Gaona v. Kushner et al

Filing 35

ORDER DISMISSING ACTION (Strike), with Prejudice, for Failure to State a Claim, and Directing Clerk's Office to Enter Judgment; ORDER Counting Dismissal as a Strike under 28 U.S.C. § 1915(G), signed by Magistrate Judge Sandra M. Snyder on 10/18/2010. CASE CLOSED. (Flores, E)

(PC) Gaona v. Kushner et al

Doc. 35

1 2 3 4 5 6 7 8 9 MARTIN PARTIDA GAONA, 10 Plaintiff, 11 v. 12 KUSHNER, et al., 13 Defendants. 14 15 16 Screening Order 17 I. 18 Plaintiff Martin Partida Gaona, a state prisoner proceeding pro se and in forma pauperis, filed 19 this civil rights action pursuant to 42 U.S.C. § 1983 on July 10, 2006. On May 13, 2008, the Court 20 screened Plaintiff's complaint and dismissed it, with leave to amend. Plaintiff filed a first amended 21 complaint on July 10, 2008, and a second amended complaint on March 6, 2009. On July 8, 2010, 22 the Court issued its second screening order, finding that Plaintiff's second amended complaint failed 23 to state a claim upon which relief may be granted. Because of the "significant change" in the 24 standard to which pleadings are held, Moss v. U.S. Secret Service, 572 F.3d 962, 972 (9th Cir. 25 2009), and because it appeared that Plaintiff might be able to cure the deficiencies, the Court granted 26 Plaintiff one final opportunity to amend, Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). 27 Plaintiff filed his third amended complaint on October 13, 2010, and for the reasons set forth below, 28 1
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA CASE NO. 1:06-cv-00865-SMS PC ORDER DISMISSING ACTION, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM, AND DIRECTING CLERK'S OFFICE TO ENTER JUDGMENT (Doc. 34) ORDER COUNTING DISMISSAL AS A STRIKE UNDER 28 U.S.C. § 1915(G) /

Procedural History

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this action shall be dismissed, with prejudice, for failure to state a claim. II. Screening Requirement The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii). A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to `state a claim that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). Facial plausibility demands more than the mere possibility that a defendant committed misconduct, Iqbal at 1950, and while factual allegations are accepted as true, legal conclusion are not, id. at 1949. III. Plaintiff's Eight Amendment Medical Care Claims Plaintiff, who is currently incarcerated at Salinas Valley State Prison in Soledad, brings this action against Defendants Kushner, Benyamah, Salazar, Matter, Harper, Brewer, Hayden, Duel, Davis, Mantaras, Maegan, and Diana, all of whom were employed at Pleasant Valley State Prison in Coalinga, where the events at issue occurred. Plaintiff alleges that Defendant Kushner told custody staff Plaintiff was faking his medical conditions, but after several complaints, Plaintiff was diagnosed with pneumonia and Valley Fever. Plaintiff alleges that all of the named defendants denied him medical care, in violation of his rights under the Eighth Amendment of the United States Constitution. 2

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"[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate must show `deliberate indifference to serious medical needs.'" Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 295 (1976)). The two part test for deliberate indifference requires the plaintiff to show (1) "`a serious medical need' by demonstrating that `failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain,'" and (2) "the defendant's response to the need was deliberately indifferent." Jett, 439 F.3d at 1096 (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc) (internal quotations omitted)). Deliberate indifference is shown by "a purposeful act or failure to respond to a prisoner's pain or possible medical need, and harm caused by the indifference." Id. (citing McGuckin, 974 F.2d at 1060). "A difference of opinion between a prisoner-patient and prison medical authorities regarding treatment does not give rise to a s 1983 claim," Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981) (internal citation omitted), and a difference of opinion between medical personnel regarding treatment does not amount to deliberate indifference, Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). Plaintiff must allege sufficient facts to support a claim that "the course of treatment the doctors chose was medically unacceptable under the circumstances . . . and . . . that they chose this course in conscious disregard of an excessive risk to plaintiff's health." Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1986) (internal citations omitted). Plaintiff's allegations falls short of stating any plausible claims for violation of the Eighth Amendment arising from deficient medical care. Iqbal at 1949-50; Moss at 969. Plaintiff alleges only that Defendant Kushner accused him of malingering when he was in fact suffering from pneumonia and Valley Fever, and that everyone denied him medical care. These conclusory allegations are insufficient to support the claim that Defendants knowingly disregarded an excessive risk to Plaintiff's health, Farmer, 511 U.S. at 837, and that Plaintiff suffered further harm as a result, McGuckin at 1060 (citing Shapely v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9th 3

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Cir. 1985)). /// IV. Conclusion and Order Plaintiff's third amended complaint fails to state a claim upon which relief may be granted. Plaintiff was previously given notice of the deficiencies and an opportunity to amend, but he was unable to cure the deficiencies. Lopez, 203 F.3d at 1130; Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Therefore, further leave to amend is not warranted, and it is HEREBY ORDERED that: 1. 2. 3. This action is dismissed, with prejudice, for failure to state a claim; The Clerk's Office shall enter judgment; and This dismissal shall count as a strike under 28 U.S.C. § 1915(g).

IT IS SO ORDERED. Dated: icido3 October 18, 2010 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE

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