Beltran v. Martinez

Filing 15

ORDER Plaintiff's Second Amended Complaint (Doc. 13 ) 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 dismi ssal for failure to state a claim may count as a "strike" under 28 U.S.C. § 1915(g). The docket shall reflect that the Court certifies, pursuant to 28 U.S.C. § 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 Senior Judge Robert C Broomfield on 5/28/2013. (KMG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Jose Carrera-Beltran,
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Plaintiff,
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vs.
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Rosa Martinez,
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Defendant.
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No. CV 12-2023-PHX-RCB (SPL)
ORDER

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Plaintiff Jose Carrera-Beltran, who is confined in the U.S. Penitentiary in Lompoc,

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California, filed a pro se civil rights Complaint pursuant to Bivens v. Six Unknown Named

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Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), which the Court dismissed with

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leave to amend. (Doc. 1, 5.) Plaintiff filed a First Amended Complaint, which the Court also

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dismissed for failure to state a claim with leave to amend. (Doc. 7, 8.) Plaintiff has filed a

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Second Amended Complaint.1 (Doc. 13, 14.) The Court will dismiss the Second Amended

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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 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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Plaintiff also filed a note in which he asked that legal papers be forwarded to the
Court. However, nothing was attached to this note. (Doc. 14.)

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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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Plaintiff alleges one count for deprivation of property. Plaintiff sues Rosa Martinez,

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whom he describes as a non-governmental employee. (Doc. 13 at 2.) Plaintiff seeks

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injunctive and compensatory relief.

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A document attached to the Second Amended Complaint reflects the following: in

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2010, Plaintiff had a colostomy performed due to colon cancer. After arriving in federal

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custody, the Clinical Director placed Plaintiff on a Chronic Care Clinic for continuity of care.
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On April 16, 2012, Plaintiff was seen by a staff physician; Plaintiff denied weight loss and

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his blood pressure was normal. On May 22, 2012, Plaintiff was seen by a staff physician

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after complaining of fecal leakage from the ostomy opening. The physician initiated a

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consult for Plaintiff to be seen by a surgeon for a colostomy reversal and was prescribed a

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nutritional supplement. However, the next day, the supplement was disapproved as not

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indicated. On May 24, 2012, Plaintiff failed to report for a scheduled call-out appointment

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with the surgeon. On June 28, 2012, Plaintiff was placed on call-out to receive sack meals,

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but he failed to report.

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On July 2, 2012, Plaintiff spoke to an Assistant Health Services Administrator

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(AHSA) and a mid-level practitioner about Plaintiff’s medical concerns. During that

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encounter, the AHSA informed Plaintiff that he had been authorized for sack meals and

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counseled him about his failure to report for call-outs. The mid-level practitioner examined

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the colostomy site and noted that it was dry with no signs of bleeding or infection. A call-out

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to see a surgeon was rescheduled.

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Attached to the First Amended Complaint was an informal resolution. This document

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indicated that Plaintiff was seen by a surgeon on July 19, 2012, but the surgeon was allegedly

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unable to evaluate Plaintiff properly because Plaintiff’s medical files were not available to

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the surgeon. In response to the informal resolution, Health Services Department staff

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contacted the Las Vegas Detention Center, which indicated that it did not have Plaintiff’s

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medical records.

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In his Second Amended Complaint, Plaintiff alleges the following: on January 12,

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2012, while he was held in a Corrections Corporation of America (CCA) facility, Plaintiff

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received medical records concerning colostomy surgery from the Arizona Medical Board,

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which apparently reflected the kind of medication Plaintiff was thereafter supposed to

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receive. Plaintiff indicates that in February 2012, Defendant Martinez agreed to forward

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Plaintiff’s medical records following transfer to a new facility. Plaintiff indicates that his

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counselor, Alfonso Zepeda, attempted to help Plaintiff to obtain his medical records from the

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Las Vegas Detention Center, but the Detention Center did not have all of the records,
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apparently because Martinez had never forwarded them to it.

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IV.

Failure to State a Claim

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To state a Bivens claim, a plaintiff must allege that persons acting under color of

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federal law violated a federal constitutional right. Martin v. Sias, 88 F.3d 774, 775 (9th Cir.

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1996) (citing Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991). Thus, an action under

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Bivens is identical to one brought pursuant to 42 U.S.C. § 1983, except for the replacement

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of a state actor under § 1983 by a federal actor under Bivens. Id. To state a valid

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constitutional claim, a plaintiff must allege that he suffered a specific injury as a result of the

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conduct of a particular defendant, and he must allege an affirmative link between the injury

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and the conduct of that defendant. Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976).

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Plaintiff indicates that Martinez failed to mail copies of medical records to Plaintiff.

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Plaintiff fails to allege when this occurred. Moreover, Plaintiff alleges that Martinez was not

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a governmental employee, thus, Martinez did not act under color of federal law. Plaintiff

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again fails to describe the medical records and the time frame those records covered and who

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created the medical records. The Court is unable to determine whether the medical records

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were created by medical staff working for the federal government, CCA, or privately for

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Plaintiff. Finally, Plaintiff fails to allege facts to support that Martinez’s failure to send

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copies of his medical records to him rises to the level of a constitutional violation. For all

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these reasons, Plaintiff fails to state a claim. Accordingly, his Second Amended Complaint

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will be dismissed for failure to state a claim.

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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. The Court finds that further opportunities

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to amend would be futile. Therefore, the Court, in its discretion, will dismiss Plaintiff’s

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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. 13) 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 28th day of May, 2013.

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