Franklin v. United States of America

Filing 12

ORDER DISMISSING 7 CASE (Strike), with Prejudice, for Failure to State a Claim Upon which Relief may be Granted Under Section 1983; ORDER that this Dismissal is Subject to the "THREE STRIKES" Provision set forth in 28 U.S.C. 1915(g); ORDER for Clerk to CLOSE this CASE signed by Magistrate Judge Gary S. Austin on 4/2/2014. 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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EMERY L. FRANKLIN III,

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Plaintiff,

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vs.

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UNITED STATES OF AMERICA,

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Defendant.

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1:11-cv-00173-GSA-PC
ORDER DISMISSING CASE, WITH
PREJUDICE, FOR FAILURE TO STATE A
CLAIM UPON WHICH RELIEF MAY BE
GRANTED UNDER SECTION 1983
(Doc. 7.)
ORDER THAT THIS DISMISSAL IS
SUBJECT TO THE ATHREE-STRIKES@
PROVISION SET FORTH IN 28 U.S.C. '
1915(g)
ORDER FOR CLERK TO CLOSE THIS
CASE

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I.

BACKGROUND
Emery L. Franklin III ("Plaintiff") is a federal prisoner proceeding pro se and in forma

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pauperis with this civil rights action pursuant to Bivens vs. Six Unknown Agents, 403 U.S. 388

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(1971). Plaintiff filed the Complaint commencing this action on January 31, 2011. (Doc. 1.)

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On February 9, 2011, Plaintiff consented to Magistrate Judge jurisdiction pursuant to 28

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U.S.C. § 636(c) in this action, and no other parties have made an appearance. (Doc. 5.)

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Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the Eastern District of

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California, the undersigned shall conduct any and all proceedings in the case until such time as

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reassignment to a District Judge is required. Local Rule Appendix A(k)(3).
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On June 13, 2013, the Court dismissed Plaintiff’s Complaint for failure to state a claim,

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with leave to amend. (Doc. 6.) On June 26, 2013, Plaintiff filed the First Amended Complaint,

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which is now before the Court for screening. (Doc. 7.)

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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).

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The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are

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legally Afrivolous or malicious,@ that fail to state a claim upon which relief may be granted, or

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that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C.

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' 1915A(b)(1),(2). ANotwithstanding any filing fee, or any portion thereof, that may have been

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paid, the court shall dismiss the case at any time if the court determines that the action or

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appeal fails to state a claim upon which relief may be granted.@ 28 U.S.C. ' 1915(e)(2)(B)(ii).

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A complaint is required to contain Aa short and plain statement of the claim showing

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that the pleader is entitled to relief.@ Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are

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not required, but A[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, 678, 129 S.Ct. 1937,

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1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955

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(2007)). While a plaintiff=s allegations are taken as true, courts Aare not required to indulge

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unwarranted inferences.@ Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009)

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(internal quotation marks and citation omitted). Plaintiff must set forth Asufficient factual

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matter, accepted as true, to >state a claim to relief that is plausible on its face.=@ Iqbal 556 U.S.

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at 678. While factual allegations are accepted as true, legal conclusions are not. Id.

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To state a viable claim for relief, Plaintiff must set forth sufficient factual allegations to

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state a plausible claim for relief. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572

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F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this

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plausibility standard. Id.

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III.

SUMMARY OF FIRST AMENDED COMPLAINT

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Plaintiff is a prisoner in the custody of the federal Bureau of Prisons, presently

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incarcerated at the United States Penitentiary (USP)-Lompoc in Lompoc, California. The

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events at issue in the Complaint allegedly occurred at USP-Atwater in Atwater, California,

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when Plaintiff was incarcerated there. Plaintiff names as defendant Physician Assistant Rufo

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Refendor (“Defendant”), who was employed at USP-Atwater at the time of the events.

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Plaintiff's factual allegations follow, in their entirety:
“On April 19, 2010, while in Federal Bureau of Prisons
custody, I had hemorrhoid surgery at Mercy Medical Center in
Merced, California. Prior to discharge the doctor prescribed stool
softner (sic), Pepcid and Tylenol (non-aspirin). The next day I
was escorted to United States Penitentiary Atwater and saw the
on-duty Physician Assistant, Rufo Refendor, my primary health
care provider. He reviewed my hospital discharge records and
said that he wasn’t going to order the prescription. I spent 5 days
in the hospital, had a colonoscopy, hemorrhoid surgery and had a
serious need for the medication. I begged Rufo Refendor but he
was indifferent to my serious medical needs and did not order the
medicine. On April 21, 2010 while deficating (sic) I lost a lot of
blood and heard a loud plump in the water. I looked and the
toilet water was dark red.
Rufo Refendor’s deliberate
indifference caused me agonizing pain, fear of dying and loss of
four pints/units of blood. I was re-admitted to the hospital on
April 22, 2010 about 2 a.m.” (Complaint at 4 ¶IV.)

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Plaintiff requests monetary damages as relief.
IV.

PLAINTIFF’S MEDICAL CLAIM

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A Bivens action is the federal analog to suits brought against state officials under 42

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U.S.C. § 1983. Hartman v. Moore, 547 U.S. 250, 126 S.Ct. 1695 (2006). AActions under '

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1983 and those under Bivens are identical save for the replacement of a state actor under '

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1983 by a federal actor under Bivens.@ Van Stum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991.)

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The basis of a Bivens action is some illegal or inappropriate conduct on the part of a federal

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official or agent that violates a clearly established constitutional right. Baiser v. Department of

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Justice, Office of U.S. Trustee, 327 F.3d 903, (9th Cir. 2003). ATo state a claim for relief under

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Bivens, a plaintiff must allege that a federal officer deprived him of his constitutional rights.@

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Serra v. Lappin, 600 F.3d 1191, 1200 (9th Cir. 2010) (citing see Schearz, 234 F.3d at 432. A

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Bivens claim is only available against officers in their individual capacities, Morgan v. U.S.,
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323 F.3d 776, 780 n.3 (9th Cir. 2003); Vaccaro v. Dobre, 81 F.3d 854, 857 (9th Cir. 1996), and

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Plaintiff must allege facts linking each named defendant to the violation of his rights, Iqbal,

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556 U.S. at 676; Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010);

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Ewing, 588 F.3d at 1235; Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). AA plaintiff

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must plead more than a merely negligent act by a federal official in order to state a colorable

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claim under Bivens.@ O'Neal v. Eu, 866 F.2d 314, 314 (9th Cir.1988). The factual allegations

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must be sufficient to state a plausible claim for relief, and the mere possibility of misconduct

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falls short of meeting this plausibility standard. Iqbal, 556 U.S. at 678-78; Moss, 572 F.3d at

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969.

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Eighth Amendment Medical Claim

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A[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 F.3d

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1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285 (1976)).

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The two-part test for deliberate indifference requires the plaintiff to show (1) A>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) Athe

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defendant=s response to the need was deliberately indifferent.@ Jett, 439 F.3d at 1096 (quoting

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McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds by WMX

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Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc) (internal quotations

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omitted)). Deliberate indifference is shown by Aa purposeful act or failure to respond to a

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prisoner=s pain or possible medical need, and harm caused by the indifference.@ Id. (citing

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McGuckin, 974 F.2d at 1060).

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officials deny, delay or intentionally interfere with medical treatment, or it may be shown by

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the way in which prison physicians provide medical care.@ Id. Where a prisoner is alleging a

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

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prisoner to make a claim of deliberate indifference to serious medical needs. McGuckin at

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1060 (citing Shapely v. Nevada Bd. of State Prison Comm=rs, 766 F.2d 404, 407 (9th Cir.

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1985)).

Deliberate indifference may be manifested Awhen prison

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ADeliberate indifference is a high legal standard.@ Toguchi v. Chung, 391 F.3d 1051,

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1060 (9th Cir. 2004). AUnder this standard, the prison official must not only >be aware of the

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facts from which the inference could be drawn that a substantial risk of serious harm exists,= but

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that person >must also draw the inference.=@ Id. at 1057 (quoting Farmer v. Brennan, 511 U.S.

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825, 837, 114 S.Ct. 1970 (1994)). A>If a prison official should have been aware of the risk, but

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was not, then the official has not violated the Eighth Amendment, no matter how severe the

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risk.=@ Id. (quoting Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir.

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2002)).

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constitutional deprivation under the Eighth Amendment. Id. at 1060. A[E]ven gross negligence

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is insufficient to establish a constitutional violation.@ Id. (citing Wood v. Housewright, 900

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F.2d 1332, 1334 (9th Cir. 1990)).

AA showing of medical malpractice or negligence is insufficient to establish a

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AA 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,

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1344 (9th Cir. 1981) (internal citation omitted). To prevail, plaintiff Amust show that the course

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of treatment the doctors chose was medically unacceptable under the circumstances . . . and . . .

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that they chose this course in conscious disregard of an excessive risk to plaintiff=s health.@

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Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (internal citations omitted).

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Discussion

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Plaintiff has demonstrated that he had a serious medical need because he suffered pain

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after hemorrhoid surgery. However, Plaintiff fails to allege facts showing that Defendant was

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deliberately indifferent to those needs. Plaintiff fails to show that Defendant acted or failed to

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act while knowing about and deliberately disregarding a substantial risk of harm to Plaintiff.

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Further, Plaintiff fails to show a connection between his lack of medication and his fear of

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dying, loss of blood, and re-admittance to the hospital. Plaintiff alleges, at most, a difference of

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opinion between Plaintiff and a medical official about his treatment, which does not state an

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Eighth Amendment medical claim. Therefore, Plaintiff fails to state a cognizable claim for

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inadequate medical care under the Eighth Amendment.

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V.

CONCLUSION

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The Court finds that Plaintiff=s First Amended Complaint fails to state any cognizable

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claims upon which relief may be granted under ' 1983. In this action, the Court previously

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granted Plaintiff an opportunity to amend the complaint, with ample guidance by the Court.

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Plaintiff has now filed two complaints without alleging facts against any of the defendants

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which state a claim under ' 1983. The Court finds that the deficiencies outlined above are not

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capable of being cured by amendment, and therefore further leave to amend should not be

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granted. 28 U.S.C. ' 1915(e)(2)(B)(ii); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000).

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Therefore, IT IS HEREBY ORDERED that:
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Pursuant to 28 U.S.C. ' 1915A and 28 U.S.C. ' 1915(e), this action is

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DISMISSED with prejudice for failure to state a claim upon which relief may be

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granted under ' 1983;

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2.

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This dismissal is subject to the Athree-strikes@ provision set forth in 28 U.S.C. '
1915(g); and

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The Clerk is directed to close this case.

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IT IS SO ORDERED.
Dated:

April 2, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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