Van Wyk v. Rios et al

Filing 8

ORDER DISMISSING CASE (Strike) signed by Magistrate Judge Gary S. Austin on 6/20/2011. CASE CLOSED.(Lundstrom, T)

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IN THE UNITED STATES DISTRICT COURT FOR THE

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EASTERN DISTRICT OF CALIFORNIA

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ROY A. VAN WYK,
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Plaintiff,
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v.
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HECTOR RIOS, et al.,
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Defendants.
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____________________________________)

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NO. 1:09-cv-02222-GSA-PC
ORDER DISMISSING ACTION FOR
FAILURE TO STATE A CLAIM
UPON WHICH RELIEF CAN BE
GRANTED

ORDER THAT DISMISSAL COUNTS
AS A STRIKE UNDER 28 U.S.C. §
1915(G)

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Plaintiff is a federal prisoner proceeding pro se in a civil rights action pursuant to Bivens,
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v. Six Unknown Agents, 403 U.S. 388 (1971). Plaintiff has consented to magistrate judge
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jurisdiction pursuant to 28 U.S.C. § 636(c)(1).
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I.

Procedural History

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By order filed November 19, 2010, the operative complaint was dismissed for failure to
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state a claim. The Court informed Plaintiff of the deficiencies in his complaint, and dismissed
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the complaint on the ground that Plaintiff had failed to state a claim upon which relief could be
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granted. On December 22, 2010, Plaintiff filed the first amended complaint which is now before
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the Court.
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The events at issue in this action occurred at the U.S. Penitentiary at Atwater, where
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Plaintiff is currently housed. Plaintiff claims that he was denied constitutionally adequate
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medical care, in violation of the Eighth Amendment. Plaintiff names the following individual

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defendants: Hector Rios, Warden at Awater; Assistant Warden Bell; J. Franco, M.D.; L. Metry,

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R.N.

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II.

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First Amended Complaint
In March of 2006, Plaintiff was examined by a urologist, and advised that he had a hernia.

Plaintiff was advised that the hernia was “nothing to worry about.” (Am. Compl. ¶ 17.)
In December of 2008, Plaintiff presented to medical with a painful bulge in his lower

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right abdomen. Plaintiff was examined by a physician from Mercy Hospital in Merced, and

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diagnosed with three separate hernias. (Am. Compl. ¶¶ 18, 20.) On January 22, 2009, Plaintiff

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underwent surgery at Mercy Hospital for his hernias. Plaintiff was treated for a left and right

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inguinal hernia and an umbilical hernia. (Am. Compl. ¶ 23.)

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Plaintiff alleges that despite his complaints, “HSD and other USP Atwater staff ignored

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Plaintiff’s request for medical assistance.” (Am. Compl. ¶ 26.) Plaintiff was seen by Dr.

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Sandberg on April 24, 2009, “due to swollen scrotum and sore right testicle.” (Am. Compl. ¶

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27.) Plaintiff alleges that the soreness and swelling was the result of “post-surgery medical

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negligence and malpractice.” (Am. Compl. ¶ 28.) Plaintiff was prescribed ibuprophen which, in

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Plaintiff’s view, “was only masking the existing complications of pain and problems.” (Am.

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Compl. ¶ 29.)

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Plaintiff had his hearing tested three times: July 17, 2007; November 26, 2007; December

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31, 2008. (Am. Compl. ¶ 31.) Plaintiff alleges that the tests “showed that Plaintiff’s hearing

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pattern had been diminishing.” (Compl. ¶ 33.) Plaintiff alleges that, to date, and despite

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numerous requests, he has not been seen by an ear, nose and throat specialist. (Compl. ¶ 35.)

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A.

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In the November 19, 2010, order, Plaintiff was advised of the following requirements to

Eighth Amendment Medical Care

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state a claim for inadequate medical care under the Eighth Amendment. “[T]o maintain an

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Eighth Amendment claim based on prison medical treatment, an inmate must show ‘deliberate

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indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006)

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(quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 295 (1976)). The two part test for

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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

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

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

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1050, 1059 (9th Cir. 1992), overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d

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1133, 1136 (9th Cir. 1997) (en banc) (internal quotations omitted)). Deliberate indifference is

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shown by “a purposeful act or failure to respond to a prisoner’s pain or possible medical need,

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and harm caused by the indifference.” Id. (citing McGuckin, 974 F.2d at 1060). Where a

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prisoner is alleging a delay in receiving medical treatment, the delay must have led to further

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harm in order for the prisoner to make a claim of deliberate indifference to serious medical

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needs. McGuckin at 1060 (citing Shapely v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404,

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407 (9th Cir. 1985)).

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To state a constitutional claim, a plaintiff must allege that (1) the defendant acted under

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color of state law and (2) the defendant deprived him of rights secured by the Constitution or

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federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). “A person

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deprives another of a constitutional right, where that person ‘does an affirmative act, participates

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in another’s affirmative acts, or omits to perform an act which [that person] is legally required to

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do that causes the deprivation of which complaint is made.’” Hydrick v. Hunter, 500 F.3d 978,

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988 (9th Cir. 2007) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “[T]he

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‘requisite causal connection can be established not only by some kind of direct, personal

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participation in the deprivation, but also by setting in motion a series of acts by others which the

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actor knows or reasonably should know would cause others to inflict the constitutional injury.’”

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Id. (quoting Johnson at 743-44).

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In the first amended complaint, as in the original complaint, Plaintiff’s allegations

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regarding his hernia are vague. Plaintiff was advised that he failed to charge any individual

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defendant with specific conduct that constituted deliberate indifference. Assuming as true the

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allegations of the first amended complaint, Plaintiff alleges conduct by the surgeon at Mercy

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Hospital and the Atwater medical staff in general. Plaintiff was specifically advised that in order

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to hold the named defendants liable, Plaintiff must allege conduct as to each defendant indicating

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that the defendant knew of and disregarded a serious medical condition of Plaintiff’s, resulting in

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injury to Plaintiff. Plaintiff’s claims regarding his hearing loss are similarly vague. Plaintiff

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alleges conduct by medical staff in general, but fails the charge any of the individually named

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defendants with conduct that constitutes deliberate indifference.

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In the order dismissing the original complaint, Plaintiff was specifically advised that in

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order to hold an individual defendant liable, he must name the individual defendant, describe

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where that defendant is employed and in what capacity, and explain how that defendant acted

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under color of state law. Plaintiff was directed to state clearly, in his own words, what happened,

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including describing what each defendant, by name, did to violate Plaintiff’s rights. The Court

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finds that Plaintiff has failed to cure the deficiencies identified in the order dismissing the

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original complaint. The first amended complaint is duplicative of the original complaint.

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Plaintiff alleges conduct as to medical staff in general, and complains about the quality of his

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medical care. Plaintiff has not, however, charged any of the individual defendants with specific

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conduct that constitutes deliberate indifference.

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Plaintiff, does, however, maintain his claim that the medical care he received was

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negligent. Plaintiff was advised that mere indifference, negligence, or medical malpractice does

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not state a claim for relief under the Eighth Amendment. Broughton v. Cutter Laboratories, 622

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F.2d 458, 460 (9th Cir.1980) (citing Estelle, 429 U.S. at 105-06). See also Toguchi v. Chung,

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391 F.3d 1051, 1060 (9th Cir.2004).

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III.

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Conclusion and Order
Because Plaintiff has not cured the defects identified in the order dismissing the original

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complaint, the Court dismisses the claims made in the first amended complaint with prejudice for

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failure to state a federal claim upon which the court could grant relief. See Noll v. Carlson, 809

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F. 2d 1446, 1448 (9th Cir. 1987) (prisoner must be given notice of deficiencies and opportunity to

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amend prior to dismissing for failure to state a claim).

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Accordingly, IT IS HEREBY ORDERED that this action is dismissed for failure to state

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a claim upon which relief can be granted, and that this dismissal count as a strike under 28

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U.S.C. § 1915(g).

The Clerk is directed to close this case.

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IT IS SO ORDERED.

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Dated:
6i0kij

June 20, 2011

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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