Clayton v. Smith et al
Filing
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SCREENING ORDER DISMISSING 1 Complaint for Failure to State a Cognizable Claim, WITH LEAVE TO AMEND; Amended Complaint due within Thirty (30) Days signed by Magistrate Judge Barbara A. McAuliffe on 6/16/2017. (Sant Agata, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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BLAINE CLAYTON,
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Plaintiff,
vs.
STEVEN SMITH, et al.,
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Defendants.
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Case No.: 1:17-cv-00309-BAM (PC)
SCREENING ORDER DISMISSING
COMPLAINT FOR FAILURE TO STATE A
COGNIZABLE CLAIM, WITH LEAVE TO
AMEND
(ECF No. 1)
THIRTY (30) DAY DEADLINE
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Plaintiff Blaine Clayton (“Plaintiff”) is a state prisoner proceeding pro se and in forma
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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff has consented to the
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jurisdiction of a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). (ECF No. 9.)
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On October 6, 2016, Plaintiff filed a complaint in the United States District Court for the
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Eastern District of California, Sacramento Division. (ECF No. 1.) On March 3, 2017, this action
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was transferred to the United States District Court for the Eastern District of California, Fresno
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Division, based upon proper venue. (ECF No. 6.)
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Plaintiff’s complaint is currently before the Court for screening.
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I.
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The Court is required to screen complaints brought by prisoners seeking relief against a
Screening Requirement and Standard
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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
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relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2); 28
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U.S.C. § 1915(e)(2)(B)(ii).
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A complaint must contain “a short and plain statement of the claim showing that the
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pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not
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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, 129 S. Ct. 1937,
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1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1964-
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65 (2007)). While a plaintiff’s allegations are taken as true, courts “are not required to indulge
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unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009)
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(internal quotation marks and citation omitted).
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Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings
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liberally construed and to have any doubt resolved in their favor. Hebbe v. Pliler, 627 F.3d 338,
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342 (9th Cir. 2010) (citations omitted). To survive screening, Plaintiff’s claims must be facially
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plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each
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named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949
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(quotation marks omitted); Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir.
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2009). The sheer possibility that a defendant acted unlawfully is not sufficient, and mere
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consistency with liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at
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678, 129 S. Ct. at 1949 (quotation marks omitted); Moss, 572 F.3d at 969.
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II.
Plaintiff’s Allegations
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Plaintiff is currently incarcerated at Mule Creek State Prison, located in Ione, California.
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The events in the complaint are alleged to have occurred at the Sierra Conservation Center
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(“SCC”). Plaintiff names the following defendants: (1) Dr. Steven Smith, a physician at SCC;
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(2) Dr. W. Savage, a physician at SCC; (3) Dr. Lor, DDS, a dentist at SCC; and (4) Dr. T.
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McDow, a supervising dentist at SCC.
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Plaintiff alleges as follows: In May 2014, Plaintiff was jumped by five inmates at SCC.
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Immediately after the attack, and in a state of shock, Plaintiff was unaware that he had a broken
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jaw. Within hours of feeling the pain, and being unable to chew or speak properly, Plaintiff
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reported his injuries to a nurse in administrative segregation (ad-seg). After such incidents, all
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inmates are housed in ad-seg, whether victim or aggressor.
Upon placement in ad-seg, Plaintiff complained to the nurse, who then went to the doctor
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and had Plaintiff placed on a liquid diet. The nurse is not a defendant in this case, as she is the
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only person that ordered medical care for Plaintiff without denying, delaying, or interfering with
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said care.
Plaintiff was suffering from a broken jaw. Yet it took four days for medical staff to treat
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Plaintiff. Even then, the treatment provided was basic x-rays. Now, medical staff is certain
Plaintiff suffers from a broken jaw, as there is now medical diagnostic proof of such.
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Dr. Smith was the first person to see Plaintiff. After reviewing the x-rays, Dr. Smith told
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Plaintiff, “Your jaw isn’t broken.” Plaintiff then told Dr. Smith that he did not believe him, as he
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had already reviewed the x-rays with other staff, and they showed him where his jaw was
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broken. To this, Dr. Smith replied, “You’re lucky I’m even seeing you, according to the deal we
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have with the state, I cannot treat you for 30 days.” Due to the indifference of Dr. Smith, Plaintiff
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was needlessly forced to suffer in pain and without medical care.
Approximately five days after the confrontation with Dr. Smith, Plaintiff was seen by Dr.
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Lor. Additional x-rays were taken, and again it was confirmed that Plaintiff’s jaw was broken.
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Dr. Lor told the Plaintiff that the supervising dentist was spoken to, and that Plaintiff would be
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seeing an oral surgeon. Dr. T. McDow never followed-up on the specialist visit, nor did Dr. Lor
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or any of the other defendants. This is a pattern of indifference, or pure neglect. Each
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doctor/defendant had a professional and ethical obligation to ensure Plaintiff was treated in a
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timely and adequate manner. Yet none of the defendants did what is required of them under the
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medical procedures of the California Department of Corrections and Rehabilitation (“CDCR”),
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or the Eighth Amendment.
Dr. Savage was the other doctor supposedly treating Plaintiff. He too neglected to ensure
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Plaintiff was treated in a timely or adequate manner.
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Each of the listed defendants has set guidelines under the medical policies of CDCR, as
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well as the Eighth Amendment. These well-established rules and regulations were not followed.
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Plaintiff has suffered permanent effects from these acts, and will provide medical proof
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of such upon request. Plaintiff was also extremely damaged on an emotional level. Dr. Jensen,
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Plaintiff’s psychiatrist, documented Plaintiff’s pain and suffering throughout this incident, and
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even attempted to obtain medical help for Plaintiff by calling supervisors.
On appeal of the treatment Plaintiff was not receiving, CDCR staff claim there was a
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delay in getting a doctor to the prison to see Plaintiff. Assuming this was true, there are measures
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in place to have people treated when it is of an urgent nature. A broken jaw is the type of case
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that falls within these measures. Rather than simply ignore Plaintiff’s urgent need for medical
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care, CDCR staff were required to take the Plaintiff to an outside medical facility to correct his
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medical condition. This goes too for relief from Plaintiff’s pain and suffering. Had any of these
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acts occurred, it would be unnecessary for Plaintiff to have appealed this issue, or brought this
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action before this court.
Each defendant had personal knowledge of Plaintiff’s injuries, as well as his pain and
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suffering, yet no defendant ensured that medical care was provided to Plaintiff, or followed-up
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on treatment claimed to have been ordered. Negligence is the failure to act when a reasonable
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person would have taken some form of action under the same set of circumstances.
CCR Title 15 specifically states: “Each facility shall maintain contractual arrangements
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with local off-site agencies for those health services deemed to be medically necessary as defined
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in section 3350(b)(1), and are not provided within the facility.” (CCR Title 15 § 3050.2)
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Medically necessary means: “Health care services that are determined by the attending
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physician to be reasonable and necessary to protect life, prevent significant illness, disability, or
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alleviate severe pain.” (CCR Title 15 § 3050(b) (1).)
Plaintiff submitted numerous requests for medical needs so that he could have his pain
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managed, but his requests fell on deaf ears. Plaintiff told Drs. Smith and Savage at least five
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times that he was still in pain and that the Tylenol they were giving him was ineffective.
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Each defendant was verbally placed on notice of Plaintiff’s suffering, and they also had
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documented medical evidence he was injured. Despite his obvious injuries, Plaintiff was forced
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to suffer for three weeks before his jaw was set and wired shut. This entire time, medical staff
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was aware of Plaintiff’s suffering, as well as his being unable to do anything about it because he
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is being housed in solitary confinement.
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The defendants in this case disregarded well established procedures, and left Plaintiff to
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suffer in administrative segregation with a broken jaw. Plaintiff needlessly suffered by the failure
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of these defendants actions, and whether this was professional negligence, or medical
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negligence, is a matter for this court to decide.
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Dr. Lor was a treating dentist. It was Dr. Lor’s medical and professional duty to ensure
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that Plaintiff received medical care for his broken jaw. Dr. T. McDow was the supervising
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dentist responsible for Plaintiff’s care. After being advised by the medical staff involved, and
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reviewing the x-rays, Dr. T. McDow had a duty under state and federal law to ensure health care
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was provided to Plaintiff. (Neither defendant did as required by the Constitution, or state law in
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this case.)
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Plaintiff asserts a claim for deliberate indifference in violation of the Eighth Amendment,
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and state law claims of medical negligence/malpractice. Plaintiff requests $250,000 in damages
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as well as for defendants to cover any future medical costs related to these proceedings.
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III.
Deficiencies of Complaint
A.
Federal Rule of Civil Procedure 8
Pursuant to Federal Rule of Civil Procedure 8, a complaint must contain “a short and
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plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a).
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As noted above, detailed factual allegations are not required, but “[t]hreadbare recitals of the
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elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal,
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556 U.S. at 678 (citation omitted). Plaintiff must set forth “sufficient factual matter, accepted as
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true, to ‘state a claim to relief that is plausible on its face.’ “ Iqbal, 556 U.S. at 678 (quoting
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Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are
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not. Id; see also Twombly, 550 U.S. at 556–557; Moss, 572 F.3d at 969.
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While Plaintiff’s complaint is a short statement of his claims, much of Plaintiff’s
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allegations are conclusory statements, recitations of the elements of a cause of action, or legal
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arguments. Plaintiff includes some facts, but the complaint tends to lump together defendants
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and their actions, and many statements are mere generalities.
A plaintiff suing multiple defendants must allege the basis of his claim against each
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defendant to satisfy Rule 8(a)(2). If Plaintiff chooses to amend his complaint, he should briefly
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and clearly state the facts giving rise to his claims for relief against the named defendants.
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Plaintiff should describe what happened, when it happened, and who was involved. Specific
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deficiencies are discussed in more detail below.
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Plaintiff complains that all defendants violated the Eighth Amendment by delaying
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Serious Medical Need
treatment for his broken jaw and by failing to properly manage his pain.
The Eighth Amendment protects prisoners from inhumane methods of punishment and
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from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir.
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2006). Although prison conditions may be restrictive and harsh, prison officials must provide
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prisoners with food, clothing, shelter, sanitation, medical care, and personal safety. Farmer v.
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Brennan, 511 U.S. 825, 832–33 (1994) (quotations omitted). “[T]o maintain an Eighth
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Amendment claim based on prison medical treatment, an inmate must show ‘deliberate
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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, 97 S. Ct. 285, 291, 50 L.Ed.2d 251 (1976)).
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The two part test for deliberate indifference requires the plaintiff to show (1) “a ‘serious
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medical need’ by demonstrating that failure to treat a prisoner’s condition could result in further
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significant injury or the ‘unnecessary and wanton infliction of pain,’” and (2) “the defendant’s
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response to the need was deliberately indifferent.” Jett, 439 F.3d at 1096; Wilhelm v. Rotman,
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680 F.3d 1113, 1122 (9th Cir. 2012). The prison official must be aware of facts from which he
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could make an inference that “a substantial risk of serious harm exists” and he must actually
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make the inference. Farmer, 511 U.S. at 837.
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“Deliberate indifference is a high legal standard.” Id. at 1019; Toguchi v. Chung, 391
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F.3d 1051, 1060 (9th Cir. 2004). The indifference must be substantial, and “[m]ere
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‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this cause of action.”
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Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980). Differences of medical
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opinion between the prisoner and health care providers also do not violate the Eighth
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Amendment. See Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996); Sanchez v. Vild, 891
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F.2d 240, 242 (9th Cir. 1989); Lyons v. Busi, 566 F.Supp.2d 1172, 1191-1192 (E.D. Cal. 2008).
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Also, “a difference of opinion between a prisoner-patient and prison medical authorities
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regarding treatment does not give rise to a [§] 1983 claim.” Franklin v. Oregon, 662 F.2d 1337,
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1344 (9th Cir. 1981). To establish that such a difference of opinion amounted to deliberate
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indifference, the prisoner “must show that the course of treatment the doctors chose was
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medically unacceptable under the circumstances” and “that they chose this course in conscious
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disregard of an excessive risk to [the prisoner’s] health.” See Jackson v. McIntosh, 90 F.3d 330,
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332 (9th Cir. 1996).
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Delay in providing medical treatment, or interference with medical treatment, may also
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constitute deliberate indifference. See Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000).
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However, to establish a deliberate indifference claim arising from a delay in providing medical
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care, a plaintiff must allege facts showing that the delay led to further injury. See Hallett v.
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Morgan, 296 F.3d 732, 745-46 (9th Cir. 2002); McGuckin, 974 F.2d at 1060; Shapley v. Nevada
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Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985) (per curiam). An “isolated
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exception” to the defendant’s “overall treatment” of the prisoner does not state a deliberate
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indifference claim. Jett, 439 F.3d at 1096.
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Based on these standards, the Court turns to evaluating Plaintiff’s claims against each
defendant.
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1.
Dr. Steven Smith
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Plaintiff alleges that Dr. Smith reviewed x-rays, and told Plaintiff his jaw was not broken.
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Plaintiff disagreed, because he had already reviewed the x-rays with other staff, and they showed
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him where his jaw was broken. Dr. Smith then stated that he was not allowed to treat Plaintiff for
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30 days. Plaintiff was then seen by a dentist, Dr. Lor, five days later and had more x-rays.
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Plaintiff also told Dr. Smith on repeated occasions that he was still in pain, and the Tylenol he
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was being given was ineffective.
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At the pleading stage, Plaintiff’s allegations that his jaw was broken, causing him pain
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and difficulty chewing and speaking, are sufficient to demonstrate a serious medical need which
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satisfies the first prong of the test for showing deliberate indifference to a serious medical need
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in violation of the Eighth Amendment. However, Plaintiff’s allegations are insufficient to satisfy
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the second, subjective prong. Plaintiff alleges some facts suggesting a disagreement in diagnoses
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between Dr. Smith and other medical professionals, or a misdiagnosis. Plaintiff’s claims may
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amount to negligence or malpractice, but negligence does not support a constitutional claim of
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deliberate indifference.
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Although Plaintiff alleges that Dr. Smith stated he was not allowed to treat Plaintiff for
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30 days, Plaintiff also alleges that Dr. Smith provided some Tylenol for pain, and that shortly
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after his initial visit with Dr. Smith, Plaintiff was seen by a dentist for x-rays and a consultation.
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These facts suggest that Dr. Smith provided treatment for Plaintiff’s medical condition, not that
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he was deliberately indifferent to Plaintiff’s medical needs. Plaintiff must allege facts showing
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what objectively necessary treatment or care was denied. Plaintiff also must show what harm
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was caused by any denial, delay, or interference with his medical care or treatment. His
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conclusory allegation of “permanent effects” from the defendants’ acts generally, is insufficient.
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Plaintiff also makes some general allegations that he saw Dr. Smith (and Dr. Savage) on
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some unspecific number of occasions, and complained his Tylenol was ineffective. An allegation
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that prison officials deliberately ignored a prisoner’s complaint about the ineffective nature of
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prescribed pain medication can, in some circumstances, give rise to a constitutional claim.
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However, a prisoner does not have a constitutional right to the medication of his choice, and a
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mere difference of opinion regarding appropriate treatment and pain medication is insufficient to
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give rise to a constitutional claim. See Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004).
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Plaintiff’s conclusory allegations regarding his treatment with Tylenol are insufficient to
state a claim. Plaintiff must allege facts showing how each defendant was involved in his care,
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what they knew of his complaints, how they responded, or what they said about treating or not
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treating him.
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2.
Dr. W. Savage
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Plaintiff’s alleges that Dr. Savage was “supposedly treating” Plaintiff and “neglected to
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ensure Plaintiff was treated in a timely or adequate manner.” Plaintiff also, as noted above,
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alleges that he saw Dr. Savage (and Dr. Smith) on some unspecified occasions and complained
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his Tylenol was ineffective.
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These allegations are too conclusory to state any claim. They give insufficient facts about
any acts or omissions that violated Plaintiff’s constitutional rights. Plaintiff must meet the
standards explained above.
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3.
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Plaintiff alleges that he was seen by Dr. Lor, a dentist, that additional x-rays were taken,
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and it was confirmed Plaintiff’s jaw was broken. Dr. Lor told Plaintiff a supervising dentist was
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spoken to, and Plaintiff would see an oral surgeon. Although it is unclear, Plaintiff’s allegations
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suggest that this supervising dentist was Dr. McDow.
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Dr. Lor and Dr. T. McDow
Plaintiff alleges that Dr. Lor and Dr. McDow did not follow-up on the specialist visit.
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Plaintiff also alleges that after being advised by the medical staff involved, and reviewing
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Plaintiff’s x-rays, Dr. McDow had a duty to ensure health care was provided, which he failed to
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do. Sometime later, within three weeks, Plaintiff’s jaw was set and wired shut.
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Plaintiff’s allegations are again conclusory, and insufficient to show that either Dr. Lor or
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Dr. McDow was deliberately indifferent to Plaintiff’s medical condition. Although Plaintiff
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alleges some delay in seeing an oral surgeon, and that these doctors did not follow-up, it is
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unclear what the length of delay was, what harm was caused by the delay, if any, what these
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doctor’s knowledge was of Plaintiff’s condition, and how they responded or failed to respond.
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Thus, Plaintiff has not alleged sufficient facts to meet the subjective element of a claim for
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deliberate indifference against these defendants.
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Plaintiff will be permitted an opportunity to amend his claims against all defendants, to
the extent he may do so in good faith.
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C.
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State Law Claims
Plaintiff attempts to bring a state law claim for medical malpractice. Plaintiff also makes
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general allegations that certain state law codes were violated. However, as noted above, Plaintiff
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has not stated any cognizable claim for relief based upon a violation of his federally-protected
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rights.
The Court generally declines to exercise supplemental jurisdiction over state law claims
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in the absence of viable federal claims, and this case presents no exception. 28 U.S.C. §
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1367(c)(3). Section 1983 provides a cause of action for the deprivation of federally protected
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rights. “To the extent that the violation of a state law amounts to the deprivation of a state-
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created interest that reaches beyond that guaranteed by the federal Constitution, [s]ection 1983
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offers no redress.” Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997) (quoting
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Lovell v. Poway Unified Sch. Dist., 90 F.3d 367, 370 (9th Cir. 1996)); see Davis v. Kissinger,
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No. CIV S–04–0878 GEB DAD P, 2009 WL 256574, * 12 n. 4 (E.D. Cal. Feb. 3, 2009).
Thus, at this time, the Court declines to screen any state law claims Plaintiff purports to
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bring in this action.
CONCLUSION AND ORDER
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The Court finds that Plaintiff has not stated a cognizable federal claim against any of
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Defendants in his complaint. The Court will grant Plaintiff an opportunity to cure the identified
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deficiencies which Plaintiff believes in good faith, are curable. Lopez v. Smith, 203 F.3d 1122,
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1130 (9th Cir. 2000).
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If Plaintiff chooses to amend his complaint, he may not change the nature of this suit by
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adding new, unrelated claims in his second amended complaint. George v. Smith, 507 F.3d 605,
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607 (7th Cir. 2007) (no “buckshot” complaints). The amended complaint should be brief, Fed. R.
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Civ. P. 8(a), but it must also state what each named defendant did that led to the deprivation of
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Plaintiff’s constitutional rights, Iqbal, 556 U.S. at 678-89, 129 S. Ct. at 1948-49. Although
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accepted as true, the “[f]actual allegations must be [sufficient] to raise a right to relief above the
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speculative level . . . .” Twombly, 550 U.S. at 555 (citations admitted).
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Plaintiff is also reminded that an amended complaint supersedes all prior complaints.
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Lacey, 693 F.3d at 927. Absent prior court approval, the amended pleading must be complete in
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itself without reference to any prior pleading. Local Rule 220.
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Based on the foregoing, it is HEREBY ORDERED that:
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1.
Plaintiff’s complaint, filed October 6, 2016 (ECF No. 1), is dismissed with leave
to amend;
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2.
The Clerk’s Office shall send to Plaintiff a complaint form;
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3.
Within thirty (30) days from the date of service of this order, Plaintiff shall file
an amended complaint curing the deficiencies identified by the Court in this
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order, or a notice of voluntary dismissal; and
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4.
If Plaintiff fails to comply with this order, this action will be dismissed, with
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prejudice, for the failure to state a claim, to obey a court order, and to
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prosecute.
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IT IS SO ORDERED.
Dated:
/s/ Barbara
June 16, 2017
A. McAuliffe
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UNITED STATES MAGISTRATE JUDGE
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