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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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 RAUL HERNANDEZ, 10 CASE NO. 1:09-cv-00828-AWI -GBC (PC) Plaintiff, 11 v. 12 ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND T. SMITH, et al., (Doc. 12) 13 SECOND AMENDED COMPLAINT DUE WITHIN THIRTY DAYS Defendants. 14 / 15 I. Procedural History 16 Plaintiff Raul Hernandez (“Plaintiff”) is a state prisoner proceeding pro se and in forma 17 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed his original complaint 18 on May 11, 2009. Doc. 1. On December 2, 2009, the Court screened Plaintiff’s complaint and stated 19 that he could proceed on the cognizable claim against R. D. Smith or amend. Doc. 8. On April 30, 20 2010, Plaintiff filed his first amended complaint, which is currently before the Court. Doc. 12. 21 22 II. Screening 23 A. Screening Standard 24 The Court is required to screen complaints brought by prisoners seeking relief against a 25 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 26 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 27 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 28 1 1 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 2 “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall 3 dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a 4 claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 5 “‘Under § 1915A, when determining whether a complaint states a claim, a court must accept 6 as true all allegations of material fact and must construe those facts in the light most favorable to the 7 plaintiff.’” Hamilton v. Brown, 630 F.3d 889. 892-93 (9th Cir. 2011) (quoting Resnick v. Warden 8 Hayes, 213 F.3d 443, 447 (9th Cir.2000). “‘Additionally, in general, courts must construe pro se 9 pleadings liberally.’” Id. A complaint, or portion thereof, should only be dismissed for failure to 10 state a claim upon which relief may be granted “if it is clear that no relief could be granted under any 11 set of facts that could be proved consistent with the allegations.” See Hishon v. King & Spalding, 12 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); see also Synagogue 13 v. United States, 482 F.3d 1058, 1060 (9th Cir. 2007); NL Industries, Inc. v. Kaplan, 792 F.2d 896, 14 898 (9th Cir. 1986). In determining whether to dismiss an action, the Court must accept as true the 15 allegations of the complaint in question, and construe the pleading in the light most favorable to the 16 plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421-22 17 (1969); Daniels-Hall v. National Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010). 18 B. 19 Plaintiff is incarcerated at Chuckawalla State Prison, located in Blythe California and is suing 20 under section 1983 for events which occurred while a prisoner at Avenal State Prison in Avenal 21 California. Doc. 12. In his complaint, Plaintiff names the following defendants: 1) T. Smith (DDS 22 dentist); 2) R. D. Smith (DDS dentist); and L. Kirk (DDS dentist). Doc. 12 at 1-3. Plaintiff’s Complaint 23 Plaintiff alleges that on June 8, 2006, Plaintiff submitted a healthcare request form 7362 for 24 a dental examination since Plaintiff was suffering a great deal of pain. Doc. 12 at 1-2. Plaintiff was 25 seen on August 14, 2006, by the dentist, Defendant T. Smith. Doc. 12 at 2. Plaintiff told Defendant 26 T. Smith that Plaintiff was in extreme pain and that “tooth #31" needed to be fixed to resolve the 27 pain. Doc. 12 at 2. Plaintiff told Defendant T. Smith that the pain from the tooth caused Plaintiff 28 to chew only on his left side. Doc. 12 at 2. According to Plaintiff, “When [Defendant T. Smith] 2 1 examined [Plaintiff] . . . [Defendant T. Smith] knew right then of [Plaintiff’s] serious medical need 2 and that [Plaintiff] was in extreme pain. He failed, in his individual capacity, to treat [Plaintiff] . . 3 .and because of negligence, [Plaintiff’s moulder [sic] . . . finally crack[ed] all the way to the bottom 4 of [Plaintiff’s] gum causing [Plaintiff] to lose part of [his] tooth.” Doc. 12 at 2. 5 On September 16, 2007, Plaintiff submitted another health care request form #7362 to receive 6 treatment for an abscess tooth and the same molar. Doc. 12 at 2. On September 19, 2007, Plaintiff 7 was seen by another dentist, Defendant R. D. Smith for the abscess on one tooth and problems with 8 his molar. Doc. 12 at 2. According to Plaintiff, when he “asked [Defendant R. D. Smith] a question, 9 [he] was refused treatment and told to leave” and Plaintiff left although he was in a great deal of 10 pain. Doc. 12 at 2. Plaintiff further states that on October 15, 2007, Defendant R. D. Smith 11 “denied/deprived [Plaintiff] medical treatment . . . [for his] serious medical need.” Doc. 12 at 2. 12 On September 24, 2007, Plaintiff submitted another health care request form #7362 to 13 address extreme dental pain that interfered with Plaintiff’s ability to brush, eat, sleep and carry out 14 his normal activities. Doc. 12 at 2-3. On the health care request form, Plaintiff asked why he was 15 being denied medical treatment and stated that if he did not receive the necessary help, Plaintiff 16 would end up losing teeth that were otherwise salvageable. Doc. 12 at 3. Plaintiff was seen on 17 September 27, 2007 by dentist Defendant L. Kirk who told Plaintiff that “tooth #8" would have to 18 be extracted. Doc. 12 at 3. Plaintiff asserts that Defendant L. Kirk “must’ve seen Plaintiff’s medical 19 file and seen the progress notes from . . . R. D. Smith [and] T. Smith . . . . [Defendant Kirk] in his 20 individual capacity knew that Plaintiff was in a great deal of pain and needed medical treatment . . 21 . [Defendant Kirk] failed to provide Plaintiff with medical treatment when he was aware that 22 Plaintiff was already being denied medical treatment by [Defendants R. D. Smith and T. Smith].” 23 Doc. 12 at 3. 24 Plaintiff filed a 602 grievance and on January 17, 2008, Plaintiff was interviewed by 25 Defendant Kirk regarding the grievance. Doc. 12 at 3. During the interview, Plaintiff told 26 Defendant Kirk to look at Plaintiff’s medical file and he will be able to see that Plaintiff was overdue 27 for treatment since October 7, 2003. Doc. 12 at 3. According to Plaintiff, “Upon carefully reviewing 28 Plaintiff’s medical file, [Defendant Kirk] . . . ‘granted’ Plaintiff’s 602 grievance.” Doc. 12 at 3. 3 1 C. Eighth Amendment 2 “[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate 3 must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091, 1096 4 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 295 (1976)). The two part 5 test for deliberate indifference requires the plaintiff to show (1) “‘a serious medical need’ by 6 demonstrating that ‘failure to treat a prisoner’s condition could result in further significant injury or 7 the unnecessary and wanton infliction of pain,’” and (2) “the defendant’s response to the need was 8 deliberately indifferent.” Jett, 439 F.3d at 1096 (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 9 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th 10 Cir. 1997) (en banc) (internal quotations omitted)). Deliberate indifference is shown by “a 11 purposeful act or failure to respond to a prisoner’s pain or possible medical need, and harm caused 12 by the indifference.” Id. (citing McGuckin, 974 F.2d at 1060). 13 A plaintiff can demonstrate that prison officials were deliberately indifferent to a prisoner's 14 serious medical needs when officials delay or intentionally interfere with medical treatment. Hallett 15 v. Morgan, 296 F.3d 732, 744-45 (9th Cir. 2002) (quoting Hamilton v. Endell, 981 F.2d 1062, 1066 16 (9th Cir.1992)) (internal quotations omitted). However, delay resulting from “[m]ere negligence in 17 diagnosing or treating a medical condition, without more, does not violate a prisoner's Eighth 18 Amendment rights.” Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (quoting Hutchinson v. 19 United States, 838 F.2d 390, 394 (9th Cir. 1988) (internal quotation marks omitted). Moreover, in 20 order to state a deliberate indifference Eighth Amendment claim resulting from a delay in medical 21 treatment, a plaintiff must demonstrate that the delay caused additional serious injury. See Shapley 22 v. Nevada Bd. of State Prison Com'rs, 766 F.2d 404, 407 (9th Cir. 1985); Hutchinson v. United 23 States, 838 F.2d 390, 394 (9th Cir.1988); see also Jett, 439 F.3d at 1096 (citing McGuckin, 974 F.2d 24 at 1060). 25 To state a viable claim, Plaintiff must demonstrate that each named defendant personally 26 participated in the deprivation of his rights. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1948-49 (2009); 27 Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton, 28 588 F.3d 1218, 1235 (9th Cir. 2009); Jones v. Williams, 297 F.3d 930, 934. Liability may not be 4 1 imposed on supervisory personnel under the theory of respondeat superior, Iqbal, 129 S.Ct. at 1948- 2 49; Ewing, 588 F.3d at 1235, and supervisors may only be held liable if they “participated in or 3 directed the violations, or knew of the violations and failed to act to prevent them,” Taylor v. List, 4 880 F.2d 1040, 1045 (9th Cir. 1989); accord Starr v. Baca, 652 F.3d 1202, 1205-08 (9th Cir. 2011); 5 Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009); Preschooler II v. Clark County School Board 6 of Trustees, 479 F.3d 1175, 1182 (9th Cir. 2007); Harris v. Roderick, 126 F.3d 1189, 1204 (9th Cir. 7 1997). 8 “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 1060 9 (9th Cir. 2004). “A difference of opinion between a prisoner-patient and prison medical authorities 10 regarding treatment does not give rise to a § 1983 claim,” Franklin v. Oregon, 662 F.2d 1337, 1344 11 (9th Cir. 1981) (internal citation omitted), and a difference of opinion between medical personnel 12 regarding treatment does not amount to deliberate indifference, Sanchez v. Vild, 891 F.2d 240, 242 13 (9th Cir. 1989). To prevail, Plaintiff “must show that the course of treatment the doctors chose was 14 medically unacceptable under the circumstances . . . and . . . that they chose this course in conscious 15 disregard of an excessive risk to plaintiff’s health.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 16 1986) (internal citations omitted). 17 D. Analysis 18 Plaintiff adequately alleges that his dental condition and pain amounts to a serious medical 19 need and that the named defendants had knowledge of Plaintiff’s serious medical need. However, 20 Plaintiff fails to allege any facts regarding what purposeful act or failure to respond that was done 21 by each defendant. Jett, 439 F.3d at 1096 (citing McGuckin, 974 F.2d at 1060). Therefore, Plaintiff 22 fails to state an Eighth Amendment deliberate indifference claim. 23 Plaintiff’s conclusory allegations that defendants violated Plaintiff’s rights are insufficient 24 to state a claim. See e.g., Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-51 (2009); McKeever v. Block, 932 25 F.2d 795, 798 (9th Cir. 1991); Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984). Detailed 26 factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action, 27 supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 28 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). 5 1 “[P]laintiffs [now] face a higher burden of pleadings facts . . ,” Al-Kidd v. Ashcroft, 580 F.3d 949, 2 977 (9th Cir. 2009), and while a plaintiff’s allegations are taken as true, courts “are not required to 3 indulge unwarranted inferences,” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) 4 (internal quotation marks and citation omitted). 5 In this instance, Plaintiff merely makes the conclusory allegation that Defendants denied 6 Plaintiff of medical treatment without providing sufficient facts to support that Defendants denied 7 treatment. Although Plaintiff alleges that he was told to leave, Plaintiff fails to provide details as 8 to who told Plaintiff to leave, what events led to Plaintiff being told to leave and what, if any 9 treatment Plaintiff received regarding the abscess. Plaintiff’s use of passive tense creates an 10 ambiguity as to who actually told Plaintiff to leave. Plaintiff cannot simply refer to his attachments 11 in his complaint. Rather Plaintiff must clearly explain what happened. 12 13 III. Conclusion and Order 14 III. 15 Plaintiff’s complaint fails to state a claim upon which relief may be granted under section Conclusion and Order 16 1983. The Court will grant Plaintiff an opportunity to file an amended complaint. Noll v. Carlson, 17 18 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff may not change the nature of this suit by adding 19 new, unrelated claims in his amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 20 2007). 21 22 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, 23 24 Iqbal, 129 S.Ct. at 1948-49. Although accepted as true, the “[f]actual allegations must be [sufficient] 25 to raise a right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555 (citations 26 omitted). 27 Finally, Plaintiff is advised that Local Rule 220 requires that an amended complaint be 28 6 1 complete in itself without reference to any prior pleading. As a general rule, an amended complaint 2 supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once an 3 amended complaint is filed, the original complaint no longer serves any function in the case. 4 5 Therefore, in an amended complaint, as in an original complaint, each claim and the involvement 6 of each defendant must be sufficiently alleged. The amended complaint should be clearly and boldly 7 titled "Second Amended Complaint," refer to the appropriate case number, and be an original signed 8 under penalty of perjury. 9 Based on the foregoing, it is HEREBY ORDERED that: 10 1. 12 The Clerk’s Office shall send Plaintiff a civil rights complaint form; 2. 11 Plaintiff’s first amended complaint, filed April 30, 2010, is dismissed for failure to 13 state a claim upon which relief may be granted; 14 3. 15 Within thirty (30) days from the date of service of this order, Plaintiff shall file an amended complaint; and 16 4. 17 action will be dismissed, with prejudice, for failure to state a claim. 18 19 20 21 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 22 23 24 25 26 27 28 7

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