Plancarte v. Jorge et al

Filing 36

FINDINGS and RECOMMENDATIONS recommending that this action be DISMISSED, with prejudice, for failure to state a cognizable claim upon which relief may be granted; this dismissal is subject to the "three-strikes" provision set forth in 28:1915(g; referred to Judge Ishii, signed by Magistrate Judge Stanley A. Boone on 06/28/17. Objections to F&R due : (30-Day Deadline) (Martin-Gill, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 TIMOTEO PLANCARTE, 12 Plaintiff, 13 v. 14 D. JORGE, et al., 15 Defendants. 16 17 ) ) ) ) ) ) ) ) ) ) Case No.: 1:15-cv-00345-AWI-SAB (PC) FINDINGS AND RECOMMENDATION RECOMMENDING ACTION BE DISMISSED FOR FAILURE TO STATE A COGNIZABLE CLAIM FOR RELIEF, SUBJECTING PLAINTIFF TO STRIKE UNDER 28 U.S.C. § 1915(g) (ECF No. 35) Plaintiff Timoteo Plancarte is appearing pro se and in forma pauperis in this civil rights action 18 pursuant to 42 U.S.C. § 1983. This matter was referred to the undersigned pursuant to 28 U.S.C. § 19 636(b)(1)(B) and Local Rule 302. 20 I. 21 RELEVANT BACKGROUND 22 Plaintiff filed his original complaint in this action on January 12, 2015. (ECF No. 1.) On March 23 27, 2015, before Plaintiff’s original complaint was screened, he filed a first amended complaint. (ECF 24 No. 12.) 25 On December 17, 2015, the Court screened Plaintiff’s original complaint, and dismissed it for 26 the failure to state a cognizable claim upon which relief may be granted, with leave to amend. (ECF 27 No. 19.) The Court noted that Plaintiff’s original complaint was largely conclusory with little factual 28 allegations. (Id. at 2-3.) Plaintiff’s first amended complaint was not screened at that time. 1 1 Following several extensions of time, on March 30, 2016, Plaintiff filed a second amended 2 complaint. (ECF No. 27.) In reviewing Plaintiff’s first and second amended complaints, the Court 3 determined that Plaintiff’s first amended complaint was an effort at providing sufficient factual 4 allegations to state a cognizable claim upon which relief may be granted. Plaintiff’s second amended 5 complaint, however, was mainly composed of legal arguments and conclusory assertions that his 6 rights have been violated, with no factual allegations. Thus, in the interests of justice, the Court 7 substantively screened Plaintiff’s first amended complaint on January 23, 2017. (ECF No. 28.) 8 Plaintiff’s first and second amended complaints were then dismissed, with leave to amend, for the 9 continued failure to state a cognizable claim for relief. Plaintiff was allowed thirty days to file a third 10 amended complaint. Plaintiff sought several extensions of time for the purpose of gathering medical documentation 11 12 to use in amending his complaint, (ECF No. 29, 31, 33), each of which were respectively granted in 13 part, (ECF No. 30, 32, 34.) Plaintiff’s third amended complaint, filed June 2, 2017 (ECF No. 35), is 14 now before the Court for screening. 15 II. 16 SCREENING REQUIREMENT 17 The Court is required to screen complaints brought by prisoners seeking relief against a 18 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 19 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 20 “frivolous or malicious,” that “fail to state a claim on which relief may be granted,” or that “seek 21 monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). A complaint must contain “a short and plain statement of the claim showing that the pleader is 22 23 entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 24 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, 25 do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 26 550 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate that each defendant personally 27 participated in the deprivation of Plaintiff’s rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 28 2002). 2 1 Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally 2 construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121 3 (9th Cir. 2012)(citations omitted). To survive screening, Plaintiff’s claims must be facially plausible, 4 which requires sufficient factual detail to allow the Court to reasonably infer that each named 5 defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 6 572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant has acted unlawfully” is not 7 sufficient, and “facts that are ‘merely consistent with’ a defendant’s liability” falls short of satisfying 8 the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969. 9 III. 10 THIRD AMENDED COMPLAINT ALLEGATIONS 11 Plaintiff is a state inmate in the custody of the California Department of Corrections and 12 Rehabilitation (“CDCR”) at the Correctional Training Facility in Soledad, California. The events at 13 issue here occurred while Plaintiff was incarcerated at the Sierra Conservation Center (“SCC”) at 14 Jamestown, California. Plaintiff names as defendants the following individuals: D. Jorge, RN; R. 15 Griggs, RN; Dr. St. Claire; Dr. J. Krpan; Dr. Shuddy; Dr. Bangi; Dr. Kimn; J. Benak, PA-C; T. Day, 16 PA-C; and CDCR unknown medical staff. 17 Plaintiff alleges as follows: On June 31, 2009, while Plaintiff was incarcerated at Duel 18 Vocational Institution, he was administered a mandatory Tuberculosis (“TB”) test. On July 2, 2009, 19 unknown medical staff read the test results by observed Plaintiff’s arm from behind a closed cell door 20 at approximately four feet away. This resulted in a false positive reading, forcing Plaintiff to take 21 medication that made him sick and created a lump in the stomach area. 22 Plaintiff asserts that due to negligence and ill-trained medical staff, he was denied further 23 medical care and/or determination, meaning further tests conducted by someone who is more qualified 24 to determine if Plaintiff is in fact infected with TB, made with a more accurate and official reading. 25 Specifically, each of the defendants denied Plaintiff adequate medical treatment. There were no further 26 determinations of Plaintiff contracting TB, nor were there any notification thereof provided to 27 Plaintiff. Plaintiff concluded to medical staff that he did not have TB. Plaintiff requested numerous 28 times for further tests, such as x-rays, urine samples, blood tests, but was denied. Plaintiff contends 3 1 that it was necessary to ascertain the reliability of a positive visual reading that was conducted in an 2 unprofessional manner. Plaintiff received a one-size-fits-all treatment that resulted in further 3 significant injury. 4 Only after Plaintiff became ill from the medication did he deny the medications that made him 5 ill and caused a lump in his stomach area. It was only after being rushed to the hospital by ambulance 6 that it was officially determined that Plaintiff never had TB in the first place. Negligence from all 7 defendants, who refused to take all necessary steps into providing tests and/or treatment, led to 8 Plaintiff being denied adequate medical treatment that resulted in further significant injuries. 9 10 Plaintiff seeks a declaration that defendants’ actions violated his rights, compensatory and punitive damages, and costs of suit. 11 IV. 12 DISCUSSION 13 A. Eighth Amendment 14 A prisoner’s claim of inadequate medical care does not constitute cruel and unusual 15 punishment in violation of the Eighth Amendment unless the mistreatment rises to the level of 16 “deliberate indifference to serious medical needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) 17 (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two part test for deliberate indifference 18 requires Plaintiff to show (1) “a ‘serious medical need’ by demonstrating that failure to treat a 19 prisoner’s condition could result in further significant injury or the ‘unnecessary and wanton infliction 20 of pain,’” and (2) “the defendant’s response to the need was deliberately indifferent.” Jett, 439 F.3d at 21 1096. A defendant does not act in a deliberately indifferent manner unless the defendant “knows of 22 and disregards an excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 837 23 (1994). “Deliberate indifference is a high legal standard,” Simmons v. Navajo County Ariz., 609 F.3d 24 1011, 1019 (9th Cir. 2010); Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004), and is shown 25 where there was “a purposeful act or failure to respond to a prisoner’s pain or possible medical need” 26 and the indifference caused harm. Jett, 439 F.3d at 10986. 27 In applying this standard, the Ninth Circuit has held that before it can be said that a prisoner’s 28 civil rights have been abridged, “the indifference to his medical needs must be substantial. Mere 4 1 ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this cause of action.” 2 Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 105- 3 106). “[A] complaint that a physician has been negligent in diagnosing or treating a medical condition 4 does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical 5 malpractice does not become a constitutional violation merely because the victim is a prisoner.” 6 Estelle, 429 U.S. at 106; see also Anderson v. County of Kern, 45 F.3d 1310, 1316 (9th Cir. 1995). 7 Even gross negligence is insufficient to establish deliberate indifference to serious medical needs. See 8 Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990). Additionally, a prisoner’s mere 9 disagreement with diagnosis or treatment does not support a claim of deliberate indifference. Sanchez 10 v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). 11 Plaintiff’s allegations are insufficient to state a claim against any of the defendants. His blanket 12 assertions that the defendants should have provided additional TB testing to him only show a 13 disagreement between him and his medical care providers. Plaintiff has not provided any facts 14 showing that any defendant was aware of a serious medical need for additional TB testing, and that 15 they were deliberately indifferent to that need. His conclusory allegations of negligence, “ill-trained 16 medical staff,” and of receiving “one-size-fits-all” treatment, are also insufficient to state a claim of 17 deliberate indifference in violation of the Eighth Amendment. 18 Plaintiff has been previously advised of these standards, and informed of the specific 19 deficiencies in his pleadings. Despite several opportunities to amend, Plaintiff’s current amended 20 complaint is largely conclusory, similar to his original complaint. Thus, the Court is persuaded that 21 Plaintiff will be unable to allege any additional facts that would support a claim here, and further leave 22 to amend is not warranted. Lopez v. Smith, 203 F.3d 1122, 1130 (9th. Cir. 2000); Noll v. Carlson, 809 23 F.2d 1446–1449 (9th Cir. 1987). See also Hartmann v. CDCR, 707 F.3d 1114, 1130 (9th Cir. 2013) 24 (“A district court may deny leave to amend when amendment would be futile.”) 25 V. 26 CONCLUSION AND ORDER 27 For these reasons, IT IS HEREBY RECOMMENDED that this action be DISMISSED, with 28 prejudice, for failure to state a cognizable claim upon which relief may be granted. This dismissal is 5 1 subject to the “three-strikes” provision set forth in 28 U.S.C. § 1915(g). Coleman v. Tollefson, — 2 U.S. —, 135 S. Ct. 1759, 1765, 191 L. Ed. 2d 803 (2015). 3 This Findings and Recommendation will be submitted to the United States District Judge 4 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) days 5 after being served with this Findings and Recommendation, Plaintiff may file written objections with 6 the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 7 Recommendation.” Plaintiff is advised that failure to file objections within the specified time may 8 result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) 9 (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 10 11 IT IS SO ORDERED. 12 Dated: 13 June 28, 2017 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6

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