Dial v. Heatley et al

Filing 8

ORDER signed by Magistrate Judge Allison Claire on 3/4/13 ORDERING that 4 Motion to Proceed IFP is GRANTED; Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiffs claims against Dr. Casey and DHM are dismissed for the reasons discussed above, with leave to file an amended complaint within twenty-eight days from the date of service of this Order. (Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RODNEY DIAL,
Plaintiff,

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No. 2:12-cv-2569 AC P

vs.

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SCOTT HEATLEY, et al.,

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Defendants.

ORDER
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Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42

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U.S.C. § 1983 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C.

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§ 1915. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C.

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§ 636(b)(1).

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Plaintiff has submitted a declaration that makes the showing required by 28
U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.
Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28

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U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee

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in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will

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direct the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account
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and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly

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payments of twenty percent of the preceding month’s income credited to plaintiff’s prison trust

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account. These payments will be forwarded by the appropriate agency to the Clerk of the Court

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each time the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28

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U.S.C. § 1915(b)(2).

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The court is required to screen complaints brought by prisoners seeking relief

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against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised

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claims that are legally “frivolous or malicious,” that fail to state a claim upon which relief may

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be granted, or that seek monetary relief from a defendant who is immune from such relief. 28

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U.S.C. § 1915A(b)(1),(2).

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A claim is legally frivolous when it lacks an arguable basis either in law or in

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fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-

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28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an

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indisputably meritless legal theory or where the factual contentions are clearly baseless.

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Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however

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inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d

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639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.

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Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and

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plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the

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defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41,

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47 (1957)). In order to survive dismissal for failure to state a claim a complaint must contain

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more than “a formulaic recitation of the elements of a cause of action;” it must contain factual

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allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, id.

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However, “[s]pecific facts are not necessary; the statement [of facts] need only ‘“give the
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defendant fair notice of what the . . . claim is and the grounds upon which it rests.”’” Erickson

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v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell, 550 U.S. at 555, in turn quoting Conley v.

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Gibson, 355 U.S. 41, 47 (1957)). In reviewing a complaint under this standard, the court must

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accept as true the allegations of the complaint in question, Erickson, id., and construe the

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pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236

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(1974).

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Plaintiff’s complaint is premised on allegations of inadequate medical care in

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violation of his Eighth Amendment rights. Plaintiff names as defendants Scott Heatley, the

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Chief Medical Officer at Mule Creek State Prison (“MCSP”); Dr. Christopher Smith, the Chief

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Physician and Surgeon at MCSP; Dr. John Casey, a doctor contracted by Heatley and Smith to

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provide medical services for MCSP to plaintiff; the Doctors Hospital of Manteca (“DHM”), the

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hospital where Dr. Casey was employed at all times relevant to this action; Lawrence Fong, the

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Chief Executive Officer, Health Care Services, at MCSP; and L.D. Zamora, the Chief California

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Correctional Health Care Services Officer who reviews inmate appeals.

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As to defendants Heatley, Smith, Fong, and Zamora, plaintiff has pled adequate

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allegations to state a claim. Plaintiff’s allegations as to Dr. Casey and DHM, however, fail to

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state a claim. Plaintiff’s allegations as to these defendants are as follows: On August 29, 2011 at

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DHM, Dr. Casey gave plaintiff a steroid injection in his right shoulder. Compl. ¶ 32. Plaintiff

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later developed a fungal infection, ostoeomyelitis, at the site of this injection, causing plaintiff

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excruciating pain. Id. ¶¶ 33-34. It was determined by a doctor from the Center for Disease

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Control that the needle used by Dr. Casey must have been contaminated with the fungus. Id. ¶

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34. Other than employing Dr. Casey, there are no further allegations as to DHM.

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“[T]o maintain an Eighth Amendment claim based on prison medical treatment,

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an inmate must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439

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F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). The two

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prong test for deliberate indifference requires the plaintiff to show (1) “‘a serious medical need’
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by demonstrating that ‘failure to treat a prisoner’s condition could result in further significant

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injury or the unnecessary and wanton infliction of pain,’” and (2) “the defendant’s response to

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the need was deliberately indifferent.” Jett, 439 F.3d at 1096 (quoting McGuckin v. Smith, 974

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F.2d 1050, 1059 (9th Cir. 1992)). Deliberate indifference is shown by “a purposeful act or

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failure to respond to a prisoner’s pain or possible medical need, and harm caused by the

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indifference.” Jett, 439 F.3d at 1096 (citing McGuckin, 974 F.2d at 1060). In order to state a

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claim for violation of the Eighth Amendment, a plaintiff must allege sufficient facts to support a

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claim that the named defendants “[knew] of and disregard[ed] an excessive risk to [plaintiff’s]

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health . . . .” Farmer v. Brennan, 511 U.S. 825, 837 (1994).

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

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a prisoner’s civil rights have been abridged, “the indifference to his medical needs must be

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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).

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In this case, plaintiff’s allegations as to Dr. Casey and DHM support only a claim

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of medical malpractice or negligence. However, “[m]edical malpractice does not become a

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constitutional violation merely because the victim is a prisoner.” Estelle, 429 U.S. at 106.

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Accordingly, these defendants must be dismissed.

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If plaintiff wishes to amend the complaint, plaintiff must allege sufficient facts to

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support a claim that the named defendants “[knew] of and disregard[ed] an excessive risk to

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[plaintiff’s] health . . . .” Farmer, 511 U.S. at 837. Vague and conclusory allegations of official

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participation in civil rights violations are not sufficient. Ivey v. Board of Regents, 673 F.2d 266,

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268 (9th Cir. 1982). In addition, plaintiff is informed that the court cannot refer to a prior

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pleading in order to make plaintiff’s amended complaint complete. Local Rule 220 requires that

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an amended complaint be complete in itself without reference to any prior pleading. This is

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because, as a general rule, an amended complaint supersedes the original complaint. See Loux v.
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Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original

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pleading no longer serves any function in the case. Therefore, in an amended complaint, as in an

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original complaint, each claim and the involvement of each defendant must be sufficiently

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alleged.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request for leave to proceed in forma pauperis is granted.

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2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action.

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Plaintiff is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C.

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§ 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the

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Director of the California Department of Corrections and Rehabilitation filed concurrently

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herewith.

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3. Plaintiff’s claims against Dr. Casey and DHM are dismissed for the reasons

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discussed above, with leave to file an amended complaint within twenty-eight days from the date

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of service of this Order. Failure to file an amended complaint will result in a recommendation

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that these defendants be dismissed from this action.

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4. Upon filing an amended complaint or expiration of the time allowed therefor,

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the court will make further orders for service of process upon some or all of the defendants.

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DATED: March 4, 2013.

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ALLISON CLAIRE
UNITED STATES MAGISTRATE JUDGE

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