Albert John Hamilton Jr v. Jurban et al

Filing 7

MEMORANDUM AND ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND by Magistrate Judge Suzanne H. Segal. The Complaint is dismissed, with leave to amend. If Plaintiff still wishes to pursue this action, he is granted thirty (30) days from the date of th is memorandum and Order within which to file a First Amended Complaint. Plaintiff is strongly encouraged to utilize the standard civil rights complaint form when filing any amended complaint, a copy of which is attached. Plaintiff is further advised that if he no longer wishes to pursue this action he may voluntarily dismiss it by filing a Notice of Dismissal in accordance with Federal Rule of Civil Procedure 41(a)(1). A form Notice of Dismissal is attached for Plaintiff's convenience. (See document for further details). (Attachments: # 1 Civil Rights Complaint Form, # 2 Notice of Dismissal Form) (mr)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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ALBERT JOHN HAMILTON JR.,

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Plaintiff,

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Case No. CV 17-5297 ODW (SS)
MEMORANDUM AND ORDER

v.

DISMISSING COMPLAINT WITH

J. URBAN, et al.,

LEAVE TO AMEND

Defendants.

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I.

19

INTRODUCTION

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21

On

July

18,

2017,

Plaintiff

Albert

John

Hamilton

Jr.

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(“Plaintiff”), a California state prisoner proceeding pro se, filed

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a complaint pursuant to 42 U.S.C. § 1983.

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district courts perform an initial screening of complaints in civil

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actions where a prisoner seeks redress from a governmental entity

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or employee.

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complaint, or any portion of it, before service of process if the

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court concludes that the complaint (1) is frivolous or malicious,

28 U.S.C. § 1915A(a).

Congress mandates that

This court may dismiss such a

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(2) fails to state a claim upon which relief can be granted, or

2

(3) seeks monetary relief from a defendant who is immune from such

3

relief.

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Complaint is DISMISSED, with leave to amend.1

28 U.S.C. § 1915A(b).

For the reasons stated below, the

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II.

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ALLEGATIONS OF THE COMPLAINT

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Plaintiff sues two employees of the California Men’s Colony

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State Prison (“CMC”) in their individual capacities only: (1) nurse

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J.

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“Defendants”).

Urban

and

(2)

supervising

nurse

M.

Trujillo

(collectively

(Compl. at 3).

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14

Plaintiff alleges that he is an “ADA inmate” who tested

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positive for tuberculosis in 1987.

(Id. at 1, 6).

According to

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the Complaint, Urban “refused to review [Plaintiff’s] medical

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records before injecting [him] with a (TB) shot on May 8, 2015.”

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(Id. at 5).

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R/N Urban to inject him with a (TB) shot,” which “may have caused

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[him] significant injury.”

Plaintiff “did not have any serious medical need for

(Id.).

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On June 25, 2015, Trujillo filed a false report regarding the

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incident.

(Id.).

The report was false because Trujillo stated

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that Plaintiff “took a (TB) test at M[en’s] C[entral] J[ail] on

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[August 11,] 2014, but [Plaintiff] was at Wasco state prison that

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Magistrate Judges may dismiss a complaint with leave to amend
without approval of the District Judge.
See McKeever v. Block,
932 F.2d 795, 798 (9th Cir. 1991).
1

2

1

same[]day.”

(Id.).

By filing the report, Trujillo “intentionally

2

interfered with [Plaintiff’s] medical treatment . . . .”

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Urban and Trujillo “caused [Plaintiff] to suffer much pain of not

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knowing what may[]be wrong with him.”

(Id.).

(Id. at 6).

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6

Plaintiff summarily asserts that Defendants were negligent

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and committed medical malpractice.

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“violated

9

rights.”

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the

(ADA)

(Id. at 3).

from each Defendant.

[and

(Id.).

Plaintiff’s]

In addition, Urban

U.S.

constitution[al]

Plaintiff seeks $10,000 in monetary damages
(Id. at 6).

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III.

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DISCUSSION

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Pursuant to 28 U.S.C. § 1915A(b), the Court dismisses the

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Complaint due to defects in pleading.

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rights case, however, must be given leave to amend his or her

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complaint unless “it is absolutely clear that the deficiencies of

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the complaint cannot be cured by amendment.”

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698

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quotation marks omitted).

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with leave to amend.

F.3d

1202,

1212

(9th

Cir.

A pro se litigant in a civil

2012)

See Akhtar v. Mesa,

(citation

and

internal

Accordingly, the Complaint is dismissed

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A.

The Complaint Fails To State Claims For Negligence And Medical
Malpractice

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Plaintiff alleges that both Urban and Trujillo are liable for
“negligence and medical malpractice.”
3

(Compl. at 6).

However,

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the Complaint does not satisfy the procedural requirements for

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alleging state law tort claims (such as negligence or medical

3

malpractice) against government actors.

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5

Under

the

California

Government

Claims

Act

(“CGCA”),2

a

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plaintiff may not bring an action for damages against a public

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employee or entity unless he first presents a written claim to the

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local governmental entity within six months of the accrual of the

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incident.

See Mabe v. San Bernadino County, Dept. of Public Social

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Services, 237 F.3d 1101, 1111 (9th Cir. 2001) (CGCA requires the

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“timely presentation of a written claim and the rejection of the

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claim in whole or in part” as a condition precedent to filing

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suit); see also Cal. Gov’t Code § 945.4 (“[N]o suit for money or

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damages may be brought against a public entity . . . until a written

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claim therefor has been presented to the public entity and has been

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acted upon by the board, or has been deemed to have been rejected

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by the board . . .”).

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allege compliance with the CGCA’s claims presentation requirement,

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or explain why compliance should be excused.

Mangold v. Cal. Pub.

20

Utils.

Cir.

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compliance with the [California] Tort Claims Act is required, the

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plaintiff

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compliance, or the complaint is subject to general demurrer.”)

Comm’n,

must

67

Furthermore, a plaintiff must affirmatively

F.3d

allege

1470,

1477

compliance

(9th

or

1995)

circumstances

(“Where

excusing

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The short title “Government Claims Act” has been used
interchangeably in California cases with the title “Tort Claims
Act” to refer to the statutory scheme for presenting claims for
money damages against governmental entities. However, because the
California Supreme Court has expressed a preference for the title
“Government Claims Act,” the Court will adopt that usage. See City
of Stockton v. Superior Court, 42 Cal. 4th 730, 741-42 (2007).
2

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(internal quotation marks omitted).

“The failure to exhaust an

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administrative remedy [under the CGCA] is a jurisdictional, not a

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procedural, defect.”

4

App. 3d 878, 890 (1985); see also Cornejo v. Lightbourne, 220 Cal.

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App. 4th 932, 938 (2013) (“Ordinarily, filing a claim with a public

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entity pursuant to the Claims Act is a jurisdictional element of

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any cause of action for damages against the public entity . . .”).

Miller v. United Airlines, Inc., 174 Cal.

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To the extent that Plaintiff is attempting to assert causes

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of action for negligence or medical malpractice, the claims fail

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because the Complaint does not allege that Plaintiff satisfied the

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CGCA

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Accordingly, the Complaint is dismissed, with leave to amend.

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Plaintiff is cautioned that he should not assert a state law tort

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claim unless he can either show that he presented his claim to the

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appropriate agency prior to filing suit or explain why exhaustion

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should be excused under the particular circumstances of this case.

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\\

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\\

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\\

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\\

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\\

claims

presentation

requirement

before

filing

suit.3

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The claim presentation requirement under the CGCA is separate
from, and is not satisfied by, internal prison grievance processes.
See Hendon v. Ramsey, 528 F. Supp. 2d 1058, 1069–70 (S.D. Cal.
2007) (“Although Plaintiff has demonstrated successfully that he
utilized the prison grievance process to exhaust his federal claims
by filing an inmate appeal, and has attached documentation in the
form of his CDC 602 form and administrative responses, these
documents do not satisfy the CTCA [California Tort Claims Act] with
respect to his state law negligence claims.”).
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B.

The

Complaint

Fails

To

State

A

Claim

For

Deliberate

Indifference To Serious Medical Needs

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4

The Complaint alleges that by administering a “(TB) skin test”

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without

reviewing

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Plaintiff’s “U.S. constitution[al] rights.”

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possible

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deliberate

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Plaintiff’s deliberate indifference claim is defective.

that

Plaintiff’s

Plaintiff

indifference

is
to

medical

records,

attempting
serious

Urban

violated

(Compl. at 3).

to

medical

state

a

It is

claim

needs.

for

However,

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11

To state a claim for unconstitutional health care services, a

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prisoner must demonstrate that the defendants were “deliberately

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indifferent” to his “serious medical needs.”

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F.3d 1091, 1096 (9th Cir. 2006).

To establish a “serious medical

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need,”

that

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prisoner’s condition could result in further significant injury or

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the ‘unnecessary and wanton infliction of pain.’”

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at 1096 (citation omitted); see also Morgan v. Morgensen,

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1041, 1045

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need is determined by an objective standard).

the

prisoner

must

(9th Cir. 2006)

show

Jett v. Penner, 439

“failure

to

treat

[the]

Jett, 439 F.3d
465 F.3d

(the existence of a serious medical

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To establish “deliberate indifference” to such a need, a

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prisoner must demonstrate: “(a) a purposeful act or failure to

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respond to a prisoner’s pain or possible medical need, and (b) harm

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caused by the indifference.”

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indifference “may appear when prison officials deny, delay or

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intentionally interfere with medical treatment, or it may be shown

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by the way in which prison physicians provide medical care.”

Jett, 439 F.3d at 1096.

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Deliberate

Id.

1

(citation omitted).

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to provide adequate medical care” alone does not state a claim.

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Id. (citation omitted).

4

aware

5

disregarded that risk.

6

(1994).

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treatment” of a prisoner does not state a deliberate indifference

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claim.

of

a

An

Yet, an “inadvertent [or negligent] failure

serious

The defendant must have been subjectively

risk

“isolated

of

harm

and

must

have

consciously

See Farmer v. Brennan, 511 U.S. 825, 839
exception”

to

a

defendant’s

“overall

Jett, 439 F.3d at 1096.

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10

Here, Plaintiff alleges that because he has tested positive

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for TB since 1987, Urban should not have administered a follow up

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TB test.

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not be given to patients who have previously tested positive for

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the

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Plaintiff’s medical records before administering the test despite

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Plaintiff’s objections, the Complaint does not state a claim for

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deliberate indifference because Plaintiff has not shown that he

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suffered any harm from the test.

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up test was “not necessary,” and “may have caused [him] significant

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injury” and “could have caused [him] more pain or dread.”

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at 5) (emphasis added).

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he actually suffered any physical harm as a result of the test.

Even assuming, without deciding, that TB tests should

disease,

and

that

Urban

deliberately

refused

to

review

Plaintiff alleges that the follow

(Compl.

However, Plaintiff does not allege that

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Plaintiff’s allegation that both Urban and Trujillo “caused

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[him] to suffer much pain of not knowing what may[]be wrong with

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him” appears to allege that the only “harm” that resulted from the

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test was a temporary increase in Plaintiff’s anxiety.

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However, this allegation fails to show the “harm” necessary for a
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(Id. at 6).

1

deliberate indifference claim because “an inmate may not pursue an

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emotional distress injury unless accompanied by a physical injury.”

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Wood v. Idaho Dep’t of Corr., 391 F. Supp. 2d 852, 867 (D. Idaho

4

2005).

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6

The Prison Litigation Reform Act provides in relevant part:

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No Federal civil action may be brought by a prisoner

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confined

in

a

jail,

prison

or

other

correctional

10

facility for mental or emotional injury suffered while

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in custody without a prior showing of physical injury.”

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13

42 U.S.C. § 1997e(e). The Ninth Circuit has determined that section

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1997e(e)’s “physical injury” requirement demands a showing of a

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“physical injury that need not be significant but must be more than

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de minimis” before a prisoner may recover damages for emotional

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injuries.

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For example, in Oliver, the Ninth Circuit found that a pretrial

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detainee’s section 1983 claim for “mental and emotional injury”

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resulting from “dehumanizing” and “overcrowded” conditions failed

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to satisfy section 1997e(e)’s physical injury requirement where

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the only physical injuries alleged were a canker sore and back and

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leg pain from sleeping on benches and the floor.

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also Wilson v. Dovery, 369 Fed. Appx. 844, at *1 (9th Cir. 2010)

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(affirming dismissal of prisoner’s deliberate indifference claim

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based on “lack of privacy in his medical care” because plaintiff

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“fail[ed] to allege any physical symptoms or the type of harm

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required for a deliberate indifference claim under the Prison

Oliver v. Keller, 289 F.3d 623, 627 (9th Cir. 2002).

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Id. at 629; see

1

Litigation Reform Act”) (citing 42 U.S.C. § 1997e(e) & Oliver, 289

2

F.3d at 627-28); Wood, 391 F. Supp. 2d at 867 (prisoner’s section

3

1983

4

suffered during delay of scheduled hepatitis vaccinations barred

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by section 1997e(e) where prisoner did not contract hepatitis

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during the delay); Glosson v. Morales, 469 F. Supp. 2d 827, 830

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(S.D. Cal. 2007) (prisoner’s section 1983 excessive force claim

8

for

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1997e(e)’s physical injury requirement where the physical injuries

10

deliberate

“physical

indifference

and

mental

claim

anguish”

for

failed

“worry

to

and

distress”

overcome

section

suffered were minor abrasions, scratches and bumps).

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12

The Complaint fails to state facts establishing that the harm

13

Plaintiff suffered was a serious harm.

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Accordingly, the Complaint

is dismissed, with leave to amend.

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C.

The Complaint Fails To State A Claim Under The ADA

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18

Plaintiff summarily claims that Urban “violated the ADA.”

19

(Compl. at 3).

Title II of the ADA, which “prohibits a ‘public

20

entity’ from discriminating against a ‘qualified individual with a

21

disability on account of that individual’s disability,’ [] covers

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inmates in state prisons.” Pennsylvania Dept. of Corr. v. Yeskey,

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524 U.S. 206, 208 (1998) (quoting 42 U.S.C. § 12132).

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the Complaint fails to state an ADA claim.

However,

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26
27

To state a claim under § 12132 of Title II, a plaintiff must
allege that:

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9

1

(1) he is an individual with a disability; (2) he is

2

otherwise qualified to participate in or receive the

3

benefit of some public entity’s services, programs, or

4

activities;

5

participation in or denied the benefits of the public

6

entity’s

7

otherwise discriminated against by the public entity;

8

and

9

discrimination was by reason of [his] disability.

(3)

services,

(4)

such

he

was

either

programs,

exclusion,

or

excluded

activities,

denial

of

from

or

benefits,

was

or

10
11

Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1021 (9th Cir.

12

2010) (quoting McGary v. City of Portland, 386 F.3d 1259, 1265 (9th

13

Cir. 2004)).

14

ADA, a plaintiff must demonstrate that he has been diagnosed with

15

a condition that substantially limits his life activities.

16

v. Abbott, 524 U.S. 624, 631 (1998); see also Weaving v. City of

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Hillsboro, 763 F.3d 1106, 1111 (9th Cir. 2014) (“A 2008 Amendment

18

to the ADA provides, ‘The definition of disability in this chapter

19

shall be construed in favor of broad coverage . . . ’ ‘The term

20

‘substantially limits’ shall be interpreted consistently with the

21

[amendment].’”) (citing 42 U.S.C. § 12102(4)(A-B)).

In order to allege a qualifying disability under the

Bragdon

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23

“The ADA prohibits discrimination because of disability, not

24

inadequate treatment for disability.”

Simmons, 609 F.3d at 1022

25

(emphasis added).

26

under the ADA.

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(7th Cir. 1996) (“[T]he Act would not be violated by a prison’s

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simply failing to attend to the medical needs of its disabled

Insufficient medical care does not state a claim

Id.; see also Bryant v. Madigan, 84 F.3d 246, 249

10

1

prisoners . . . The ADA does not create a remedy for medical

2

malpractice.”).

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4

Here, the Complaint does not allege facts showing that simply

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testing positive for TB has substantially limited Plaintiff’s life

6

activities, or that Plaintiff was denied access to a governmental

7

benefit because of that disability.

8

Complaint

9

disability; that the prison did not accommodate his disability,

must

prevented

establish

benefits

qualifying

programs, or activities provided to non-disabled prisoners; and

12

that

13

Accordingly, the Complaint is dismissed, with leave to amend.

against

the

a

11

discriminated

enjoying

has

which

was

from

Plaintiff

10

he

him

that

To state an ADA claim, the

because

of

of

his

services,

disability.

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15

D.

The Complaint Fails To State A Claim Against Trujillo

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17

Plaintiff appears to allege that Trujillo is liable because

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she filed a “false report” stating that Plaintiff “took a (TB) test

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at MCJ on 8/11/2014,” even though Plaintiff “was at Wasco State

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Prison that same day.”

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was mistaken as to where -- or even whether -- Plaintiff received

22

a prior TB test, Plaintiff has not identified what constitutional

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right, if any, was violated or alleged facts showing that he was

24

harmed in any way by the error.

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the information was, will, or even could be used against him.

26

simple

27

information does not, by itself, state a constitutional claim.

28

See, e.g., Reyes v. Supervisor of DEA, 834 F.2d 1093, 1097 (1st

fact

that

an

(Compl. at 5).

Plaintiff has not alleged that

institutional

11

Even assuming that Trujillo

file

contains

The

inaccurate

1

Cir. 1987) (allegation that police department maintained false

2

information without a showing that the information was or would be

3

used to deprive the inmate of a constitutionally protected interest

4

failed to state a due process claim); Pruett v. Levi, 622 F.2d 256,

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258 (6th Cir. 1980) (mere existence of inaccuracy in FBI criminal

6

file

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Complaint is dismissed, with leave to amend.

does

not

state

constitutional

claim).

Accordingly,

the

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9

E.

The Complaint Violates Rule 8

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11

Federal Rule of Civil Procedure 8(a)(2) requires that a

12

complaint contain “‘a short and plain statement of the claim

13

showing that the pleader is entitled to relief,’ in order to ‘give

14

the defendant fair notice of what the . . . claim is and the

15

grounds upon which it rests.’”

16

544, 555 (2007) (citations omitted).

17

a pleading “says too little” and “when a pleading says too much.”

18

Knapp v. Hogan, 738 F.3d 1106, 1109 (9th Cir. 2013) (emphasis in

19

original); see also Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys.,

20

Inc., 637 F.3d 1047, 1058-59 (9th Cir. 2011) (a complaint violates

21

Rule 8 if a defendant would have difficulty understanding and

22

responding to the complaint).

Bell Atlantic v. Twombly, 550 U.S.
Rule 8 may be violated when

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24

The Complaint violates Rule 8 because Plaintiff does not

25

clearly identify the nature of each of his legal claims and the

26

specific facts giving rise to each individual claim.

27

the Complaint does not clearly state what constitutional right

28

Defendants may have violated, or whether Plaintiff is in fact
12

For example,

1

bringing his section 1983 and ADA claims only against Urban.

2

Additionally, the Complaint contains confusing and superfluous

3

allegations, such as the many references to “attached documents,”

4

even though no documents were attached to the Complaint, and likely

5

did not need to be.

6

Complaint is dismissed, with leave to amend.

(See Compl. at 6-9).

Accordingly, the

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8

IV.

9

CONCLUSION

10
11

For the reasons stated above, the Complaint is dismissed, with

12

leave to amend.

If Plaintiff still wishes to pursue this action,

13

he is granted thirty (30) days from the date of this memorandum

14

and Order within which to file a First Amended Complaint.

15

amended complaint, Plaintiff shall cure the defects described

16

above.

In any

17
18

Furthermore, Plaintiff shall omit any claims or allegations

19

that are not reasonably related to the claims asserted in the

20

Complaint, but shall instead attempt to cure the deficiencies

21

addressed in this Order.

22

shall be complete in itself and shall bear both the designation

23

“First Amended Complaint” and the case number assigned to this

24

action. It shall not refer in any manner to the original Complaint.

25

In any amended complaint, Plaintiff should confine his allegations

26

to the operative facts supporting each of his claims.

27

is advised that pursuant to Federal Rule of Civil Procedure 8(a),

28

all that is required is a “short and plain statement of the claim

The First Amended Complaint, if any,

13

Plaintiff

1

showing that the pleader is entitled to relief.”

Plaintiff is

2

strongly encouraged to utilize the standard civil rights complaint

3

form when filing any amended complaint, a copy of which is attached.

4

In any amended complaint, Plaintiff should identify the nature of

5

each separate legal claim and make clear what specific factual

6

allegations support his claims.

7

to keep his statements concise and to omit irrelevant details.

8

is not necessary for Plaintiff to cite case law or include legal

9

argument.

Plaintiff is strongly encouraged
It

The Court notes that Plaintiff has filed several actions

10

at the same time and these actions appear to lack substance in fact

11

and law.

12

actions will ultimately result in a recommendation that he be

13

barred

14

explicitly cautioned that failure to timely file a First Amended

15

Complaint, or failure to correct the deficiencies described above,

16

will result in a recommendation that this action be dismissed with

17

prejudice for failure to prosecute and obey Court orders

18

to

19

further advised that if he no longer wishes to pursue this action

20

he may voluntarily dismiss it by filing a Notice of Dismissal in

21

accordance with Federal Rule of Civil Procedure 41(a)(1).

22

Notice of Dismissal is attached for Plaintiff’s convenience.

Plaintiff is advised that filing frivolous motions or

from

filing

Federal Rule

as

of

a

vexatious

Civil

litigant.

Procedure

41(b).

Plaintiff

is

pursuant

Plaintiff is

A form

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24

DATED:

August 11, 2017
/S/
__________
SUZANNE H. SEGAL
UNITED STATES MAGISTRATE JUDGE

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THIS DECISION IS NOT INTENDED FOR PUBLICATION IN LEXIS, WESTLAW OR
ANY OTHER LEGAL DATABASE.
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