the deficiencies identified in the Order. 25 26 27 28 On February 28, 2013, Plaintiff filed a First Amended Complaint (Doc. 12). The Court will dismiss the First Amended Complaint and this action. 1 I. Statutory Screening of Prisoner Complaints 2 The Court is required to screen complaints brought by prisoners seeking relief 3 against a governmental entity or an officer or an employee of a governmental entity. 28 4 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 5 has raised claims that are legally frivolous or malicious, that fail to state a claim upon 6 which relief may be granted, or that seek monetary relief from a defendant who is 7 immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 8 A pleading must contain a “short and plain statement of the claim showing that the 9 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 10 does not demand detailed factual allegations, “it demands more than an unadorned, the- 11 defendant-unlawfully-harmed-me accusation.” 12 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 13 conclusory statements, do not suffice.” Id. Ashcroft v. Iqbal, 556 U.S. 662, 678 14 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 15 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 16 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual 17 content that allows the court to draw the reasonable inference that the defendant is liable 18 for the misconduct alleged.” Id. “Determining whether a complaint states a plausible 19 claim for relief [is] . . . a context-specific task that requires the reviewing court to draw 20 on its judicial experience and common sense.” Id. at 679. Thus, although a plaintiff’s 21 specific factual allegations may be consistent with a constitutional claim, a court must 22 assess whether there are other “more likely explanations” for a defendant’s conduct. Id. 23 at 681. 24 But as the United States Court of Appeals for the Ninth Circuit has instructed, 25 courts must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 26 342 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less 27 stringent standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. 28 Pardus, 551 U.S. 89, 94 (2007) (per curiam)). -2- 1 II. First Amended Complaint 2 In her one-count First Amended Complaint, Plaintiff sues Defendant Dr. Steven D. 3 Bastian. Plaintiff alleges a violation of her First Amendment rights regarding medical 4 care. She contends that Dr. Bastian performed a surgery on her right hand and that at a 5 follow-up appointment, she told Defendant Bastian that she was experiencing pain and 6 “locking” in her right thumb. She asserts that Defendant Bastian determined that she was 7 suffering from a “trigger” in her right thumb and that he would give her a steroid 8 injection, rather than a surgery, and would schedule a follow-up appointment. Plaintiff 9 contends that she experienced excruciating pain when Defendant Bastian’s nurse 10 administered the injection and Plaintiff believes the nurse hit a nerve. 11 At a follow-up appointment, Defendant Bastian examined Plaintiff’s thumb, 12 ordered a magnetic resonance imaging (MRI) test to “see what went wrong from the prior 13 steroid injection,” and stated that he was going to prescribe an anesthetic cream to help 14 ease the pain. However, when Plaintiff returned to prison and inquired about the cream, 15 she was told that no cream had been ordered. Plaintiff alleges that the MRI results were 16 normal and that she has not received any further medical treatment for the injury to her 17 thumb from the injection. 18 Plaintiff claims her thumb is permanently stiff and she feels Defendant Bastian is 19 clearly aware of the significance of her injury, the pain she has endured, and her loss of 20 her ability to use her thumb. She asserts that Defendant Bastian is “not fully meeting up 21 to his oath as a doctor, an[d] not appropriately conducting himself as a professional” 22 because he did not follow through and make sure that Plaintiff received the cream. She 23 alleges that Defendant Bastian’s conduct “perfectly meets the standards of deliberate 24 indifference.” 25 26 27 28 -3- 1 In her Request for Relief, Plaintiff seeks monetary damages and her court costs 2 and fees. 3 III. Failure to State a Claim 4 Plaintiff’s claim arises, if at all, under the Eighth or Fourteenth Amendment, not 5 the First Amendment. However, not every claim by a prisoner relating to inadequate 6 medical treatment states a violation of the Eighth or Fourteenth Amendment. To state a 7 § 1983 medical claim, a plaintiff must show that the defendants acted with “deliberate 8 indifference to serious medical needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 9 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). A plaintiff must show (1) a 10 “serious medical need” by demonstrating that failure to treat the condition could result in 11 further significant injury or the unnecessary and wanton infliction of pain and (2) the 12 defendant’s response was deliberately indifferent. Jett, 439 F.3d at 1096 (quotations 13 omitted). 14 “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 15 1051, 1060 (9th Cir. 2004). To act with deliberate indifference, a prison official must 16 both know of and disregard an excessive risk to inmate health; “the official must both be 17 aware of facts from which the inference could be drawn that a substantial risk of serious 18 harm exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 19 837 (1994). 20 purposeful act or failure to respond to a prisoner’s pain or possible medical need and 21 harm caused by the indifference. Jett, 439 F.3d at 1096. Deliberate indifference may 22 also be shown when a prison official intentionally denies, delays, or interferes with 23 medical treatment or by the way prison doctors respond to the prisoner’s medical needs. 24 Estelle, 429 U.S. at 104-05; Jett, 439 F.3d at 1096. Deliberate indifference in the medical context may be shown by a 25 Deliberate indifference is a higher standard than negligence or lack of ordinary 26 due care for the prisoner’s safety. Farmer, 511 U.S. at 835. “Neither negligence nor 27 gross negligence will constitute deliberate indifference.” Clement v. California Dep’t of 28 Corrections, 220 F. Supp. 2d 1098, 1105 (N.D. Cal. 2002); see also Broughton v. Cutter -4- 1 Labs., 622 F.2d 458, 460 (9th Cir. 1980) (mere claims of “indifference,” “negligence,” or 2 “medical malpractice” do not support a claim under § 1983). The indifference must be 3 substantial. The action must rise to a level of “unnecessary and wanton infliction of 4 pain.” Estelle, 429 U.S. at 105. 5 Although Plaintiff’s allegations may support a claim of negligence or medical 6 malpractice by Defendant Bastian, they do not support a claim that Defendant Bastian 7 acted with deliberate indifference. Thus, the Court will dismiss without prejudice Count 8 One. 9 IV. Dismissal without Leave to Amend 10 Because Plaintiff has failed to state a claim in her First Amended Complaint, the 11 Court will dismiss her First Amended Complaint. “Leave to amend need not be given if 12 a complaint, as amended, is subject to dismissal.” Moore v. Kayport Package Express, 13 Inc., 885 F.2d 531, 538 (9th Cir. 1989). The Court’s discretion to deny leave to amend is 14 particularly broad where Plaintiff has previously been permitted to amend her complaint. 15 Sisseton-Wahpeton Sioux Tribe v. United States, 90 F.3d 351, 355 (9th Cir. 1996). 16 Repeated failure to cure deficiencies is one of the factors to be considered in deciding 17 whether justice requires granting leave to amend. Moore, 885 F.2d at 538. 18 Plaintiff has made two efforts at crafting a viable complaint. The Court finds that 19 further opportunities to amend would be futile because Defendant Bastian’s conduct does 20 not rise to the level of deliberate indifference. Therefore, the Court, in its discretion, will 21 dismiss Plaintiff’s First Amended Complaint without leave to amend. 22 IT IS ORDERED: 23 (1) Plaintiff’s First Amended Complaint (Doc. 12) and this action are 24 dismissed for failure to state a claim, and the Clerk of Court must enter judgment 25 accordingly. 26 27 (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). 28 -5- 1 (3) The docket shall reflect that the Court certifies, pursuant to 28 U.S.C. 2 § 1915(a)(3) and Federal Rules of Appellate Procedure 24(a)(3)(A), that any appeal of 3 this decision would not be taken in good faith. 4 Dated this 17th day of May, 2013. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6-

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