Harper v. Correct Care Solutions et al

Filing 8

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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1 2 KM WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Gary Jerome Harper, 10 11 12 No. CV 15-08256-PCT-DGC (DKD) Plaintiff, v. ORDER Correct Care Solutions, et al., 13 14 Defendants. 15 16 On November 4, 2015, Plaintiff Jerome Harper, who is confined in the Mohave 17 County Jail, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 and an 18 Application to Proceed In Forma Pauperis. In a December 21, 2015 Order, the Court 19 granted the Application to Proceed and dismissed the Complaint because Plaintiff had 20 failed to state a claim. The Court gave Plaintiff 30 days to file an amended complaint 21 that cured the deficiencies identified in the Order. 22 On January 11, 2016, Plaintiff filed a First Amended Complaint (Doc. 7). The 23 Court will dismiss the First Amended Complaint and this action. 24 I. Statutory Screening of Prisoner Complaints 25 The Court is required to screen complaints brought by prisoners seeking relief 26 against a governmental entity or an officer or an employee of a governmental entity. 28 27 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 28 has raised claims that are legally frivolous or malicious, that fail to state a claim upon 1 which relief may be granted, or that seek monetary relief from a defendant who is 2 immune from such relief. 28 U.S.C. § 1915A(b)(1)–(2). 3 A pleading must contain a “short and plain statement of the claim showing that the 4 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 5 does not demand detailed factual allegations, “it demands more than an unadorned, the- 6 defendant-unlawfully-harmed-me accusation.” 7 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 8 conclusory statements, do not suffice.” Id. Ashcroft v. Iqbal, 556 U.S. 662, 678 9 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 10 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 11 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual 12 content that allows the court to draw the reasonable inference that the defendant is liable 13 for the misconduct alleged.” Id. “Determining whether a complaint states a plausible 14 claim for relief [is] . . . a context-specific task that requires the reviewing court to draw 15 on its judicial experience and common sense.” Id. at 679. Thus, although a plaintiff’s 16 specific factual allegations may be consistent with a constitutional claim, a court must 17 assess whether there are other “more likely explanations” for a defendant’s conduct. Id. 18 at 681. 19 But as the United States Court of Appeals for the Ninth Circuit has instructed, 20 courts must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 21 342 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less 22 stringent standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. 23 Pardus, 551 U.S. 89, 94 (2007) (per curiam)). 24 II. First Amended Complaint 25 Plaintiff names Medical Doctor Klinemach as Defendant in the First Amended 26 Complaint and raises one claim for relief, alleging a violation of his Eighth and 27 Fourteenth Amendment rights to adequate medical care. Plaintiff alleges that although he 28 suffers multiple bladder infections and is in constant pain, Defendant Klinemach is -2- 1 denying him pain medication. Plaintiff claims Defendant Klinemach is aware of the 2 bladder infections and his need to be treated, but refuses to treat Plaintiff or send him to 3 an outside care provider. Plaintiff believes the infection is spreading to his kidneys. 4 Plaintiff seeks monetary damages. 5 III. Failure to State a Claim 6 Not every claim by a prisoner relating to inadequate medical treatment states a 7 violation of the Eighth or Fourteenth Amendment. To state a § 1983 medical claim, a 8 plaintiff must show (1) a “serious medical need” by demonstrating that failure to treat the 9 condition could result in further significant injury or the unnecessary and wanton 10 infliction of pain and (2) the defendant’s response was deliberately indifferent. Jett v. 11 Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). 12 “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 13 1051, 1060 (9th Cir. 2004). To act with deliberate indifference, a prison official must 14 both know of and disregard an excessive risk to inmate health; “the official must both be 15 aware of facts from which the inference could be drawn that a substantial risk of serious 16 harm exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 17 837 (1994). 18 purposeful act or failure to respond to a prisoner’s pain or possible medical need and 19 harm caused by the indifference. Jett, 439 F.3d at 1096. Deliberate indifference may 20 also be shown when a prison official intentionally denies, delays, or interferes with 21 medical treatment or by the way prison doctors respond to the prisoner’s medical needs. 22 Estelle, 429 U.S. at 104-05; Jett, 439 F.3d at 1096. Deliberate indifference in the medical context may be shown by a 23 Deliberate indifference is a higher standard than negligence or lack of ordinary 24 due care for the prisoner’s safety. Farmer, 511 U.S. at 835. “Neither negligence nor 25 gross negligence will constitute deliberate indifference.” Clement v. California Dep’t of 26 Corr., 220 F. Supp. 2d 1098, 1105 (N.D. Cal. 2002); see also Broughton v. Cutter Labs., 27 622 F.2d 458, 460 (9th Cir. 1980) (mere claims of “indifference,” “negligence,” or 28 “medical malpractice” do not support a claim under § 1983). “A difference of opinion -3- 1 does not amount to deliberate indifference to [a plaintiff’s] serious medical needs.” 2 Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). A mere delay in medical care, 3 without more, is insufficient to state a claim against prison officials for deliberate 4 indifference. See Shapley v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 5 (9th Cir. 1985). The indifference must be substantial. The action must rise to a level of 6 “unnecessary and wanton infliction of pain.” Estelle, 429 U.S. at 105. 7 Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 8 520-21 (1972), conclusory and vague allegations will not support a cause of action. Ivey 9 v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Further, a 10 liberal interpretation of a civil rights complaint may not supply essential elements of the 11 claim that were not initially pled. Id. 12 Plaintiff has not alleged sufficient facts to state a claim. Plaintiff claims 13 Defendant Klinemach “was aware” of his bladder infections, but does not state when he 14 was diagnosed with a bladder infection or when he presented his symptoms to Defendant 15 Klinemach. 16 Defendant “refuses” to treat him is a delay in medical treatment or an outright refusal to 17 provide treatment. Accordingly, the Court cannot evaluate whether Plaintiff’s claim that 18 Moreover, the Court notes that Plaintiff’s claims appear to be generally duplicative 19 of his previous filed cases.1 Plaintiff has alleged in other cases that Defendant Klinemach 20 denied him medication for treatment of a bladder infection resulting from a delay in 21 providing catheter supplies, and denied surgery that would allow Plaintiff to discontinue 22 use of a catheter. Plaintiff also alleges in these lawsuits that Defendant Klinemach has 23 denied him pain medication. An in forma pauperis complaint that merely repeats pending 24 or previously litigated claims may be considered abusive and dismissed under the 25 authority of 28 U.S.C. § 1915(e). Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th Cir. 26 1995); Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir. 1988). An in forma pauperis 27 1 28 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. -4- 1 complaint repeating the same factual allegations asserted in an earlier case, even if now 2 filed against a new defendant, is subject to dismissal as duplicative and frivolous. See 3 Bailey, 846 F.2d at 1021; see also Van Meter v. Morgan, 518 F.2d 366, 368 (8th Cir. 4 1975). 5 IV. Dismissal without Leave to Amend 6 Because Plaintiff has failed to state a claim in his First Amended Complaint, the 7 Court will dismiss his First Amended Complaint. “Leave to amend need not be given if a 8 complaint, as amended, is subject to dismissal.” Moore v. Kayport Package Express, 9 Inc., 885 F.2d 531, 538 (9th Cir. 1989). The Court’s discretion to deny leave to amend is 10 particularly broad where Plaintiff has previously been permitted to amend his complaint. 11 Sisseton-Wahpeton Sioux Tribe v. United States, 90 F.3d 351, 355 (9th Cir. 1996). 12 Repeated failure to cure deficiencies is one of the factors to be considered in deciding 13 whether justice requires granting leave to amend. Moore, 885 F.2d at 538. The Court 14 has already provided Plaintiff with an opportunity to amend his Complaint, and Plaintiff 15 failed to state a claim. Moreover, in light of Plaintiff’s previously filed, and more 16 detailed, lawsuits regarding medical treatment for his bladder-related illnesses, the Court 17 finds that further opportunities to amend this action would be futile or would result in 18 claims that are duplicative of his other lawsuits. Therefore, the Court, in its discretion, 19 will dismiss Plaintiff’s First Amended Complaint without leave to amend. 20 IT IS ORDERED: 21 22 (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. 23 (2) The Clerk of Court must make an entry on the docket stating that the 24 dismissal for failure to state a claim may count as a “strike” under 28 U.S.C. § 1915(g). 25 .... 26 .... 27 .... 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 February, 2016. 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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