Hunter v. Gomez

Filing 14

ORDER DISMISSING Action, With Prejudice, for Failure to State a Claim 13 ; ORDER That Dismissal is Subject to 28 U.S.C. § 1915(G), signed by Magistrate Judge Barbara A. McAuliffe on 6/22/12. (CASE CLOSED)(Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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WILLIAM L. HUNTER,

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Plaintiff,

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v.
A. GOMEZ,

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CASE NO. 1:11-cv–00758-BAM PC
ORDER DISMISSING ACTION, WITH
PREJUDICE, FOR FAILURE TO STATE A
CLAIM
(ECF No. 13)

Defendant.

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

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I.

Procedural History

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Plaintiff William L. Hunter 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 this action on May 4, 2011. (ECF

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No. 1.) On May 25, 2011, Plaintiff consented to the jurisdiction of the Magistrate Judge. (ECF No.

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6.) Plaintiff’s complaint was screened and dismissed, with leave to amend, for failure to state a

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claim on April 10, 2012. (ECF No. 10.) After receiving an extension of time, Plaintiff’s first

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amended complaint was filed on June 12, 2012. (ECF No. 13.)

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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 “fails to state a claim on which relief may be granted,” or that “seeks

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monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).

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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, 678, 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)).

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Prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings

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liberally construed and to have any doubt resolved in their favor, but the pleading standard is now

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higher, Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted), and to survive

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screening, Plaintiff’s claims must be facially plausible, which requires sufficient factual detail to

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allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged,

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Iqbal, 556 U.S. at , 129 S. Ct. at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir.

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2009). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, and “facts that

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are ‘merely consistent with’ a defendant’s liability” falls short of satisfying the plausibility standard.

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Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949; Moss, 572 F.3d at 969.

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Further, under section 1983, Plaintiff must demonstrate that each defendant personally

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participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).

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Although a court must accept as true all factual allegations contained in a complaint, a court need

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not accept a plaintiff’s legal conclusions as true. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949.

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“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,

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do not suffice.” Id. (quoting Twombly, 550 U.S. at 555, 127 S. Ct. 1955).

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III.

First Amended Complaint Allegations

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Plaintiff is in the custody of the California Department of Corrections and Rehabilitation and

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is incarcerated at Pleasant Valley State Prison. The event alleged in the complaint occurred while

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Plaintiff was housed at Kern Valley State Prison. Plaintiff brings this action against Warden Kelly

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Harrington, Chief Medical Officer Sherry Lopez, Licensed Vocational Nurse A. Gomez, and seven

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unidentified individuals alleging deliberate indifference in violation of the Eighth Amendment.

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(First Am. Compl. 2-3,1 (ECF No. 13.)

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All references to pagination of specific documents pertain to those as indicated on the upper right corners
via the CM/ECF electronic court docketing system.

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Plaintiff was seen by Defendant Gomez to receive an insulin shot on February 13, 2009.

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Plaintiff alleges that after he explained to Defendant Gomez the kind and amount of insulin he

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needed, Defendant Gomez “was incompetent, and intentionally gave [him] the wrong medicine

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(some 40 cc.s) [sic] of insulin that caused [Plaintiff] to black-out and have an epileptic seizure.” (Id.

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at 3.) When Plaintiff came to, he was informed by medical staff that he had an epileptic seizure from

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an overdose of insulin given by Defendant Gomez. (Id.)

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Plaintiff alleges that Defendant Harrington knew or should have known that Defendant

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Gomez was incompetent and “did not thing to replace her.” (Id. at 4.) Additionally, Defendant

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Lopez knew or should have known that Defendant Gomez was incompetent and “did nothing to

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replace her or have her adequately trained/supervised by other ‘competent’ medical staff.” (Id.)

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III.

Discussion

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A.

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To constitute cruel and unusual punishment in violation of the Eighth Amendment, prison

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conditions must involve “the wanton and unnecessary infliction of pain.” Rhodes v. Chapman, 452

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U.S. 337, 347, 101 S. Ct. 2392, 2399 (1981). A prisoner’s claim of inadequate medical care does

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not rise to the level of an Eighth Amendment violation unless (1) “the prison official deprived the

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prisoner of the ‘minimal civilized measure of life’s necessities,’” and (2) “the prison official ‘acted

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with deliberate indifference in doing so.’” Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004)

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(quoting Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) (citation omitted)). A prison official

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does not act in a deliberately indifferent manner unless the official “knows of and disregards an

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excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970

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(1994).

Deliberate Indifference to Serious Medical Needs

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While Plaintiff states that Defendant Gomez intentionally injected him with the wrong

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medication, the conclusory allegation that Defendant Gomez intentional injected him with the wrong

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medication does not suffice to state a claim. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949. Plaintiff’s

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complaint alleges that Defendant Gomez was incompetent, and the factual allegations in the first

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amended complaint do not support a claim that the overdose of insulin was more than negligence,

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which is insufficient to state a claim. Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir.
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1980); Toguchi, 391 F.3d at 1057. Even medical malpractice is not “a constitutional violation

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merely because the victim is a prisoner.” Estelle, 429 U.S. at 106, 97 S. Ct. at 292. Plaintiff fails

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to state a cognizable claim that Defendant Gomez acted with deliberate indifference by injecting him

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with the wrong insulin.

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B.

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Plaintiff cannot state a claim against Defendants Harrington and Lopez merely because they

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hold positions of authority at the prison. Government officials may not be held liable for the actions

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of their subordinates under a theory of respondeat superior. Iqbal, 129 S. Ct. at 1948. A supervisor

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may only be held liable for the actions of his subordinates under section 1983 if he “participated in

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or directed the violations, or knew of the violations and failed to act to prevent them.” Taylor v. List,

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880 F.2d 1040, 1045 (9th Cir. 1989). While Plaintiff alleges that Defendants Harrington and Lopez

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failed to provide competent medical personnel and should have known that Defendant Gomez was

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incompetent, the first amended complaint is devoid of any factual allegations to support a claim that

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Defendants Harrington and Lopez were aware that Defendant Gomez was incompetent to provide

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medical care to inmates.

Supervisory Liability

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The “failure to train an employee who has caused a constitutional violation can be the basis

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for § 1983 liability where the failure to train amounts to deliberate indifference to the rights of

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persons with whom the employee comes into contact.” Long v. County of Los Angeles, 442 F.3d

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1178, 1186 (9th Cir. 2006); see City of Canton, Ohio v. Harris, 489 U.S. 378, 388, 109 S. Ct. 1197,

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1204 (1989). The failure to train must be the moving force behind the constitutional violation.

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Canton, 489 U.S. at 391, 109 S. Ct. at 1206. Plaintiff’s claim that Defendant Lopez failed to train

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Defendant Gomez fails as he has not alleged a cognizable claim for a violation of his constitutional

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rights.

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IV.

Conclusion and Order

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Plaintiff’s first amended complaint fails to state a claim upon which relief may be granted

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under section 1983. Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend ‘shall

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be freely given when justice so requires,’” Fed. R. Civ. P. 15(a), and “[l]eave to amend should be

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granted if it appears at all possible that the plaintiff can correct the defect,” Lopez v. Smith, 203
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F.3d 1122, 1130 (9th Cir. 2000) (internal citations omitted). However, in this action Plaintiff has

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been granted two opportunities to amend the complaint, with guidance by the Court. Plaintiff has

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now filed three complaints without alleging facts against any of the defendants sufficient to state a

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claim under § 1983. The Court finds that the deficiencies outlined above are not capable of being

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cured by amendment, and therefore further leave to amend should not be granted. 28 U.S.C. §

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1915(e)(2)(B)(ii); Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987).

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Accordingly, pursuant to 28 U.S.C. § 1915A and 28 U.S.C. § 1915(e), this action is

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

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may be granted under section 1983 and the Clerk’s Office shall enter judgment. This dismissal is

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subject to the “three-strikes” provision set forth in 28 U.S.C. § 1915(g). Silva v. Vittorio, No. 08-

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15620, 2011 WL 4436248, at *4 (9th Cir. Sept. 26, 2011).

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IT IS SO ORDERED.
Dated:
10c20k

June 22, 2012

/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE

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