Hernandez v. Smith et al

Filing 15

ORDER Dismissing First Amended Complaint with Leave to Amend, signed by Magistrate Judge Gerald B. Cohn on 12/1/11. Second Amended Complaint due within Thirty Days. (Attachments: # 1 Amended complaint form)(Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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RAUL HERNANDEZ,

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CASE NO. 1:09-cv-00828-AWI -GBC (PC)

Plaintiff,

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v.

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ORDER DISMISSING FIRST AMENDED
COMPLAINT WITH LEAVE TO AMEND

T. SMITH, et al.,

(Doc. 12)
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SECOND AMENDED COMPLAINT DUE
WITHIN THIRTY DAYS

Defendants.

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/

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I.

Procedural History

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Plaintiff Raul Hernandez (“Plaintiff”) is a state prisoner proceeding pro se and in forma
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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed his original complaint
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on May 11, 2009. Doc. 1. On December 2, 2009, the Court screened Plaintiff’s complaint and stated
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that he could proceed on the cognizable claim against R. D. Smith or amend. Doc. 8. On April 30,
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2010, Plaintiff filed his first amended complaint, which is currently before the Court. Doc. 12.
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II.

Screening

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A.

Screening Standard

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The Court is required to screen complaints brought by prisoners seeking relief against a
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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The
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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally
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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek
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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).

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“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall

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dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a

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claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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“‘Under § 1915A, when determining whether a complaint states a claim, a court must accept

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as true all allegations of material fact and must construe those facts in the light most favorable to the

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plaintiff.’” Hamilton v. Brown, 630 F.3d 889. 892-93 (9th Cir. 2011) (quoting Resnick v. Warden

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Hayes, 213 F.3d 443, 447 (9th Cir.2000). “‘Additionally, in general, courts must construe pro se

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pleadings liberally.’” Id. A complaint, or portion thereof, should only be dismissed for failure to

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state a claim upon which relief may be granted “if it is clear that no relief could be granted under any

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set of facts that could be proved consistent with the allegations.” See Hishon v. King & Spalding,

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467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); see also Synagogue

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v. United States, 482 F.3d 1058, 1060 (9th Cir. 2007); NL Industries, Inc. v. Kaplan, 792 F.2d 896,

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898 (9th Cir. 1986). In determining whether to dismiss an action, the Court must accept as true the

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allegations of the complaint in question, and construe the pleading in the light most favorable to the

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plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421-22

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(1969); Daniels-Hall v. National Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010).

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B.

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Plaintiff is incarcerated at Chuckawalla State Prison, located in Blythe California and is suing

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under section 1983 for events which occurred while a prisoner at Avenal State Prison in Avenal

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California. Doc. 12. In his complaint, Plaintiff names the following defendants: 1) T. Smith (DDS

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dentist); 2) R. D. Smith (DDS dentist); and L. Kirk (DDS dentist). Doc. 12 at 1-3.

Plaintiff’s Complaint

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Plaintiff alleges that on June 8, 2006, Plaintiff submitted a healthcare request form 7362 for

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a dental examination since Plaintiff was suffering a great deal of pain. Doc. 12 at 1-2. Plaintiff was

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seen on August 14, 2006, by the dentist, Defendant T. Smith. Doc. 12 at 2. Plaintiff told Defendant

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T. Smith that Plaintiff was in extreme pain and that “tooth #31" needed to be fixed to resolve the

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pain. Doc. 12 at 2. Plaintiff told Defendant T. Smith that the pain from the tooth caused Plaintiff

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to chew only on his left side. Doc. 12 at 2. According to Plaintiff, “When [Defendant T. Smith]
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examined [Plaintiff] . . . [Defendant T. Smith] knew right then of [Plaintiff’s] serious medical need

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and that [Plaintiff] was in extreme pain. He failed, in his individual capacity, to treat [Plaintiff] . .

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.and because of negligence, [Plaintiff’s moulder [sic] . . . finally crack[ed] all the way to the bottom

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of [Plaintiff’s] gum causing [Plaintiff] to lose part of [his] tooth.” Doc. 12 at 2.

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On September 16, 2007, Plaintiff submitted another health care request form #7362 to receive

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treatment for an abscess tooth and the same molar. Doc. 12 at 2. On September 19, 2007, Plaintiff

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was seen by another dentist, Defendant R. D. Smith for the abscess on one tooth and problems with

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his molar. Doc. 12 at 2. According to Plaintiff, when he “asked [Defendant R. D. Smith] a question,

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[he] was refused treatment and told to leave” and Plaintiff left although he was in a great deal of

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pain. Doc. 12 at 2. Plaintiff further states that on October 15, 2007, Defendant R. D. Smith

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“denied/deprived [Plaintiff] medical treatment . . . [for his] serious medical need.” Doc. 12 at 2.

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On September 24, 2007, Plaintiff submitted another health care request form #7362 to

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address extreme dental pain that interfered with Plaintiff’s ability to brush, eat, sleep and carry out

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his normal activities. Doc. 12 at 2-3. On the health care request form, Plaintiff asked why he was

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being denied medical treatment and stated that if he did not receive the necessary help, Plaintiff

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would end up losing teeth that were otherwise salvageable. Doc. 12 at 3. Plaintiff was seen on

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September 27, 2007 by dentist Defendant L. Kirk who told Plaintiff that “tooth #8" would have to

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be extracted. Doc. 12 at 3. Plaintiff asserts that Defendant L. Kirk “must’ve seen Plaintiff’s medical

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file and seen the progress notes from . . . R. D. Smith [and] T. Smith . . . . [Defendant Kirk] in his

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individual capacity knew that Plaintiff was in a great deal of pain and needed medical treatment . .

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. [Defendant Kirk] failed to provide Plaintiff with medical treatment when he was aware that

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Plaintiff was already being denied medical treatment by [Defendants R. D. Smith and T. Smith].”

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Doc. 12 at 3.

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Plaintiff filed a 602 grievance and on January 17, 2008, Plaintiff was interviewed by

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Defendant Kirk regarding the grievance. Doc. 12 at 3. During the interview, Plaintiff told

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Defendant Kirk to look at Plaintiff’s medical file and he will be able to see that Plaintiff was overdue

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for treatment since October 7, 2003. Doc. 12 at 3. According to Plaintiff, “Upon carefully reviewing

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Plaintiff’s medical file, [Defendant Kirk] . . . ‘granted’ Plaintiff’s 602 grievance.” Doc. 12 at 3.
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C.

Eighth Amendment

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“[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate

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must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091, 1096

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(9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 295 (1976)). The two part

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test for deliberate indifference requires the plaintiff to show (1) “‘a serious medical need’ by

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demonstrating that ‘failure to treat a prisoner’s condition could result in further significant injury or

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the unnecessary and wanton infliction of pain,’” and (2) “the defendant’s response to the need was

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deliberately indifferent.” Jett, 439 F.3d at 1096 (quoting McGuckin v. Smith, 974 F.2d 1050, 1059

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(9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th

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Cir. 1997) (en banc) (internal quotations omitted)). Deliberate indifference is shown by “a

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purposeful act or failure to respond to a prisoner’s pain or possible medical need, and harm caused

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by the indifference.” Id. (citing McGuckin, 974 F.2d at 1060).

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A plaintiff can demonstrate that prison officials were deliberately indifferent to a prisoner's

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serious medical needs when officials delay or intentionally interfere with medical treatment. Hallett

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v. Morgan, 296 F.3d 732, 744-45 (9th Cir. 2002) (quoting Hamilton v. Endell, 981 F.2d 1062, 1066

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(9th Cir.1992)) (internal quotations omitted). However, delay resulting from “[m]ere negligence in

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diagnosing or treating a medical condition, without more, does not violate a prisoner's Eighth

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Amendment rights.” Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (quoting Hutchinson v.

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United States, 838 F.2d 390, 394 (9th Cir. 1988) (internal quotation marks omitted). Moreover, in

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order to state a deliberate indifference Eighth Amendment claim resulting from a delay in medical

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treatment, a plaintiff must demonstrate that the delay caused additional serious injury. See Shapley

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v. Nevada Bd. of State Prison Com'rs, 766 F.2d 404, 407 (9th Cir. 1985); Hutchinson v. United

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States, 838 F.2d 390, 394 (9th Cir.1988); see also Jett, 439 F.3d at 1096 (citing McGuckin, 974 F.2d

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at 1060).

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To state a viable claim, Plaintiff must demonstrate that each named defendant personally

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participated in the deprivation of his rights. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1948-49 (2009);

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Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton,

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588 F.3d 1218, 1235 (9th Cir. 2009); Jones v. Williams, 297 F.3d 930, 934. Liability may not be
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imposed on supervisory personnel under the theory of respondeat superior, Iqbal, 129 S.Ct. at 1948-

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49; Ewing, 588 F.3d at 1235, and supervisors may only be held liable if they “participated in or

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directed the violations, or knew of the violations and failed to act to prevent them,” Taylor v. List,

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880 F.2d 1040, 1045 (9th Cir. 1989); accord Starr v. Baca, 652 F.3d 1202, 1205-08 (9th Cir. 2011);

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Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009); Preschooler II v. Clark County School Board

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of Trustees, 479 F.3d 1175, 1182 (9th Cir. 2007); Harris v. Roderick, 126 F.3d 1189, 1204 (9th Cir.

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1997).

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“Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 1060

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(9th Cir. 2004). “A difference of opinion between a prisoner-patient and prison medical authorities

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regarding treatment does not give rise to a § 1983 claim,” Franklin v. Oregon, 662 F.2d 1337, 1344

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(9th Cir. 1981) (internal citation omitted), and a difference of opinion between medical personnel

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regarding treatment does not amount to deliberate indifference, Sanchez v. Vild, 891 F.2d 240, 242

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(9th Cir. 1989). To prevail, Plaintiff “must show that the course of treatment the doctors chose was

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medically unacceptable under the circumstances . . . and . . . that they chose this course in conscious

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disregard of an excessive risk to plaintiff’s health.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir.

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1986) (internal citations omitted).

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D.

Analysis

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Plaintiff adequately alleges that his dental condition and pain amounts to a serious medical

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need and that the named defendants had knowledge of Plaintiff’s serious medical need. However,

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Plaintiff fails to allege any facts regarding what purposeful act or failure to respond that was done

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by each defendant. Jett, 439 F.3d at 1096 (citing McGuckin, 974 F.2d at 1060). Therefore, Plaintiff

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fails to state an Eighth Amendment deliberate indifference claim.

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Plaintiff’s conclusory allegations that defendants violated Plaintiff’s rights are insufficient

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to state a claim. See e.g., Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-51 (2009); McKeever v. Block, 932

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F.2d 795, 798 (9th Cir. 1991); Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984). Detailed

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factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action,

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supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949

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(2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)).
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“[P]laintiffs [now] face a higher burden of pleadings facts . . ,” Al-Kidd v. Ashcroft, 580 F.3d 949,

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977 (9th Cir. 2009), and while a plaintiff’s allegations are taken as true, courts “are not required to

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indulge unwarranted inferences,” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009)

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(internal quotation marks and citation omitted).

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In this instance, Plaintiff merely makes the conclusory allegation that Defendants denied

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Plaintiff of medical treatment without providing sufficient facts to support that Defendants denied

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treatment. Although Plaintiff alleges that he was told to leave, Plaintiff fails to provide details as

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to who told Plaintiff to leave, what events led to Plaintiff being told to leave and what, if any

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treatment Plaintiff received regarding the abscess. Plaintiff’s use of passive tense creates an

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ambiguity as to who actually told Plaintiff to leave. Plaintiff cannot simply refer to his attachments

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in his complaint. Rather Plaintiff must clearly explain what happened.

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III.

Conclusion and Order

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III.

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Plaintiff’s complaint fails to state a claim upon which relief may be granted under section

Conclusion and Order

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1983. The Court will grant Plaintiff an opportunity to file an amended complaint. Noll v. Carlson,
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809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff may not change the nature of this suit by adding

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new, unrelated claims in his amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir.

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2007).

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Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but must state what each
named defendant did that led to the deprivation of Plaintiff’s constitutional or other federal rights,

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Iqbal, 129 S.Ct. at 1948-49. Although accepted as true, the “[f]actual allegations must be [sufficient]

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to raise a right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555 (citations

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omitted).

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Finally, Plaintiff is advised that Local Rule 220 requires that an amended complaint be

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complete in itself without reference to any prior pleading. As a general rule, an amended complaint

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supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once an

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amended complaint is filed, the original complaint no longer serves any function in the case.
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Therefore, in an amended complaint, as in an original complaint, each claim and the involvement

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of each defendant must be sufficiently alleged. The amended complaint should be clearly and boldly

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titled "Second Amended Complaint," refer to the appropriate case number, and be an original signed

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under penalty of perjury.

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Based on the foregoing, it is HEREBY ORDERED that:

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1.

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The Clerk’s Office shall send Plaintiff a civil rights complaint form;

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Plaintiff’s first amended complaint, filed April 30, 2010, is dismissed for failure to

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state a claim upon which relief may be granted;

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3.

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Within thirty (30) days from the date of service of this order, Plaintiff shall file an
amended complaint; and

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4.

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action will be dismissed, with prejudice, for failure to state a claim.

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If Plaintiff fails to file an amended complaint in compliance with this order, this

IT IS SO ORDERED.
Dated:
0jh02o

December 1, 2011
UNITED STATES MAGISTRATE JUDGE

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