McRae v. Dikran et al

Filing 9

ORDER DISMISSING Complaint for Failure to State a Claim, WITH LEAVE TO AMEND,signed by Magistrate Judge Gary S. Austin on 03/28/17. Amended Complaint due by 5/1/2017 (Attachments: # 1 Amended Complaint Form)(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 MICHAEL SCOTT McRAE, 12 Plaintiff, 13 vs. 14 DR. DIKRAN BAIRAMIAN, et al., 15 Defendants. 1:16-cv-01066-GSA-PC SCREENING ORDER ORDER DISMISSING COMPLAINT FOR FAILURE TO STATE A CLAIM, WITH LEAVE TO AMEND (ECF No. 1.) THIRTY-DAY DEADLINE FOR PLAINTIFF TO FILE AMENDED COMPLAINT 16 17 ORDER FOR CLERK TO SEND PLAINTIFF A CIVIL COMPLAINT FORM 18 19 20 21 22 I. BACKGROUND 23 Michael Scott McRae (“Plaintiff”) is a federal prisoner proceeding pro se and in forma 24 pauperis with this civil rights action pursuant to Bivens vs. Six Unknown Agents, 403 U.S. 388 25 (1971). On July 25, 2016, Plaintiff filed the Complaint commencing this action, which is now 26 before the court for screening. (ECF No. 1.) 27 On August 8, 2016, Plaintiff consented to Magistrate Judge jurisdiction in this action 28 pursuant to 28 U.S.C. § 636(c), and no other parties have made an appearance. (ECF No. 5.) 1 1 Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the Eastern District of 2 California, the undersigned shall conduct any and all proceedings in the case until such time as 3 reassignment to a District Judge is required. Local Rule Appendix A(k)(3). 4 II. SCREENING REQUIREMENT 5 The court is required to screen complaints brought by prisoners seeking relief against a 6 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 7 The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 8 legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or 9 that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 10 § 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion thereof, that may have been 11 paid, the court shall dismiss the case at any time if the court determines that the action or 12 appeal fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 13 A complaint is required to contain “a short and plain statement of the claim showing 14 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are 15 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 16 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 17 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are 18 taken as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart 19 Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 20 To state a viable claim, Plaintiff must set forth “sufficient factual matter, accepted as true, to 21 ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678-79; Moss v. U.S. 22 Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). While factual allegations are accepted as 23 true, legal conclusions are not. Id. The mere possibility of misconduct falls short of meeting 24 this plausibility standard. Id. 25 III. SUMMARY OF COMPLAINT 26 Plaintiff is presently incarcerated at the Medical Center for Federal Prisoners in 27 Springfield, Missouri. The events at issue in the Complaint allegedly occurred at the United 28 States Penitentiary (USP)-Atwater in Atwater, California, when Plaintiff was incarcerated there 2 1 in the custody of the Federal Bureau of Prisons. Plaintiff names as defendants Dr. Dikran 2 Bairamian, Dr. Kevin Cuong Nguyen, Adrian Kumar (RNFA), and Dr. David Betz 3 (collectively, “Defendants”), who were employed at the Memorial Medical Center in Modesto, 4 California, during the relevant time period. The Defendants were governmental actors. Plaintiff’s allegations follow. 5 On July 22, 2014, Plaintiff was taken to Modesto 6 Memorial Hospital after being given several MRI tests showing that he needed lower back 7 surgery. Instead, Dr. Bairamian, Dr. Nguyen, and associates wrongfully gave Plaintiff upper 8 back surgery. Dr. Bairamian and Dr. Nguyen are health care providers who do surgery for 9 federal inmates housed at USP-Atwater. Plaintiff was not aware and did not consent to upper 10 back surgery. The doctors did not inform Plaintiff of the upper back surgery, which was 11 unnecessary and constituted medical battery. 12 causing Plaintiff further harm. Plaintiff’s legs stay stiff, he cannot stand, walk, or hold his 13 balance, and he endures severe pain, suffering, and disability from the delay. 14 15 16 17 Plaintiff’s lower back surgery was delayed, Plaintiff requests monetary damages. IV. PLAINTIFF’S CLAIMS Plaintiff brings Bivens claims under the Fourth, Eighth, and Fourteenth Amendments, and state law. 18 A. 19 A Bivens action is the federal analog to suits brought against state officials under 42 20 U.S.C. § 1983. Hartman v. Moore, 547 U.S. 250, 126 S.Ct. 1695 (2006). The basis of a 21 Bivens action is some illegal or inappropriate conduct on the part of a federal official or agent 22 that violates a clearly established constitutional right. Baiser v. Department of Justice, Office 23 of U.S. Trustee, 327 F.3d 903, (9th Cir. 2003). “To state a claim for relief under Bivens, a 24 plaintiff must allege that a federal officer deprived him of his constitutional rights.” Serra v. 25 Lappin, 600 F.3d 1191, 1200 (9th Cir. 2010) (citing see Schearz v. United States, 234 F.3d 428, 26 432 (9th Cir. 2000). A Bivens claim is only available against officers in their individual 27 capacities. Morgan v. U.S., 323 F.3d 776, 780 n.3 (9th Cir. 2003); Vaccaro v. Dobre, 81 F.3d 28 854, 857 (9th Cir. 1996). “A plaintiff must plead more than a merely negligent act by a federal Bivens 3 1 official in order to state a colorable claim under Bivens.” O’Neal v. Eu, 866 F.2d 314, 314 (9th 2 Cir. 1988). 3 Plaintiff must allege facts linking each named defendant to the violation of his rights. 4 Iqbal, 556 U.S. at 676; Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 5 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones v. Williams, 297 6 F.3d 930, 934 (9th Cir. 2002). The factual allegations must be sufficient to state a plausible 7 claim for relief, and the mere possibility of misconduct falls short of meeting this plausibility 8 standard. Iqbal, 556 U.S. at 678-79; Moss, 572 F.3d at 969. 9 B. Defendants Kumar and Betz – Linkage Requirement 10 To state a claim against Defendants, Plaintiff must allege facts linking each named 11 defendant to the violation of his rights. Iqbal, 556 U.S. at 676; Simmons v. Navajo County, 12 Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 13 (9th Cir. 2009); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). In the Complaint, 14 Plaintiff does not link any affirmative act or omission to act by defendants Kumar or Betz to 15 the deprivation he alleges to have suffered. 16 whatsoever concerning defendants Kumar or Betz. 17 cognizable claim for relief against defendants Kumar or Betz. In fact, Plaintiff does not allege any facts Therefore, Plaintiff fails to state any 18 C. 19 It is well-established that victims of Fourth Amendment violations caused “by federal 20 officers may bring suit for money damages against the officers in federal court.” Corr. Servs. 21 Corp. v. Malesko, 534 U.S. 61, 66–67 (2001) (citing Bivens, 403 U.S. at 396). The Fourth 22 Amendment protects persons against “unreasonable searches and seizures.” 23 amend. IV. Excessive force claims are also governed by the Fourth Amendment’s “objective 24 reasonableness” standard. Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865 (1989). The 25 Fourth Amendment also protects individual privacy against certain kinds of governmental 26 intrusion. Katz v. United States, 389 U.S. 347, 350, 88 S. Ct. 507, 510, 19 L. Ed. 2d 576 27 (1967). To determine if a prison policy violates the Fourth Amendment right to be free from 28 unreasonable searches, the court considers: (1) the scope of the particular intrusion; (2) the Fourth Amendment 4 U.S. Const. 1 manner in which it is conducted; (3) the justification for initiating it; and (4) the place in which 2 it is conducted. Byrd v. Maricopa Cty. Bd. of Supervisors, 845 F.3d 919 (9th Cir. 2017). 3 To the extent that Plaintiff asserts that the erroneous surgery performed on his back was 4 a violation of his Fourth Amendment rights, Plaintiff’s allegations are insufficient to show that 5 he was subject to an unreasonable search or seizure, or that his rights to privacy were violated. 6 Plaintiff shall be granted leave to amend this claim. 7 D. 8 Plaintiff seeks to bring a claim under the Fourteenth Amendment. The Fourteenth 9 Amendment to the United States Constitution provides, among other protections, that “no 10 State” shall deprive any person of life, liberty, or property without due process of law, or deny 11 to any person within the State’s jurisdiction the equal protection of the laws. U.S. Const. 12 amend. XIV § 1. The plain language of the amendment reflects that these provisions apply to 13 states and not to the federal government or its employees. San Francisco Arts & Athletics, Inc. 14 v. U.S. Olympic Comm., 483 U.S. 522, 543 n. 2, 107 S.Ct. 2971, 97 L.Ed.2d 427 (1987). 15 Thus, violation of the Fourteenth Amendment cannot be the basis of a Bivens action. The due 16 process and equal protection clauses of the Fourteenth Amendment do not apply against the 17 federal government, only against the state governments. See U.S. Const. amend. XIV, § 2. 18 Therefore, Plaintiff’s claim under the Fourteenth Amendment fails. Fourteenth Amendment 19 As a federal prisoner, Plaintiff’s due process and equal protection rights are guaranteed 20 by the Fifth Amendment. Castillo v. McFadden, 399 F.3d 993, 1002 n. 5 (9th Cir. 2005); 21 Consejo De Desarrollo Economico De Mexicali, A.C. v. United States, 482 F.3d 1157, 1170 n. 22 4 (9th Cir. 2007) (citing Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954)). 23 However, Plaintiff’s allegations give no indication that he suffered an equal protection1 or due 24 25 26 27 28 1 The Equal Protection Clause requires that persons who are similarly situated be treated alike. City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 439, 105 S.Ct. 3249 (1985); Shakur v. Schriro, 514 F.3d 878, 891 (9th Cir. 2008). An equal protection claim may be established by showing that Defendants intentionally discriminated against Plaintiff based on his membership in a protected class, Comm. Concerning Cmty. Improvement v. City of Modesto, 583 F.3d 690, 702-03 (9th Cir. 2009); Serrano v. Francis, 345 F.3d 1071,1082 (9th Cir. 2003), Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001), or that similarly situated individuals were intentionally treated differently without a rational relationship to a legitimate state purpose, Engquist v. Oregon Department of Agr., 553 U.S. 591, 601-02, 128 S.Ct. 2146 (2008); Village of Willowbrook v. 5 1 process2 violation. Plaintiff shall be granted leave to amend the Complaint to allege violations 2 of the Fifth Amendment, if he so wishes. 3 E. 4 “[T]o maintain an Eighth Amendment claim based on prison medical treatment, an 5 inmate must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 6 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two-part 7 test for deliberate indifference requires the plaintiff to show (1) “‘a serious medical need’ by 8 demonstrating that ‘failure to treat a prisoner=s condition could result in further significant 9 injury or the unnecessary and wanton infliction of pain,’” and (2) “the defendant=s response to 10 the need was deliberately indifferent.” Jett, 439 F.3d at 1096 (quoting McGuckin v. Smith, 974 11 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 12 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc) (internal quotations omitted)). Deliberate 13 indifference is shown by “a purposeful act or failure to respond to a prisoner’s pain or possible 14 medical need, and harm caused by the indifference.” Id. (citing McGuckin, 974 F.2d at 1060). 15 Deliberate indifference may be manifested “when prison officials deny, delay or intentionally 16 interfere with medical treatment, or it may be shown by the way in which prison physicians 17 provide medical care.” Id. Where a prisoner is alleging a delay in receiving medical treatment, 18 the delay must have led to further harm in order for the prisoner to make a claim of deliberate 19 indifference to serious medical needs. McGuckin at 1060 (citing Shapely v. Nevada Bd. of 20 State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985)). 21 /// Eighth Amendment Medical Claim 22 23 24 25 26 27 28 Olech, 528 U.S. 562, 564, 120 S.Ct. 1073 (2000); Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 592 (9th Cir. 2008); North Pacifica LLC v. City of Pacifica, 526 F.3d 478, 486 (9th Cir. 2008). 2 Plaintiff’s allegations set forth no facts supporting the existence of a viable claim premised on a violation of the procedural component of the Due Process Clause. Wilkinson v. Austin, 545 U.S. 209, 221, 125 S.Ct. 2384 (2005); Sandin v. Conner, 515 U.S. 472, 483-84, 115 S.Ct. 2293 (1995). The Due Process Clause protects prisoners from being deprived of liberty or property without due process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). In order to state a cause of action for deprivation of procedural due process, a plaintiff must first establish the existence of a liberty interest for which the protection is sought. Liberty interests may arise from the Due Process Clause itself or from state law. Hewitt v. Helms, 459 U.S. 460, 466-68 (1983). Plaintiff has not established the existence of a protected liberty interest. Therefore, Plaintiff fails to state a due process claim. 6 1 “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 2 1060 (9th Cir. 2004). “Under this standard, the prison official must not only ‘be aware of the 3 facts from which the inference could be drawn that a substantial risk of serious harm exists,’ 4 but that person ‘must also draw the inference.’” Id. at 1057 (quoting Farmer v. Brennan, 511 5 U.S. 825, 837 (1994)). “‘If a prison official should have been aware of the risk, but was not, 6 then the official has not violated the Eighth Amendment, no matter how severe the risk.’” Id. 7 (quoting Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)). “A 8 showing of medical malpractice or negligence is insufficient to establish a constitutional 9 deprivation under the Eighth Amendment.” Toguchi, 391 F.3d at 1060. 10 negligence is insufficient to establish a constitutional violation.” 11 “[E]ven gross Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990)). Id. (citing Wood v. 12 Plaintiff’s allegations are insufficient to support an Eighth Amendment medical claim. 13 There are no facts supporting a claim that Defendants deliberately disregarded an excessive risk 14 of harm to Plaintiff’s health when they performed surgery on Plaintiff. Farmer, 511 U.S. at 15 834. This claim is not cognizable and it shall be dismissed, with leave to amend. 16 F. 17 Plaintiff also brings claims for battery and medical malpractice, based in part on failure State Law Claims 18 to obtain informed consent, which are state law torts. 19 sufficient to state a claim for relief under § 1983. To state a claim under § 1983, there must be 20 a deprivation of federal constitutional or statutory rights. See Paul v. Davis, 424 U.S. 693 21 (1976). Although the court may exercise supplemental jurisdiction over state law claims, 22 Plaintiff must first have a cognizable claim for relief under federal law. See 28 U.S.C. § 1367. 23 In this instance, the court fails to find any cognizable federal claims in the Complaint. 24 Therefore, Plaintiff=s negligence claim fails. 25 V. Violation of state tort law is not CONCLUSION AND ORDER 26 The court finds that Plaintiff’s Complaint fails to state a claim upon which relief may be 27 granted. The court will dismiss the Complaint and give Plaintiff leave to file an amended 28 complaint addressing the issues described above. 7 1 Under Rule 15(a) of the Federal Rules of Civil Procedure, “[t]he court should freely 2 give leave to amend when justice so requires.” Accordingly, the court will provide Plaintiff an 3 opportunity to file an amended complaint curing the deficiencies identified above. Lopez v. 4 Smith, 203 F.3d 1122, 1126-30 (9th Cir. 2000). Plaintiff is granted leave to file the First 5 Amended Complaint within thirty days. 6 The First Amended Complaint must allege facts showing what each named defendant 7 did that led to the deprivation of Plaintiff’s constitutional rights. Fed. R. Civ. P. 8(a); Iqbal, 8 556 U.S. at 678; Jones, 297 F.3d at 934. Plaintiff must demonstrate that each defendant 9 personally participated in the deprivation of his rights by their actions. Id. at 676-77 (emphasis 10 added). 11 Plaintiff should note that although he has been given the opportunity to amend, it is not 12 for the purpose of changing the nature of this suit or adding unrelated claims. George, 507 F.3d 13 at 607 (no “buckshot” complaints). 14 Plaintiff is advised that an amended complaint supercedes the original complaint, Lacey 15 v. Maricopa County, 693 F 3d. 896, 907 n.1 (9th Cir. 2012) (en banc), and it must be complete 16 in itself without reference to the prior or superceded pleading, Local Rule 220. Therefore, in an 17 amended complaint, as in an original complaint, each claim and the involvement of each 18 defendant must be sufficiently alleged. The amended complaint should be clearly and boldly 19 titled “First Amended Complaint,” refer to the appropriate case number, and be an original 20 signed under penalty of perjury. 21 Based on the foregoing, it is HEREBY ORDERED that: 22 1. 23 Plaintiff’s Complaint is dismissed for failure to state a claim, with leave to amend; 24 2. The Clerk’s Office shall send Plaintiff a civil rights complaint form; 25 3. Plaintiff is granted leave to file a First Amended Complaint curing the 26 deficiencies identified by the court in this order, within thirty (30) days from 27 the date of service of this order; 28 /// 8 1 4. 2 3 Plaintiff shall caption the amended complaint “First Amended Complaint” and refer to the case number 1:16-cv-01066-GSA-PC; and 5. 4 If Plaintiff fails to file a First Amended Complaint within thirty days, this case shall be dismissed for failure to state a claim. 5 6 7 8 IT IS SO ORDERED. Dated: March 28, 2017 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9

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