Santiago v. Patel et al

Filing 18

ORDER DISMISSING CASE, With Prejudice, for Failure to State a Claim Upon Which Relief May Be Granted Under Section 1983 and ORDER that This Dismissal is Subject to the "Three-Strikes" Provision Set Forth in 28 U.S.C. 1915(g) signed by Magistrate Judge Gary S. Austin on 5/8/2014. CASE CLOSED. (Jessen, A)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 JOSE SANTIAGO, 11 Plaintiff, 12 13 vs. V. PATEL, et al., 14 Defendants. 15 16 1:13-cv-00032-GSA-PC ORDER DISMISSING CASE, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED UNDER SECTION 1983 (Doc. 17.) 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 17 18 19 20 I. BACKGROUND 21 Jose Santiago ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis 22 with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint 23 commencing this action on January 9, 2013. (Doc. 1.) 24 On January 22, 2013, Plaintiff consented to Magistrate Judge jurisdiction pursuant to 28 25 U.S.C. § 636(c) in this action, and no other parties have made an appearance. (Doc. 6.) 26 Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the Eastern District of 27 California, the undersigned shall conduct any and all proceedings in the case until such time as 28 reassignment to a District Judge is required. Local Rule Appendix A(k)(3). 1 1 On March 11, 2013, Plaintiff filed the First Amended Complaint. (Doc. 13.) On 2 September 16, 2013, the Court dismissed the First Amended Complaint for failure to state a 3 claim, with leave to amend. (Doc. 16.) On September 25, 2013, Plaintiff filed the Second 4 Amended Complaint, which is now before the court for screening. (Doc. 17.) 5 II. SCREENING REQUIREMENT 6 The court is required to screen complaints brought by prisoners seeking relief against a 7 governmental entity or officer or employee of a governmental entity. 28 U.S.C. ' 1915A(a). 8 The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 9 legally Afrivolous or malicious,@ that fail to state a claim upon which relief may be granted, or 10 that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 11 ' 1915A(b)(1),(2). ANotwithstanding any filing fee, or any portion thereof, that may have been 12 paid, the court shall dismiss the case at any time if the court determines that the action or 13 appeal fails to state a claim upon which relief may be granted.@ 28 U.S.C. ' 1915(e)(2)(B)(ii). 14 A complaint is required to contain Aa short and plain statement of the claim showing 15 that the pleader is entitled to relief.@ Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are 16 not required, but A[t]hreadbare recitals of the elements of a cause of action, supported by mere 17 conclusory statements, do not suffice.@ Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 18 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 19 (2007)). While a plaintiff=s allegations are taken as true, courts Aare not required to indulge 20 unwarranted inferences.@ Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) 21 (internal quotation marks and citation omitted). Plaintiff must set forth Asufficient factual 22 matter, accepted as true, to >state a claim to relief that is plausible on its face.=@ Iqbal 556 U.S. 23 at 678. While factual allegations are accepted as true, legal conclusions are not. Id. 24 To state a viable claim for relief, Plaintiff must set forth sufficient factual allegations to 25 state a plausible claim for relief. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 26 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this 27 plausibility standard. Id. 28 /// 2 1 III. SUMMARY OF SECOND AMENDED COMPLAINT 2 Plaintiff is a state prisoner in the custody of the California Department of Corrections 3 and Rehabilitation (CDCR), incarcerated at Wasco State Prison (WSP) in Wasco, California, 4 where the events at issue in the Second Amended Complaint allegedly occurred. Plaintiff 5 names as the sole defendant Dr. V. Patel (“Defendant”). Defendant was an employee of the 6 CDCR at WSP at the time of the events at issue. Plaintiff's factual allegations follow. 7 Plaintiff has a serious, permanent medical condition due to a colostomy. On December 8 7, 2011, Plaintiff arrived as WSP with 80 colostomy bags from his last institution. 9 December 19, 2011, Plaintiff saw Dr. Ramos who fully granted a 602 inmate grievance that 10 Plaintiff had pending. As Plaintiff walked out, LVN Dickerson approached Dr. Ramos. The 11 next day, Plaintiff’s order for colostomy bags was changed and a new doctor, Dr. V. Patel, 12 arrived. Dr. Patel refused to approve Plaintiff’s order for colostomy bags. Plaintiff kept 13 explaining that he has had a colostomy for 12 years and has daily needs for colostomy bags, but 14 Dr. Patel refused to understand and told Plaintiff he was delusional. Dr. Patel was very 15 inconsiderate and disrespectful to Plaintiff, kept comparing Plaintiff to inmates at the 16 Correctional Training Facility, and told Plaintiff he thought his condition could be fixed. 17 Plaintiff told Dr. Patel that he has seen other doctors who verified that his condition is 18 permanent. Dr. Patel refused to listen, and Plaintiff had to beg for bags every other day. His 19 80 bags ran out. In April 2011, Plaintiff was in need of bags and was kicked out of the medical 20 department by LVN Dickenson and disciplined. From that time, Plaintiff used trash bags 21 instead of colostomy bags. On 22 Plaintiff requests monetary damages to compensate him for three years of humiliation. 23 Plaintiff also requests a court order to provide him with 60 colostomy bags and karaya rings 24 each month. 25 Plaintiff informs the court in the Second Amended Complaint that a new doctor has 26 resolved Plaintiff’s need for colostomy bags, and since April 2013, Plaintiff now receives 30 27 colostomy bags per month. 28 /// 3 1 IV. 2 PLAINTIFF=S MEDICAL CLAIM The Civil Rights Act under which this action was filed provides: 3 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. 4 5 6 7 42 U.S.C. ' 1983. ASection 1983 . . . creates a cause of action for violations of the federal 8 Constitution and laws.@ Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997) 9 (internal quotations omitted). ATo the extent that the violation of a state law amounts to the 10 deprivation of a state-created interest that reaches beyond that guaranteed by the federal 11 Constitution, Section 1983 offers no redress.@ Id. 12 A[T]o maintain an Eighth Amendment claim based on prison medical treatment, an 13 inmate must show >deliberate indifference to serious medical needs.=@ Jett v. Penner, 439 F.3d 14 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285 (1976)). 15 The two-part test for deliberate indifference requires the plaintiff to show (1) A>a serious 16 medical need= by demonstrating that >failure to treat a prisoner=s condition could result in 17 further significant injury or the unnecessary and wanton infliction of pain,=@ and (2) Athe 18 defendant=s response to the need was deliberately indifferent.@ Jett, 439 F.3d at 1096 (quoting 19 McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds by WMX 20 Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc) (internal quotations 21 omitted)). Deliberate indifference is shown by Aa purposeful act or failure to respond to a 22 prisoner=s pain or possible medical need, and harm caused by the indifference.@ Id. (citing 23 McGuckin, 974 F.2d at 1060). 24 officials deny, delay or intentionally interfere with medical treatment, or it may be shown by 25 the way in which prison physicians provide medical care.@ Id. Where a prisoner is alleging a 26 delay in receiving medical treatment, the delay must have led to further harm in order for the 27 prisoner to make a claim of deliberate indifference to serious medical needs. McGuckin at 28 /// Deliberate indifference may be manifested Awhen prison 4 1 1060 (citing Shapely v. Nevada Bd. of State Prison Comm=rs, 766 F.2d 404, 407 (9th Cir. 2 1985)). 3 ADeliberate indifference is a high legal standard.@ Toguchi v. Chung, 391 F.3d 1051, 4 1060 (9th Cir. 2004). AUnder this standard, the prison official must not only >be aware of the 5 facts from which the inference could be drawn that a substantial risk of serious harm exists,= but 6 that person >must also draw the inference.=@ Id. at 1057 (quoting Farmer v. Brennan, 511 U.S. 7 825, 837, 114 S.Ct. 1970 (1994)). A>If a prison official should have been aware of the risk, but 8 was not, then the official has not violated the Eighth Amendment, no matter how severe the 9 risk.=@ Id. (quoting Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir. AA showing of medical malpractice or negligence is insufficient to establish a 10 2002)). 11 constitutional deprivation under the Eighth Amendment. Id. at 1060. A[E]ven gross negligence 12 is insufficient to establish a constitutional violation.@ Id. (citing Wood v. Housewright, 900 13 F.2d 1332, 1334 (9th Cir. 1990)). 14 Plaintiff’s need for colostomy bags does not rise to the level of Aa serious medical 15 need,” because he does not make a showing that the failure to provide him with colostomy bags 16 “could result in further significant injury or the unnecessary and wanton infliction of pain.” 17 Jett, 439 F.3d at 1096. Plaintiff describes humiliation, but not pain or injury from being denied 18 colostomy bags for three years.1 Furthermore, Plaintiff fails to allege facts showing that Dr. 19 Patel was deliberately indifferent to his needs. Plaintiff fails to show that when Dr. Patel acted 20 against him, or failed to act, he knew of a substantial risk of serious harm to Plaintiff and 21 deliberately disregarded the risk. Therefore, Plaintiff fails to state a medical claim under the 22 Eighth Amendment. 23 /// 24 /// 25 26 27 28 1 The Prison Litigation Reform Act provides that A[n]o Federal civil action may be brought by a prisoner confined in jail, prison, or other correctional facility, for mental and emotional injury suffered while in custody without a prior showing of physical injury.@ 42 U.S.C. ' 1997e(e). The physical injury Aneed not be significant but must be more than de minimis.@ Oliver v. Keller, 289 F.3d 623, 627 (9th Cir. 2002). The physical injury requirement applies only to claims for mental or emotional injuries and does not bar claims for compensatory, nominal, or punitive damages. Id. at 630. 5 1 V. CONCLUSION AND ORDER 2 The Court finds that Plaintiff=s Second Amended Complaint fails to state any cognizable 3 claims upon which relief may be granted under ' 1983. In this action, the Court previously 4 granted Plaintiff an opportunity to amend the complaint, with ample guidance by the Court. 5 Plaintiff has now filed two amended complaints without alleging facts against any of the 6 defendants which state a claim under ' 1983. The Court finds that the deficiencies outlined 7 above are not capable of being cured by amendment, and therefore further leave to amend 8 should not be granted. 28 U.S.C. ' 1915(e)(2)(B)(ii); Lopez v. Smith, 203 F.3d 1122, 1127 9 (9th Cir. 2000). 10 Therefore, IT IS HEREBY ORDERED that: 11 1. Pursuant to 28 U.S.C. ' 1915A and 28 U.S.C. ' 1915(e), this action is 12 DISMISSED with prejudice for failure to state a claim upon which relief may be 13 granted under ' 1983; 14 2. 15 16 This dismissal is subject to the Athree-strikes@ provision set forth in 28 U.S.C. ' 1915(g); Silva v. Vittorio, 658 F.3d 1090, 1098 (9th Cir. 2011); and 3. The Clerk is directed to close this case. 17 18 19 20 IT IS SO ORDERED. Dated: May 8, 2014 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 6

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