Ramirez-Garcia v. Ryan et al

Filing 17

ORDER that 16 Plaintiff's Second Amended Complaint and this action are dismissed for failure to state a claim, and the Clerk must enter judgment. The Clerk must make an entry on the docket stating that the dismissal for failure to state a cla im 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 2/25/14. (LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Eduardo Ramirez-Garcia,

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No. CV 12-2678-PHX-RCB (JFM)

Plaintiff,
vs.

ORDER

Charles L. Ryan, et al.,

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Defendants.

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On December 17, 2012, Plaintiff Eduardo Ramirez-Garcia, who is confined in the

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Arizona State Prison Complex-Florence, filed a pro se civil rights Complaint pursuant to

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42 U.S.C. § 1983 and an Application to Proceed In Forma Pauperis. In a June 21, 2013

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Order, the Court granted the Application to Proceed and dismissed the Complaint

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

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amended complaint that cured the deficiencies identified in the Order.

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On August 6, 2013, Plaintiff filed his First Amended Complaint. In a November

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4, 2013 Order, the Court dismissed the First Amended Complaint because Plaintiff had

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

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complaint that cured the deficiencies identified in the Order.

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On December 4, 2013, Plaintiff filed a Second Amended Complaint (Doc. 16).
The Court will dismiss the Second 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.

Second Amended Complaint
Plaintiff names Lieutenant Tucker, Nurse Jane Doe 1, and Doctor John Doe 1 as

Defendants in the First Amended Complaint.

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Plaintiff raises one claim for relief in which he alleges his Eighth and Fourteenth

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Amendment rights were violated when he was denied immediate treatment for an

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aneurysm. Plaintiff claims that on June 1, 2011, he began to experience severe headaches

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followed by repetitive vomiting. Plaintiff claims that other inmates got the attention of

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Correctional Officer Parrish who observed that Plaintiff was in extreme pain. Officer

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Parrish activated an “ICS,” and 15 minutes later a medical staff person and Defendant

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Tucker responded with a gurney. Plaintiff was taken to the medical department where he

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was examined by Defendant Jane Doe 1. Defendant Jane Doe 1 took Plaintiff’s blood

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pressure, examined his head, and told him “you are drunk.” Plaintiff said “no, no drunk,

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head hurts.” Plaintiff claims that Defendant John Doe 1 then came into the examination

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room, examined Plaintiff’s head, and then said to Plaintiff “you have been drinking

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haven’t you,” to which Plaintiff responded that he did not understand and that he was not

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drunk. Plaintiff states that he asked both Defendants Jane Doe 1 and John Doe 1 for an

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interpreter, but that they responded “no interpreter.”

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Defendant Jane Doe 1 then provided Plaintiff with acetaminophen and ice and

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directed Defendant Tucker to take Plaintiff back to his housing unit in wheelchair. After

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10 minutes, Plaintiff was still experiencing extreme pain and yelled for help. Officer

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Parrish again responded to Plaintiff, activated another “ICS,” and after 10 minutes,

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Defendant Tucker and another staff person again responded. Plaintiff claims that by this

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time he was unresponsive and incoherent. Plaintiff was taken back to the medical

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department and, early on June 2, 2011, was transported to St. Joseph’s Hospital where he

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received surgery for a brain aneurysm. Plaintiff remained in the hospital until June 19,

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2011. Plaintiff was housed in inpatient care at the prison until August 5, 2011, and, on

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September 20, 2011, was transferred back to his regular housing unit.

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Plaintiff alleges that Defendant Tucker was deliberately indifferent to his

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emergency medical needs by failing to provide Plaintiff with an interpreter, by returning

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Plaintiff to his dorm, and by delaying medical attention for Plaintiff. Plaintiff further

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claims Defendant Jane Doe 1 was also deliberately indifferent by failing to provide an

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interpreter, failing to investigate further to determine if Plaintiff was actually drunk and

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by delaying Plaintiff from seeing a doctor. Finally, Plaintiff claims that Defendant John

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Doe 1 was also deliberately indifferent in failing to provide an interpreter and in initially

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diagnosing Plaintiff as drunk rather than investigating further.

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Plaintiff states that he filed grievances on the lack of medical care, but that his
grievances were denied.

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Plaintiff seeks money damages and injunctive relief.
III.

Failure to State a Claim

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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

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

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Gamble, 429 U.S. 97, 104 (1976)). A plaintiff must show (1) a “serious medical need”

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by demonstrating that failure to treat the condition could result in further significant

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injury or the unnecessary and wanton infliction of pain and (2) the defendant’s response

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was deliberately indifferent. 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

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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

Deliberate indifference in the medical context may be shown by a

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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.

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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). “A difference of opinion

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does not amount to deliberate indifference to [a plaintiff’s] serious medical needs.”

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Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). A mere delay in medical care,

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without more, is insufficient to state a claim against prison officials for deliberate

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indifference. See Shapley v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407

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(9th Cir. 1985). The indifference must be substantial. The action must rise to a level of

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“unnecessary and wanton infliction of pain.” Estelle, 429 U.S. at 105.

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Plaintiff has not alleged facts sufficient to demonstrate that any of the three

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Defendants were deliberately indifferent to his serious medical needs. First, Plaintiff’s

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facts do not demonstrate that the assistance of an interpreter would have affected the

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treatment Plaintiff initially received. Plaintiff states that he told Defendants, in English,

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that he was not drunk.

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Plaintiff; they do not show that Defendants misunderstood Plaintiff.

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Plaintiff’s allegations show that medical treatment was delayed for a total period of

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approximately 30 minutes; it appears unlikely that finding an interpreter to assist in

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Plaintiff’s examination would have shortened the delay in care and may even have

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extended delay.

Plaintiff’s allegations indicate Defendants did not believe
Moreover,

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With respect to Plaintiff’s other claims, Plaintiff has demonstrated, at best, that

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Defendants acted negligently in initially mistaking Plaintiff’s symptoms as alcohol

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intoxication. Plaintiff’s facts show that Defendant Jane Doe 1 believed Plaintiff to be

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drunk and that, although this mistake delayed Plaintiff’s treatment by approximately half

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an hour, Plaintiff did not suffer additional injury. Specifically, Plaintiff has not shown

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that more immediate treatment would have prevented the aneurysm or that the

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approximately half-hour delay caused him to suffer further injury than he would have

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suffered had he received immediate treatment. Accordingly, Plaintiff has failed to state a

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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

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if 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 his 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 three efforts at crafting a viable complaint. The Court finds that

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

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will dismiss 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. 16) 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

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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 25th day of February, 2014.

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