Cromer v. Songer, et al.

Filing 11

ORDER DISMISSING FIRST AMENDED COMPLAINT, With Prejudice, for Failure to State a Cognizable Claim for Relief signed by Magistrate Judge Stanley A. Boone on 5/17/2016. CASE CLOSED. This dismissal counts as a strike pursuant to 28 U.S.C. 1915(g). (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CHARLES CROMER,

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Plaintiff,

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v.
MICHAEL SONGER, et al.,

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Defendants.

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Case No.: 1:15-cv-01742-SAB (PC)
ORDER DISMISSING FIRST AMENDED
COMPLAINT, WITH PREJUDICE, FOR FAILURE
TO STATE A COGNIZABLE CLAIM FOR
RELIEF
[ECF No. 10]

Plaintiff Charles Cromer is appearing pro se and in forma pauperis in this civil rights action

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pursuant to 42 U.S.C. § 1983. Plaintiff has consented to magistrate judge jurisdiction pursuant to 28

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U.S.C. § 636(c).1
Currently before the Court is Plaintiff‟s first amended complaint, filed April 11, 2016.

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I.

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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). The

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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that “fails to state a claim on which relief may be granted,” or that “seeks

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Plaintiff consented to magistrate judge jurisdiction on December 3, 2015. (ECF No. 4.)

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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

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entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,

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do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly,

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550 U.S. 544, 555 (2007)). Plaintiff must demonstrate that each named defendant personally

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participated in the deprivation of his rights. Iqbal, 556 U.S. at 676-677; Simmons v. Navajo County,

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Ariz., 609 F.3d 1011, 1020-1021 (9th Cir. 2010).

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Prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings

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liberally construed and to have any doubt resolved in their favor, but the pleading standard is now

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higher, Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted), and to survive

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screening, Plaintiff‟s claims must be facially plausible, which requires sufficient factual detail to allow

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the Court to reasonably infer that each named defendant is liable for the misconduct alleged. Iqbal,

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556 U.S. at 678-79; Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The “sheer

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possibility that a defendant has acted unlawfully” is not sufficient, and “facts that are „merely

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consistent with‟ a defendant‟s liability” falls short of satisfying the plausibility standard. Iqbal, 556

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U.S. at 678; Moss, 572 F.3d at 969.

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II.

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COMPLAINT ALLEGATIONS

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In the first amended complaint, Plaintiff names Martha Trevino, intake nurse at California
State Prison-Wasco as the sole Defendant.
Plaintiff is a 52 year old African-American male who is incarcerated at the California Health

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Care Facility in Stockton. Plaintiff is a hemodialysis patient with anemia, Hx Peritonitis, Neuropathy,

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and eye blindness to both eyes.

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On November 26, 2012, Plaintiff was housed in the Los Angeles County jail in the quality
management comprehensive care until for Plaintiff‟s serious medical needs.

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On April 16, 2013, Registered Nurse, Angela Regaldo contacted Martha Trevino, a nurse at

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California State Prison in Wasco, and asked nurse Trevino if Wasco could provide Plaintiff dialysis

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care four times a day. Trevino advised nurse Regaldo that Wasco had an on-site dialysis center.

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On April 22, 2013, Plaintiff was transferred to Wasco, and was in need of dialysis treatment.

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Plaintiff became severely sick and was sent to the Wasco prison emergency clinic in need to

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emergency transportation to the nearest outside hospital-Mercy Hospital in Bakersfield, California.

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II.

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DISCUSSION

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Deliberate Indifference to a Serious Medical Need

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 indifference to

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an inmate‟s serious medical needs. Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012), overruled

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in part 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. 2006).

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Plaintiff “must show (1) a serious medical need by demonstrating that failure to treat [his] condition

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could result in further significant injury or the unnecessary and wanton infliction of pain,” and (2) that

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“the defendant‟s response to the need was deliberately indifferent.” Wilhelm, 680 F.3d at 1122 (citing

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Jett, 439 F.3d at 1096). Deliberate indifference is shown by “(a) a purposeful act or failure to respond

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to a prisoner‟s pain or possible medical need, and (b) harm caused by the indifference.” Wilhelm, 680

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F.3d at 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 (citation and

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quotation marks omitted); Wilhelm, 680 F.3d at 1122.

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Plaintiff contends that Defendant Trevino was deliberately indifferent by transferring him from

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the Los Angeles County Jail to the California State Prison in Wasco; however, the fact that Plaintiff

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was transferred to Wasco prison which does not provide peritoneal dialysis at the facility does not

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alone give rise to a level of a constitutional violation. Plaintiff essentially argues that his rights under

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the Eighth Amendment were violated because he did not receive daily PD treatment at the prison

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facility in which he was housed. Although the Constitutional mandates that the State provide a
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prisoner adequate medical treatment, such right does not equate to entitlement to receive medical

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treatment in the same facility as the inmate is housed. As stated in the Court‟s February 9, 2016 order,

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the exhibits attached to Plaintiff‟s original complaint demonstrate that he was provided continuous and

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ongoing dialysis treatment. (ECF No. 7, Order at 6.) Plaintiff has failed to present sufficient facts to

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support a finding that Defendant Trevino denied, delayed, or interfered with Plaintiff‟s care and

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treatment. The fact that Plaintiff disagrees with the medical care he is receiving is not sufficient to

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state a cognizable constitutional violation. Accordingly, Plaintiff fails to state a cognizable claim for

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deliberate indifference based on the lack of dialysis at the facility in which he is housed.

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III.

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CONCLUSION AND ORDER

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The Court finds that Plaintiff‟s first amended complaint fails to state any cognizable claims

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upon which relief may be granted under § 1983. Plaintiff was previously notified of the applicable

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legal standards and the first amended complaint presents fewer factual allegations, and Plaintiff simply

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re-states his claim that Defendant Trevino was deliberately indifferent by misstating that Wasco

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facility had on-site dialysis treatment. Based upon the allegations in Plaintiff‟s original and first

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amended, the Court is persuaded that Plaintiff is unable to allege any additional facts that would

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support a claim for failure to protect Plaintiff in violation of the Eighth Amendment, and further

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amendment would be futile. See Hartmann v. CDCR, 707 F.3d 1114, 1130 (9th Cir. 2013) (“A district

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court may deny leave to amend when amendment would be futile.”)

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deficiencies at issue, the Court finds that further leave to amend is not warranted. Lopez v. Smith, 203

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F.3d 1122, 1130 (9th. Cir. 2000); Noll v. Carlson, 809 F.2d 1446-1449 (9th Cir. 1987).

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Based on the nature of the

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Accordingly, IT IS HEREBY ORDERED that:

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This action is dismissed for Plaintiff‟s failure to state a claim upon which relief may be
granted;

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2. This action count as a strike pursuant to 28 U.S.C. § 1915(g); and

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3. The Clerk of Court is directed to close this case.

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IT IS SO ORDERED.

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Dated:

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May 17, 2016
UNITED STATES MAGISTRATE JUDGE

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