Johnson v. Dr. Shehata, et al.

Filing 9

ORDER Dismissing This Action for Failure to State a Claim Upon Which Relief Could be Granted, signed by Magistrate Judge Gary S. Austin on 4/14/2011. This Action is counted as a Strike, under 28 U.S.C. 1915(g). CASE CLOSED. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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JESSE JOHNSON,

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Plaintiff,

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v.
DR. SHEHATA, M.D., et al.,

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Defendants.

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CASE NO. 1:10-cv-02216 GSA PC
ORDER DISMISSING THIS ACTION FOR
FAILURE TO STATE A CLAIM UPON
WHICH RELIEF COULD BE GRANTED

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I.

Procedural History

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action

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pursuant to 42 U.S.C. § 1983. Plaintiff has consented to magistrate judge jurisdiction pursuant to

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28 U.S.C. § 636(c)(1). Pending before the Court is the April 11, 2011, first amended complaint filed

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in response to the March 19, 2011, order dismissing the original complaint and granting Plaintiff

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leave to file an amended complaint.

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II.

Screening Requirement

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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 fail to state a claim upon which relief may be granted, or that seek

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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).

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“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall

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dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a
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claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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“Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited

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exceptions,” none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S.

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506, 512 (2002); Fed. R. Civ. P. 8(a). Pursuant to 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).

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“Such a statement must simply give the defendant fair notice of what the plaintiff’s claim is and the

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grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512. However, “the liberal pleading

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standard . . . applies only to a plaintiff’s factual allegations.” Neitze v. Williams, 490 U.S. 319, 330

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n.9 (1989). “[A] liberal interpretation of a civil rights complaint may not supply essential elements

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of the claim that were not initially pled.” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 1257

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(9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).

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III.

Plaintiff’s Claims

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Plaintiff, an inmate in the custody of the California Department of Corrections and

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Rehabilitation (CDCR) at Avenal State Prison, brings this civil rights action against defendant Dr.

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Shehata, M.D., the Chief Medical Officer North Kern State Prison (NKSP), and J. Clark Kelso, the

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federally appointed receiver for the CDCR medical system. The conduct at issue in this lawsuit

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occurred while Plaintiff was housed at NKSP. Plaintiff’s statement of claim relates to his medical

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care.

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In the original complaint, Plaintiff alleged that he hurt his knee while housed at NKSP on

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July 31, 2008. Plaintiff was seen by Dr. Shehata, and asked Dr. Shehata for pain medication. Dr.

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Shehata told Plaintiff he would get the medication the next day. Dr. Shehata denied Plaintiff’s

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request for an “H-bandage.” Plaintiff alleges that his medication “never came.” On August 2, 2008,

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Plaintiff submitted a medical request and on August 26, 2008, Plaintiff received his medication.

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In the order dismissing the original complaint, Plaintiff was advised that “[T]o maintain an

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Eighth Amendment claim based on prison medical treatment, an inmate must show ‘deliberate

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indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting

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Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 295 (1976)). The two part test for deliberate

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indifference requires the plaintiff to show (1) “‘a serious medical need’ by demonstrating that
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‘failure to treat a prisoner’s condition could result in further significant injury or the unnecessary and

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wanton infliction of pain,’” and (2) “the defendant’s response to the need was deliberately

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indifferent.” Jett, 439 F.3d at 1096 (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir.

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1992), overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997)

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(en banc) (internal quotations omitted)). Deliberate indifference is shown by “a purposeful act or

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failure to respond to a prisoner’s pain or possible medical need, and harm caused by the

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indifference.” Id. (citing McGuckin, 974 F.2d at 1060). Where a prisoner is alleging a delay in

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

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make a claim of deliberate indifference to serious medical needs. McGuckin at 1060 (citing Shapely

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v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985)).

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As to Dr. Shehata, the Court noted that although Plaintiff alleged that his medical treatment

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was delayed, he failed to allege any specific conduct as to Dr. Shehata. The only conduct charged

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to Dr. Shehata was that he treated Plaintiff. Plaintiff was advised that in order to state a claim

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against Dr. Shehata, he must allege facts indicating that Dr. Shehata knew of and disregarded a

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serious risk to Plaintiff’s health. Although Plaintiff alleged that his medication was delayed, he

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failed to allege any facts indicating that Dr. Shehata was responsible for the delay.

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In the first amended complaint, the Court finds that Plaintiff has failed to cure the defects

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identified in the earlier order. Plaintiff alleges that in July of 2008, he suffered a serious knee injury

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while at KVSP. (Am. Comp. ¶ IV.) On July 31, 2008, Plaintiff was seen by Dr. Shehata. Plaintiff

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alleges that Dr. Shehata “failed to properly diagnose my condition and treat it accordingly.” (Id.)

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Plaintiff alleges that “after several attempts at a second opinion,” Dr. Shehata conceded to an exam

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by a staff radiologist.”

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patellofemoral compartment and mild spruing of the tibial spines.” In Plaintiff’s view, this

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constitutes “a clear indication that I did in fact injury my knee and I was never given any type of

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support (knee brace, ace bandage medication, etc.) It is clear that the medical staff deliberately

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ignored my numerous request although having the authority and the means to treat me in a

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reasonable time.” (Id.) Plaintiff was subsequently transferred to another institution “where the

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obvious lack of proper attention continued.” Plaintiff alleges that the failure to treat the condition

The radiologist concluded that Plaintiff had a “narrowing of the

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has resulted in further injury.

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In sum, Plaintiff’s allegations indicate that he was seen by Dr. Shehata once, on July 31,

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2008. Dr. Shehata prescribed pain medication. Plaintiff did not receive his medication immediately

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and on August 2, 2008, Plaintiff submitted a medical request. Plaintiff received his medication on

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August 26, 2008. Dr. Shehata also referred Plaintiff to a radiologist. Plaintiff fails to allege any

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facts indicating that any delay in seeing a radiologist was the fault of Dr. Shehata. Plaintiff fails to

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allege facts indicating that Dr. Shehata’s conduct injured Plaintiff. The facts alleged indicate that

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Dr. Shehata prescribed pain medication and referred Plaintiff to a radiologist. Although Plaintiff

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alleges that there was a delay in receiving his pain medication, there are no allegations indicating that

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any such delay was the result of any conduct by Dr. Shehata. The gravamen of Plaintiff’s complaint

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is the quality of medical care in general that he has received since his injury in July of 2008. Plaintiff

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alleges that he has been subjected to inadequate medical care in general, but fails to charge Dr.

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Shehata with any conduct that states a colorable claim for deliberate indifference. The only specific

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conduct charged to Dr. Shehata is that he saw Plaintiff on July 31, 2008, that he prescribed pain

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medication, and that he referred Plaintiff to a radiologist. There is no other conduct charged to Dr.

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Shehata. Plaintiff’s claims regarding Dr. Shehata should therefore be dismissed.1

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IV.

Conclusion and Order

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The Court finds that Plaintiff’s fist amended complaint states claims under section 1983

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against Defendants Shehata and Kelso for deliberate indifference to his serious medical needs in

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violation of the Eighth Amendment. Plaintiff has filed a first amended complaint, but has not cured

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the deficiencies previously identified by the Court. Accordingly, the Court orders that further leave

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to amend not be granted, and this action be dismissed for failure to state a claim upon which relief

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could be granted. Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) (pro se litigant must be given

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leave to amend his or her complaint unless it is absolutely clear that the deficiencies of the complaint

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could not be cured by amendment).

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1992)(dismissal with prejudice upheld where court had instructed plaintiff regarding deficiencies in

See Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir.

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As to Defendant J. Clark Kelso, Plaintiff fails to allege any conduct, and fails to refer to him in his
statement of claim. Defendant Kelso should therefore be dismissed.

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prior order dismissing claim with leave to amend).

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Accordingly, IT IS HEREBY ORDERED that this action is dismissed for failure to state a

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claim upon which relief can be granted, and that this action count as a strike under 28 U.S.C. §

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1915(g). The Clerk is directed to close this case.

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IT IS SO ORDERED.

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Dated:

April 14, 2011

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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