Harper v. Correct Care Solutions et al
Filing
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ORDER - (1) Plaintiff's First Amended Complaint (Doc. 7 ) 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. § 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. (See document for full details). Signed by Judge David G Campbell on 2/17/16. (LAD)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Gary Jerome Harper,
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No. CV 15-08256-PCT-DGC (DKD)
Plaintiff,
v.
ORDER
Correct Care Solutions, et al.,
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Defendants.
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On November 4, 2015, Plaintiff Jerome Harper, who is confined in the Mohave
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County Jail, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 and an
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Application to Proceed In Forma Pauperis. In a December 21, 2015 Order, the Court
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granted the Application to Proceed and dismissed the Complaint because Plaintiff had
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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 January 11, 2016, Plaintiff filed a First Amended Complaint (Doc. 7). The
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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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Plaintiff names Medical Doctor Klinemach as Defendant in the First Amended
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Complaint and raises one claim for relief, alleging a violation of his Eighth and
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Fourteenth Amendment rights to adequate medical care. Plaintiff alleges that although he
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suffers multiple bladder infections and is in constant pain, Defendant Klinemach is
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denying him pain medication. Plaintiff claims Defendant Klinemach is aware of the
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bladder infections and his need to be treated, but refuses to treat Plaintiff or send him to
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an outside care provider. Plaintiff believes the infection is spreading to his kidneys.
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Plaintiff seeks monetary damages.
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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 (1) a “serious medical need” by demonstrating that failure to treat the
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condition could result in further significant injury or the unnecessary and wanton
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infliction of pain and (2) the defendant’s response was deliberately indifferent. Jett v.
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Penner, 439 F.3d 1091, 1096 (9th Cir. 2006).
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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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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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Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519,
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520-21 (1972), conclusory and vague allegations will not support a cause of action. Ivey
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v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Further, a
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liberal interpretation of a civil rights complaint may not supply essential elements of the
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claim that were not initially pled. Id.
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Plaintiff has not alleged sufficient facts to state a claim.
Plaintiff claims
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Defendant Klinemach “was aware” of his bladder infections, but does not state when he
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was diagnosed with a bladder infection or when he presented his symptoms to Defendant
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Klinemach.
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Defendant “refuses” to treat him is a delay in medical treatment or an outright refusal to
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provide treatment.
Accordingly, the Court cannot evaluate whether Plaintiff’s claim that
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Moreover, the Court notes that Plaintiff’s claims appear to be generally duplicative
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of his previous filed cases.1 Plaintiff has alleged in other cases that Defendant Klinemach
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denied him medication for treatment of a bladder infection resulting from a delay in
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providing catheter supplies, and denied surgery that would allow Plaintiff to discontinue
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use of a catheter. Plaintiff also alleges in these lawsuits that Defendant Klinemach has
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denied him pain medication. An in forma pauperis complaint that merely repeats pending
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or previously litigated claims may be considered abusive and dismissed under the
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authority of 28 U.S.C. § 1915(e). Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th Cir.
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1995); Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir. 1988). An in forma pauperis
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Some of Plaintiff’s other cases include: 15-cv-08213-DGC-DKD, 15-cv-08218DGC-DKD, 15-cv-08219-DGC-DKD, 15-cv-08220-DGC-DKD, 15-cv-08231-DGCDKD, 16-cv-08013-DGC-DKD, 15-cv-08278-DGC-DKD, 15-cv-08258-DGC-DKD.
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complaint repeating the same factual allegations asserted in an earlier case, even if now
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filed against a new defendant, is subject to dismissal as duplicative and frivolous. See
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Bailey, 846 F.2d at 1021; see also Van Meter v. Morgan, 518 F.2d 366, 368 (8th Cir.
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1975).
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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 his 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. The Court
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has already provided Plaintiff with an opportunity to amend his Complaint, and Plaintiff
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failed to state a claim. Moreover, in light of Plaintiff’s previously filed, and more
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detailed, lawsuits regarding medical treatment for his bladder-related illnesses, the Court
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finds that further opportunities to amend this action would be futile or would result in
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claims that are duplicative of his other lawsuits. Therefore, the Court, in its discretion,
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will 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. 7) and this action are dismissed
for failure to state a claim, and the Clerk of Court must enter judgment 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 17th day of February, 2016.
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