Turner v. Daniels et al

Filing 12

ORDER denying 7 Plaintiff's Motion for Documents. The First Amended Complaint (Doc. 8 ) 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 t he dismissal 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 Stephen M McNamee on 1/12/15.(LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Nathaniel Turner, Jr.,

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Plaintiff,

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No. CV 14-1188-PHX-SMM (JZB)

v.

ORDER

Jacob Daniels, et al.,

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Defendants.

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On May 30, 2014, Plaintiff Nathaniel Turner, Jr., who is confined in the Arizona

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State Prison Complex-Lewis, filed a pro se civil rights Complaint pursuant to 42 U.S.C.

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§ 1983 and an Application to Proceed In Forma Pauperis. In a June 4, 2014 Order, the

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Court granted the Application to Proceed and dismissed the Complaint because Plaintiff

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

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that cured the deficiencies identified in the Order.

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On July 7, 2014, Plaintiff filed a Motion for Documents (Doc. 7). On July 15,

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2014, Plaintiff filed a First Amended Complaint (Doc. 8). The Court will dismiss the

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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.

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First Amended Complaint
In his three-count First Amended Complaint, Plaintiff names Fourth Avenue Jail

Doctors Johnson, Freedman, and Balaji as Defendants.

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In Count One, Plaintiff claims he has “been trying to get medical help for the

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excruciating pain that [he] suffers from for [his] spinal st[e]nosis from Dr. B. Jo[h]nson

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since 1-18-14.” Plaintiff claims he has been refused any medical help at all, that he

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talked to Defendant Johnson about his spinal stenosis pain, and that he has filed ten

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grievances regarding his spinal stenosis pain. Plaintiff claims that he has been forced to

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suffer excruciating pain for six months and that all three doctors he has talked to told him

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that he is scheduled to see a “back doctor” and have an MRI performed. Plaintiff claims

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that doctors have his 2010 MRI results and that he is being denied pain medication.

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The entirety of Plaintiff’s claims in Count Two are as follows: “Dr. A. Balaji
refused to issue this plaintiff any medical care after several request[s] by Plaintiff.”

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Similarly, Plaintiff claims in Count Three that “Dr. Freedman refused to order
an[y] kind of medical care for Plaintiff[’s] spinal st[e]nosis back pain.”

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Plaintiff seeks money damages.
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

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

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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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In Count One, Plaintiff’s facts do not explicitly link the denial of pain medication

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to Defendant Johnson’s actions. Plaintiff states that he informed Defendant Johnson of

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his condition and pain, but Plaintiff does not allege that Defendant Johnson was

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responsible for denying medication or for the delay in Plaintiff’s consultation with a

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specialist and delay in receiving an MRI. Accordingly, Plaintiff has failed to state a

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claim against Defendant Johnson in Count One.

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With respect to Defendants Balaji and Freedman, Plaintiff has not alleged

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sufficiently detailed facts to state a claim against either of these Defendants. Specifically,

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Plaintiff does not state when he was treated by either Defendant or when or how

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Defendants were made aware of his medical condition. Conclusory and vague allegations

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will not support a cause of action. Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d

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266, 268 (9th Cir. 1982).

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Two and Three of the First Amended Complaint.

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Accordingly, Plaintiff has failed to state a claim in Counts

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IV.

Dismissal without Leave to Amend

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

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Court will dismiss the First Amended Complaint. “Leave to amend need not be given if a

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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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The Court finds that further opportunities to amend would be futile. Therefore,

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the Court, in its discretion, will dismiss Plaintiff’s First Amended Complaint without

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leave to amend.

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V.

Motion for Documents

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In his July 7, 2014 Motion for Documents, Plaintiff requests a copy of his

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Complaint in Turner v. Wexford, which he filed in February 2012, and also seeks the

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status of that case.

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First, the Court notes Plaintiff’s Motion is not properly filed in this case. To

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inquire about the status of his February 2012 case, Plaintiff should have filed a motion in

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that case. That said, the Court notes that Turner v. Unknown Party, CV 12-2064-PHX-

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SMM (DKD) was dismissed on March 18, 2013 because plaintiff failed to file an

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amended complaint in that action.

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To the extent Plaintiff seeks copies of documents filed in this Court, his request

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will be denied. The Clerk of Court charges 50 cents per page for reproducing any record

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or paper. See Judicial Conference Schedule of Fees & 4, foll. 28 U.S.C. § 1914. The in

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forma pauperis statute, 28 U.S.C. § 1915, authorizes the Court to pay for service of

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process on behalf of an indigent litigant and, in certain cases, to pay the costs of printing

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the record on appeal and preparing a transcript of proceedings, but the statute does not

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authorize the Court to pay the costs for an indigent litigant’s general copy requests. See

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In Re Richard, 914 F.2d 1526, 127 (6th Cir. 1990) (per curiam) (28 U.S.C. § 1915 “does

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not give a litigant a right to have documents copied and returned to him at government

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expense”); cf. Dixon v. Ylst, 990 F.2d 478, 480 (9th Cir. 1993) (Section 1915 does not

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authorize the district courts to waive payment of fees or expenses for witnesses).

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Accordingly, the Clerk of Court will provide Plaintiff with copies of documents filed

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with this Court only upon receipt of a written request accompanied by payment of the 50

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cents per page copy fee.

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IT IS ORDERED:

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(1)

Plaintiff’s July 7, 2014 Motion for Documents (Doc. 7) is denied.

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(2)

The First Amended Complaint (Doc. 8) and this action are dismissed for

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failure to state a claim, and the Clerk of Court must enter judgment accordingly.
(3)

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).
(4)

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 12th day of January, 2015.

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