Vega v. Chokatos et al
Filing
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ORDER DISMISSING Action, with prejudice, for failure to state a claim; ORDER that DISMISSAL is subject to 28 USC 1915(G), signed by Magistrate Judge Barbara A. McAuliffe on 01/01/2012. (Strike); 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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ANGEL LOUIS VEGA,
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Plaintiff,
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CASE NO. 1:10-cv-01625-BAM PC
ORDER DISMISSING ACTION, WITH
PREJUDICE, FOR FAILURE TO STATE A
CLAIM
v.
JHON CHOKATOS, et al.,
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ORDER THAT DISMISSAL IS SUBJECT TO
28 U.S.C. § 1915(G)
Defendants.
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I.
Screening Requirement
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Plaintiff Angel Louis Vega (“Plaintiff”) is a state prisoner proceeding pro se and in forma
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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On November 28, 2011, an order
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issued dismissing Plaintiff’s complaint, with leave to amend, and on December 14, 2011, an order
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issued dismissing Plaintiff’s first amended complaint, with leave to amend, for failure to state a
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claim. Currently before the Court is the second amended complaint, filed December 20, 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 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 “fails to state a claim on which relief may be granted,” or that “seeks
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monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).
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In determining whether a complaint states a claim, the Court looks to the pleading standard
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under Federal Rule of Civil Procedure 8(a). Under Rule 8(a), a complaint must contain “a short and
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plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
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“[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it
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demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v.
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Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S.
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544, 555, 127 S. Ct. 1955 (2007)).
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Under section 1983, Plaintiff must demonstrate that each defendant personally participated
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in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires
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the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 129 S. Ct.
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at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). “[A] complaint [that]
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pleads facts that are ‘merely consistent with’ a defendant’s liability . . . ‘stops short of the line
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between possibility and plausibility of entitlement to relief.’” Iqbal, 129 S. Ct. at 1949 (quoting
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Twombly, 550 U.S. at 557). Further, although a court must accept as true all factual allegations
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contained in a complaint, a court need not accept a plaintiff’s legal conclusions as true. Iqbal, 129
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S. Ct. at 1949. “Threadbare recitals of the elements of a cause of action, supported by mere
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conclusory statements, do not suffice.” Id. (quoting Twombly, 550 U.S. at 555).
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II.
Discussion
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Plaintiff is in the custody of the California Department of Corrections and Rehabilitation and
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is incarcerated at Pleasant Valley State Prison. Plaintiff alleges that he saw Defendant Greene
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because he was having pain in his left arm. Defendant Greene stated that he would prescribe pain
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medication and never did. Plaintiff saw Defendant Chokatos who “negated” the pain medication.
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Plaintiff was without medication for more than a month.
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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, 104, 97 S. Ct. 285, 291 (1976)). The two
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part test for 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 or
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the ‘unnecessary and wanton infliction of pain,’” and (2) “the defendant’s response to the need was
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deliberately indifferent.” Jett, 439 F.3d at 1096.
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Deliberate indifference is shown where the official is aware of a serious medical need and
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fails to adequately respond. Simmons v. Navajo County, Arizona, 609 F.3d 1011, 1018 (9th Cir.
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2010). “Deliberate indifference is a high legal standard.” Simmons, 609 F.3d at 1019; Toguchi v.
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Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). The prison official must be aware of facts from which
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he could make an inference that “a substantial risk of serious harm exists” and he must make the
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inference. Farmer v. Brennan, 511 U.S. 825, 837, 114 S. Ct. 1970, 1979 (1994).
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“[T]he existence of an injury that a reasonable doctor would find important and worthy of
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comment or treatment, . . . the presence of a medical condition that significantly affects an
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individual’s daily activities, and . . . the existence of chronic or substantial pain” are indications of
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a serious medical need. Doty v. County of Lassen, 37 F.3d 540, 546 n.3 (9th Cir. 1994) (citing
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McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992), overruled on other grounds, WMX
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Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc)); Lopez v. Smith, 203 F.3d
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1122, 1131 (9th Cir. 2000). As Plaintiff was informed in the order issued December 14, 2011, his
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statement that he had pain in his left arm is insufficient to allege a serious medical need. Even
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assuming arguendo that Plaintiff would be able to allege facts to show that he had a serious medical
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need, Plaintiff fails to plead facts to meet the subjective component of deliberate indifference.
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Plaintiff alleges that Defendant Greene told him that he would prescribe pain medication and
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then did not. The facts as stated fall short of stating a plausible claim that Defendant Greene acted
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with deliberate indifference in failing to prescribe pain medication to Plaintiff. At the very least it
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is equally plausible that Defendant Greene was negligent, which does not state a constitutional claim.
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Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980); Toguchi, 391 F.3d at 1057.
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While the Court is mindful that this is the pleading stage, the mere possibility that misconduct
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occurred is insufficient to support a claim. Additionally, Plaintiff statement that Defendant Chokatos
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“negated” the pain medication is vague and fails to adequately state facts to support a claim.
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Finally, while Plaintiff alleges that he was without medication for more than a month it is
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unclear when this occurred. If the lack of medication was during the period of time between
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Plaintiff’s visit with Defendant Greene and follow-up with Defendant Chokatos, then there is no
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knowing deprivation as Plaintiff has not alleged that he informed any defendant that he did not
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receive his medication during this time period. In the alternative, if Plaintiff is attempting to allege
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a deprivation during a different period of time he has not set forth sufficient factual allegations to
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link any named defendant to the deprivation of medication. Jones, 297 F.3d at 934.
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IV.
Conclusion and Order
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Plaintiff’s complaint fails to state a claim upon which relief may be granted under section
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1983. Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend ‘shall be freely
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given when justice so requires,’” Fed. R. Civ. P. 15(a), and “[l]eave to amend should be granted if
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it appears at all possible that the plaintiff can correct the defect,” Lopez v. Smith, 203 F.3d at 1130
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(internal citations omitted). However, in this action Plaintiff has been granted two opportunities to
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amend the complaint, with guidance by the Court. Plaintiff has now filed three complaints without
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alleging facts against any of the defendants sufficient to state a claim under § 1983. The Court finds
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that the deficiencies outlined above are not capable of being cured by amendment, and therefore
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further leave to amend should not be granted. 28 U.S.C. § 1915(e)(2)(B)(ii); Noll v. Carlson, 809
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F.2d 1446, 1448-49 (9th Cir. 1987).
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Accordingly, pursuant to 28 U.S.C. § 1915A and 28 U.S.C. § 1915(e), this action is
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HEREBY DISMISSED, with prejudice, based on Plaintiff’s failure to state a claim upon which relief
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may be granted under section 1983 and the Clerk’s Office shall enter judgment. This dismissal is
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subject to the “three-strikes” provision set forth in 28 U.S.C. § 1915(g). Silva v. Vittorio,658 F.3d
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1090, 1098 (9th Cir. 2011).
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IT IS SO ORDERED.
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Dated:
10c20k
January 1, 2012
/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE
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