Hubbard v. CDCR, et al.

Filing 10

ORDER DISMISSING 9 Plaintiff's Second Amended Complaint for Failure to State a Cognizable Claim, signed by Magistrate Judge Michael J. Seng on 8/29/2013. CASE CLOSED. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ZANE HUBBARD,

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CASE NO.
Plaintiff,

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1:13-cv-00761-MJS (PC)

ORDER DISMISSING PLAINTIFF’S SECOND
AMENDED COMPLAINT FOR FAILURE TO
STATE A COGNIZABLE CLAIM

v.

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CDCR, et al.,

(ECF No. 9)

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Defendants.

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CLERK SHALL CLOSE THE CASE
/

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SCREENING ORDER

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I.

PROCEDURAL HISTORY

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On May 23, 2013, Plaintiff Zane Hubbard, a state prisoner proceeding pro se and

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in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. (ECF No. 1.)

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Plaintiff has consented to Magistrate Judge jurisdiction. (ECF No. 5.)

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Plaintiff’s Complaint (ECF No. 1) and First Amended Complaint (ECF No. 7) were

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screened and dismissed, with leave to amend, on July 1, 2013 and July 31, 2013,
respectively, for failure to state cognizable claims. (ECF Nos. 6, 8.) Plaintiff’s Second

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Amended Complaint (ECF No. 9) is now before the Court for screening.

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II.

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SCREENING REQUIREMENT
The Court is required to screen complaints brought by prisoners seeking relief

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against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has

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raised claims that are legally “frivolous, malicious,” or that fail to state a claim upon which

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relief may be granted, or that seek monetary relief from a defendant who is immune from

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such relief. 28 U.S.C. § 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion

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thereof, that may have been paid, the court shall dismiss the case at any time if the court

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determines that . . . the action or 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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Section 1983 “provides a cause of action for the ‘deprivation of any rights, privileges,

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or immunities secured by the Constitution and laws’ of the United States.” Wilder v.

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Virginia Hosp. Ass’n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983

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is not itself a source of substantive rights, but merely provides a method for vindicating

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federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989).
III.

SUMMARY OF SECOND AMENDED COMPLAINT

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The Second Amended Complaint identifies (1) the California Department of

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Corrections and Rehabilitation (CDCR), (2) Pleasant Valley State Prison (PVSP), (3)

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Wasco State Prison (Wasco), (4) Memorial Hospital, and (5) Mercy Hospital as

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Defendants.

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Plaintiff alleges the following:

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In 2007, while imprisoned at PVSP, a “bump” appeared on Plaintiff’s body and he

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sought treatment. From May 23, 2007, the date of Plaintiff’s second medical request, to

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August 6, 2007, medical staff failed to conduct any diagnostic test on the bump or properly

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diagnosis it. Instead, Plaintiff was prescribed various ineffective medications until paroled.

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(Compl. at 4.) Plaintiff sought treatment at Memorial Hospital. Plaintiff’s wound was

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determined to be an abscess and Plaintiff was prescribed additional medication. The

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diagnosis was incorrect and the medication was ineffective. (Id. at 5.)

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Plaintiff was subsequently re-incarcerated at Wasco and from there admitted to
Mercy Hospital pursuant to a contract between the prison and hospital. Plaintiff was

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shackled to his bed and provided a hospital gown that exposed his buttocks. He was given

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socks but no shoes and his opportunity for exercise was limited to walking up a down a

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hallway. Plaintiff was given bad food and only one milk a day. He was not provided

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television, personal paper, books, or other entertainment. (Id. at 6, 7.) Plaintiff asserts

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violations of his Eighth Amendment rights. (Id. at 8.)

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IV.

ANALYSIS

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A.

Section 1983

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To state a claim under Section 1983, a plaintiff must allege two essential elements:

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(1) that a right secured by the Constitution or laws of the United States was violated and

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(2) that the alleged violation was committed by a person acting under the color of state law.

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See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243,

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1245 (9th Cir. 1987).

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A complaint must 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

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not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by

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mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949

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(2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set

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forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its

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face.’” Id. Facial plausibility demands more than the mere possibility that a defendant

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committed misconduct and, while factual allegations are accepted as true, legal

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conclusions are not. Id. at 1949-50.

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B.

Improper Defendants

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Plaintiff asserts violations of his Eighth Amendment rights and names the CDCR,

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PVSP, Wasco, and Memorial Hospital as Defendants. The Court has instructed Plaintiff

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twice before that he may not proceed in this action against these entities. The CDCR is

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a state agency and is entitled to Eleventh Amendment immunity. Aholelei v. Dept. of

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Public Safety, 488 F.3d 1144, 1147 (9th Cir. 2007). Because PVSP and Wasco are parts

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of the CDCR, a state agency, they are also entitled to Eleventh Amendment immunity from

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suit. Allison v. California Adult Authority, 419 F.2d 822, 823 (9th Cir. 1969) (holding that
state prison was a state agency entitled to sovereign immunity).

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Memorial Hospital is a private entity. Plaintiff has failed to demonstrate that its

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behavior may be fairly treated as that of the State itself. “To state a claim under [section]

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1983, a plaintiff must allege the violation of a right secured by the Constitution and laws

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of the United States, and must show that the alleged deprivation was committed by a

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person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988) (citations
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omitted). The presumption is that “conduct by private actors is not state action,” Florer v.
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Congregation Pidyon Shevuyim, N.A., 639 F.3d 916, 922 (9th Cir. 2011), cert. denied, 132

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S.Ct. 1000 (2012), but “‘state action may be found if . . . there is such a close nexus

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between the State and the challenged action that seemingly private behavior may be fairly

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treated as that of the State itself,’” Florer, 639 F.3d at 924 (quoting Brentwood Academy
v. Tennessee Secondary School Athletic Assoc., 531 U.S. 288, 295 (2001)).

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Under the circumstances alleged, Defendant Memorial Hospital behaved as a

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private actor and, as such, is not a proper Defendant in this case. Plaintiff was paroled at

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the time and received care at Memorial as a non-incarcerated citizen. See Jackson v. East

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Bay Hosp., 980 F.Supp. 1341, 1356-57 (N.D. Cal. 1997) (§ 1983 claim may be brought

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against a private doctor in a private hospital only if there is a sufficiently close nexus
between the state and the challenged action).

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The Court previously notified Plaintiff that the CDCR, PVSP, Wasco, and Memorial

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Hospital are not proper Defendants. Plaintiff’s amended complaint pleads the same factual

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allegations and claims against the same Defendants without addressing the deficiency

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described above. Clearly, further leave to amend would serve no useful purpose.

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Plaintiff’s claims against the CDCR, PVSP, Wasco, and Memorial Hospital are dismissed
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with prejudice.

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C.

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The Eighth Amendment’s prohibition against cruel and unusual punishment protects

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prisoners not only from inhumane methods of punishment but also from inhumane

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Eighth Amendment

conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006)

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(citing Farmer v. Brennan, 511 U.S. 825, 847 (1994) and Rhodes v. Chapman, 452 U.S.
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337, 347 (1981)) (quotation marks omitted). While conditions of confinement may be, and
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often are, restrictive and harsh, they must not involve the wanton and unnecessary

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infliction of pain. Morgan, 465 F.3d at 1045 (citing Rhodes, 452 U.S. at 347) (quotation

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marks omitted). Thus, conditions which are devoid of legitimate penological purpose or

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contrary to evolving standards of decency that mark the progress of a maturing society

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violate the Eighth Amendment. Morgan, 465 F.3d at 1045 (quotation marks and citations

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omitted); Hope v. Pelzer, 536 U.S. 730, 737 (2002); Rhodes, 452 U.S. at 346.

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Prison officials have a duty to ensure that prisoners are provided adequate shelter,

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food, clothing, sanitation, medical care, and personal safety, Johnson v. Lewis, 217 F.3d

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726, 731 (9th Cir. 2000) (quotation marks and citations omitted), but not every injury that

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a prisoner sustains while in prison represents a constitutional violation, Morgan, 465 F.3d

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at 1045 (quotation marks omitted). To maintain an Eighth Amendment claim, a prisoner

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must show that prison officials were deliberately indifferent to a substantial risk of harm to

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his health or safety. Farmer, 511 U.S. at 847.

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Plaintiff alleges that Wasco sent him to Mercy Hospital for treatment after he was
re-incarcerated pursuant to a contract between the prison and hospital. Plaintiff plausibly

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alleges that the hospital had an ongoing relationship with the state and therefore was
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acting under color of state law. See West, 487 U.S. at 54 (a private physician under

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contract with a state to provide medical services to inmates was a state actor for purposes

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of section 1983); see also Lopez v. Dep't of Health Servs., 939 F.2d 881, 883 (9th Cir.

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1991) (state action was sufficiently alleged by a complaint stating that the defendant

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hospital was under contract with the State of Arizona to provide medical services to

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indigents).
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Nevertheless, the conditions described by Plaintiff fail to satisfy the first element of
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his Eighth Amendment claim. Plaintiff complains of being periodically shackled to his bed,

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forced to wear a hospital gown that exposed his buttocks, being deprived of entertainment

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such as television or books, and being given bad food. The mistreatment described by

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Plaintiff does not amount to a constitutional deprivation. “An institution's obligation under

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the eighth amendment is at an end if it furnishes sentenced prisoners with adequate food,

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clothing, shelter, sanitation, medical care, and personal safety.” Hoptowit v. Ray, 682 F.2d

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1237, 1246 (9th Cir.1982) (internal citation omitted) abrogated on other grounds by Sandin

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v. Conner, 515 U.S. 472 (1995). “Idleness and the lack of programs are not Eighth

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Amendment violations.” Id. at 1254. Plaintiff was neither denied life's necessities nor

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exposed to unreasonable danger while at the hospital.

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The Court provided Plaintiff with the applicable legal standard and two opportunities
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to amend. His failure to allege facts in satisfaction of the legal standard is an indication he

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cannot. Plaintiff’s claim against Mercy Hospital is therefore dismissed with prejudice.

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V.

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CONCLUSION AND ORDER
For the reasons stated above, the Court finds that Plaintiff’s Second Amended

Complaint fails to state a claim upon which relief may be granted and that leave to amend

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would be futile. See Noll v. Carson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Accordingly,
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Plaintiff’s Second Amended Complaint is DISMISSED WITH PREJUDICE for failure to

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state a claim. The Clerk shall close the case.

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IT IS SO ORDERED.

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Dated:
ci4d6

August 29, 2013

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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