Robert L. Scales v. Mearcy Hospital Bakerfield & Staff et al

Filing 12

ORDER DISMISSING Complaint For Failure to State a Claim WITH LEAVE to File Amended Complaint, signed by Magistrate Judge Dennis L. Beck on 3/18/11: Amended Complaint due by 4/25/2011. (Attachments: # 1 Complaint (blank form))(Hellings, J)

(PC) Robert L. Scales v. Bakersfield Mearcy Hospital

Doc. 12

1 2 3 4 5 6 EASTERN DISTRICT OF CALIFORNIA 7 8 ROBERT L. SCALES, 9 10 v. Plaintiff, CASE NO. 1:10-CV-01247-LJO-DLB PC ORDER DISMISSING COMPLAINT FOR FAILURE TO STATE A CLAIM WITH LEAVE TO FILE AMENDED COMPLAINT

UNITED STATES DISTRICT COURT

11 BAKERSFIELD MEARCY HOSPITAL, et al., (Doc. 1) 12 Defendants. 13 / 14 15 16 17 I. 18 Background Plaintiff Robert L. Scales ("Plaintiff") is a prisoner in the custody of the California Screening Order RESPONSE DUE WITHIN 30 DAYS

19 Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in 20 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed his 21 complaint in the Central District of California on December 17, 2009. The action was 22 transferred to the Eastern District of California on July 13, 2010. 23 The Court is required to screen complaints brought by prisoners seeking relief against a

24 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 25 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 26 legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or 27 that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 28 § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been 1
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1 paid, the court shall dismiss the case at any time if the court determines that . . . the action or 2 appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 3 1915(e)(2)(B)(ii). 4 A complaint must contain "a short and plain statement of the claim showing that the

5 pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 6 required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere 7 conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing 8 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual 9 matter, accepted as true, to `state a claim that is plausible on its face.'" Id. (quoting Twombly, 10 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id. 11 II. 12 Summary of Complaint Plaintiff complains of actions which occurred at Bakersfield Mercy1 Hospital. Plaintiff

13 names as Defendants Mercy Hospital Bakersfield and Staff, and Doe 1, superintendent of 14 nursing. 15 Plaintiff alleges the following. Mercy Hospital is contracted with the state to provide

16 medical care. On March 3, 2009, Plaintiff was transferred to Mercy Hospital for respiratory 17 problems, and entered a coma for over three weeks. During that time, nurses or CNA's were 18 supposed to turn Plaintiff every two hours to prevent bed sores. 19 Plaintiff developed a stage 4 bedsore because of their neglect, along with nerve damage.

20 One month later, a wound nurse removed Plaintiff's dead skin surrounding the bed sore. This 21 was done in unsanitary conditions, and resulted in a staph infection. Plaintiff later became 22 infected with staph infection after a procedure was done a few weeks later. After several weeks 23 of trying to bring Plaintiff's condition under control, the defendants eventually transferred 24 Plaintiff to a hospital in San Diego. There, doctors operated on Plaintiff's bed sore. 25 Plaintiff seeks as relief monetary damages, and for Defendants to pay for all current and

26 future medical expenses as a result of Plaintiff's injuries. 27 28
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Plaintiff misspells the Hospital's name as "Mearcy."

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1 III. 2

Analysis The Eighth Amendment prohibits cruel and unusual punishment. "The Constitution does

3 not mandate comfortable prisons." Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quotation and 4 citation omitted). A prisoner's claim of inadequate medical care does not rise to the level of an 5 Eighth Amendment violation unless (1) "the prison official deprived the prisoner of the `minimal 6 civilized measure of life's necessities,'" and (2) "the prison official `acted with deliberate 7 indifference in doing so.'" Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (quoting 8 Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) (citation omitted)). The deliberate 9 indifference standard involves an objective and a subjective prong. First, the alleged deprivation 10 must be, in objective terms, "sufficiently serious . . . ." Farmer, 511 U.S. at 834 (citing Wilson v. 11 Seiter, 501 U.S. 294, 298 (1991)). Second, the prison official must "know[] of and disregard[] 12 an excessive risk to inmate health or safety . . . ." Id. at 837. 13 "Deliberate indifference is a high legal standard." Toguchi, 391 F.3d at 1060. "Under

14 this standard, the prison official must not only `be aware of the facts from which the inference 15 could be drawn that a substantial risk of serious harm exists,' but that person `must also draw the 16 inference.'" Id. at 1057 (quoting Farmer, 511 U.S. at 837). "`If a prison official should have 17 been aware of the risk, but was not, then the official has not violated the Eighth Amendment, no 18 matter how severe the risk.'" Id. (quoting Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 19 1188 (9th Cir. 2002)).2 20 Plaintiff fails to state a claim. Plaintiff alleges that neglect on the part of nurses at Mercy

21 Hospital led to Plaintiff developing a bedsore. Plaintiff alleges at most negligence, which is not 22 sufficient for an Eighth Amendment claim. Estelle v. Gamble, 429 U.S. 97, 106 (1976). Plaintiff 23 has not alleged sufficient facts to demonstrate that Defendants knew of and disregarded an 24 excessive risk to Plaintiff's health. Farmer, 511 U.S. at 834, 837. 25 26 27 28
Mercy Hospital is not a prison official. However, the Court will assume that Mercy Hospital acts under color of state law, as Plaintiff alleges that Mercy Hospital is contracted with the state to provide medical care for inmates.
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Plaintiff also alleges that he developed a staph infection because a wound nurse removed

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1 dead skin from the bed sore in unsanitary conditions. This, too, is at most an allegation of 2 negligence, and fails to state a claim. 3 While the nurses of Mercy Hospital is made up of numerous individuals, Plaintiff cannot

4 sue them as a group. Section 1983 requires a Plaintiff to show that (1) each defendant acted 5 under color of state law and (2) each defendant deprived him of rights secured by the 6 Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 7 2006). Plaintiff must demonstrate that each defendant personally participated in the deprivation 8 of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). 9 IV. 10 Conclusion And Order Plaintiff fails to state any cognizable claims against any Defendants. The Court will

11 provide Plaintiff with an opportunity to file a first amended complaint curing the deficiencies 12 identified by the Court in this order. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). 13 Plaintiff may not change the nature of this suit by adding new, unrelated claims in his amended 14 complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no "buckshot" complaints). 15 If Plaintiff decides to amend, Plaintiff's amended complaint should be brief, Fed. R. Civ.

16 P. 8(a), but must state what each named defendant did that led to the deprivation of Plaintiff's 17 constitutional or other federal rights. Iqbal, 129 S. Ct. at 1949. Although accepted as true, the 18 "[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level . . . 19 ." Twombly, 550 U.S. at 555. 20 Finally, Plaintiff is advised that an amended complaint supersedes the original complaint,

21 Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 22 (9th Cir. 1987), and must be "complete in itself without reference to the prior or superseded 23 pleading," L. R. 220. Plaintiff is warned that "[a]ll causes of action alleged in an original 24 complaint which are not alleged in an amended complaint are waived." King, 814 F.2d at 567 25 (citing to London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981)); accord Forsyth, 26 114 F.3d at 1474. 27 28 Accordingly, based on the foregoing, it is HEREBY ORDERED that: 1. The Clerk's Office shall send Plaintiff a complaint form; 4

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2.

Plaintiff's complaint is dismissed for failure to state a claim, with leave to file a first amended complaint within thirty (30) days from the date of service of this order; and

3.

If Plaintiff fails to comply with this order, the Court will recommend dismissal of this action for failure to obey a court order and failure to state a claim.

IT IS SO ORDERED. Dated: 3b142a

March 18, 2011

/s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE

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