Juarez v. Ray et al

Filing 9

SECOND SCREENING ORDER Dismissing Action, with Prejudice, for Failure to State a Claim Under Section 1983; ORDER that Dismissal is Subject to Three Strikes Provision Under 28 USC 1915(G), signed by Magistrate Judge Sheila K. Oberto on 5/3/13. CASE CLOSED. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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VALERIE G. JUAREZ,

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Plaintiff,

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CASE NO. 1:12-cv-01298-SKO PC
SECOND SCREENING ORDER DISMISSING
ACTION, WITH PREJUDICE, FOR FAILURE
TO STATE A CLAIM UNDER SECTION 1983

v.
DR. RAY,

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(Doc. 8)
Defendant.

ORDER THAT DISMISSAL IS SUBJECT TO
THREE STRIKES PROVISION UNDER 28
U.S.C. § 1915(G)

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Second Screening Order
I.

Screening Requirement and Standard

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Plaintiff Valerie G. Juarez, a state prisoner proceeding pro se and in forma pauperis, filed this

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civil rights action pursuant to 42 U.S.C. § 1983 on August 9, 2012. On March 14, 2013, the Court

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dismissed Plaintiff’s complaint, with leave to amend, for failure to state a claim. Plaintiff filed an

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amended complaint on April 12, 2013.

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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 an 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 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 (2009) (citing Bell Atlantic

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Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)), and courts “are not required to

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indulge 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). While factual allegations are accepted as true, legal

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conclusions are not. Iqbal, 556 U.S. at 678.

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Pro se litigants are entitled to have their pleadings liberally construed and to have any doubt

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resolved in their favor, Wilhelm v. Rotman, 680 F.3d 1113, 1121-23 (9th Cir. 2012); Hebbe v. Pliler,

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627 F.3d 338, 342 (9th Cir. 2010), but Plaintiff’s claims must be facially plausible to survive

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screening, which requires sufficient factual detail to allow the Court to reasonably infer that each

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named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at 678 (quotation marks

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omitted); Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that

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a defendant acted unlawfully is not sufficient, and mere consistency with liability falls short of

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satisfying the plausibility standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572

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F.3d at 969.

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II.

Discussion

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A.

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Plaintiff, who is incarcerated at Central California Women’s Facility (CCWF) in Chowchilla,

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brings this action against Doctor Ray, a CCWF physician. Plaintiff alleges that she broke her finger

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on August 4, 2011, and Defendant Ray told her he would send her to Madera Hospital if he could

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not relocate her finger. Defendant Ray proceeded to rebreak and relocate the finger, x-rays were

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taken, and Plaintiff was sent back to her housing unit.

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Allegations

Plaintiff was never sent to Madera Hospital, but on September 14, 2011, she was sent out for
surgery.

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On November 15, 2011, Plaintiff was told by a physical therapist that her finger will not bend

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due to calcium deposits around the knuckle, and on November 22, 2011, the physical therapist told
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her that no progress had been made. Plaintiff alleges that her finger no longer functions and is

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damaged for life.

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B.

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Section 1983 provides a cause of action for the violation of constitutional or other federal

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rights by persons acting under color of state law, Nurre v. Whitehead, 580 F.3d 1087, 1092 (9th Cir

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2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); Jones v. Williams, 297

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F.3d 930, 934 (9th Cir. 2002), and for Eighth Amendment claims arising out of medical care in

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prison, Plaintiff “must show (1) a serious medical need by demonstrating that failure to treat [her]

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condition could result in further significant injury or the unnecessary and wanton infliction of pain,”

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and (2) that “the defendant’s response to the need was deliberately indifferent,” Wilhelm, 680 F.3d

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at 1122 (citing Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006)). Deliberate indifference is

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shown by “(a) a purposeful act or failure to respond to a prisoner’s pain or possible medical need,

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and (b) harm caused by the indifference.” Wilhelm, 680 F.3d at 1122 (citing Jett, 439 F.3d at 1096).

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The requisite state of mind is one of subjective recklessness, which entails more than ordinary lack

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of due care. Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012) (citation and quotation marks

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omitted); Wilhelm, 680 F.3d at 1122.

Medical Care Claim

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While the Court acknowledges Plaintiff’s allegation that her finger has been permanently

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damaged, her amended complaint contains no facts which support a claim that Defendant Ray acted

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with deliberate indifference to her serious medical needs. Plaintiff’s mere disagreement with the

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course of treatment chosen by Defendant Ray does not support a claim for relief under section 1983

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and nothing further has been shown. Snow, 681 F.3d at 987; Wilhelm, 680 F.3d at 1122-23.

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III.

Conclusion and Order

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

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section 1983. Plaintiff was previously provided with notice of the deficiencies in her claims and an

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opportunity to amend, but she was unable to cure the deficiencies and further leave to amend is not

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warranted. Akhtar v. Mesa, 698 F.3d 1202, 1212-13 (9th Cir. 2012); Lopez v. Smith, 203 F.3d 1122,

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1130 (9th Cir. 2000); Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987).

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Accordingly, based on the foregoing, this action is HEREBY DISMISSED, with prejudice,

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for failure to state a claim upon which relief may be granted under section 1983. This dismissal is

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subject to the “three-strikes” provision set forth in 28 U.S.C. § 1915(g). Silva v. Di Vittorio, 658

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F.3d 1090, 1098-99 (9th Cir. 2011).

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IT IS SO ORDERED.

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Dated:
ie14hj

May 3, 2013

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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