Luna v. California Health Care Services et al

Filing 11

ORDER DISMISSING Complaint WITH LEAVE TO AMEND 1 ; AMENDED COMPLAINT DUE WITHIN THIRTY (30) DAYS, signed by Magistrate Judge Michael J. Seng on 12/29/11: The Clerk's Office shall send Plaintiff (1) blank amended complaint form and (2) a copy of his Complaint, filed November 9, 2010. (Attachments: # 1 Amended Complaint -blank form)(Hellings, J)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 ARTHUR LUNA, CASE NO. 1:10-CV-02076-LJO-MJS (PC) 10 11 ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND Plaintiff, 12 (ECF NO. 1) v. 13 14 15 AMENDED COMPLAINT DUE WITHIN THIRTY (30) DAYS CALIFORNIA HEALTH CARE SERVICES, et al., Defendants. 16 / 17 18 19 SCREENING ORDER 20 21 I. 22 23 PROCEDURAL HISTORY On November 9, 2010, Plaintiff Arthur Luna, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. (ECF No. 1.) 24 Plaintiff's Complaint is before the Court for screening. 25 26 /////// 27 -1- 1 II. 2 3 SCREENING REQUIREMENT The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 4 5 § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has 6 raised claims that are legally “frivolous, malicious,” or that fail to state a claim upon which 7 relief may be granted, or that seek monetary relief from a defendant who is immune from 8 such relief. 28 U.S.C. § 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion 9 thereof, that may have been paid, the court shall dismiss the case at any time if the court 10 determines that ... the action or appeal ... fails to state a claim upon which relief may be 11 12 granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 13 A complaint must contain “a short and plain statement of the claim showing that the 14 pleader is entitled to relief ....” Fed.R.Civ.P. 8(a)(2). Detailed factual allegations are not 15 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 16 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 17 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must 18 19 set forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on 20 its face.’” Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). Facial plausibility 21 demands more than the mere possibility that a defendant committed misconduct and, while 22 factual allegations are accepted as true, legal conclusions are not. Id. at 1949–50. 23 III. 24 SUMMARY OF COMPLAINT Plaintiff is incarcerated at the California Department of Corrections and 25 26 Rehabilitation, Corcoran Substance Abuse Treatment Facility and State Prison, 27 -2- 1 (“CSATF/SP”). (Compl. p. 1, ECF No. 1.) Plaintiff complains that he fell from his bunk at 2 CSATF/SP on May 16, 2009, injuring surgical work that had been done on his left shoulder 3 a month earlier. (Id. at 9-11.) Defendants were deliberately indifferent to his resulting 4 serious medical needs in violation of the Eighth Amendment and California Code of Civil 5 6 Procedure Sections 338-340 and 425.12. (Id. at 5, 28-29.) Plaintiff also alleges that he was 7 discriminated against because of his pre-existing permanent hearing impairment. (Id. at 9.) 8 Plaintiff names the following Defendants in their official and individual capacities: 9 (1) California Health Care Services (“CHCS”), (2) CSATF/SP, (3) Delano, LVN, (4) 10 Ugwueze, Physician, (5) Does I-V at CSATF/SP. Plaintiff seeks injunctive relief and 11 compensatory and punitive damages. (Id. at 2, 6.) 12 Plaintiff had shoulder surgery on April 21, 2009. He alleges that he re-injured the 13 14 shoulder in the May 16th fall. (Id. at 9.) He was seen by Defendant Delano shortly after the 15 fall. (Id. at 9, 11.) She was disrespectful and unprofessional, and she accused him of lying 16 about the injury. She teased him about his hearing impairment and was biased against him 17 because of it. (Id.) She told him his shoulder was not broken, allegedly without 18 examining/touching it. (Id.) She advised him to promptly put in a medical slip to get an x-ray 19 and follow-up treatment. (Id.) Subsequent x-ray showed dislocation of a screw placed in 20 21 Plaintiff’s shoulder during the April 21st surgery, necessitating additional surgery and 22 impacting Plaintiff’s daily activities. (Id. at 8, 28.) On June 1, 2009, a non-party, Dr. Smith 23 prescribed morphine for the shoulder injury, but Plaintiff alleges he has not received any. 24 (Id. at 26-27.) 25 26 Defendant CSATF/SP has custody of Plaintiff and is responsible for his medical care. (Id. at 23.) Defendant CHCS is responsible for hiring and retention of medical staff 27 -3- 1 at CSATF/SP and providing prisoners with medical services. (Id.) Defendant Delano is 2 employed by California Department of Corrections and Rehabilitation as a Licensed 3 Vocational Nurse, (Id. at 24.) Defendant Ugwueze is employed by California Department 4 of Corrections and Rehabilitation as a physician at CSATF/SP. (Id. at 24.) Defendant 5 6 Ugwueze was responsible for supervising and training CSATF/SP medical staff, and 7 according to Plaintiff he denied medical treatment for Plaintiff’s shoulder injury. (Id. at 24- 8 25, 27.) Plaintiff states that Defendant Does I-V at CSATF/SP denied him access to x-ray 9 or emergency medical treatment. (Id. at 27.) 10 11 IV. ANALYSIS To state a claim under Section 1983, a plaintiff must allege two essential elements: 12 13 (1) that a right secured by the Constitution or laws of the United States was violated and 14 (2) that the alleged violation was committed by a person acting under the color of state law. 15 See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243, 16 1245 (9th Cir.1987). 17 18 A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief ....“ Fed.R.Civ.P. 8(a)(2). Detailed factual allegations are not 19 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 20 21 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 22 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must 23 set forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on 24 its face.’“ Id. Facial plausibility demands more than the mere possibility that a defendant 25 committed misconduct and, while factual allegations are accepted as true, legal 26 conclusions are not. Id. at 1949–50. 27 -4- 1 A. 2 The Eleventh Amendment prohibits suits against state agencies.1 See Natural Res. 3 Def. Council v. California Dep’t of Transp., 96 F.3d 420, 421 (9th Cir. 1996); see also 4 Brooks v. Sulphur Springs Valley Elec. Co-op., 951 F.2d 1050, 1053 (9th 1991); see also 5 Eleventh Amendment Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (concluding that Nevada Department 6 7 of Prisons was a state agency entitled to Eleventh Amendment immunity). 8 Defendant CSATF/SP is a state agency and is entitled to Eleventh Amendment 9 immunity from suit absent a waiver or exception. No waiver or exception is apparent based 10 11 12 on the allegations in the Complaint. Plaintiff cannot proceed against this entity. B. Personal Participation and Supervisory Liability 13 14 Under Section 1983, Plaintiff must demonstrate that each named Defendant 15 personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 16 (9th Cir.2002). The Supreme Court has emphasized that the term “supervisory liability,” 17 loosely and commonly used by both courts and litigants alike, is a misnomer. Iqbal, 129 18 S.Ct. at 1949. “Government officials may not be held liable for the unconstitutional conduct 19 of their subordinates under a theory of respondeat superior.” Id. at 1948. Rather, each 20 government official, regardless of his or her title, is only liable for his or her own 21 22 23 misconduct, and therefore, Plaintiff must demonstrate that each Defendant, through his or her own individual actions, violated Plaintiff's constitutional rights. Id. at 1948–49. 24 1 25 26 The Ninth Circuit Court of Appeals has recognized that “[t]he State of California has not waived its Eleventh Am endm ent im m unity with respect to claim s brought under § 1983 in federal court, and the Suprem e Court has held that § 1983 was not intended to abrogate a State's Eleventh Am endm ent im m unity.” Dittm an v. California, 191 F.3d 1020, 1025–26 (9th Cir.1999). 27 -5- 1 The Court finds that, for purposes of screening, the facts alleged in the Complaint 2 do sufficiently personally link Defendant Delano to the alleged violation of Plaintiff’s 3 constitutional rights. Defendant Delano saw Plaintiff shortly after his May 16th fall, allegedly 4 provided inadequate medical care to him, and discriminated against him because of his 5 hearing impairment. 6 Plaintiff fails to allege any facts personally linking Defendant Ugwueze to the alleged 7 8 rights violation. There is no evidence that Defendant Ugwueze personally participated in 9 the events alleged in Plaintiff’s Complaint. Defendant Ugwueze cannot be held liable based 10 solely on his position as supervising prison physician at CSATF/SP. Plaintiff cannot 11 proceed against Defendant Ugwueze unless he truthfully alleges how this Defendant 12 personally violated, or knowingly directed a violation of his constitutional rights. 13 Plaintiff fails to allege any facts personally linking Defendant CHCS to the alleged 14 15 rights violation. Plaintiff should note that the mere fact CHCS conducted third level review 16 of Plaintiff’s prison appeal in this matter is not a sufficient basis to link CHCS to a violation 17 of Plaintiff’s constitutional rights.2 Plaintiff cannot proceed against Defendant CHCS unless 18 he truthfully alleges how this Defendant personally violated his constitutional rights. 19 Plaintiff fails to allege any facts personally linking Defendant Does I-V to the alleged 20 rights violation. Plaintiff cannot proceed against these Doe Defendants unless he truthfully 21 22 23 alleges how these Defendants each personally violated his constitutional rights. C. Inadequate Medical Care 24 25 26 27 2 “Inm ates lack a separate constitutional entitlem ent to a specific prison grievance procedure.” Ram irez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (citing Mann v. Adam s, 855 F.2d 639, 640 (9th Cir. 1988). See Buckley v. Barlow, 997 F.2d 494,495 (8th Cir.1993) (Actions in reviewing a prisoner's adm inistrative appeal cannot serve as the basis for liability under § 1983). -6- 1 Plaintiff claims that he received inadequate medical care in violation of the Eighth 2 Amendment. “[T]o maintain an Eighth Amendment claim based on prison medical 3 treatment, an inmate must show ‘deliberate indifference to serious medical needs.’” Jett v. 4 Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 106 5 (1976)). The two prong test for deliberate indifference requires the plaintiff to show (1) “‘a 6 serious medical need’ by demonstrating that ‘failure to treat a prisoner's condition could 7 8 result in further significant injury or the unnecessary and wanton infliction of pain,’” and (2) 9 “the defendant's response to the need was deliberately indifferent.” Jett, 439 F.3d at 1096 10 (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992)). Deliberate indifference 11 is shown by “a purposeful act or failure to respond to a prisoner's pain or possible medical 12 need, and harm caused by the indifference.” Jett, 439 F.3d at 1096 (citing McGuckin, 974 13 F.2d at 1060). In order to state a claim for violation of the Eighth Amendment, a plaintiff 14 15 must allege sufficient facts to support a claim that the named defendants “[knew] of and 16 disregard[ed] an excessive risk to [plaintiff's] health ....” Farmer v. Brennan, 511 U.S. 825, 17 837 (1994). 18 19 20 In applying this standard, the Ninth Circuit has held that before it can be said that a prisoner's civil rights have been abridged, “the indifference to his medical needs must be substantial. Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this 21 22 cause of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing 23 Estelle, 429 U.S. at 105–06). “[A] complaint that a physician has been negligent in 24 diagnosing or treating a medical condition does not state a valid claim of medical 25 mistreatment under the Eighth Amendment. Medical malpractice does not become a 26 constitutional violation merely because the victim is a prisoner.” Estelle, 429 U.S. at 106; 27 -7- 1 see also Anderson v. County of Kern, 45 F.3d 1310, 1316 (9th Cir.1995); see also 2 McGuckin, 974 F.2d at 1050. Even gross negligence is insufficient to establish deliberate 3 indifference to serious medical needs. See Wood v. Housewright, 900 F.2d 1332, 1334 (9th 4 Cir. 1990). 5 Also, “a difference of opinion between a prisoner-patient and prison medical 6 authorities regarding treatment does not give rise to a § 1983 claim.” Franklin v. Oregon, 7 8 662 F.2d 1337, 1344 (9th Cir. 1981). To prevail, Plaintiff “must show that the course of 9 treatment the doctors chose was medically unacceptable under the circumstances ... and 10 ... that they chose this course in conscious disregard of an excessive risk to plaintiff's 11 health.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir.1986). A prisoner's mere 12 disagreement with diagnosis or treatment does not support a claim of deliberate 13 indifference. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). 14 15 Plaintiff claims that his May 16th fall caused trauma to his recent shoulder surgery, 16 resulting in ongoing pain, and impairment of his daily activities. This injury, if not properly 17 treated could potentially cause significant injury. See Jones v. Johnson, 781 F.2d 769, 18 771–72 (9th Cir.1986) (held that a hernia which caused severe pain and an inability to work 19 20 stated a serious medical need); see also McGuckin, 947 F.2d at 1059–60 (“[T]he existence of an injury that a reasonable doctor or patient would find important and worthy of comment 21 22 or treatment; the presence of a medical condition that significantly affects an individual's 23 daily activities; or the existence of chronic and substantial pain are examples of indications 24 that a prisoner has a ‘serious' need for medical treatment.”). Plaintiff has alleged, for 25 purposes of screening, a serious medical need sufficient to satisfy the first prong of 26 deliberate indifference. 27 -8- 1 However, Plaintiff has not included sufficient allegations to support a claim that any 2 of the Defendants were deliberately indifferent to Plaintiff's medical needs. Plaintiff alleges 3 no facts that Defendants CHCS, CSATF/SP, Ugwueze, and Does I-V participated in the 4 alleged rights violation. The allegations against Defendant Delano, that she was 5 6 7 disrespectful and failed to examine Plaintiff’s shoulder injury, taken as true might well suggest negligence, but not deliberate indifference. Defendant Delano interviewed Plaintiff, 8 treated him with an ice pack, and advised him to promptly submit a medical slip to receive 9 follow-up treatment including a shoulder x-ray. There is no evidence that any Defendant 10 knowingly disregarded an excessive risk of harm to Plaintiff’s left shoulder, or that the 11 chosen course of treatment was medically unacceptable and impacted plaintiff’s treatment 12 and recovery. The Eighth Amendment does not require that prisoners receive “unqualified 13 14 access to health care.” Johnson 433 F.3d at 1013 (citing Hudson v. McMillian, 503 U.S. 1, 15 9 (1992)). 16 Plaintiff also alleges that in the weeks following the injury he saw a nonparty, Dr. 17 Smith, who prescribed morphine. Plaintiff complains that he has not received the morphine. 18 (Compl. at 26-27.) This allegation is attributed neither to the Defendants, nor to any 19 deliberate indifference, and standing thus can not support a claim. Further this allegation 20 21 22 appears contradicted by Plaintiff’s statement that he is “receiving medication ....” (Id. at 16.) Plaintiff has failed to state a claim for inadequate medical care against Defendants 23 CHCS, CSATF/SP, Delano, Ugwueze, and Does I-V . The Court will give Plaintiff leave to 24 amend his Complaint with regard to the alleged inadequate medical care. In order to state 25 26 a claim for a violation of the Eighth Amendment based on inadequate medical care, Plaintiff needs to set forth sufficient facts showing (1) a serious medical need, and (2) a deliberately 27 -9- 1 indifferent response to that need on the part of the Defendants. 2 D. 3 Plaintiff may complain that Defendant Delano harassed him in violation his Eighth 4 Harassment Amendment right to be free from cruel and unusual punishment. To constitute cruel and 5 6 7 unusual punishment in violation of the Eighth Amendment, prison conditions must involve “the wanton and unnecessary infliction of pain ....” Rhodes v. Chapman, 452 U.S. 337, 347 8 (1981). 9 “‘Verbal harassment or abuse ... is not sufficient to state a constitutional 10 deprivation....’” Whitley v. Lopez, 2011 WL 5101944, *3 (E.D. Cal. Oct.25, 2011) (citing 11 Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir.1987)). Verbal harassment is not a 12 13 14 “sufficiently serious” deprivation to satisfy the first element of Plaintiff's Eighth Amendment claim. See Farmer, at 834 (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)). Thus, to the 15 extent Plaintiff wishes to assert such a claim, it can not stand and is hereby dismissed with 16 prejudice. 17 18 E. Title II of the ADA Plaintiff does not specifically state that he is pursuing any claims based on violation 19 20 21 of Title II of the Americans with Disabilities Act (“ADA”). However, Plaintiff filed an ADA Accommodation request on May 19, 2009, three days after his fall, alleging Defendant th 22 Delano was “biased against [Plaintiff’s] hearing” when treating him for the May 16 fall. 23 (Compl. at 9.) Plaintiff has a permanent hearing impairment and must wear hearing aids. 24 (Id. at 9-12.) Title II of the ADA provides that “no qualified individual with a disability shall, 25 by reason of such disability, be excluded from participation in or be denied the benefits of 26 the services, programs, or activities of a public entity, or be subject to discrimination by such 27 -10- 1 entity.” 42 U.S.C. § 12132. In order to state a claim under the ADA, plaintiff must have 2 been “improperly excluded from participation in, and denied the benefits of, a prison service, 3 program, or activity on the basis of his physical handicap.” Armstrong v. Wilson, 124 F.3d 4 1019, 1023 (9th Cir. 1997). Plaintiff has alleged no facts demonstrating such exclusion or 5 denial. Plaintiff’s allegations of inadequate medical care do not state a claim under the ADA. 6 Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996) (“The ADA does not create a remedy 7 8 for medical malpractice.”) Nor may Plaintiff pursue ADA claims against an individually 3 9 named Defendant. 10 F. 11 Plaintiff names Does I-V CSATF/SP as Defendants in this action. “As a general rule, 12 Doe Defendants the use of ‘John Doe’ to identify a defendant is not favored.” Gillespie v. Civiletti, 629 F.2d 13 637, 642 (9th Cir. 1980). “It is permissible to use Doe defendant designations in a complaint 14 15 to refer to defendants whose names are unknown to plaintiff. Although the use of Doe 16 defendants is acceptable to withstand dismissal of a complaint at the initial review stage, 17 using Doe defendants creates its own problem: those persons cannot be served with 18 process until they are identified by their real names.” Robinett v. Correctional Training 19 Facility, 2010 WL 2867696, *4 (N.D. Cal. July 20, 2010). 20 Plaintiff is advised that Doe Defendants cannot be served by the United States 21 22 Marshal until Plaintiff has identified them as actual individuals and amended his complaint 23 to substitute the Defendants' actual names. The burden remains on Plaintiff to promptly 24 25 26 3 Roundtree v. Adam s, No. 1:01-CV-06502 OW W LJO, 2005 W L 3284405, at *8 (E.D.Cal. Dec. 1, 2005) (citing 42 U.S.C. § 12131(1)(A)-(B)). Public entity, “‘as it is defined within the statute, does not include individuals.’” Id. (quoting Alsbrook v. City of Maum elle, 184 F.3d 999, 1005 n.8 (8th Cir. 1999)). 27 -11- 1 discover the full names of Doe Defendants. Id. 2 V. CONCLUSION AND ORDER 3 Plaintiff's Complaint does not state a claim for relief under Section 1983. The Court 4 will grant Plaintiff an opportunity to file an amended complaint. Lopez v. Smith, 203 F.3d 5 1122, 1130 (9th Cir. 2000); Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). 6 7 8 If Plaintiff opts to amend, he must demonstrate that the alleged acts resulted in a deprivation of his constitutional rights. Iqbal, 129 S.Ct. at 1948–49. Plaintiff must set forth 9 “sufficient factual matter ... to ‘state a claim that is plausible on its face.’” Id. at 1949 (quoting 10 Twombly, 550 U.S. at 555). Plaintiff must also demonstrate that each named Defendant 11 personally participated in a deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 12 (9th Cir. 2002). 13 Plaintiff should note that although he has been given the opportunity to amend, it is 14 15 not for the purposes of adding new claims. George v. Smith, 507 F.3d 605, 607 (7th Cir. 16 2007). Plaintiff should carefully read this Screening Order and focus his efforts on curing 17 the deficiencies set forth above. 18 19 Finally, Plaintiff is advised that Local Rule 220 requires that an amended complaint be complete in itself without reference to any prior pleading. As a general rule, an amended 20 complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 21 22 1967). Once an amended complaint is filed, the original complaint no longer serves any 23 function in the case. Therefore, in an amended complaint, as in an original complaint, each 24 claim and the involvement of each defendant must be sufficiently alleged. The amended 25 complaint should be clearly and boldly titled “First Amended Complaint,” refer to the 26 appropriate case number, and be an original signed under penalty of perjury. Plaintiff's 27 -12- 1 amended complaint should be brief. Fed.R.Civ.P. 8(a). Although accepted as true, the 2 “[f]actual allegations must be [sufficient] to raise a right to relief above the speculative 3 level....” Twombly, 550 U.S. at 555. 4 Based on the foregoing, it is HEREBY ORDERED that: 5 The Clerk's Office shall send Plaintiff (1) a blank civil rights amended complaint form 6 7 and (2) a copy of his Complaint, filed November 9, 2010. Plaintiff's Complaint is dismissed for failure to state a claim upon which relief may be 8 9 granted. 10 Plaintiff shall file an amended complaint within thirty (30) days from filing of this order. 11 If Plaintiff fails to file an amended complaint in compliance with this order, it will be 12 recommended that this action be dismissed, with prejudice, for failure to state a claim and 13 failure to prosecute, and that the dismissal be subject to the “three strikes” provision set 14 15 forth in 28 U.S.C. § 1915(g). Silva v. Di Vittorio 658 F.3d 1090 (9th Cir. 2011). 16 17 IT IS SO ORDERED. 18 19 Dated: ci4d6 December 29, 2011 /s/ Michael J. Seng UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 -13-

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