Schafer v. Pierre et al

Filing 10

ORDER Dismissing Action, With Prejudice, for Failure to State a Claim Upon Which Relief May be Granted Under Section 1983; ORDER that Dismissal is Subject to 28 USC 1915(g), signed by Magistrate Judge Gary S. Austin on 12/13/11. CASE CLOSED. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DANIEL SCHAFER,

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Plaintiff,

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1:11-cv-00337-GSA-PC
ORDER DISMISSING ACTION, WITH
PREJUDICE, FOR FAILURE TO STATE
A CLAIM UPON WHICH RELIEF MAY
BE GRANTED UNDER SECTION 1983
(Doc. 9.)

v.
R. GUTIERREZ, et al.,

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ORDER THAT DISMISSAL IS SUBJECT
TO 28 U.S.C. § 1915(g)

Defendants.
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ORDER DIRECTING CLERK TO CLOSE
CASE

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I.

RELEVANT PROCEDURAL HISTORY

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Daniel Schafer (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in this

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civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this

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action on February 28, 2011. (Doc. 1.) On July 22, 2011, Plaintiff consented to Magistrate Judge

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jurisdiction in this action, and no other parties have made an appearance. (Doc. 7.) Therefore,

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

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undersigned shall conduct any and all proceedings in the case until such time as reassignment to a

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District Judge is required. Local Rule Appendix A(k)(3).

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The Court screened the Complaint pursuant to 28 U.S.C. § 1915 and entered an order on

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October 27, 2011, dismissing the Complaint for failure to state a claim, with leave to amend. (Doc.
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8.) On November 23, 2011, Plaintiff filed the First Amended Complaint, which is now before the

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Court for screening. (Doc. 9.)

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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 must only 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, 129 S.Ct. 1937, 1949 (2009) (citing Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). Plaintiff must set

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forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.’” Id.

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While factual allegations are accepted as true, legal conclusions are not. Id. at 1949.

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III.

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SUMMARY OF FIRST AMENDED COMPLAINT
Plaintiff is presently incarcerated at the California Substance Abuse Treatment Facility

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(“SATF”) in Corcoran, California, where the events at issue in the First Amended Complaint

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allegedly occurred. Plaintiff names as defendants R. Gutierrez (RN), F. Soto (RN), Jean-Pierre (PA),

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Komar (RN), and unnamed Doe defendants (Nurses).

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Plaintiff alleges that he submitted Form 7362 Health Care Requests and visited the Medical

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Clinic several times from February to September 2009 and informed defendants Gutierrez, Soto,

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Jean-Pierre, Komar, and the Doe defendants of his worsening stomach conditions from heartburn

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and upset stomach until he suffered internal bleeding, bloody stools, weight loss, and hospitalization.

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Plaintiff alleges that each of the defendants refused, for over seven months, to provide any treatment
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or diagnosis, and refused to provide Plaintiff access to a medical doctor or specialist capable of

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treating and diagnosing his condition. Plaintiff alleges that defendants’ actions caused him to suffer

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from Cholitis (sic) and permanent intestinal damage because he was infected with H. Phylori (sic)

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[bacteria] the entire time.

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Plaintiff requests monetary damages and injunctive relief.
IV.

PLAINTIFF’S CLAIMS

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

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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. “Section 1983 . . . creates a cause of action for violations of the federal
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Constitution and laws.” Sweeney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997)
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(internal quotations omitted). “To the extent that the violation of a state law amounts to the
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deprivation of a state-created interest that reaches beyond that guaranteed by the federal Constitution,
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Section 1983 offers no redress.” Id.
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A.

Eighth Amendment Medical Care Claim

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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, 104, 97 S.Ct. 285 (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
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(9th 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). Deliberate indifference may be
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manifested “when prison officials deny, delay or intentionally interfere with medical treatment, or
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it may be shown by the way in which prison physicians provide medical care.” Id. Where a prisoner

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is alleging a delay in receiving medical treatment, the delay must have led to further harm in order

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for the 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. 1985)).

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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). “Under this standard, the prison official must not only ‘be aware of the facts from

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which the inference could be drawn that a substantial risk of serious harm exists,’ but that person

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‘must also draw the inference.’” Id. at 1057 (quoting Farmer v. Brennan, 511 U.S. 825, 837, 114

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S.Ct. 1970 (1994)). “‘If a prison official should have been aware of the risk, but was not, then the

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official has not violated the Eighth Amendment, no matter how severe the risk.’” Id. (quoting

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Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)). “A showing of

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medical malpractice or negligence is insufficient to establish a constitutional deprivation under the

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Eighth Amendment.

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constitutional violation.” Id. (citing Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990)).

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“A difference of opinion between a prisoner-patient and prison medical authorities regarding

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treatment does not give rise to a § 1983 claim.” Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir.

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1981) (internal citation omitted). To prevail, plaintiff “must show that the course of treatment the

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doctors chose was medically unacceptable under the circumstances . . . and . . . that they chose this

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course in conscious disregard of an excessive risk to plaintiff’s health.” Jackson v. McIntosh, 90

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

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Id. at 1060.

“[E]ven gross negligence is insufficient to establish a

Plaintiff fails to state an Eighth Amendment medical claim against any of the defendants.

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Although Plaintiff sufficiently alleges he had a serious medical need, Plaintiff fails to demonstrate

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that any of the Defendants knew he faced a substantial risk of serious harm and then acted in

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conscious disregard of the risk. It is not enough to allege that all of the named defendants “failed

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and knowingly refused to provide any treatment or diagnosis, and refused to provide access to a

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medical doctor or specialist capable of treating and diagnosing my condition.” First Amended

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Complaint, Doc. 9 at 3 ¶4. “Threadbare recitals of the elements of a cause of action, supported by

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mere conclusory statements, do not suffice.” Iqbal, 129 S.Ct. at 1949. At most, Plaintiff states a
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claim for negligence or a difference of opinion regarding treatment, neither which is actionable under

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§ 1983.

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B.

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Plaintiff brings a claim for negligence under state law. Violation of state tort law, such as

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negligence, or other state law is not sufficient to state a claim for relief under § 1983. To state a

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claim under § 1983, there must be a deprivation of federal constitutional or statutory rights. See Paul

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v. Davis, 424 U.S. 693 (1976). Although the court may exercise supplemental jurisdiction over state

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law claims, Plaintiff must first have a cognizable claim for relief under federal law. See 28 U.S.C.

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§ 1367. In this instance, the Court fails to find any cognizable federal claims in the First Amended

Negligence

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Complaint. Therefore, Plaintiff’s claim for negligence fails.

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V.

CONCLUSION AND ORDER

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The Court finds that Plaintiff’s First Amended Complaint fails to state any claims upon

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which relief can be granted under section 1983 against any of the defendants. In this action, the

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

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

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which state a claim under § 1983. Based on the facts set forth in the First Amended Complaint, the

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Court finds that further leave to amend is not warranted. 28 U.S.C. § 1915(e)(2)(B)(ii); Lopez v.

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Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir.

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1987). The Court does not reach Plaintiff’s state law claims because absent the existence of a viable

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federal claim, the Court lacks jurisdiction over the state claims. 28 U.S.C. § 1367(a); Herman

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Family Revocable Trust v. Teddy Bear, 254 F.3d 802, 805 (9th Cir. 2001). Accordingly, this action

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shall be dismissed in its entirety, with prejudice, for failure to state a claim.

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Based on the foregoing, 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 DISMISSED,

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with prejudice, based on Plaintiff’s failure to state a claim upon which relief may be

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granted under section 1983.

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2.

This dismissal is subject to the “three-strikes” provision set forth in 28 U.S.C. §
1915(g). Silva v. Vittorio, 658 F.3d 1090, 1098 (9th Cir. 2011); and
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The Clerk is directed to close this case.

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IT IS SO ORDERED.
Dated:
6i0kij

December 13, 2011

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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