Chacon v. Ortega, et al.,

Filing 17

SECOND SCREENING ORDER DISMISSING ACTION, WITH PREJUDICE, for Failure to State a Claim Under Section 1983 16 , signed by Magistrate Judge Sheila K. Oberto on 2/19/15: The Clerk's Office shall enter judgment; and The dismissal of this action qualifies as a strike under 28 U.S.C. § 1915(g). (CASE CLOSED)(Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOEL CHACON,

Case No. 1:13-cv-01176-SKO (PC)

Plaintiff,

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SECOND SCREENING ORDER
DISMISSING ACTION, WITH
PREJUDICE, FOR FAILURE TO
STATE A CLAIM UNDER SECTION
1983

v.

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ROGELIO ORTEGA, M.D.,

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Defendant.
_____________________________________/

(Doc. 16)

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Second Screening Order

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17 I.

Procedural Background

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Plaintiff Joel Chacon, a state prisoner proceeding pro se and in forma pauperis, filed this

19 civil rights action pursuant to 42 U.S.C. § 1983 on June 26, 2013. On May 12, 2014, the Court
20 dismissed Plaintiff’s complaint, with leave to amend, for failure to state a claim. Plaintiff filed an
21 amended complaint on June 13, 2014.
22 II.

Screening Requirement and Standard

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The Court is required to screen Plaintiff=s complaint and dismiss the case, in whole or in

24 part, if the Court determines it fails to state a claim upon which relief may be granted. 28 U.S.C. '
25 1915(e)(2)(B)(ii). A complaint must contain “a short and plain statement of the claim showing
26 that the pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are
27 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere
28 conclusory statements, do not suffice,” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937

1 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)), and
2 courts “are not required to indulge unwarranted inferences,” Doe I v. Wal-Mart Stores, Inc., 572
3 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). While factual
4 allegations are accepted as true, legal 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

6 doubt resolved in their favor, Wilhelm v. Rotman, 680 F.3d 1113, 1121-23 (9th Cir. 2012); Hebbe
7 v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010), but Plaintiff=s claims must be facially plausible to
8 survive screening, which requires sufficient factual detail to allow the Court to reasonably infer
9 that each named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at 678 (quotation
10 marks omitted); Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The sheer
11 possibility that a defendant acted unlawfully is not sufficient, and mere consistency with liability
12 falls short of satisfying the plausibility standard.

Iqbal, 556 U.S. at 678 (quotation marks

13 omitted); Moss, 572 F.3d at 969.
14 III.

Discussion

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A.

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Plaintiff, who is incarcerated at the California Correctional Institution in Tehachapi,

Plaintiff’s Allegations

17 California, brings this action against Rogelio Ortega, M.D., for violating his rights under the
18 Eighth Amendment of the United States Constitution. Plaintiff’s amended complaint sets forth
19 significantly fewer facts than did his original complaint.

While it may have been entirely

20 unintentional, the factual omissions nevertheless affect Plaintiff’s claim. See Air Aromatics, LLC
21 v. Opinion Victoria’s Secret Stores Brand Mgmt., Inc., 744 F.3d 595, 600 (9th Cir. 2014) (“A
22 party cannot amend pleadings to directly contradict an earlier assertion made in the same
23 proceeding.”) (internal quotations and citation omitted).

Based on the paucity of facts in

24 Plaintiff’s amended complaint and the omission of relevant facts previously pled, the Court views
25 Plaintiff’s amended complaint through the lens of his original complaint, and the following fact
26 summary is reproduced from the first screening order:
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Plaintiff alleges that on or around March 20, 2013, he was seen by Defendant
Ortega, who diagnosed him with nerve damage and prescribed Amitriptyline HCL,
25 mcg.
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On or around March 27, 2013, Plaintiff began having an outbreak of bleeding
ulcers and he submitted a request for emergency medical care on April 1, 2013.
Plaintiff was seen by Defendant Doe, who checked his open wounds and said it
looked like it hurt. Defendant Doe prescribed Benadryl, 50 mg., and told Plaintiff
he would be okay. Defendant Doe said she could not give him any pain
medication.

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On April 2, 2013, Plaintiff was seen by Defendant Ortega, who told Plaintiff his
mouth ulcers would go away. Defendant Ortega thought the ulcers were caused by
the medication prescribed for the nerve damage and he prescribed Plaintiff
Lidocaine Hydrochloride topical solution, 2%.

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On April 4, 2013, Plaintiff sent another request for emergency medical care
complaining about his mouth and stomach and stating he could not eat.

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On April 5, 2013, Plaintiff told Defendant Ortega that he had stomach pain and he
was throwing up and defecating blood. Defendant Ortega said he could not
prescribe anything for Plaintiff’s pain. Plaintiff alleges that Defendant Ortega did
not believe him so he had Plaintiff lie down. Defendant Ortega inserted his finger
in Plaintiff’s rectum and told the nurse to call in “Cod 2” because Plaintiff had
blood in his stool.1 (Comp., 4:23.) Plaintiff was then taken to San Joaquin
Community Hospital, where it was determined he had internal bleeding.

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On April 7, 2013, Doctor Vu showed Plaintiff a picture of forty to fifty ulcers.
Plaintiff was prescribed Omeprazole, 20 mg., and Metoclopramide, 10 mg., and he
was prescribed pain medication from April 8, 2013, to April 16, 2013.

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(Doc. 14, Order, 2:21-3:15.)
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In his amended complaint, Plaintiff names only Defendant Ortega, and he alleges that he
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saw Defendant for his mouth ulcers, but Defendant provided only an ineffective topical
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medication and did not treat Plaintiff’s extreme pain. Plaintiff alleges that only when he began to

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bleed internally was action taken, and he was sent to an outside hospital.
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B.

Medical Care Claim

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While the Eighth Amendment of the United States Constitution entitles Plaintiff to medical
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care, the Eighth Amendment is violated only when a prison official acts with deliberate
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indifference to an inmate’s serious medical needs. Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir.

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2012) ), overruled in part on other grounds, Peralta v. Dillard, 744 F.3d 1076, 1082-83 (9th Cir.
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2014); Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012); Jett v. Penner, 439 F.3d 1091,
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1096 (9th Cir. 2006). Plaintiff “must show (1) a serious medical need by demonstrating that

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failure to treat [his] condition could result in further significant injury or the unnecessary and
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It is unclear if Plaintiff means “code 2.”

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1 wanton infliction of pain,” and (2) that “the defendant’s response to the need was deliberately
2 indifferent.” Wilhelm, 680 F.3d at 1122 (citing Jett, 439 F.3d 1091, 1096 (9th Cir. 2006)).
3 Deliberate indifference is shown by “(a) a purposeful act or failure to respond to a prisoner’s pain
4 or possible medical need, and (b) harm caused by the indifference.” Wilhelm, 680 F.3d at 1122
5 (citing Jett, 439 F.3d at 1096). The requisite state of mind is one of subjective recklessness, which
6 entails more than ordinary lack of due care. Snow, 681 F.3d at 985 (citation and quotation marks
7 omitted); Wilhelm, 680 F.3d at 1122.
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Plaintiff’s allegations support the existence of a serious medical need arising out of his

9 reaction to the medication prescribed for his nerve damage. Lopez v. Smith, 203 F.3d 1122, 1131
10 (9th Cir. 2000). However, Plaintiff’s allegations do not support a claim that Defendant Ortega
11 acted with deliberate indifference to his medical needs. To the contrary, Plaintiff received prompt
12 medical care. The mere fact of Plaintiff’s adverse reaction to a medication does not support a
13 claim under section 1983, Wilhelm, 680 F.3d at 1122, and Plaintiff’s disagreement with the course
14 of treatment rendered does not support a claim against Defendant Ortega, Snow, 681 F.3d at 987;
15 Wilhelm, 680 F.3d at 1122-23. Although Plaintiff alleges that Defendant “failed any attempt to
16 diminish [his] level of obvious pain,” his allegations that his pain was ignored are belied by the
17 fact that Defendant prescribed Lidocaine Hydrocortisone, which is a local anesthetic. Stanton by
18 Brooks v. Astra Pharmaceutical Products, Inc., 718 F.2d 553, 556 (3d Cir. 1983); Gelley v. Astra
19 Pharmaceutical Products, Inc., 466 F.Supp. 182, 184 (D.C.Minn. 1979); Dorland’s Illustrated
20 Medical Dictionary 1048 (31st ed. 2007). (Doc. 16, Amend. Comp., p. 4.) The Court does not
21 doubt that Plaintiff’s mouth ulcers caused him severe pain, but there is no support for his claim
22 that Defendant Ortega was deliberately indifferent to his medical condition.
23 IV.

Conclusion and Order

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

25 section 1983. Plaintiff was previously provided with leave to amend and based on the nature of
26 the deficiencies, further leave to amend is not warranted. Akhtar v. Mesa, 698 F.3d 1202, 1212-13
27 (9th Cir. 2012); Lopez, 203 F.3d at 1130. Accordingly, it is HEREBY ORDERED that:
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This action is DISMISSED, with prejudice, for failure to state a claim under section
1983;

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The Clerk’s Office shall enter judgment; and

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The dismissal of this action qualifies as a strike under 28 U.S.C. § 1915(g). Silva v.

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Di Vittorio, 658 F.3d 1090, 1098-99 (9th Cir. 2011).

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IT IS SO ORDERED.
Dated:

February 19, 2015

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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