Perkins v. Matthews et al

Filing 19

ORDER DISMISSING ACTION, With Prejudice, for Failure to State a Claim; ORDER for This Dismissal to Count as a Strike Pursuant to 28 U.S.C. 1915(g); and ORDER Directing Clerk to Close Case, signed by Magistrate Judge Gary S. Austin on 9/17/2013. CASE CLOSED. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Plaintiff,

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1:10-cv-01611-GSA-PC

ANTHONY LOREN PERKINS,

ORDER DISMISSING ACTION, WITH
PREJUDICE, FOR FAILURE TO STATE A
CLAIM
(Doc. 17.)

vs.
JOHN MATTHEWS, et al.,

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ORDER FOR THIS DISMISSAL TO
COUNT AS A STRIKE PURSUANT TO 28
U.S.C. '1915(g)

Defendants.

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ORDER DIRECTING CLERK TO CLOSE
CASE

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I.

BACKGROUND
Anthony Loren Perkins (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint

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commencing this action on September 7, 2010. (Doc. 1.) On October 4, 2010, Plaintiff

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consented to Magistrate Judge jurisdiction in this action, and no other parties have made an

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appearance. (Doc. 5.) Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the

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Eastern District of California, the undersigned shall conduct any and all proceedings in the case

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until such time as reassignment to a District Judge is required. Local Rule Appendix A(k)(3).

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On January 11, 2011, Plaintiff filed the First Amended Complaint. (Doc. 10.) The
court screened the First Amended Complaint pursuant to 28 U.S.C. 1915A and entered an order
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on November 19, 2012, dismissing the First Amended Complaint for failure to state a claim,

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with leave to amend. (Doc. 15.) On December 17, 2012, Plaintiff filed the Second Amended

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Complaint, which is now before the court for screening. (Doc. 17.)

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II.

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SCREENING REQUIREMENT
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).

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The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are

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legally Afrivolous or malicious,@ that fail to state a claim upon which relief may be granted, or

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that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C.

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' 1915A(b)(1),(2). ANotwithstanding any filing fee, or any portion thereof, that may have been

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paid, the court shall dismiss the case at any time if the court determines that . . . the action or

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appeal fails to state a claim upon which relief may be granted.@ 28 U.S.C. ' 1915(e)(2)(B)(ii).
A complaint is required to contain Aa short and plain statement of the claim showing

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that the pleader is entitled to relief . . . .@ Fed. R. Civ. P. 8(a)(2). Detailed factual allegations

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are not required, but A[t]hreadbare recitals of the elements of a cause of action, supported by

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mere conclusory statements, do not suffice.@ Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct.

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1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955

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(2007)). While a plaintiff=s allegations are taken as true, courts Aare 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)

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(internal quotation marks and citation omitted). Plaintiff must set forth Asufficient factual

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matter, accepted as true, to >state a claim to relief that is plausible on its face.=@ Iqbal 556 U.S.

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at 678. While factual allegations are accepted as true, legal conclusions are not. Id. The mere

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possibility of misconduct falls short of meeting this plausibility standard. Id., at 678-79; Moss

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v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

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III.

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SUMMARY OF SECOND AMENDED COMPLAINT
Plaintiff is presently incarcerated at Kern Valley State Prison in Delano, California.

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The events at issue in the complaint allegedly occurred at the California Correctional Institution

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(CCI) in Tehachapi, California, when Plaintiff was incarcerated there. Plaintiff names as
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defendants John Matthews (Chief Medical Officer) and W. Prewett (D.D.S.). Plaintiff’s factual

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allegations follow.

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In September 2009 at CCI, Plaintiff injured his jaw. More than ten days later on

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September 14, 2009, it was discovered through x-rays that Plaintiff’s jaw was broken. Plaintiff

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was told that he was scheduled for surgery the next day, September 15, 2009, but he did not

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have the surgery until September 23, 2009.

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On September 14, 2009, Defendant Dr. W. Prewett received information from Dr.

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Nakayama, also a D.D.S. physician, that Plaintiff hurt himself while exercising, may have

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dislocated or fractured his jaw, and had facial swelling with limited mouth opening. Plaintiff

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was told that he would have surgery the next day, but the surgery was delayed. Dr. Prewett’s

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physician’s orders indicated that Plaintiff was not in a lot of pain, although Dr. Prewett did not

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personally examine Plaintiff. Plaintiff claims that Dr. Prewett knew about his serious medical

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need but delayed treatment.

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On September 20, 2009, Plaintiff filed an appeal complaining about the delay.

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Defendant John Matthews delayed the surgery by deciding that Plaintiff’s appeal was not an

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emergency. By not designating Plaintiff’s appeal as an emergency matter, Matthews implied

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that his medical condition was not serious.
Plaintiff claims he endured insurmountable pain and suffering, emotional distress, and

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facial disfigurement for more than two weeks because of the delay in surgery.
Plaintiff seeks monetary damages as relief.

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IV.

PLAINTIFF’S CLAIMS
The Civil Rights Act under which this action was filed provides:
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. ASection 1983 . . . creates a cause of action for violations of the federal

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Constitution and laws.@ Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997)
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(internal quotations omitted). ATo 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

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Constitution, Section 1983 offers no redress.@ Id.

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To state a claim under section 1983, a plaintiff must allege that (1) the defendant acted

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

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Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir.

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2006). AA person >subjects= another to the deprivation of a constitutional right, within the

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meaning of section 1983, if he does an affirmative act, participates in another=s affirmative acts,

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or omits to perform an act which he is legally required to do that causes the deprivation of

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which complaint is made.@ Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). AThe

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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

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the actor knows or reasonably should know would cause others to inflict the constitutional

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injury.@ Id. at 743-44.

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A.

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A[T]o maintain an Eighth Amendment claim based on prison medical treatment, an

Eighth Amendment Medical Claim

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inmate must show >deliberate indifference to serious medical needs.=@ Jett v. Penner, 439 F.3d

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1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285 (1976)).

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The two-part test for deliberate indifference requires the plaintiff to show (1) A>a serious

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medical need= by demonstrating that >failure to treat a prisoner=s condition could result in

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further significant injury or the unnecessary and wanton infliction of pain,=@ and (2) Athe

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defendant=s response to the need was deliberately indifferent.@ Jett, 439 F.3d at 1096 (quoting

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McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds by WMX

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Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc) (internal quotations

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omitted)). Deliberate indifference is shown by Aa purposeful act or failure to respond to a

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prisoner=s pain or possible medical need, and harm caused by the indifference.@ Id. (citing

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McGuckin, 974 F.2d at 1060). Deliberate indifference may be manifested Awhen prison

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officials deny, delay or intentionally interfere with medical treatment, or it may be shown by
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the way in which prison physicians provide medical care.@ Id. Where a prisoner is alleging a

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

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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.

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1985)).

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ADeliberate indifference is a high legal standard.@ Toguchi v. Chung, 391 F.3d 1051,

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1060 (9th Cir. 2004). AUnder this standard, the prison official must not only >be aware of the

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facts from which the inference could be drawn that a substantial risk of serious harm exists,= but

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that person >must also draw the inference.=@ Id. at 1057 (quoting Farmer v. Brennan, 511 U.S.

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825, 837, 114 S.Ct. 1970 (1994)). A>If a prison official should have been aware of the risk, but

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was not, then the official has not violated the Eighth Amendment, no matter how severe the

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risk.=@ Id. (quoting Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir.

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2002)). AA showing of medical malpractice or negligence is insufficient to establish a

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constitutional deprivation under the Eighth Amendment. Id. at 1060. A[E]ven gross negligence

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is insufficient to establish a constitutional violation.@ Id. (citing Wood v. Housewright, 900

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F.2d 1332, 1334 (9th Cir. 1990)).

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Plaintiff has demonstrated that he had an objectively serious medical need, because his

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jaw was broken, causing him to suffer pain, disfigurement, and trouble eating and talking.

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Plaintiff alleges that his condition was documented as urgent on September 14, 2009, but

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defendants delayed his surgery and other medical treatment for nine more days, which

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extended his suffering. However, Plaintiff has not alleged facts showing that defendants were

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deliberately indifferent to his medical needs. Plaintiff has not alleged facts demonstrating that

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defendants purposely delayed his surgery, consciously disregarding a substantial risk of serious

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harm to Plaintiff. Plaintiff’s conclusory statement that Dr. Prewett knew about his serious

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medical need but delayed treatment is not sufficient. Iqbal 556 U.S. at 678. Therefore,

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Plaintiff fails to state a medical claim against either of the defendants.

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B.

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Plaintiff alleges that defendant Prewett failed to properly designate his inmate appeal as

Inmate Appeals Process

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urgent. A defendant’s actions in responding to Plaintiff=s appeals, alone, cannot give rise to any

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claims for relief under section 1983 for violation of due process. A[A prison] grievance

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procedure is a procedural right only, it does not confer any substantive right upon the inmates.@

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Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (citing Azeez v. DeRobertis, 568 F.

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Supp. 8, 10 (N.D. Ill. 1982)); see also Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (no

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liberty interest in processing of appeals because no entitlement to a specific grievance

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procedure); Massey v. Helman, 259 F.3d 641, 647 (7th Cir. 2001) (existence of grievance

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procedure confers no liberty interest on prisoner); Mann v. Adams, 855 F.2d 639, 640 (9th Cir.

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1988). AHence, it does not give rise to a protected liberty interest requiring the procedural

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protections envisioned by the Fourteenth Amendment.@ Azeez, 568 F. Supp. at 10; Spencer v.

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Moore, 638 F. Supp. 315, 316 (E.D. Mo. 1986). Actions in reviewing a prisoner=s

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administrative appeal, without more, are not actionable under section 1983. Buckley, 997 F.2d

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at 495. Thus, since he has neither a liberty interest, nor a substantive right in inmate appeals,

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Plaintiff fails to state a cognizable claim for the processing and/or reviewing of his 602 inmate

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appeal.

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V.

CONCLUSION AND ORDER
The Court finds that Plaintiff=s Second Amended Complaint fails to state a claim upon

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which relief may be granted under § 1983 against any of the defendants. In this action, the

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Court previously granted Plaintiff an opportunity to amend the complaint, with ample guidance

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by the Court. Plaintiff has now filed three complaints without alleging facts against any of the

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defendants which state a claim under ' 1983. The Court finds that the deficiencies outlined

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above are not capable of being cured by amendment, and therefore further leave to amend

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should not be granted. 28 U.S.C. ' 1915(e)(2)(B)(ii); Lopez v. Smith, 203 F.3d 1122, 1127

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(9th Cir. 2000).

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Therefore, IT IS HEREBY ORDERED that:

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which relief may be granted under ' 1983;

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This action is DISMISSED with prejudice for failure to state a claim upon

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This dismissal is subject to the Athree-strikes@ provision set forth in 28 U.S.C. '

1915(g). Silva v. Vittorio, 658 F.3d 1090, 1098 (9th Cir. 2011); and

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3.

The Clerk is directed to close this case.

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IT IS SO ORDERED.
Dated:

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September 17, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

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