Reed v. Kang, et al.

Filing 30

ORDER DISMISSING CASE based on Plaintiff's failure to state any claims upon which relief may be granted under 1983; ORDER for Clerk of the Court to Close the Case, signed by Magistrate Judge Gerald B. Cohn on 03/26/2012. CASE CLOSED (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CAROL Y. REED,

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Plaintiff,

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v.

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CASE NO. 1:10-cv-01337-GBC (PC)

HO KANG, et al.,

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ORDER DISMISSING ACTION FOR
FAILURE TO STATE A CLAIM UPON
WHICH RELIEF MAY BE GRANTED
Doc. 27

Defendants.
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I. Procedural History, Screening Requirement, and Standard

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On July 26, 2010, Plaintiff Carol Y. Reed, (“Plaintiff”), a state prisoner proceeding pro se

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and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. Doc. 1. On June

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10, 2011, the Court issued a screening order, dismissing Plaintiff’s complaint, with leave to amend.

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Doc. 24. On July 25, 2011, Plaintiff filed a first amended complaint. Doc. 27. On August 4, 2011,

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Plaintiff submitted a supplement to first amended complaint. Doc. 28.1

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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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This filing to supplement Plaintiff’s first amended complaint violates Local Rule 220. However, in the interest
of judicial economy, the Court will consider Plaintiff’s supplemental pleading.

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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, 556 U.S. 662, __, 129 S. Ct. 1937, 1949 (2009) (citing Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)), and courts “are not required to indulge

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unwarranted inferences,” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009). While

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factual allegations are accepted as true, legal conclusions are not. Iqbal, 129 S. Ct. at 1949.

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While prisoners proceeding pro se in civil rights actions are still entitled to have their

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pleadings liberally construed and to have any doubt resolved in their favor, the pleading standard is

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now higher, Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). Under § 1983, plaintiff must

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demonstrate that each defendant personally participated in the deprivation of his rights. Jones v.

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Williams, 297 F.3d 930, 934 (9th Cir. 2002). 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 meeting

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

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Section 1983 provides a cause of action for the violation of constitutional or other federal

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rights by those acting under color of state law. E.g., Patel v. Kent School Dist., 648 F.3d 965, 971

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(9th Cir. 2011); Jones, 297 F.3d at 934. For each defendant named, plaintiff must show a causal link

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between the violation of his rights and an action or omission of the defendant. Iqbal,129 S. Ct. at

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1949-50; Starr v. Baca, 652 F.3d 1202, 1205-06 (9th Cir. 2011); Corales v. Bennett, 567 F.3d 554,

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570 (9th Cir. 2009). There is no respondeat superior liability under § 1983, and each defendant may

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only be held liable for misconduct directly attributed to him or her. Iqbal, 129 S. Ct. at 1949-50;

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Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009).

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II. Allegations in Plaintiff’s First Amended Complaint

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In Plaintiff’s first amended complaint, she names Defendants Walter Miller, Warden, and

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Ho Kang, Pain Management Doctor, who were employed at Valley State Prison for women. Am.

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Compl. at 1-2, Doc. 27. Plaintiff alleges that on June 12, 2009, Dr. Kang gave her a cortisone steroid

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injection without first reading her the risks or having her sign a consent form. Id. at 3. Plaintiff

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alleges that on December 28, 2010, Dr. Toor explained the side effects of the steroid injection after

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side effects occurred. Id. On January 12, 2010, Nurse Practitioner Johnson informed Plaintiff that

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of non-consent. Id. Plaintiff alleges a violation of her right to read and sign the informed consent to

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surgical, special diagnostic CDC form 7342. Id. Plaintiff alleges Warden Walter Miller manages the

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Valley State Prison for women. Id. Plaintiff attaches copies of her medical records, inmate appeals,

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and claims with the Victim Compensation Board. Id. at 4-29; see also Supp. Am. Compl., Doc. 28.

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For relief, Plaintiff seeks monetary damages of $25,000. Am. Compl. at 3.

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III. Legal Standard and Analysis for Plaintiff’s Claims

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A. Violation of State Prison Rules and Regulations

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Plaintiff alleges various violations of state prison rules and regulations. Those violations,

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without more, do not support any claims under § 1983. Ove v. Gwinn, 264 F.3d 817, 824 (9th Cir.

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2001); Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997). Only if the events

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complained of rise to the level of a federal statutory or constitutional violation may Plaintiff pursue

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them under § 1983. Patel, 648 F.3d at 971; Jones, 297 F.3d at 934.

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B. Eighth Amendment Deliberate Indifference to Serious Medical Need

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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, 106 (1976)). The two part test for deliberate

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indifference requires the plaintiff to show (1) “‘a serious medical need’ by demonstrating that

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‘failure to treat a prisoner’s condition could result in further significant injury or the unnecessary and

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

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indifferent.” Jett, 439 F.3d at 1096 (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir.

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1992), overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997)
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(en banc)).

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Deliberate indifference is shown by “a purposeful act or failure to respond to a prisoner’s

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pain or possible medical need, and harm caused by the indifference.” Id. (citing McGuckin, 974 F.2d

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at 1060). Deliberate indifference may be manifested “when prison officials deny, delay or

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intentionally interfere with medical treatment, or it may be shown by the way in which prison

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physicians provide medical care.” Id. (citing McGuckin at 1060). Where a prisoner is alleging a delay

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in receiving medical treatment, the delay must have led to further harm in order for the prisoner to

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make a claim of deliberate indifference to serious medical needs. McGuckin at 1060 (citing Shapely

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v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985)).

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Under § 1983, Plaintiff must link the named defendants to the participation in the violation

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at issue. Iqbal, 129 S. Ct. at 1948-49; Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1020-21 (9th

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Cir. 2010); Ewing, 588 F.3d at 1235; Jones v. Williams, 297 F.3d at 934. Liability may not be

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imposed on supervisory personnel under the theory of respondeat superior, Iqbal, 129 S. Ct. at 1948-

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49; Ewing, 588 F.3d at 1235, and administrators may only be held liable if they “participated in or

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directed the violations, or knew of the violations and failed to act to prevent them,” Taylor v. List,

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880 F.2d 1040, 1045 (9th Cir. 1989); accord Starr, 652 F.3d 1202, 1205-08 (9th Cir. 2011); Corales,

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567 F.3d at 570; Preschooler II v. Clark County School Board of Trustees, 479 F.3d 1175, 1182 (9th

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Cir. 2007); Harris v. Roderick, 126 F.3d 1189, 1204 (9th Cir. 1997). Some culpable action or

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inaction must be attributable to defendants and while the creation or enforcement of, or acquiescence

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in, an unconstitutional policy may support a claim, the policy must have been the moving force

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behind the violation. Starr, 652 F.3d at 1205; Jeffers v. Gomez, 267 F.3d 895, 914-15 (9th Cir.

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2001); Redman v. County of San Diego, 942 F.2d 1435, 1446-47 (9th Cir. 1991); Hansen v. Black,

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885 F.2d 642, 646 (9th Cir. 1989).

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Plaintiff may not seek to impose liability on Defendants merely upon position of authority,

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based on vague or other conclusory allegations. Plaintiff fails to allege sufficient facts to support a

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plausible claim based on the knowing disregard of a substantial risk of harm to Plaintiff’s health.

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Medical malpractice does not become a constitutional violation merely because the victim is a

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prisoner, and Estelle, 429 U.S. at 106; McGuckin, 974 F.2d at 1059, and isolated occurrences of
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neglect do not rise to the level of an Eighth Amendment violation, O’Loughlin v. Doe, 920 F.2d 614,

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617 (9th Cir. 1990); Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990).

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Plaintiff fails to state a cognizable Eighth Amendment claim. Plaintiff makes no allegations

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with regard to Defendant Warden Walter Miller, and Plaintiff cannot hold the Warden liable under

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the theory of respondeat superior. Iqbal, 129 S. Ct. at 1948-49. Plaintiff alleges that Defendant

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Doctor Kang gave her an injection without informed consent. Am. Compl. at 3. Plaintiff alleges that

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Nurse Practitioner Johnson brought this to Plaintiff’s attention. Id. Plaintiff’s allegations that Dr.

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Kang gave her an injection without informed consent merely amount to negligence, which is

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insufficient to hold a defendant liable for deliberate indifference to a serious medical need, under the

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Eighth Amendment.

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Neither negligence nor gross negligence is actionable under § 1983 in the prison context. See

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Farmer v. Brennan, 511 U.S. 825, 835-36 & n.4 (1994); Wood v. Housewright, 900 F.2d 1332, 1334

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(9th Cir. 1990) (gross negligence insufficient to state claim for denial of medical needs to prisoner).

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Nor is negligence actionable under § 1983 outside of the prison context. The Constitution does not

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guarantee due care on the part of state officials; liability for negligently inflicted harm is

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categorically beneath the threshold of constitutional due process. See County of Sacramento v. Lewis,

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523 U.S. 833, 849 (1998). The Eighth Amendment’s prohibition of cruel and unusual punishment

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applies to prison medical care (and the Fourteenth Amendment's right to due process applies to jail

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medical care); however, an Eighth Amendment or Fourteenth Amendment violation only occurs if

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there is deliberate indifference to a known risk to an inmate’s serious medical condition. Even with

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liberal construction, the amended complaint does not allege deliberate indifference to a medical need

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because that high standard requires that the defendant actually know of and act in conscious

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disregard of a known serious risk. The amended complaint will be dismissed for failure to state a

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claim upon which relief may be granted.

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C. Supplemental Jurisdiction

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Plaintiff appears to allege a claim of medical malpractice. Pursuant to 28 U.S.C. § 1367(a),

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in any civil action in which the district court has original jurisdiction, the district court “shall have

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supplemental jurisdiction over all other claims in the action within such original jurisdiction that they
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form part of the same case or controversy under Article III,” except as provided in subsections (b)

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and (c). “[O]nce judicial power exists under § 1367(a), retention of supplemental jurisdiction over

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state law claims under 1367(c) is discretionary.” Acri v. Varian Assoc., Inc., 114 F.3d 999, 1000 (9th

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Cir. 1997). “The district court may decline to exercise supplemental jurisdiction over a claim under

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subsection (a) if . . . the district court has dismissed all claims over which it has original

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jurisdiction.” 28 U.S.C. § 1367(c)(3). The Supreme Court has cautioned that “if the federal claims

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are dismissed before trial . . . the state claims should be dismissed as well.” United Mine Workers

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of America v. Gibbs, 383 U.S. 715, 726 (1966). Because Plaintiff fails to state a cognizable § 1983

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claim, the Court will not exercise supplemental jurisdiction over the state law claims.

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IV. Conclusion

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Plaintiff’s first amended complaint fails to state any claims upon which relief may be granted.

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Plaintiff was previously notified of the deficiencies in the claims and granted leave to amend but was

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unable to cure the deficiencies. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); Noll v. Carlson,

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809 F.2d 1446, 1448-49 (9th Cir. 1987). Based on the record in this case, the Court finds that further

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leave to amend is not warranted.

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Accordingly, pursuant to 28 U.S.C. §§ 1915A and 1915(e), IT IS HEREBY ORDERED that:

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1.

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This action is DISMISSED, based on Plaintiff’s failure to state any claims upon
which relief may be granted under § 1983; and

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2.

The Clerk of the Court is directed to close the case.

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IT IS SO ORDERED.

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Dated:
7j8cce

March 26, 2012
UNITED STATES MAGISTRATE JUDGE

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