Walker v. California Department of Correction & Rehabilitation et al
Filing
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FINDINGS and RECOMMENDATIONS, Recommending That This 13 Case be Dismissed, With Prejudice, For Failure to State a Claim, and That the Dismissal be Subject to 28 U.S.C. 1915(g), signed by Magistrate Judge Gary S. Austin on 11/16/2011, referred to Judge O'Neill. Objections, if any, Due in Thirty Days. (Marrujo, C)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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FLORENCE WALKER,
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Plaintiff,
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1:09-cv-01602-LJO-GSA-PC
FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT THIS CASE BE
DISMISSED, WITH PREJUDICE, FOR
FAILURE TO STATE A CLAIM, AND THAT
THE DISMISSAL BE SUBJECT TO 28 U.S.C. §
1915(g)
v.
CALIFORNIA DEPARTMENT
OF CORRECTIONS AND
REHABILITATION, et al.,
(Doc. 13.)
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Defendants.
OBJECTIONS, IF ANY, DUE IN THIRTY
DAYS
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I.
RELEVANT PROCEDURAL HISTORY
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Florence Walker (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in
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this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this
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action on September 10, 2009. (Doc. 1.) On February 24, 2010, the Court dismissed the Complaint
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for failure to state a claim, with leave to amend. (Doc. 8.) On March 18, 2010, Plaintiff filed the
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First Amended Complaint. (Doc. 9.) On April 18, 2011, the Court dismissed the First Amended
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Complaint for failure to state a claim, with leave to amend. (Doc. 10.) On June 21, 2011, Plaintiff
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filed the Second Amended Complaint, which is now before the Court for screening. (Doc. 13.)
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II.
SCREENING REQUIREMENT
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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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A complaint must only contain “a short and plain statement of the claim showing that the
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pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not
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required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere
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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell
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Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). Plaintiff must set
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forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.’” Id.
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While factual allegations are accepted as true, legal conclusions are not. Id. at 1949.
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III.
SUMMARY OF SECOND AMENDED COMPLAINT
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Plaintiff is incarcerated at the Central California Women’s Facility in Chowchilla, California,
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where the events at issue in the First Amended Complaint allegedly occurred. Plaintiff names as
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defendants the California Department of Corrections and Rehabilitation ("CDCR"), the
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Appointments Department of the CDCR, Dr. Hermosia, Dr. Sakata, MTA-RN Williams, and MTA-
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RN Green (“Defendants”).
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Plaintiff complains of inadequate medical care between May 2008 and September 2008,
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alleging as follows. In May 2008, Plaintiff was seen by MTA-RN Williams for a skin condition,
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which Williams thought was a spider bite or ringworm. Plaintiff informed Williams that she had
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eczema, but Williams did not look into this probability. The CDCR's Appointments Department
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never scheduled the referral requests to be seen by MTA-RN Williams.
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In August 2008, Plaintiff was seen twice in the infirmary by Dr. Hermosia. The first time,
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Plaintiff had a one-inch-diameter open wound on her outer left hand which was oozing pus. A rash
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had appeared on Plaintiff's hands and arms and was beginning to spread to her neck and face area.
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Dr. Hermosia looked at the wound and said there was no need for any follow-up. Plaintiff informed
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Dr. Hermosia that she had met with MTA-RN Williams three months before. Dr. Hermosia did not
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give Plaintiff any treatment. Dr. Hermosia did not even give Plaintiff bandages, anti-bacterial
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treatments, or Benadryl for her open wound. Dr. Hermosia did not schedule any follow-ups by the
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C-yard doctor. About a week later, Plaintiff saw Dr. Hermosia again. By now, the rash was
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covering Plaintiff's face and beginning to enter her ears and eyes. Plaintiff's blood pressure was
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elevated, and watery blisters had formed, causing unbearable itching. Plaintiff's right ankle had an
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open wound that was oozing pus. Dr. Hermosia said there was nothing he could do and told Plaintiff
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to submit a request to see the C-yard doctor for follow-up.
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On a later occasion, Plaintiff had trouble breathing and her blood pressure was elevated. Dr.
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Sakafi threatened Plaintiff with disciplinary action for initiating a medical emergency because of
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these symptoms. A couple of days later, Plaintiff was escorted for medical care by a correctional
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officer because she was vomiting on the yard after breakfast. On these two occasions, MTA-RN
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Williams went to Dr. Sakafi's office and told him there was a medical emergency he should attend
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to. Dr. Sakafi replied that Plaintiff should submit a request to be seen by the C-yard doctor. Plaintiff
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was given no treatment.
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Lack of treatment caused scarring, and Plaintiff's blood pressure became elevated because
of the pain and suffering she endured for three months.
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Plaintiff does not request any relief in the Second Amended Complaint.
IV.
PLAINTIFF’S CLAIMS
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The Civil Rights Act under which this action was filed provides:
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Every person who, under color of [state law] . . . subjects, or causes to be subjected,
any citizen of the United States . . . to the deprivation of any rights, privileges, or
immunities secured by the Constitution . . . shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress.
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42 U.S.C. § 1983. “Section 1983 . . . creates a cause of action for violations of the federal
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Constitution and laws.” Sweeney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997)
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(internal quotations omitted). “To the extent that the violation of a state law amounts to the
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deprivation of a state-created interest that reaches beyond that guaranteed by the federal Constitution,
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Section 1983 offers no redress.” Id.
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A.
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Plaintiff names as defendants the CDCR and the Appointments Department of the CDCR.
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Plaintiff is advised that she may not sustain an action against a state agency. The Eleventh
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Amendment prohibits federal courts from hearing suits brought against an unconsenting state.
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Brooks v. Sulphur Springs Valley Elec. Co., 951 F.2d 1050, 1053 (9th Cir. 1991) (citation omitted);
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see also Seminole Tribe of Fla. v. Florida, 116 S.Ct. 1114, 1122 (1996); Puerto Rico Aqueduct
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Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993); Austin v. State Indus. Ins. Sys., 939
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F.2d 676, 677 (9th Cir. 1991). The Eleventh Amendment bars suits against state agencies as well
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as those where the state itself is named as a defendant. See Natural Resources Defense Council v.
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California Dep’t of Transp., 96 F.3d 420, 421 (9th Cir. 1996); Brooks, 951 F.2d at 1053; Taylor v.
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List, 880 F.2d 1040, 1045 (9th Cir. 1989 (concluding that Nevada Department of Prisons was a state
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agency entitled to Eleventh Amendment immunity); Mitchell v. Los Angeles Community College
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Dist., 861 F.2d 198, 201 (9th Cir. 1989). Because the CDCR is a state agency and the Appointments
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Department is part of the CDCR, they are both entitled to Eleventh Amendment immunity from suit.
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Therefore, Plaintiff fails to state a claim against defendant CDCR or the CDCR's Appointments
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Department.
Defendants CDCR and CDCR's Appointments Department
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B.
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Plaintiff alleges that Defendants failed to provide her with adequate medical care, in violation
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Eighth Amendment Medical Care Claim
of the Eighth Amendment, when they denied her medical treatment.
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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, 104, 97 S.Ct. 285 (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
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(9th 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). Deliberate indifference may be
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manifested “when prison officials deny, delay or intentionally interfere with medical treatment, or
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it may be shown by the way in which prison physicians provide medical care.” Id. Where a prisoner
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is alleging a delay in receiving medical treatment, the delay must have led to further harm in order
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for the prisoner to make a claim of deliberate indifference to serious medical needs. McGuckin at
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1060 (citing Shapely v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985)).
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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). “Under this standard, the prison official must not only ‘be aware of the facts from
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which the inference could be drawn that a substantial risk of serious harm exists,’ but that person
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‘must also draw the inference.’” Id. at 1057 (quoting Farmer v. Brennan, 511 U.S. 825, 837, 114
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S.Ct. 1970 (1994)). “‘If a prison official should have been aware of the risk, but was not, then the
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official has not violated the Eighth Amendment, no matter how severe the risk.’” Id. (quoting
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Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)). “A showing of
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medical malpractice or negligence is insufficient to establish a constitutional deprivation under the
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Eighth Amendment.
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constitutional violation.” Id. (citing Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990)).
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“A difference of opinion between a prisoner-patient and prison medical authorities regarding
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treatment does not give rise to a § 1983 claim.” Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir.
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1981) (internal citation omitted). To prevail, plaintiff “must show that the course of treatment the
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doctors chose was medically unacceptable under the circumstances . . . and . . . that they chose this
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course in conscious disregard of an excessive risk to plaintiff’s health.” Jackson v. McIntosh, 90
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F.3d 330, 332 (9th Cir. 1996) (internal citations omitted).
Id. at 1060.
“[E]ven gross negligence is insufficient to establish a
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Plaintiff has sufficiently shown a serious medical need, based on allegations that she suffered
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from eczema, with open sores and rashes developing all over her body, causing pain, unbearable
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itching, and elevated blood pressure.
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demonstrating that any of the Defendants consciously disregarded an excessive risk to her health or
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safety. Plaintiff has not specified any act, or omission to act, by a defendant demonstrating that the
However, Plaintiff fails to make factual allegations
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defendant was aware of a substantial risk of serious harm to Plaintiff and acted in conscious
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disregard of the risk. The most that Plaintiff has shown is negligence or a difference of opinion
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regarding treatment, which does not give rise to a claim. Therefore, Plaintiff fails to state a
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cognizable Eighth Amendment medical claim against any of the Defendants.
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C.
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Plaintiff also brings claim for negligence and medical malpractice. Plaintiff is informed that
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violation of state tort law is not sufficient to state a claim for relief under § 1983. To state a claim
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under § 1983, there must be a deprivation of federal constitutional or statutory rights. See Paul v.
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Davis, 424 U.S. 693 (1976). Although the court may exercise supplemental jurisdiction over state
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law claims, Plaintiff must first have a cognizable claim for relief under federal law. See 28 U.S.C.
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§ 1367. In this instance, the Court fails to find any cognizable federal claims in the First Amended
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Complaint. Therefore, Plaintiff’s claims for negligence and medical malpractice fail.
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V.
Negligence and Medical Malpractice
CONCLUSION AND RECOMMENDATIONS
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The Court finds that Plaintiff’s Second Amended Complaint fails to state any claims upon
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which relief can be granted under section 1983 against any of the Defendants. In this action, the
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Court previously granted Plaintiff two opportunities to amend the complaint, with guidance by the
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Court. Plaintiff has now filed three complaints without alleging facts against any of the Defendants
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which state a claim under § 1983. Plaintiff appears incapable of curing the deficiencies outlined
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above by amendment, and therefore further leave to amend should not be granted. 28 U.S.C. §
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1915(e)(2)(B)(ii); Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987).
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Therefore, IT IS HEREBY RECOMMENDED that pursuant to 28 U.S.C. § 1915A and
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28 U.S.C. § 1915(e), this action be dismissed with prejudice for failure to state a claim upon which
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relief may be granted under § 1983, and that this dismissal be subject to the “three-strikes” provision
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set forth in 28 U.S.C. § 1915(g). Silva v. Vittorio, 658 F.3d 1090, 1098 (9th Cir. 2011).
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These Findings and Recommendations will be submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30)
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days after being served with these Findings and Recommendations, the Plaintiff may file written
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objections with the Court. The document should be captioned “Objections to Magistrate Judge’s
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Findings and Recommendations.” Plaintiff is advised that failure to file objections within the
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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d
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1153 (9th Cir. 1991).
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IT IS SO ORDERED.
Dated:
6i0kij
November 16, 2011
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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