Mills v. Bowden et al

Filing 15

ORDER DISMISSING 14 Second Amended Complaint (Strike); ORDER THAT DISMISSAL IS SUBJECT TO 28 U.S.C. 1915(g); ORDER for Clerk to CLOSE CASE signed by Magistrate Judge Erica P. Grosjean on 3/9/2017. CASE CLOSED. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DAVID RAY MILLS,

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Plaintiff,

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1:15-cv-00913-EPG-PC
ORDER DISMISSING SECOND AMENDED
COMPLAINT

v.
(ECF No. 14.)
M. BOWDEN, et al,
Defendants.

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ORDER THAT DISMISSAL IS SUBJECT TO
28 U.S.C. § 1915(g)
ORDER FOR CLERK TO CLOSE CASE

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Plaintiff David Ray Mills (“Plaintiff”) is proceeding pro se and in forma pauperis with

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this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff claims that he did not receive

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prompt medical attention for his right foot injury, and generally that the prison is in need of

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better medical protocols.

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Plaintiff filed the Complaint commencing this action on June 17, 2015. (ECF No. 1.)

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On September 28, 2016, the Court Plaintiff’s Complaint and found that it failed to state a claim

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as to any defendant. (ECF No. 10.) Specifically, the Court found that Plaintiff’s allegations

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that he did not receive prompt treatment for his ingrown toe and that his doctor was negligent

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did not state an Eighth Amendment constitutional claim for deliberate indifference for serious

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medical needs because Plaintiff did not allege the delay itself resulted in a serious medical

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injury. Furthermore, Plaintiff did not allege that any defendant was aware of his serious
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medical condition and intentionally ignored the risk to his health. Finally, Plaintiff did not

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allege how any individual or individuals harmed him personally. Plaintiff was provided with

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the applicable legal standards and granted leave to file an amended complaint. (ECF No. 10.)

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Plaintiff filed a First Amended Complaint (“1AC”) on October 31, 2016 (ECF No. 12).

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The Court dismissed Plaintiff’s amended complaint with further guidance and leave to amend

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on December 16, 2016. (ECF No. 13)

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Before the Court is Plaintiff’s Second Amended Complaint, dated January 19, 2017.

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(ECF No. 14) Because the Court finds that Plaintiff’s Second Amended Complaint fails to

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state a claim under the legal standards, and because further amendment would be futile, the

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Court dismisses Plaintiff’s Second Amended Complaint and closes the case.
I.

SCREENING REQUIREMENT

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

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A complaint is required to contain “a short and plain statement of the claim showing

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that the 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 mere

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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are

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taken as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart

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Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted).

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Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim to relief that

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is plausible on its face.’” Iqbal, 556 U.S. at 678. While factual allegations are accepted as true,

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legal conclusions are not. Id.

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To state a viable claim for relief, Plaintiff must set forth sufficient factual allegations to

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state a plausible claim for relief. Id. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969

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(9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility

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standard. Id.

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II.

SUMMARY OF SECOND AMENDED COMPLAINT

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Plaintiff alleges that his right foot top side was injured during performing work duties at

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7:30 am on January 1, 2014. Plaintiff alleges that the medical staff neglected him and treated

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him with indifference. Staff did not care about this incident and were not prepared to handle

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simple operations due to staff under training. As a result, Plaintiff suffered severe pain. The

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staff should be reprimanded for their actions.

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Specifically, Plaintiff had a left foot ingrown toenail. He was supposed to receive an x-

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ray on January 29, 2014. Plaintiff finally went to Delano State Prison for an x-ray, but the

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technical stated that it could not x-ray an open would. After delay and additional forms,

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Plaintiff’s left big toenail was removed. However, he failed to receive appropriate medical

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attention for his right toenail and was in unbearable pain as a result.

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Plaintiff also alleged that he required medical care on another occasion on March 10,

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2015. In this incident as well, medical staff was not prepared for inmate capacity. RN Daniels

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did not care about proper procedures. Dr. Le Young was overwhelmed and part time at the

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facility.

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III.

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ANALYSIS OF PLAINTIFF’S CLAIMS
A.

Legal Standards

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Section 1983 provides a cause of action against any person who, under color of state

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law, “subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation

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of any rights, privileges, or immunities secured by the Constitution.” 42 U.S.C. § 1983. “A

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person ‘subjects’ another to the deprivation of a constitutional right, within the meaning of

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section 1983, if he does an affirmative act, participates in another's affirmative acts, or omits to
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perform an act which he is legally required to do that causes the deprivation of which complaint

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is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). “In a § 1983 action, the

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plaintiff must also demonstrate that the defendant’s conduct was the actionable cause of the

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claimed injury. To meet this causation requirement, the plaintiff must establish both causation-

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in-fact and proximate causation.” Harper v. City of L.A., 533 F.3d 1010, 1026 (9th Cir. 2008)

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(internal citations omitted). Proximate cause requires “‘some direct relation between the injury

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asserted and the injurious conduct alleged.”’ Hemi Group, LLC v. City of New York, 559 U.S.

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1, 130 (2010) (quoting Holmes v. Secs. Investor Prot. Corp., 503 U.S. 258, 268 (1992)).

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“[T]o maintain an Eighth Amendment claim based on prison medical treatment, an

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inmate must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d

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1091, 1096 (9th Cir. 2006), (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). This

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requires plaintiff to show (1) “a ‘serious medical need’ by demonstrating that ‘failure to treat a

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prisoner’s condition could result in further significant injury or the unnecessary and wanton

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

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Id. (quoting McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992) (citation and internal

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quotations marks omitted), overruled on other grounds WMX Technologies v. Miller, 104 F.3d

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1133 (9th Cir. 1997) (en banc)). “The existence of an injury that a reasonable doctor or patient

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would find important and worthy of comment or treatment; the presence of a medical condition

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that significantly affects an individual's daily activities; or the existence of chronic and

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substantial pain are examples of indications that a prisoner has a ‘serious’ need for medical

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treatment.” McGuckin, 974 F.2d at 1059–60 (citing Wood v. Housewright, 900 F.2d 1332,

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1337–41 (9th Cir. 1990) (citing cases); Hunt v. Dental Dept., 865 F.2d 198, 200–01 (9th Cir.

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1989)).

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Deliberate indifference is established only where the defendant subjectively “knows of

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and disregards an excessive risk to inmate health and safety.” Toguchi v. Chung, 391 F.3d

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1051, 1057 (9th Cir. 2004) (emphasis added) (citation and internal quotation marks omitted).

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Deliberate indifference can be established “by showing (a) a purposeful act or failure to

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respond to a prisoner's pain or possible medical need and (b) harm caused by the indifference.”
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Jett, 439 F.3d at 1096 (citation omitted). Civil recklessness (failure “to act in the face of an

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unjustifiably high risk of harm that is either known or so obvious that it should be known”) is

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insufficient to establish an Eighth Amendment violation. Farmer v. Brennan, 511 U.S. 825,

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836-37 & n.5 (1994) (citations omitted).

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A difference of opinion between an inmate and prison medical personnel—or between

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medical professionals—regarding appropriate medical diagnosis and treatment is not enough to

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establish a deliberate indifference claim. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989);

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Toguchi, 391 F.3d at 1058. Additionally, “a complaint that a physician has been negligent in

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diagnosing or treating a medical condition does not state a valid claim of medical mistreatment

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under the Eighth Amendment. Medical malpractice does not become a constitutional violation

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merely because the victim is a prisoner.” Estelle, 429 U.S. at 106.

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A.

Application to Plaintiff’s First Amended Complaint

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Plaintiff’s allegations that he did not receive prompt treatment for his right foot injury

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and that the medical staff was negligent do not state a constitutional claim under these

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standards. Plaintiff does not allege facts indicating that the medical staff refused to treat severe

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pain from the right foot injury despite awareness of Plaintiff’s serious medical need. At most,

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Plaintiff states a claim for medical malpractice, which is not a constitutional claim subject to

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this Court’s jurisdiction.

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IV.

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CONCLUSION
The Court finds that Plaintiff=s Second Amended Complaint fails to state any cognizable

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claim upon which relief may be granted under ' 1983.

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Plaintiff’s initial complaint and First Amended Complaint with substantially similar allegations

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and found that they failed to state a claim, and has provided Plaintiff guidance on the relevant

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law to assist his amendment. The Court also finds that the deficiencies outlined above are not

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capable of being cured by further amendment, and therefore further leave to amend should not

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be granted. 28 U.S.C. ' 1915(e)(2)(B)(ii); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir.

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2000).

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Accordingly, IT IS HEREBY ORDERED that:
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The Court has already screened

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Pursuant to 28 U.S.C. ' 1915A and 28 U.S.C. ' 1915(e), this action is

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DISMISSED, with prejudice, based on Plaintiff=s failure to state a claim

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upon which relief may be granted under § 1983;

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This dismissal is subject to the Athree-strikes@ provision set forth in 28

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U.S.C. ' 1915(g). Silva v. Vittorio, 658 F.3d 1090, 1098 (9th Cir. 2011);

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and

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The Clerk is directed to close this case.

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IT IS SO ORDERED.
Dated:

March 9, 2017

/s/
UNITED STATES MAGISTRATE JUDGE

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