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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ALBERT JOHN HAMILTON JR., 12 Plaintiff, 13 14 Case No. CV 17-5297 ODW (SS) MEMORANDUM AND ORDER v. DISMISSING COMPLAINT WITH J. URBAN, et al., LEAVE TO AMEND Defendants. 15 16 17 18 I. 19 INTRODUCTION 20 21 On July 18, 2017, Plaintiff Albert John Hamilton Jr. 22 (“Plaintiff”), a California state prisoner proceeding pro se, filed 23 a complaint pursuant to 42 U.S.C. § 1983. 24 district courts perform an initial screening of complaints in civil 25 actions where a prisoner seeks redress from a governmental entity 26 or employee. 27 complaint, or any portion of it, before service of process if the 28 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 1 (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. 4 Complaint is DISMISSED, with leave to amend.1 28 U.S.C. § 1915A(b). For the reasons stated below, the 5 6 II. 7 ALLEGATIONS OF THE COMPLAINT 8 9 Plaintiff sues two employees of the California Men’s Colony 10 State Prison (“CMC”) in their individual capacities only: (1) nurse 11 J. 12 “Defendants”). Urban and (2) supervising nurse M. Trujillo (collectively (Compl. at 3). 13 14 Plaintiff alleges that he is an “ADA inmate” who tested 15 positive for tuberculosis in 1987. (Id. at 1, 6). According to 16 the Complaint, Urban “refused to review [Plaintiff’s] medical 17 records before injecting [him] with a (TB) shot on May 8, 2015.” 18 (Id. at 5). 19 R/N Urban to inject him with a (TB) shot,” which “may have caused 20 [him] significant injury.” Plaintiff “did not have any serious medical need for (Id.). 21 22 On June 25, 2015, Trujillo filed a false report regarding the 23 incident. (Id.). The report was false because Trujillo stated 24 that Plaintiff “took a (TB) test at M[en’s] C[entral] J[ail] on 25 [August 11,] 2014, but [Plaintiff] was at Wasco state prison that 26 27 28 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 . . . .” 3 Urban and Trujillo “caused [Plaintiff] to suffer much pain of not 4 knowing what may[]be wrong with him.” (Id.). (Id. at 6). 5 6 Plaintiff summarily asserts that Defendants were negligent 7 and committed medical malpractice. 8 “violated 9 rights.” 10 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). 11 12 III. 13 DISCUSSION 14 15 Pursuant to 28 U.S.C. § 1915A(b), the Court dismisses the 16 Complaint due to defects in pleading. 17 rights case, however, must be given leave to amend his or her 18 complaint unless “it is absolutely clear that the deficiencies of 19 the complaint cannot be cured by amendment.” 20 698 21 quotation marks omitted). 22 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 23 24 25 A. The Complaint Fails To State Claims For Negligence And Medical Malpractice 26 27 28 Plaintiff alleges that both Urban and Trujillo are liable for “negligence and medical malpractice.” 3 (Compl. at 6). However, 1 the Complaint does not satisfy the procedural requirements for 2 alleging state law tort claims (such as negligence or medical 3 malpractice) against government actors. 4 5 Under the California Government Claims Act (“CGCA”),2 a 6 plaintiff may not bring an action for damages against a public 7 employee or entity unless he first presents a written claim to the 8 local governmental entity within six months of the accrual of the 9 incident. See Mabe v. San Bernadino County, Dept. of Public Social 10 Services, 237 F.3d 1101, 1111 (9th Cir. 2001) (CGCA requires the 11 “timely presentation of a written claim and the rejection of the 12 claim in whole or in part” as a condition precedent to filing 13 suit); see also Cal. Gov’t Code § 945.4 (“[N]o suit for money or 14 damages may be brought against a public entity . . . until a written 15 claim therefor has been presented to the public entity and has been 16 acted upon by the board, or has been deemed to have been rejected 17 by the board . . .”). 18 allege compliance with the CGCA’s claims presentation requirement, 19 or explain why compliance should be excused. Mangold v. Cal. Pub. 20 Utils. Cir. 21 compliance with the [California] Tort Claims Act is required, the 22 plaintiff 23 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 24 25 26 27 28 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 4 1 (internal quotation marks omitted). “The failure to exhaust an 2 administrative remedy [under the CGCA] is a jurisdictional, not a 3 procedural, defect.” 4 App. 3d 878, 890 (1985); see also Cornejo v. Lightbourne, 220 Cal. 5 App. 4th 932, 938 (2013) (“Ordinarily, filing a claim with a public 6 entity pursuant to the Claims Act is a jurisdictional element of 7 any cause of action for damages against the public entity . . .”). Miller v. United Airlines, Inc., 174 Cal. 8 9 To the extent that Plaintiff is attempting to assert causes 10 of action for negligence or medical malpractice, the claims fail 11 because the Complaint does not allege that Plaintiff satisfied the 12 CGCA 13 Accordingly, the Complaint is dismissed, with leave to amend. 14 Plaintiff is cautioned that he should not assert a state law tort 15 claim unless he can either show that he presented his claim to the 16 appropriate agency prior to filing suit or explain why exhaustion 17 should be excused under the particular circumstances of this case. 18 \\ 19 \\ 20 \\ 21 \\ 22 \\ claims presentation requirement before filing suit.3 23 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.”). 3 24 25 26 27 28 5 1 2 B. The Complaint Fails To State A Claim For Deliberate Indifference To Serious Medical Needs 3 4 The Complaint alleges that by administering a “(TB) skin test” 5 without reviewing 6 Plaintiff’s “U.S. constitution[al] rights.” 7 possible 8 deliberate 9 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, 10 11 To state a claim for unconstitutional health care services, a 12 prisoner must demonstrate that the defendants were “deliberately 13 indifferent” to his “serious medical needs.” 14 F.3d 1091, 1096 (9th Cir. 2006). To establish a “serious medical 15 need,” that 16 prisoner’s condition could result in further significant injury or 17 the ‘unnecessary and wanton infliction of pain.’” 18 at 1096 (citation omitted); see also Morgan v. Morgensen, 19 1041, 1045 20 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 21 22 To establish “deliberate indifference” to such a need, a 23 prisoner must demonstrate: “(a) a purposeful act or failure to 24 respond to a prisoner’s pain or possible medical need, and (b) harm 25 caused by the indifference.” 26 indifference “may appear when prison officials deny, delay or 27 intentionally interfere with medical treatment, or it may be shown 28 by the way in which prison physicians provide medical care.” Jett, 439 F.3d at 1096. 6 Deliberate Id. 1 (citation omitted). 2 to provide adequate medical care” alone does not state a claim. 3 Id. (citation omitted). 4 aware 5 disregarded that risk. 6 (1994). 7 treatment” of a prisoner does not state a deliberate indifference 8 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. 9 10 Here, Plaintiff alleges that because he has tested positive 11 for TB since 1987, Urban should not have administered a follow up 12 TB test. 13 not be given to patients who have previously tested positive for 14 the 15 Plaintiff’s medical records before administering the test despite 16 Plaintiff’s objections, the Complaint does not state a claim for 17 deliberate indifference because Plaintiff has not shown that he 18 suffered any harm from the test. 19 up test was “not necessary,” and “may have caused [him] significant 20 injury” and “could have caused [him] more pain or dread.” 21 at 5) (emphasis added). 22 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 23 24 Plaintiff’s allegation that both Urban and Trujillo “caused 25 [him] to suffer much pain of not knowing what may[]be wrong with 26 him” appears to allege that the only “harm” that resulted from the 27 test was a temporary increase in Plaintiff’s anxiety. 28 However, this allegation fails to show the “harm” necessary for a 7 (Id. at 6). 1 deliberate indifference claim because “an inmate may not pursue an 2 emotional distress injury unless accompanied by a physical injury.” 3 Wood v. Idaho Dep’t of Corr., 391 F. Supp. 2d 852, 867 (D. Idaho 4 2005). 5 6 The Prison Litigation Reform Act provides in relevant part: 7 8 No Federal civil action may be brought by a prisoner 9 confined in a jail, prison or other correctional 10 facility for mental or emotional injury suffered while 11 in custody without a prior showing of physical injury.” 12 13 42 U.S.C. § 1997e(e). The Ninth Circuit has determined that section 14 1997e(e)’s “physical injury” requirement demands a showing of a 15 “physical injury that need not be significant but must be more than 16 de minimis” before a prisoner may recover damages for emotional 17 injuries. 18 For example, in Oliver, the Ninth Circuit found that a pretrial 19 detainee’s section 1983 claim for “mental and emotional injury” 20 resulting from “dehumanizing” and “overcrowded” conditions failed 21 to satisfy section 1997e(e)’s physical injury requirement where 22 the only physical injuries alleged were a canker sore and back and 23 leg pain from sleeping on benches and the floor. 24 also Wilson v. Dovery, 369 Fed. Appx. 844, at *1 (9th Cir. 2010) 25 (affirming dismissal of prisoner’s deliberate indifference claim 26 based on “lack of privacy in his medical care” because plaintiff 27 “fail[ed] to allege any physical symptoms or the type of harm 28 required for a deliberate indifference claim under the Prison Oliver v. Keller, 289 F.3d 623, 627 (9th Cir. 2002). 8 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 5 by section 1997e(e) where prisoner did not contract hepatitis 6 during the delay); Glosson v. Morales, 469 F. Supp. 2d 827, 830 7 (S.D. Cal. 2007) (prisoner’s section 1983 excessive force claim 8 for 9 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). 11 12 The Complaint fails to state facts establishing that the harm 13 Plaintiff suffered was a serious harm. 14 Accordingly, the Complaint is dismissed, with leave to amend. 15 16 C. The Complaint Fails To State A Claim Under The ADA 17 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 22 inmates in state prisons.” Pennsylvania Dept. of Corr. v. Yeskey, 23 524 U.S. 206, 208 (1998) (quoting 42 U.S.C. § 12132). 24 the Complaint fails to state an ADA claim. However, 25 26 27 To state a claim under § 12132 of Title II, a plaintiff must allege that: 28 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 17 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 22 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. 27 (7th Cir. 1996) (“[T]he Act would not be violated by a prison’s 28 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.”). 3 4 Here, the Complaint does not allege facts showing that simply 5 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. 14 15 D. The Complaint Fails To State A Claim Against Trujillo 16 17 Plaintiff appears to allege that Trujillo is liable because 18 she filed a “false report” stating that Plaintiff “took a (TB) test 19 at MCJ on 8/11/2014,” even though Plaintiff “was at Wasco State 20 Prison that same day.” 21 was mistaken as to where -- or even whether -- Plaintiff received 22 a prior TB test, Plaintiff has not identified what constitutional 23 right, if any, was violated or alleged facts showing that he was 24 harmed in any way by the error. 25 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, 5 258 (6th Cir. 1980) (mere existence of inaccuracy in FBI criminal 6 file 7 Complaint is dismissed, with leave to amend. does not state constitutional claim). Accordingly, the 8 9 E. The Complaint Violates Rule 8 10 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 23 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 7 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 23 24 DATED: August 11, 2017 /S/ __________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 25 26 27 28 THIS DECISION IS NOT INTENDED FOR PUBLICATION IN LEXIS, WESTLAW OR ANY OTHER LEGAL DATABASE. 14

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