Valdez v. Larranaga et al

Filing 10

SCREENING ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND 9 ; ORDER DENYING Request for Appointment of Counsel, signed by Magistrate Judge Barbara A. McAuliffe on 6/14/17: 30-Day Deadline. (Attachments: # 1 Amended Complaint - blank form)(Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOSE VALDEZ,

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Plaintiff,
v.

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LISA LARRANGA, et al.,

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Defendants.

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Case No.: 1:16-cv-00556-BAM (PC)
SCREENING ORDER DISMISSING FIRST
AMENDED COMPLAINT WITH LEAVE TO
AMEND
(ECF No. 9)
ORDER DENYING REQUEST FOR
APPOINTMENT OF COUNSEL

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Plaintiff Jose Valdez (“Plaintiff”), a former Stanislaus County Jail inmate, proceeds pro se and

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in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On May 10, 2017, the Court

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dismissed Plaintiff’s complaint with leave to amend.

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complaint, filed on June 8, 2017, is currently before the Court for screening. (ECF No. 9.)

(ECF No. 7.)

Plaintiff’s first amended

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I.

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The Court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. §

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1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous or

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malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief

Screening Requirement and Standard

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from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2); 28 U.S.C. §

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

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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, 129 S.Ct. 1937, 1949 (2009) (citing Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). While a plaintiff’s

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

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

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omitted).

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To survive screening, Plaintiff’s claims must be facially plausible, which requires sufficient

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factual detail to allow the Court to reasonably infer that each named defendant is liable for the

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misconduct alleged. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks omitted); Moss v.

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United States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant

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acted unlawfully is not sufficient, and mere consistency with liability falls short of satisfying the

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plausibility standard. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks omitted); Moss, 572

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F.3d at 969.
Plaintiff’s Allegations

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II.

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Plaintiff’s allegations concern events that transpired while he was detained in the Stanislaus

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County Jail. Plaintiff names the following defendants: (1) Sheriff Deputy G. Beard; (2) Licensed

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Vocational Nurse (“LVN”) Lenette; and (3) LVN Francesca.

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Plaintiff alleges: On June 5, 2015, while serving a prison sentence of 6 years, 8 months in the

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Stanislaus County Jail, Plaintiff alleges that he was struck by a Rapid Containment Baton (RCB)

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twice, on the back of his left arm and left thumb joint, by Deputy Beard. Plaintiff’s left thumb joint

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was fractured. Plaintiff contends that although he was fighting with another inmate, he did not deserve

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to be struck with the RCB and have his joint fractured. Plaintiff further contends that Deputy Beard

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had other options “of much lesser force” available, including a taser gun and mace can, to subdue the

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mutual combat. (ECF No. 9 at p. 7.) Plaintiff asserts that the force used was unnecessary to stop a

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simple fist fight, where neither of the involved inmates was in real danger of serious injury or death.

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On the same date, Defendant Lenette examined Plaintiff for injuries caused by the strikes of

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the RCB. When Defendant Lenette arrived to examine Plaintiff, she knew that he had just been struck

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by the RCB and had been in a fight. Plaintiff showed Defendant Lenette two tennis-ball-sized

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distensions at his left back arm and at his left thumb joint, and complained that they were extremely

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painful. Defendant Lenette reportedly dismissed Plaintiff’s assertions, stating “Nothing is broken, in a

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few days you’ll be fine.” (Id. at p. 12.) Plaintiff alleges that Defendant Lenette missed that his joint

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was fractured and that he needed an x-ray. Plaintiff further alleges that Defendant Lenette claimed

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that nothing was broken based only on a cursory visual assessment. Plaintiff contends that Defendant

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Lenette medically cleared him, despite the medical necessity of an x-ray, and his joint now has a

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protuberance the size of walnut.

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Several hours after Plaintiff was medically cleared by Defendant Lenette, Defendant Francesca

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examined Plaintiff before he was rehoused in the E Unit. Defendant Francesca examined and cleared

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Plaintiff while in the hallway area outside of the E Unit. When Plaintiff complained to Defendant

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Francesca in the same way that he complained to Defendant Lenette, Defendant Francesca said, “You

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shouldn’t of [sic] been fighting, you did it [the RGB strikes] to yourself, so you deal with it.” (Id. at p.

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17.)

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Plaintiff suffered in his cell for about a week, taking Motrin twice daily for a pre-existing

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toothache. On June 12, 2015, Plaintiff was examined by Defendant Francesca, during which Plaintiff

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convinced her to order an x-ray. Although Defendant Francesca ordered an x-ray, she denied Plaintiff

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anything stronger than Motrin for his pain.

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On June 19, 2015, Plaintiff’s joint was x-rayed. After a week without follow-up, Plaintiff

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initiated another medical examination. On June 27, 2015, Defendant Francesca explained that the x-

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ray showed his joint was not broken. Although Plaintiff showed her the distension at the joint,

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Defendant Francesca claimed that it was simply “soft tissue and bruising which would eventually get

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better.” (Id. at p. 18.) Plaintiff believed her professional judgment, but his joint size and pain did not

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reduce entirely after a few weeks, which prompted him to initiate another medical examination.
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On September 7, 2015, Plaintiff pressed Defendant Francesca for answers that would explain

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why his joint was still in such a state. Defendant Francesca indicated that nothing further would be

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done, and she terminated the examination.

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Plaintiff subsequently filed a grievance, which resulted in a second x-ray on September 12,

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2015. In response to grievance, it was revealed that the second x-ray showed a healed fracture at the

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location of his concern. Plaintiff alleges that this was something that Defendant Francesca had missed

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in the first x-ray.

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III.

Discussion
A. Excessive Force

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The unnecessary and wanton infliction of pain violates the Cruel and Unusual Punishments

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Clause of the Eighth Amendment. Hudson v.McMillian, 503 U.S. 1, 5 (1992) (citations omitted). For

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claims arising out of the use of excessive physical force, the issue is “whether force was applied in a

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good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.”

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Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (per curiam) (citing Hudson, 503 U.S. at 7) (internal

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quotation marks omitted); Furnace v. Sullivan, 705 F.3d 1021, 1028 (9th Cir. 2013).

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Not every malevolent touch by a prison guard gives rise to a federal cause of action. Wilkins,

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559 U.S. at 562 (quoting Hudson, 503 U.S. at 9) (quotation marks omitted). Necessarily excluded

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from constitutional recognition is the de minimis use of physical force, provided that the use of force

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is not of a sort repugnant to the conscience of mankind. Id. (quoting Hudson, 503 U.S. at 9-10)

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(quotation marks omitted). In determining whether the use of force was wanton or and unnecessary,

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courts may evaluate the extent of the prisoner’s injury, the need for application of force, the

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relationship between that need and the amount of force used, the threat reasonably perceived by the

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responsible officials, and any efforts made to temper the severity of a forceful response. Hudson, 503

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U.S. at 7 (quotation marks and citations omitted).

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Here, Plaintiff’s allegations of excessive force against Deputy Beard do not rise to the level of

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constitutional violation. As admitted by Plaintiff, Deputy Beard applied only two strikes of the RCB

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in an effort to break-up a fight between Plaintiff and another inmate. Plaintiff’s allegations do not

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demonstrate the Deputy Beard employed force maliciously and sadistically to cause harm.
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B. Deliberate Indifference to Serious Medical Needs

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A prisoner’s claim of inadequate medical care does not constitute cruel and unusual

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punishment in violation of the Eighth Amendment unless the mistreatment rises to the level of

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“deliberate indifference to serious medical needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006)

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(quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two part test for deliberate indifference

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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 infliction

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of pain,’ ” and (2) “the defendant’s response to the need was deliberately indifferent.” Jett, 439 F.3d at

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1096. A defendant does not act in a deliberately indifferent manner unless the defendant “knows of

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and disregards an excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 837

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(1994). “Deliberate indifference is a high legal standard,” Simmons v. Navajo County Ariz., 609 F.3d

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1011, 1019 (9th Cir. 2010); Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004), and is shown

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where there was “a purposeful act or failure to respond to a prisoner’s pain or possible medical need”

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and the indifference caused harm. Jett, 439 F.3d at 1096.

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In applying this standard, the Ninth Circuit has held that before it can be said that a prisoner’s

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civil rights have been abridged, “the indifference to his medical needs must be substantial. Mere

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‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this cause of action.” Broughton

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v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 105-106). “[A]

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complaint that a physician has been negligent in diagnosing or treating a medical condition does not

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state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does

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not become a constitutional violation merely because the victim is a prisoner.” Estelle, 429 U.S. at

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106; see also Anderson v. County of Kern, 45 F.3d 1310, 1316 (9th Cir. 1995). Even gross negligence

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is insufficient to establish deliberate indifference to serious medical needs. See Wood v. Housewright,

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900 F.2d 1332, 1334 (9th Cir. 1990).

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Here, Plaintiff has failed to state a cognizable deliberate indifference claim against Defendants

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Lenette and Francesca. At best, Plaintiff has alleged negligence or malpractice in diagnosing his

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medical condition, which does not rise to the level of a constitutional violation. Indeed, Plaintiff’s

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complaint suggests that both defendants incorrectly determined that Plaintiff did not have a break or
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fracture requiring an x-ray. Estelle, 429 U.S. at 107 (question of “whether an X-ray or additional

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diagnostic techniques or forms of treatment is indicated is a classic example of a matter for medical

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judgment. A medical decision not to order an X-ray…does not represent cruel and unusual

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punishment. At most it is medical malpractice . . .”). Further, Plaintiff’s allegations that Defendant

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Francesca did not perceive a fracture after his initial x-ray also amounts, at most, to medical

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malpractice or gross negligence, neither of which support a constitutional claim.

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IV.

Appointment of Counsel

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Plaintiff has requested the appointment of counsel.

However, Plaintiff does not have a

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constitutional right to appointed counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th

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Cir. 1997), withdrawn in part on other grounds, 154 F.3d 952 n.1 (9th Cir. 1998), and the Court cannot

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require an attorney to represent Plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States

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District Court for the Southern District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989).

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However, in certain exceptional circumstances, the Court may request the voluntary assistance of

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counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525.

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Without a reasonable method of securing and compensating counsel, the Court will seek

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volunteer counsel only in the most serious and exceptional cases.

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“exceptional circumstances exist, the district court must evaluate both the likelihood of success on the

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merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the

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legal issues involved.” Id. (internal quotation marks and citations omitted).

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In determining whether

In the present case, the Court does not find the required exceptional circumstances, and

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Plaintiff has not identified any circumstances warranting appointment of counsel.

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assumed that Plaintiff is not well versed in the law and that he has made serious allegations which, if

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proved, would entitle him to relief, his case is not exceptional. This Court is faced with similar cases

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almost daily from indigent prisoners proceeding without representation. Further, at this early stage in

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the proceedings, the Court cannot make a determination that Plaintiff is likely to succeed on the

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merits. The Court has screened Plaintiff’s first amended complaint and found that he has a failed to

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state a cognizable claim upon which relief may be granted.

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opportunity to amend his claims. Additionally, based on a review of the record in this case, the Court
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Even if it is

Plaintiff will be granted a final

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does not find that Plaintiff cannot adequately articulate his claims. For these reasons, Plaintiff’s

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request for the appointment of counsel is HEREBY DENIED without prejudice.

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V.

Conclusion and Order

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

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1983. As Plaintiff is proceeding in pro se, the Court will provide Plaintiff with a final opportunity to

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amend his complaint to cure the identified deficiencies. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir.

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2000).

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Plaintiff is cautioned that he may not change the nature of this suit by adding new, unrelated

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claims in his third amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no

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“buckshot” complaints).

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Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but must state what each

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named defendant did that led to the deprivation of Plaintiff’s constitutional or other federal rights.

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Iqbal, 556 U.S. at 676. Plaintiff also must set forth “sufficient factual matter . . . to ‘state a claim that is

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plausible on its face.’” Id. at 678 (quoting Twombly, 550 U.S. at 555).

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Finally, Plaintiff is advised that an amended complaint supersedes the original complaint.

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Lacey v. Maricopa Cnty., 693 F.3d 896, 927 (9th Cir. 2012). Therefore, Plaintiff’s amended complaint

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must be “complete in itself without reference to the prior or superseded pleading.” Local Rule 220.

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Based on the foregoing, it is HEREBY ORDERED that:

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The Clerk’s Office shall send Plaintiff a complaint form;

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2.

Plaintiff’s first amended complaint, filed June 8, 2017 (ECF No. 9), is dismissed for

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failure to state a claim upon which relief can be granted;
3.

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Within thirty (30) days from the date of service of this order, Plaintiff shall file a

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second amended complaint or a notice of voluntary dismissal; and

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If Plaintiff fails to file an amended complaint in compliance with this order, the

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Court will dismiss this action, with prejudice, for failure to state a claim and for failure to obey a

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court order.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

June 14, 2017

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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