Rosales v. Walker et al

Filing 15

ORDER DISMISSING Action with Prejudice for Failure to State a Claim signed by Magistrate Judge Gerald B. Cohn on 12/14/2012. CASE CLOSED. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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FRANCISCO ROSALES,

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Plaintiff,

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CASE NO. 1:10-cv-02402-GBC (PC)
ORDER DISMISSING ACTION WITH
PREJUDICE FOR FAILURE TO STATE A
CLAIM

v.
J. WALKER, et al.,

(Doc. 14)
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Defendants.

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I.

Procedural History

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Francisco Rosales (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis,
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in this civil rights action pursuant to 42 U.S.C. § 1983. On December 28, 2010, Plaintiff filed his
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original complaint. Doc. 1. On March 25, 2011, Plaintiff filed an amended complaint which the
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Court screened and dismissed with leave to amend. Doc. 10. On September 27, 2012, Plaintiff filed
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a second amended complaint. Doc. 12. On October 23, 2012, the Court dismissed with leave to
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amend. Doc. 13. On November 15, 2012, Plaintiff filed a third amended complaint which is
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currently before the court. Doc. 14.
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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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A complaint, or portion thereof, should only be dismissed for failure to state a claim upon

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which relief may be granted if it appears beyond doubt that Plaintiff can prove no set of facts in

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support of the claim or claims that would entitle him to relief. See Hishon v. King & Spalding, 467

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U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); see also Synagogue v.

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United States, 482 F.3d 1058, 1060 (9th Cir. 2007); NL Industries, Inc. v. Kaplan, 792 F.2d 896, 898

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(9th Cir. 1986). In determining whether to dismiss an action, the Court must accept as true the

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allegations of the complaint in question, and construe the pleading in the light most favorable to the

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plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421-22

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(1969); Daniels-Hall v. National Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010).

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III.

Plaintiff’s Complaint

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Plaintiff is currently a state prisoner at the California Substance Abuse Treatment Facility

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(CSATF) in Corcoran, California. The events central to Plaintiff’s complaint occurred while he was

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at prisoner at CSATF. Doc. 14. In the complaint, Plaintiff names the following individuals as

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defendants (“Defendants”) in this action: 1) J. Walker (Chief Appeals Coordinator at CSATF); 2)

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S. Umi Hene (at CSATF); 3) G. Miller (Healthcare Coordinator at CSATF); 4) C. Arnold (R.N. at

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CSATF); 5) A. Enenmoh (Chief Medical Officer at CSATF); 6) M. Crum (Health Care Coordinator

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at CSATF); 7) Allison (Warden at CSATF); 8) Taylor (Correctional Officer at CSATF) and; 9)

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Sanchez (Correctional Officer at CSATF). Doc. 14 at 2-3. Plaintiff seeks injunctive relief. Doc.

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14 at 3.

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According to Plaintiff, all of the named defendants failed to give Plaintiff adequate medical

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treatment and care after Plaintiff was hurt in the grill gate. Doc. 14 at 3. Plaintiff alleges that

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Defendants Sanchez and Taylor saw that Plaintiff got caught in the grill gate but did not call for

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medical help until Plaintiff complained of his shoulder. Doc. 14 at 3. Then Defendants Hene and
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Miller only gave Plaintiff a visual exam. Doc. 14 at 3. After Plaintiff submitted a form 602

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grievance regarding not getting an MRI exam, Defendant Arnold gave Plaintiff another visual exam

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of the right shoulder. Doc. 14 at 3. After being denied an MRI, Plaintiff resubmitted another form

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602 grievance to the appeals coordinator to request an MRI of his shoulder. Doc. 14 at 3. Defendant

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Enemoh denied Plaintiff’s appeal. Doc. 14 at 3.

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IV.

Plaintiff’s Claims

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A.

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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, 106, 97 S.Ct. 295 (1976)). The two part

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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 (quoting McGuckin v. Smith, 974 F.2d 1050, 1059

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

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Cir. 1997) (en banc) (internal quotations omitted)). Deliberate indifference is shown by “a

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

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by the indifference.” Id. (citing McGuckin, 974 F.2d at 1060).

Eighth Amendment

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“Mere negligence in diagnosing or treating a medical condition, without more, does not

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violate a prisoner's Eighth Amendment rights.” Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000)

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(quoting Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988) (internal quotation marks

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omitted). Additionally, to state a viable claim, Plaintiff must demonstrate that each named defendant

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personally participated in the deprivation of his rights. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1948-49

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(2009); Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of

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Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones v. Williams, 297 F.3d 930, 934. Liability may

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not be imposed on supervisory personnel under the theory of respondeat superior, Iqbal, 129 S.Ct.

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at 1948-49; Ewing, 588 F.3d at 1235, and supervisors may only be held liable if they “participated

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in or directed the violations, or knew of the violations and failed to act to prevent them,” Taylor v.
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List, 880 F.2d 1040, 1045 (9th Cir. 1989); accord Starr v. Baca, 652 F.3d 1202, 1205-08 (9th Cir.

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2011); Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009); Preschooler II v. Clark County School

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Board of Trustees, 479 F.3d 1175, 1182 (9th Cir. 2007); Harris v. Roderick, 126 F.3d 1189, 1204

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(9th Cir. 1997).

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“Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 1060

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(9th Cir. 2004). “A difference of opinion between a prisoner-patient and prison medical authorities

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regarding treatment does not give rise to a § 1983 claim,” Franklin v. Oregon, 662 F.2d 1337, 1344

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(9th Cir. 1981) (internal citation omitted), and a difference of opinion between medical personnel

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regarding treatment does not amount to deliberate indifference, Sanchez v. Vild, 891 F.2d 240, 242

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(9th Cir. 1989). To prevail, Plaintiff “must show that the course of treatment the doctors chose was

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medically unacceptable under the circumstances . . . and . . . that they chose this course in conscious

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disregard of an excessive risk to plaintiff’s health.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir.

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1986) (internal citations omitted).

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Analysis

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Plaintiff’s vague and conclusory assertions that Defendants denied medical care to Plaintiff

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is insufficient to state a claim. Given that Defendants Sanchez and Taylor sought medical help when

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Plaintiff informed them of his injury, Defendants Sanchez and Taylor were not deliberately

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indifferent. Defendants Hene, Miller and Arnold were not deliberately indifferent when they gave

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Plaintiff a visual exam although Plaintiff insisted on having an MRI. Plaintiff’s insistence that he

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should have an M.R.I. rather than an x-ray amounts to a difference in medical opinion which also

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fails to state a claim. Based on the allegations, Plaintiff fails to state an Eighth Amendment claim

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for deliberate indifference of a serious medical need.

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As Plaintiff fails to state an underlying Eighth Amendment claim, Plaintiff fails to state a

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claim against Defendant Enemoh for failing to correct the alleged Eighth Amendment deprivation.

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Defendant Enemoh’s actions in responding to Plaintiff's appeals alone cannot give rise to any claims

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for relief under Section 1983. A prison review procedure is a procedural right only, it does not

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confer any substantive right upon the inmates. See Mann v. Adams, 855 F.2d 639, 640 (9th Cir.

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1988); see also Massey v. Helman, 259 F.3d 641, 647 (7th Cir. 2001) (existence of grievance
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procedure confers no liberty interest on prisoner); Glenn v. McGrath, 368 Fed.Appx. 800 (9th Cir.

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2010) (unpublished).

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B.

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The Civil Rights Act under which this action was filed provides:

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Linkage Requirement

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Every person who, under color of [state law] . . . subjects, or causes
to be subjected, any citizen of the United States . . . to the deprivation
of any rights, privileges, or immunities secured by the Constitution .
. . shall be liable to the party injured in an action at law, suit in equity,
or other proper proceeding for redress.

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42 U.S.C. § 1983. The statute plainly requires that there be an actual connection or link between the

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actions of the defendants and the deprivation alleged to have been suffered by Plaintiff. See Monell

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v. Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). The

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Ninth Circuit has held that “[a] person ‘subjects’ another to the deprivation of a constitutional right,

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within the meaning of section 1983, if he does an affirmative act, participates in another’s

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affirmative acts or omits to perform an act which he is legally required to do that causes the

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deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). In

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order to state a claim for relief under section 1983, Plaintiff must link each named defendant with

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some affirmative act or omission that demonstrates a violation of Plaintiff’s federal rights.

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Analysis

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Although Plaintiff lists several defendants Plaintiff fails to explain what specific act or

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omission Defendants Crum, Allison and Walker did to cause the constitutional deprivation and thus

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fails to state a claim against these defendants.

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C.

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A complaint must contain "a short and plain statement of the claim showing that the pleader

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is entitled to relief. . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but

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"[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,

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do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 677 (citing Bell Atlantic Corp. v. Twombly, 550

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U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to ‘state

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a claim that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555).

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Facial plausibility demands more than the mere possibility that a defendant committed misconduct,

Rule 8

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Iqbal at 1950, and while factual allegations are accepted as true, legal conclusions are not, id. at

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1949.

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Analysis

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Plaintiff generally alleges that all the listed defendants have denied Plaintiff adequate medical

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treatment and such an allegation fails to comply with Rule 8(a). Plaintiff bears the burden of

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separately setting forth his legal claims and for each claim, briefly and clearly providing the facts

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supporting the claim so that the Court and Defendants are readily able to understand the claims.

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Bautista v. Los Angeles County, 216 F.3d 837, 840-41 (9th Cir. 2000).

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V.

Conclusions and Order

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The Court finds that Plaintiff's third amended complaint filed on November 15, 2012, fails

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to state any Section 1983 claims upon which relief may be granted against the named defendant.

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Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend "shall be freely given

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when justice so requires." In addition, "[l]eave to amend should be granted if it appears at all

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possible that the plaintiff can correct the defect." Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir.

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2000) (internal citations omitted). However, in this action, Plaintiff filed two complaints and

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received substantial guidance from the Court in its screening orders. Doc. 11; Doc. 13. The Court

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finds that the deficiencies outlined above are not capable of being cured by amendment, and

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therefore orders that further leave to amend not be granted. 28 U.S.C. § 1915(e)(2)(B)(ii).

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Accordingly, the Court HEREBY ORDERS that this action be DISMISSED in its entirety,
WITH PREJUDICE, for failure to state a claim upon which relief may be granted.

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IT IS SO ORDERED.

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Dated:
0jh02o

December 14, 2012
UNITED STATES MAGISTRATE JUDGE

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