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