Hoban v. Chen

Filing 12

SCREENING ORDER DISMISSING ACTION, With Prejudice, For Failure to State a Claim Under Section 1983 re 11 ; ORDER That Dismissal Counts as a Strike Under 28 U.S.C. 1915(G), signed by Magistrate Judge Sheila K. Oberto on 5/31/2011. CASE CLOSED (Strike). (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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TIMOTHY HOBAN,

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Plaintiff,

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CASE NO. 1:10-cv-00164-SKO PC
SCREENING ORDER DISMISSING ACTION,
WITH PREJUDICE, FOR FAILURE TO
STATE A CLAIM UNDER SECTION 1983

v.
C. K. CHEN,

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(Doc. 11)
Defendant.

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

Screening Requirement and Standard

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Plaintiff Timothy Hoban, a state prisoner proceeding pro se and in forma pauperis, filed this
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civil rights action pursuant to 42 U.S.C. § 1983 on February 2, 2010. On May 9, 2011, the Court
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dismissed Plaintiff’s complaint, with leave to amend, for failure to state a claim. Plaintiff filed an
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amended complaint on May 23, 2011.
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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 an 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 contain “a short and plain statement of the claim showing that the pleader

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is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,

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do not suffice,” Ashcroft v. Iqbal, ___ U.S. ___, ___, 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 (2007)), and courts “are not required

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

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2009) (internal quotation marks and citation omitted). While factual allegations are accepted as true,

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legal conclusions are not. Iqbal, 129 S.Ct. at 1949.

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To state a claim, Plaintiff must demonstrate that each defendant personally participated in

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the deprivation of his rights. Id. at 1949. This requires the presentation of factual allegations

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sufficient to state a plausible claim for relief. Iqbal, 129 S.Ct. at 1949-50; Moss v. U.S. Secret

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Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of

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meeting this plausibility standard. Iqbal, 129 S.Ct. at 1949-50; Moss, 572 F.3d at 969.

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II.

Summary of Amended Complaint

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A.

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Plaintiff, an inmate housed at Kern Valley State Prison (KSVP), brings this action against

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C. K. Chen, M.D., a physician at the prison. Plaintiff, a dialysis patient with end-stage renal failure,

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alleges that Defendant Chen dismisses his concerns regarding his high blood pressure and that his

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diet needs to be switched to a low sodium diet. Plaintiff alleges that following his transfer to KVSP,

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his health has declined and his blood pressure has risen a lot, but Defendant Chen will not change

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his diet and he relies on multiple blood pressure medications to manage Plaintiff’s “created

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problem.” (Doc. 11, Amend. Comp., § IV.)

Allegations

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B.

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To constitute cruel and unusual punishment in violation of the Eighth Amendment, prison

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conditions must involve “the wanton and unnecessary infliction of pain.” Rhodes v. Chapman, 452

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U.S. 337, 347, 101 S.Ct. 2392 (1981). A prisoner’s claim of inadequate medical care does not rise

Eighth Amendment Medical Care Claim

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to the level of an Eighth Amendment violation unless (1) “the prison official deprived the prisoner

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of the ‘minimal civilized measure of life’s necessities,’” and (2) “the prison official ‘acted with

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deliberate indifference in doing so.’” Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004)

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(quoting Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) (citation omitted)). A prison official

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does not act in a deliberately indifferent manner unless the official “knows of and disregards an

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excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970

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(1994).

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Plaintiff’s disagreement with Defendant Chen’s medical decisions regarding diet and

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medication is not sufficient to support a claim for violation of the Eighth Amendment. Jackson v.

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McIntosh, 90 F.3d 330, 332 (9th Cir. 1986); Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir.

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1981). “Deliberate indifference is a high legal standard,” Toguchi, 391 F.3d at 1060, and the facts

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set forth in Plaintiff’s amended complaint do not support a plausible claim against Defendant Chen

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for knowingly disregarded a substantial risk of harm to Plaintiff’s health, Iqbal, 129 S.Ct. at 1949-50;

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Moss, 572 F.3d at 969; Farmer, 511 U.S. at 837.

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III.

Conclusion and Order

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

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section 1983. Plaintiff was previously provided with notice of the deficiencies and an opportunity

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to amend, but he was unable to cure the deficiencies in his claim and further leave to amend is not

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warranted. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); Noll v. Carlson, 809 F.2d 1446,

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1448-49 (9th Cir. 1987).

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Accordingly, this action is HEREBY DISMISSED, with prejudice, for failure to state a claim
under section 1983 and the dismissal shall count as a strike under 28 U.S.C. § 1915(g).

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IT IS SO ORDERED.

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Dated:
ie14hj

May 31, 2011

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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