Davila v. Smith

Filing 12

FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT 10 AMENDED COMPLAINT BE DISMISSED FOR FAILURE TO STATE A CLAIM signed by Magistrate Judge Erica P. Grosjean on 7/25/2016. Referred to Judge Lawrence J. O'Neill; Objections to F&R due by 8/29/2016. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CHARLES DAVILA,

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Plaintiff,

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1:15-cv-00094-LJO-EPG-PC
FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT AMENDED
COMPLAINT BE DISMISSED FOR
FAILURE TO STATE A CLAIM

vs.
D. SMITH,

(ECF No. 10.)

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Defendant.
OBJECTIONS, IF ANY, DUE WITHIN 30
DAYS

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I.

BACKGROUND

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Plaintiff Charles Davila (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint

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commencing this action on January 20, 2015. (ECF No. 1.) The Court1 screened Plaintiff’s

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initial complaint and dismissed it with leave to amend. (ECF No. 9.) Plaintiff filed an

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Amended Complaint on June 25, 2015, which is now before this Court for screening. (ECF

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No. 10.)

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II.

LEGAL STANDARDS FOR SCREENING PRISONER COMPLAINTS

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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).

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All prior orders were issued by Magistrate Judge Gary S. Austin.
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The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are

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legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or

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that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. §

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1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion thereof, that may have been

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paid, the court shall dismiss the case at any time if the court determines that . . . the action or

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appeal . . . fails to state a claim upon which relief may be granted.” 28 U.S.C. §

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1915(e)(2)(B)(ii).

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“Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited

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exceptions,” none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534

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U.S. 506, 512 (2002); Fed. R. Civ. P. 8(a). Pursuant to Rule 8(a), a complaint must contain “a

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short and plain statement of the claim showing that the pleader is entitled to relief . . . .” Fed. R.

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Civ. P. 8(a). “Such a statement must simply give the defendant fair notice of what the

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plaintiff’s claim is and the grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512.

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However, “the liberal pleading standard . . . applies only to a plaintiff’s factual allegations.”

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Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989). “[A] liberal interpretation of a civil rights

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complaint may not supply essential elements of the claim that were not initially pled.” Bruns v.

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Nat’l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of

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Regents, 673 F.2d 266, 268 (9th Cir. 1982)).

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III.

ALLEGATIONS IN PLAINTIFF’S AMENDED COMPLAINT

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Plaintiff’s Amended Complaint is asserted against Defendant David G. Smith, a doctor

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at the Substance Abuse Treatment Facility. Defendant has been treating Plaintiff’s arm injury.

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Defendant performed surgery on Plaintiff’s arm, which included placing certain hardware in

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the arm. Plaintiff alleges the hardware is broken and should be removed. Plaintiff continues to

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suffer pain in his arm. Defendant recommended monitoring the pain. Plaintiff questions

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Defendant’s competency in failing to correct the problem through multiple surgeries. Attached

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to the Amended Complaint are medical notes and letters from Defendant, indicating that

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“I have reviewed his x-rays and also from June 5th which show the plate to be in satisfactory

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position and alignment seems to be satisfactory. . . . I would like him to leave the plate in and
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we will continue to observe his condition but it is too early, in my opinion, to consider plate

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removal at this time.” (ECF No. 10, p. 15.) Plaintiff includes an x-ray and states that “the x-

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ray clearly shows the screw already broke off.” (ECF No. 10, p. 16.)

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Plaintiff asserts claims for negligence, intentional infliction of emotional distress, cruel

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and unusual punishment, and violation of the Americans with Disabilities Act (“ADA”).

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IV.

The Court previously screened Plaintiff’s original complaint, which alleged similar

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PRIOR SCREENING ORDER

facts and included many if not all of the same exhibits in support of his complaint.

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The Court set forth the legal standards for asserting an Eighth Amendment claim for

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deliberate indifference to serious medical needs. (ECF No. 9, p. 3-4). The Court then dimissed

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that cause of action with leave to amend because the facts alleged did not indicate that

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Defendant acted with deliberate indifference. (ECF No. 9, p. 4-5).

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The Court then reviewed the standards for an ADA claim, and concluded, “Aside from

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Defendants’ medical treatment decisions of which Plaintiff complains and which are not an

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appropriate basis upon which to predicate an ADA claim, Plaintiff alleges no facts to show that

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any named Defendant participated in, or was otherwise responsible for, excluding him from

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numerous activities, programs, and benefits otherwise available to him. Therefore, Plaintiff

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fails to state a cognizable claim under Title II of the ADA.” (ECF No. 9, p. 5).

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The Court then gave Plaintiff leave to amend with instructions.

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V.

EIGHTH AMENDMENT DELIBERATE INDIFFERENCE CLAIM

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a.

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The Eighth Amendment of the United States Constitution entitles Plaintiff to medical

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care and is violated when a prison official acts with deliberate indifference to an inmate’s

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serious medical needs. Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012), overruled in part

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on other grounds, Peralta v. Dillard, 744 F.3d 1076, 1082-83 (9th Cir. 2014); Wilhelm v.

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Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012); Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir.

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2006). Plaintiff “must show (1) a serious medical need by demonstrating that failure to treat

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[his] condition could result in further significant injury or the unnecessary and wanton

Legal Standards

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infliction of pain,” and (2) that “the defendant’s response to the need was deliberately

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indifferent.” Wilhelm, 680 F.3d at 1122 (citing Jett, 439 F.3d 1091, 1096 (9th Cir. 2006)).

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Deliberate indifference is shown by “(a) a purposeful act or failure to respond to a prisoner’s

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pain or possible medical need, and (b) harm caused by the indifference.” Wilhelm, 680 F.3d at

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1122 (citing Jett, 439 F.3d at 1096). The requisite state of mind is one of subjective

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recklessness, which entails more than ordinary lack of due care. Snow, 681 F.3d at 985

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(citation and quotation marks omitted); Wilhelm, 680 F.3d at 1122.
Analysis of Plaintiff’s Allegations

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b.

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The Court finds that Plaintiff has not stated a claim for deliberate indifference to his

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serious medical needs. Defendant has performed multiple surgeries on Plaintiff and evaluated

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him many times. It is clear that Plaintiff disagrees with the way these surgeries were performed

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and the prognosis, but that disagreement does not give rise to a constitutional violation. There

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are no facts alleged that would indicate that Defendant is being purposefully and deliberately

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indifferent to Plaintiff’s medical needs. Given the failure to allege such facts after receiving

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detailed standards by the Court, the Court now recommends that this claim be dismissed with

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prejudice.

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VI.

AMERICANS WITH DISABILITIES ACT

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a.

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Title II of the ADA, 42 U.S.C. § 12101 et seq. prohibits discrimination on the basis of a

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disability in the programs, services or activities of a public entity. It provides that “no qualified

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individual with a disability shall, by reason of such disability, be excluded from participation in

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or be denied the benefits of the services, programs, or activities of a public entity, or be

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subjected to discrimination by any such entity.” 42 U.S.C. § 12132. The term “public entity”

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encompasses state correctional facilities. Pennsylvania Dep’t of Corrections v. Yeskey, 524

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U.S. 206, 210 (1998). The “ADA’s broad language brings within its scope anything a public

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entity does,” which “includes programs or services provided at jails, prisons, and any other

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custodial or correctional institution.” Lee v. City of Los Angeles, 250 F.3d 668, 691 (9th Cir.

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2001) (internal quotation marks omitted).

Legal Standards

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The elements of a cause of action under Title II of the ADA are (1) the plaintiff is an

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individual with a disability; (2) the plaintiff is otherwise qualified to participate in or receive

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the benefit of some public entity’s services, programs, or activities; (3) the plaintiff was either

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excluded from participation in or denied the benefits of the public entity’s services, programs

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or activities, or was otherwise discriminated against by the public entity; and (4) such

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exclusion, denial of benefits, or discrimination was by reason of the plaintiff’s disability.

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Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002). The proper defendant in an ADA action

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is the public entity responsible for the alleged discrimination, not an individual officer.

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The treatment or lack of treatment of Plaintiff’s various medical conditions does not

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provide a basis upon which to impose liability under the ADA. Simmons v. Navajo County,

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Ariz., 609 F.3d 1011, 1022 (9th Cir. 2010) (citing Bryant v. Madigan, 84 F.3d 246, 249 (7th

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Cir. 1996) (“[T]he Act would not be violated by a prison’s simply failing to attend to the

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medical needs of its disabled prisoners . . . . The ADA does not create a remedy for medical

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malpractice.”).

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Plaintiff’s allegations fail to set forth a violation of the ADA by Defendant. First of all,

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the individual Defendant is not a public entity. Second, Plaintiff has not alleged that he was

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excluded from participation in services because of a disability. Instead, Plaintiff alleges a

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denial of medical treatment, which is not cognizable under the ADA.

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VII.

STATE LAW CLAIMS

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Plaintiff brings claims in the Amended Complaint for negligence and intentional

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infliction of emotional distress, which are state torts. Plaintiff is advised that violation of state

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tort law is not sufficient to state a claim for relief under § 1983. To state a claim under § 1983,

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there must be a deprivation of federal constitutional or statutory rights. See Paul v. Davis, 424

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U.S. 693 (1976). Although the Court may exercise supplemental jurisdiction over state law

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claims, Plaintiff must first have a cognizable claim for relief under federal law. See 28 U.S.C.

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§ 1367. In this instance, the Court fails to find any cognizable federal claims in the Amended

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Complaint. Therefore, Plaintiff=s claims for negligence and intentional infliction of emotional

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distress fail. These claims should be dismissed from this action without prejudice.
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VIII. CONCLUSION AND RECOMMENDATIONS

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The Court finds that Plaintiff’s Amended Complaint fails to state any cognizable claims

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upon which relief may be granted under ' 1983. The Court previously granted Plaintiff leave to

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amend the complaint, with ample guidance by the Court.

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complaints without stating any claims upon which relief may be granted under § 1983. The

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Court finds that the deficiencies outlined above are not capable of being cured by amendment,

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and therefore further leave to amend should not be granted. 28 U.S.C. ' 1915(e)(2)(B)(ii);

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Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000).

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Plaintiff has now filed two

Therefore, IT IS HEREBY RECOMMENDED that:
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Pursuant to 28 U.S.C. ' 1915A and 28 U.S.C. ' 1915(e), this action be

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dismissed for failure to state a claim upon which relief may be granted under §

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1983, with Plaintiff’s federal claims dismissed with prejudice, and Plaintiff’s

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state claims dismissed without prejudice;

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2.

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This dismissal be subject to the “three-strikes” provision set forth in 28 U.S.C. '
1915(g). Silva v. Vittorio, 658 F.3d 1090, 1098 (9th Cir. 2011).

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These Findings and Recommendations will be submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within

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thirty (30) days after being served with these Findings and Recommendations, Plaintiff may

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file written objections with the Court. The document should be captioned “Objections to

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Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file

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objections within the specified time may result in the waiver of rights on appeal. Wilkerson v.

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Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394

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(9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

July 25, 2016

/s/
UNITED STATES MAGISTRATE JUDGE

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