Jesse Valdivia, Jr. v. Smith et al
Filing
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ORDER DISMISSING 16 First Amended Complaint with Prejudice; ORDER DIRECTING Clerk's Office to CLOSE CASE signed by Magistrate Judge Sheila K. Oberto on 5/19/2017. 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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JESSE VALDVIA, JR.,
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Plaintiff,
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Dr. SMITH, et al.,
ORDER DISMISSING FIRST AMENDED
COMPLAINT WITH PREJUDICE
v.
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Case No. 1:16-cv-01020-SKO (PC)
(Doc. 16)
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Defendants.
ORDER DIRECTING CLERK’S OFFICE
TO CLOSE CASE
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INTRODUCTION
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A.
Background
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Plaintiff, Jesse Validvia, Jr., is a state prisoner proceeding pro se and in forma pauperis in
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this civil rights action pursuant to 42 U.S.C. ' 1983. Despite having been previously provided
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with the pleading requirements and legal standards applicable to his claims, Plaintiff fails to state
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a cognizable claim upon which relief may be granted under § 1983. The First Amended
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Complaint is, therefore, DISMISSED with prejudice and this case is closed.
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B.
Screening Requirement and Standard
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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 an 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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DISCUSSION
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A.
The First Amended Complaint
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Plaintiff is currently incarcerated at Central Valley Modified Community Correctional
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Facility (“CVMCCF”) in McFarland, California, but attempts to state claims based on medical
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care that he received while he was housed at North Kern State Prison in Delano California.
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Plaintiff names David Smith, M.D., Delano Regional Medical Center (“DRMC”), “Manufacture
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of Medical Device (pin),” and the California Department of Corrections and Rehabilitation
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(“CDCR”) as defendants in this action. Plaintiff seeks monetary damages and permanent access
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to pain medication.
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Plaintiff’s allegations in the First Amended Complaint have changed little from those in
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the original Complaint. Plaintiff complains of events that occurred following a surgical repair of
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a broken clavicle. On October 23, 2014, Plaintiff allegedly submitted to surgical repair by Dr.
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Smith at DRMC, for a “grade III A/C separated clavicle.” Plaintiff alleges that six days after the
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surgery, he was on his bunk when he heard a loud pop and felt excruciating pain. X-rays revealed
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that the pin Dr. Smith used to repair his clavicle had snapped in half. Plaintiff alleges that he
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returned to DRMC on November 19, 2014, where Dr. Smith performed another surgery.
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All went well until physical therapy began. The physical therapist allegedly thought it
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was too soon for Plaintiff to begin therapy, but nonetheless initiated it because Dr. Smith had
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ordered it. Two weeks into therapy, Plaintiff was riding the stationary bike when another loud
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pop occurred, followed by excruciating pain. X-rays revealed that the pin in Plaintiff’s clavicle
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had snapped in half. Upon waking from the repair surgery, C/O Chavez (who escorted Plaintiff
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to his surgeries) told Plaintiff that Dr. Smith stated that “even if the sales rep comes 1000 times,
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he’ll never buy that product again.”
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As discussed in greater detail below, these allegations do not state a cognizable claim
against any of the Defendants upon which Plaintiff may proceed.
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CDCR
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The Eleventh Amendment prohibits federal courts from hearing suits brought against an
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un-consenting state. Brooks v. Sulphur Springs Valley Elec. Co., 951 F.2d 1050, 1053 (9th Cir.
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1991); see also Seminole Tribe of Fla. v. Florida, 116 S.Ct. 1114, 1122 (1996); Puerto Rico
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Aqueduct Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993); Austin v. State Indus.
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Ins. Sys., 939 F.2d 676, 677 (9th Cir. 1991). The Eleventh Amendment bars suits against state
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agencies as well as those where the state itself is named as a defendant. See Natural Resources
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Defense Council v. California Dep=t of Tranp., 96 F.3d 420, 421 (9th Cir. 1996); Brooks v.
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Sulphur Springs Valley Elec. Co., 951 F.2d 1050, 1053 (9th Cir. 1991); Taylor v. List, 880 F.2d
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1040, 1045 (9th Cir. 1989) (concluding that Nevada Department of Prisons was a state agency
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entitled to Eleventh Amendment immunity); Mitchell v. Los Angeles Community College Dist.,
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861 F.2d 198, 201 (9th Cir. 1989). AThough its language might suggest otherwise, the Eleventh
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Amendment has long been construed to extend to suits brought against a state by its own citizens,
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as well as by citizens of other states.@ Brooks, 951 F.2d at 1053 (citations omitted). AThe
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Eleventh Amendment=s jurisdictional bar covers suits naming state agencies and departments as
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defendants, and applies whether the relief is legal or equitable in nature.@ Id. (citation omitted).
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Despite having been informed of these principles in the prior screening order, Plaintiff again
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names CDCR as a defendant in this action. Because the CDCR is a state agency, it is immune
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from suit under the Eleventh Amendment.
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2.
Dr. Smith
Plaintiff’s claims are based entirely on the medical care and pin Dr. Smith used to repair
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Plaintiff’s broken clavicle; these claims are properly analyzed under the Eighth Amendment.
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Prison officials violate the Eighth Amendment if they are “deliberate[ly] indifferen[t] to [a
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prisoner's] serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). “A medical need
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is serious if failure to treat it will result in ‘ “significant injury or the unnecessary and wanton
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infliction of pain.” ’ ” Peralta v. Dillard, 744 F.3d 1076, 1081-82 (2014) (quoting Jett v. Penner,
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439 F.3d 1091, 1096 (9th Cir.2006) (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th
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Cir.1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th
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Cir.1997) (en banc))
To maintain an Eighth Amendment claim based on medical care in prison, a plaintiff must
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first “show a serious medical need by demonstrating that failure to treat a prisoner=s condition
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could result in further significant injury or the unnecessary and wanton infliction of pain. Second,
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the plaintiff must show the defendants= response to the need was deliberately indifferent.”
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Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (quoting Jett v. Penner, 439 F.3d 1091,
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1096 (9th Cir. 2006) (quotation marks omitted)).
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“Indications that a plaintiff has a serious medical need include the existence of an injury
that a reasonable doctor or patient would find important and worthy of comment or treatment; the
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presence of a medical condition that significantly affects an individual’s daily activities; or the
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existence of chronic or substantial pain.” Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir.
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2014) (citation and internal quotation marks omitted); accord Wilhelm v. Rotman, 680 F.3d 1113,
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1122 (9th Cir. 2012); Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000). For screening
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purposes, Plaintiff’s broken clavicle is accepted as a serious medical need, which satisfies the
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objective prong of an Eighth Amendment claim.
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Deliberate indifference is “a state of mind more blameworthy than negligence” and
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“requires ‘more than ordinary lack of due care for the prisoner’s interests or safety.’ ” Farmer v.
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Brennan, 511 U.S. 825, 835 (1994) (quoting Whitley, 475 U.S. at 319). “Deliberate indifference
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is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir.2004). “Under this
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standard, the prison official must not only ‘be aware of the facts from which the inference could
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be drawn that a substantial risk of serious harm exists,’ but that person ‘must also draw the
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inference.’ ” Id. at 1057 (quoting Farmer, 511 U.S. at 837). “ ‘If a prison official should have
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been aware of the risk, but was not, then the official has not violated the Eighth Amendment, no
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matter how severe the risk.’ ” Id. (quoting Gibson v. County of Washoe, Nevada, 290 F.3d 1175,
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1188 (9th Cir. 2002)).
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In medical cases, this requires showing: (a) a purposeful act or failure to respond to a
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prisoner=s pain or possible medical need, and (b) harm caused by the indifference. Wilhelm, 680
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F.3d at 1122 (quoting Jett, 439 F.3d at 1096). Generally, deliberate indifference Amay appear
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when prison officials deny, delay or intentionally interfere with medical treatment, or it may be
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shown by the way in which prison physicians provide medical care.@ Id. (internal quotation
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marks omitted). Nothing in Plaintiff’s allegations show, or even imply, that Dr. Smith was
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deliberately indifferent to Plaintiff’s broken clavicle.
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As stated in the prior screening order, at most, Dr. Smith’s actions might amount to a
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claim for negligence or medical malpractice. However, before it can be said that a prisoner=s civil
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rights have been abridged with regard to medical care, Athe indifference to his medical needs must
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be substantial. Mere >indifference,= >negligence,= or >medical malpractice= will not support this
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cause of action.@ Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir.1980) (citing
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Estelle, 429 U.S. at 105-06). See also Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir.2004).
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“Medical malpractice does not become a constitutional violation merely because the victim is a
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prisoner.” Estelle, at 106; Snow v. McDaniel, 681 F.3d 978, 987-88 (9th Cir. 2012), overruled in
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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) (“The deliberate indifference doctrine is limited in
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scope.”). Even assuming Dr. Smith erred, a finding which is not supported by the record, an
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Eighth Amendment claim may not be premised on even gross negligence by a physician. Wood
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v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990).
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Further, “[a] difference of opinion between a physician and the prisoner -- or between
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medical professionals -- concerning what medical care is appropriate does not amount to
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deliberate indifference.” Snow v. McDaniel, 681 F.3d 978, 987 (9th Cir. 2012) (citing Sanchez v.
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Vild, 891 F.2d 240, 242 (9th Cir. 1989)), overruled in part on other grounds, Peralta v. Dillard,
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744 F.3d 1076, 1082-83 (9th Cir. 2014); Wilhelm v. Rotman, 680 F.3d 1113, 1122-23 (9th Cir.
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2012) (citing Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1986)). Rather, Plaintiff is required
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show that Dr. Smith’s surgeries were “medically unacceptable under the circumstances” and that
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Dr. Smith “chose this course in conscious disregard of an excessive risk to [his] health.” Snow,
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681 F.3d at 988 (citing Jackson, 90 F.3d at 332) (internal quotation marks omitted).
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Plaintiff has not stated any facts to support a finding that Dr. Smith knew that the pin he
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used to repair Plaintiff’s clavicle posed a substantial risk of serious harm to Plaintiff and used it
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without regard to that risk. As Plaintiff has not alleged facts to support a finding that Dr. Smith
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acted with deliberate indifference to his serious medical need, he fails to state a cognizable claim
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for violation of the Eighth Amendment.
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DRMC
Plaintiff’s only allegations against DRMC are that this facility “allowed Dr. Smith to use
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materials and (sic) facility to perform surgery on inmates from North Kern State Prison in
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Delano, CA. They are being sued in their individual capacity and official capacity since they are
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a contracted facility for California inmates.” (Doc. 16, p. 6.) This constitutes all of Plaintiff’s
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allegations against DRMC.
Although § 1983 imposes liability only on “persons” who, under color of law, deprive
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others of their constitutional rights, the Supreme Court has construed the term “persons” to
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include municipalities which is leniently construed to extend to DRMC. See Monell v. Dep’t of
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Soc. Servs., 436 U.S. 658, 690-91 (1978). However, such an entity is not liable under § 1983
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based on the common-law tort theory of respondeat superior. Id. Rather, an entity is responsible
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for a constitutional violation only when an “action [taken] pursuant to [an] official municipal
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policy of some nature” by their employee caused a violation of Plaintiff’s rights. Id. at 691. A
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cognizable claim against an entity’s employee is a prerequisite for any such claim.
Thus, even if assuming Dr. Smith was an employee of DRMC, Plaintiff may not pursue a
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claim against DRMC since Plaintiff does not state a cognizable claim under § 1983 against Dr.
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Smith.
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4.
Medical Device Manufacturer
Plaintiff alleges he is suing the manufacturer of the pin Dr. Smith used in “their individual
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capacity for a defective product which caused [Plaintiff’s] pain and suffering from excruciating
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pain from this medical device snapping in half inside my body six days after surgery. Which falls
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under cruel and unusual. (sic) As well as deliberate indifference.” (Doc. 16, pp. 6-7.) This
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constitutes all of Plaintiff’s allegations against the manufacturer.
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Section 1983 provides a cause of action for violation of Plaintiff’s constitutional or other
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federal rights by “state actors,” i.e. persons acting under color of state law. Nurre v. Whitehead,
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580 F.3d 1087, 1092 (9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th
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Cir. 2006); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). Plaintiff fails to state any
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allegations to support a finding that the device manufacturer was a “state actor” for purposes of
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§ 1983.
Even assuming the manufacturer can be considered a state actor under § 1983, to state a
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claim, Plaintiff must allege facts demonstrating the existence of a link, or causal connection,
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between the manufacturer’s actions or omissions and a violation of Plaintiff’s federal rights.
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Lemire v. California Dep’t of Corr. and Rehab., 726 F.3d 1062, 1074-75 (9th Cir. 2013); Starr v.
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Baca, 652 F.3d 1202, 1205-08 (9th Cir. 2011). Plaintiff’s allegations must demonstrate direct
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participation by each defendant in the deprivation of his rights. Jones v. Williams, 297 F.3d 930,
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934 (9th Cir. 2002). This requires the presentation of factual allegations sufficient to state a
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plausible claim for relief against each defendant. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret
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Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of
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meeting this plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.
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Plaintiff expresses a desire to pursue the manufacturer of the pin used in Dr. Smith’s
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surgeries for deliberate indifference and cruel and unusual punishment. However, Plaintiff fails
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to state any allegations to show that the manufacturer was aware that the pin used by Dr. Smith to
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repair Plaintiff’s clavicle exposed Plaintiff to a known substantial risk of serious harm. Toguchi,
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391 F.3d at 1057. Nor does Plaintiff allege facts to support a finding that an injury due to a
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defective medical device amounts to “excessive physical force against inmates” for an excessive
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force claim. Farmer v. Brennan, 511 U.S. 825 (1994).
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In sum, Plaintiff fails to provide any basis to find that the manufacturer of the pin used by
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Dr. Smith to repair Plaintiff’s clavicle is a state actor for purposes of § 1983, and the Court can
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find none.
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ORDER
The First Amended Complaint does not state any cognizable claims. Given this persistent
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deficiency, despite having previously been provided the requisite legal standards, it is futile to
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allow further amendment. Plaintiff need not be granted leave to amend as the defects in his
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pleading are incurable. Akhtar v. Mesa, 698 F.3d 1202, 1212-13 (9th Cir. 2012).
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Accordingly, it is HEREBY ORDERED that the First Amended Complaint is
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DISMISSED with prejudice and the Clerk of the Court is directed to close the action.
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IT IS SO ORDERED.
Dated:
May 19, 2017
/s/
Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE
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