Luna v. California Health Care Services et al

Filing 19

ORDER Finding Second Amended Complaint to State a Cognizable Eighth Amendment Claim Against Defendant Ugwueze signed by Magistrate Judge Michael J. Seng on 08/08/2012. (Flores, E)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 ARTHUR LUNA, CASE No: 11 ORDER FINDING SECOND AMENDED COMPLAINT TO STATE A COGNIZABLE EIGHTH AMENDMENT CLAIM AGAINST DEFENDANT UGWUEZE Plaintiff, 12 1:10-cv-02076-LJO-MJS (PC) 13 v. 14 15 16 (ECF No. 18) CALIFORNIA HEALTH CARE SERVICES, et al., Defendants. 17 / 18 19 20 THIRD SCREENING ORDER 21 22 I. PROCEDURAL HISTORY 23 Plaintiff Arthur Luna is a state prisoner proceeding pro se and in forma pauperis in 24 this civil rights action pursuant to 42 U.S.C. § 1983. (Compl., ECF No. 1.) Plaintiff has 25 declined Magistrate Judge jurisdiction. (Request for Reassignment, ECF No. 7.) 26 27 -1- 1 Plaintiff's Complaint and First Amended Complaint were dismissed for failure to 2 state a claim with leave to amend. (Orders Dismiss., ECF Nos. 11, 15.) On July 27, 2012, 3 Plaintiff filed a Second Amended Complaint (Second Am. Compl., ECF No. 18) which is 4 5 6 now before the Court for screening. II. SCREENING REQUIREMENT 7 The Court is required to screen complaints brought by prisoners seeking relief 8 against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 9 § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has 10 raised claims that are legally “frivolous, malicious,” or that fail to state a claim upon which 11 12 relief may be granted, or that seek monetary relief from a defendant who is immune from 13 such relief. 28 U.S.C. § 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion 14 thereof, that may have been paid, the court shall dismiss the case at any time if the court 15 determines that . . . the action or appeal . . . fails to state a claim upon which relief may be 16 granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 17 Section 1983 “provides a cause of action for the ‘deprivation of any rights, privileges, 18 19 or immunities secured by the Constitution and laws' of the United States.” Wilder v. Virginia 20 Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not 21 itself a source of substantive rights, but merely provides a method for vindicating federal 22 rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393–94 (1989). 23 III. 24 SUMMARY OF SECOND AMENDED COMPLAINT Plaintiff alleges Defendant medical staff at the California Substance Abuse and 25 26 Treatment Facility - Corcoran California (“CSATF”) were deliberately indifferent, in violation 27 -2- 1 of the Eighth Amendment, and medically negligent when Plaintiff re-injured his surgically 2 repaired left shoulder in a May 16, 2009 fall from an upper bunk. (Second Am. Compl. at 3 3, 6-14.) 4 Defendant Delano, a nurse in the CSATF prison clinic who saw Plaintiff just after 5 6 his injury, was disrespectful to him, refused to examine him and provide proper medical 7 care, and left him in pain. (Id. at 3, 7, 13-24.) When he saw his surgeon, Dr. Smith at the 8 CSATF prison clinic on June 1, 2009, Dr. Smith ordered morphine pain medication and 9 an MRI of the shoulder. (Id. at 8.) Defendant Dr. Ugwueze, a medical doctor at CSATF, 10 interfered with Dr. Smith’s order by discontinuing the morphine in favor of another pain 11 medication and delaying the MRI for three months; he told Plaintiff there was nothing 12 wrong with the shoulder and that he had to cut all medications and surgeries due to a 13 14 budget crisis. (Id. at 3, 8-9.) 15 He names as Defendants both nurse Delano and physician Ugwueze. (Id. at 2-3.) 16 He seeks injunctive relief for proper care and medication, and monetary 17 18 compensation. (Id. at 3.) IV. ANALYSIS 19 20 A. Pleading Requirements Generally 21 To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that 22 a right secured by the Constitution or laws of the United States was violated and (2) that 23 the alleged violation was committed by a person acting under the color of state law. See 24 West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245 25 (9th Cir. 1987). 26 A complaint must contain “a short and plain statement of the claim showing that the 27 -3- 1 pleader is entitled to relief . . . .“ Fed.R.Civ.P. 8(a)(2). Detailed factual allegations are not 2 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 3 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 4 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must 5 6 set forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on 7 its face.’“ Id. Facial plausibility demands more than the mere possibility that a defendant 8 committed misconduct and, while factual allegations are accepted as true, legal 9 conclusions are not. Id. at 1949–50. 10 11 B. Inadequate Medical Care Plaintiff claims that he received inadequate medical care violating the Eighth 12 13 Amendment and constituting medical negligence under state law. 14 “[T]o maintain an Eighth Amendment claim based on prison medical treatment, an 15 inmate must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 16 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). The 17 two prong test for deliberate indifference requires the plaintiff to show (1) “‘a serious 18 medical need’ by demonstrating that ‘failure to treat a prisoner's condition could result in 19 further significant injury or the unnecessary and wanton infliction of pain,’” and (2) “the 20 21 defendant's response to the need was deliberately indifferent.” Jett, 439 F.3d at 1096 22 (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992)). Deliberate indifference 23 is shown by “a purposeful act or failure to respond to a prisoner's pain or possible medical 24 need, and harm caused by the indifference.” Jett, 439 F.3d at 1096 (citing McGuckin, 974 25 F.2d at 1060). In order to state a claim for violation of the Eighth Amendment, a plaintiff 26 must allege sufficient facts to support a claim that the named defendants “[knew] of and 27 -4- 1 disregard[ed] an excessive risk to [plaintiff's] health . . . .” Farmer v. Brennan, 511 U.S. 2 825, 837 (1994). 3 In applying this standard, the Ninth Circuit has held that before it can be said that 4 a prisoner's civil rights have been abridged, “the indifference to his medical needs must be 5 substantial. Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this 6 cause of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) 7 8 (citing Estelle, 429 U.S. at 105–06). 9 A difference of opinion between medical professionals concerning the appropriate 10 course of treatment generally does not amount to deliberate indifference to serious medical 11 needs. Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004); Sanchez v. Vild, 891 F.2d 12 240, 242 (9th Cir. 1989). Also, “a difference of opinion between a prisoner-patient and 13 prison medical authorities regarding treatment does not give rise to a [§] 1983 claim.” 14 15 Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981). To establish that such a 16 difference of opinion amounted to deliberate indifference, the prisoner “must show that the 17 course of treatment the doctors chose was medically unacceptable under the 18 circumstances” and “that they chose this course in conscious disregard of an excessive risk 19 20 to [the prisoner’s] health.” See Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996); see also Wilhelm v. Rotman, 680 F.3d 1113, 1123 (9th Cir. 2012) (doctor’s awareness of need 21 22 for treatment followed by his unnecessary delay in implementing the prescribed treatment 23 sufficient to plead deliberate indifference); see also Snow v. McDaniel,681 F.3d 978, 988 24 (9th Cir. 2012) (decision of non-treating, non-specialist physicians to repeatedly deny 25 recommended surgical treatment may be medically unacceptable under all the 26 circumstances). 27 -5- 1 Plaintiff’s re-injury of his shoulder shortly after surgery resulting in ongoing pain and 2 impairment of daily activities, taken as true on screening, is sufficient to claim a serious 3 medical need in satisfaction of the first prong of a deliberate indifference claim. “[T]he 4 existence of an injury that a reasonable doctor or patient would find important and worthy 5 of comment or treatment; the presence of a medical condition that significantly affects an 6 individual's daily activities; or the existence of chronic and substantial pain are examples 7 8 9 of indications that a prisoner has a ‘serious' need for medical treatment.” McGuckin, 947 F.2d at 1059–60. 10 Plaintiff also alleges acts/omissions by Defendant Dr. Ugwueze sufficient on 11 screening to satisfy the second prong of his deliberate indifference claim. He alleges that 12 Defendant Dr. Ugwueze, who examined him, saw the bruise on his shoulder and heard his 13 complaints of pain and limited mobility, nevertheless discontinued morphine and caused 14 15 a three month delay in implementing the MRI ordered by the treating orthopaedic surgeon, 16 Dr. Smith, causing Plaintiff additional pain and a less favorable medical outcome. These 17 allegations raise an inference that Dr. Ugwueze was aware of the medical need for narcotic 18 pain medication and an MRI as recommended by Plaintiff’s specialist physician and 19 20 callously ignored them, prescribed a less potent medication and unnecessarily delayed ordering the MRI-- reportedly because of budgetary concerns. See Jones v. Johnson, 781 21 22 F.2d 769, 771 (9th Cir. 1986) (“[b]udgetary constraints, however, do not justify cruel and 23 unusual punishment.”) These allegations are sufficient on screening to state cognizable 24 medical indifference claim. See Lloyd v. Lee, 570 F.Supp.2d 556, 568-69 (S.D.N.Y. 2008) 25 (denial of MRI scan for nine months resulting in failure to properly diagnose inmate’s 26 shoulder injury and unreasonable delay in necessary surgery sufficiently alleged a serious 27 -6- 1 deprivation, as required to state Eighth Amendment claim). 2 However, Plaintiff has not alleged facts plausibly supporting a claim Defendant 3 Delano was deliberately indifferent to his medical needs. The allegations that nurse 4 Delano was disrespectful and failed to fully evaluate his injury, taken as true, suggest no 5 more than negligence, not deliberate indifference. It appears that Defendant Delano 6 interviewed him, treated him with an ice pack, and advised him to promptly submit a 7 8 9 10 11 12 medical slip in order to receive definitive follow-up treatment and care including an x-ray of his injured left shoulder. This care provided by Defendant Delano is not suggestive or supportive of deliberate indifference. Accordingly, the Court finds that Plaintiff has stated a cognizable medical indifference claim only against Defendant Ugwueze. As to Defendant Delano, the 13 allegations are insufficient to support a violation of federal rights for the reasons stated 14 15 above. Plaintiff twice previously was advised of the deficiencies in his claim against nurse 16 Delano and the legal requirements for stating a valid claim against her. No useful purpose 17 would be served by once again advising of those requirements and deficiencies. Plaintiff 18 will not be given leave to amend against Defendant Delano. 19 C. State Law Claims 20 Plaintiff alleges state law medical malpractice against Defendants Delano and 21 22 Ugweuze. 23 Pursuant to 28 U.S.C. § 1367(a), in any civil action in which the district court has 24 original jurisdiction, the district court “shall have supplemental jurisdiction over all other 25 claims that are so related to claims in the action within such original jurisdiction that they 26 form part of the same case or controversy under Article III,” except as provided in 27 -7- 1 subsections (b) and (c). “[O]nce judicial power exists under § 1367(a), retention of 2 supplemental jurisdiction over state law claims under 1367(c) is discretionary.” Acri v. 3 Varian Assoc., Inc., 114 F.3d 999, 1000 (9th Cir. 1997). 4 5 Under the California Tort Claims Act (“CTCA”), a plaintiff may not maintain an action for damages against a public employee unless he has presented a written claim to 6 the state Victim Compensation and Government Claims Board within six months of accrual 7 8 of the action. Cal. Gov't Code §§ 905, 911.2(a), 945.4 & 950.2; Mangold v. California Pub. 9 Utils. Comm'n, 67 F.3d 1470, 1477 (9th Cir. 1995). A plaintiff may file a written application 10 for leave to file a late claim up to one year after the cause of action accrues. Cal. Gov't 11 Code § 911.4. 12 The purpose of CTCA's presentation requirement is “to provide the public entity 13 sufficient information to enable it to adequately investigate claims and to settle them, if 14 15 appropriate, without the expense of litigation.” City of San Jose v. Superior Court, 12 16 Cal.3d 447, 455 (Cal. 1974). Presentation of a written claim, and action on or rejection of 17 the claim are conditions precedent to suit. Shirk v. Vista Unified Sch. Dist., 42 Cal.4th 201, 18 208–09 (Cal. 2007). Thus, in pleading a state law claim, a plaintiff must allege facts 19 20 demonstrating that he has complied with CTCA's presentation requirement. State of California v. Superior Court (Bodde), 32 Cal.4th 1234, 1240 (Cal. 2004). Failure to 21 22 23 demonstrate compliance constitutes a failure to state a cause of action and will result in the dismissal of state law claims. Id. 24 “To establish a medical malpractice claim, a plaintiff must allege in the complaint: 25 (1) defendant’s legal duty of care toward plaintiff; (2) defendant’s breach of that duty; (3) 26 injury to plaintiff as a result of that breach - proximate or legal cause; and (4) damage to 27 -8- 1 plaintiff.” Rightley v. Alexander, No. C-94-20720 RMW, 1995 WL 437710, at *3 (N.D. Cal. 2 July 13, 1995) (citing to Hoyem v. Manhattan Beach School Dist., 22 Cal.3d 508, 514 (Cal. 3 1978)); 6 B. E. Witkin, Summary of California Law, Torts § 732 (9th ed. 1988). “[M]edical 4 personnel are held in both diagnosis and treatment to the degree of knowledge and skill 5 6 7 ordinarily possessed and exercised by members of their profession in similar circumstances.” Hutchinson v. United States, 838 F.2d 390, 392-93 (9th Cir. 1988). 8 Here Plaintiff fails to allege facts supporting timely filing of a claim under the CTCA. 9 The Court need not address the viability of Plaintiff's state law claim because he has not 10 11 demonstrated exhaustion of his state administrative remedies. Again, this deficiency previously was brought to Plaintiff’s attention and he was 12 advised of the prerequisites to bringing a proper suit here, but was unable to do so. No 13 14 useful purpose would be served in granting further leave to amend. 15 D. 16 Plaintiff seeks injunctive relief in the form of proper medical corrective care and 17 18 Injunctive Relief proper medication. (Second Am. Compl. at 3.) Injunctive relief is an “extraordinary remedy, never awarded as of right.” Winter v. 19 Natural Res. Defense Council, 555 U.S. 7, 24 (2008). “A plaintiff seeking a preliminary 20 21 injunction must establish that he is likely to succeed on the merits, that he is likely to suffer 22 irreparable harm in the absence of preliminary relief, that the balance of equities tips in his 23 favor, and that an injunction is in the public interest.” Id. (citing Munaf v. Geren, 553 U.S. 24 674, 689–90 (2008)). 25 In cases brought by prisoners involving conditions of confinement, the Prison 26 Litigation Reform Act (PLRA) requires that any preliminary injunction “be narrowly drawn, 27 -9- 1 extend no further than necessary to correct the harm the court finds requires preliminary 2 relief, and be the least intrusive means necessary to correct the harm.” 18 U.S.C. § 3 3626(a). 4 Here it appears Plaintiff has transferred from CSATF, where the alleged rights 5 6 violations took place, to California State Prison - Lancaster. As to Defendants, injunctive 7 relief is moot unless, as is not the case here, there is an expectation that Plaintiff will be 8 returned to their custody. Preiser v. Newkirk, 422 U.S. 395, 402–03 (1975); Johnson v. 9 Moore, 948 F.2d 517, 519 (9th Cir. 1991); see also Andrews v. Cervantes, 493 F.3d 1047, 10 1053, n.5 (9th Cir. 2007). The harm alleged here does not “fall within that category of harm 11 ‘capable of repetition, yet evading review,’”. Preiser, 422 U.S. 395 at 403 (quoting Southern 12 Pacific Terminal Co. v. ICC, 219 U.S. 498, 515 (1911)). 13 Furthermore, nothing in the Second Amended Complaint suggests real and 14 15 immediate threat of injury. See City of Los Angeles v. Lyons, 461 U.S. 95, 101–102 (1983) 16 (plaintiff must show “real and immediate” threat of injury, and “past exposure to illegal 17 conduct does not in itself show a present case or controversy regarding injunctive relief . 18 . . if unaccompanied by any continuing, present, adverse effects.”). It appears Plaintiff has 19 received the MRI ordered by Dr. Smith, along with necessary treatment. 20 Plaintiff’s allegations do not support an entitlement to injunctive relief. Indeed, they 21 22 tend to rule it out. The Court will not allow leave to amend. 23 V. 24 25 CONCLUSION AND ORDER Plaintiff's Second Amended Complaint states a cognizable Eighth Amendment medical indifference claim against Defendant Ugwueze. However, Plaintiff has again failed 26 to state a supplemental state law claim against Defendant Ugwueze and any claim against 27 -10- 1 Defendant Delano, further amendment would be futile and the Court will recommend to the 2 United States District Judge assigned to the case that non-cognizable claim(s) and 3 Defendant Delano be dismissed without leave to amend. Service of process may be 4 initiated against Defendant Ugwueze only upon further order of the Court. 5 Based upon the foregoing, it is HEREBY ORDERED that: 6 1. Plaintiff’s Second Amended Complaint states a cognizable Eighth 7 Amendment medical indifference claim against Defendant Ugwueze, but fails 8 to state any other cognizable claim. 9 10 2. 11 The Court will recommend to the United States District Judge assigned to the case that non-cognizable claim(s) and Defendant Delano be dismissed 12 without leave to amend. 13 3. Service of process may be initiated against Defendant Ugwueze only upon 14 further order of the Court. 15 16 17 IT IS SO ORDERED. 18 19 Dated: ci4d6 August 8, 2012 /s/ Michael J. Seng UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 -11-

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