Green v. CDCR et al

Filing 7

ORDER signed by Magistrate Judge Allison Claire on 12/19/14 ordering plaintiff's complaint is dismissed with leave to amend. Plaintiff is granted 30 days from the date of service of this order to file an amended complaint. (Plummer, M)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

WARREN C. GREEN,

12

Plaintiff,

13
14

No. 2:14-CV-2854 TLN AC

v.

ORDER

T. BZOSKIE, M.D. et al.,

15

Defendants.

16
Plaintiff is a state prisoner proceeding without counsel. Plaintiff seeks relief pursuant to

17
18

42 U.S.C. § 1983, and is proceeding in forma pauperis. This proceeding was referred to this court

19

pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302. Plaintiff’s complaint is now before the

20

court.

21
22

I. SCREENING STANDARD
The court is required to screen complaints brought by prisoners seeking relief against a

23

governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

24

court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

25

“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

26

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

27

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

28

Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th
1

1

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

2

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

3

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

4

pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th

5

Cir. 1989); Franklin, 745 F.2d at 1227.

6

A complaint must contain more than a “formulaic recitation of the elements of a cause of

7

action;” it must contain factual allegations sufficient to “raise a right to relief above the

8

speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). It is insufficient

9

for the pleading to contain a statement of facts that “merely creates a suspicion” that the pleader

10

might have a legally cognizable right of action. Id. (quoting 5 C. Wright & A. Miller, Federal

11

Practice and Procedure § 1216, pp. 235–35 (3d ed.2004)). Rather, the complaint “must contain

12

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

13

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “A claim has

14

facial plausibility when the plaintiff pleads factual content that allows the court to draw the

15

reasonable inference that the defendant is liable for the misconduct alleged.” Id.

16

In reviewing a complaint under this standard, the court “must accept as true all of the

17

factual allegations contained in the complaint,” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing

18

Twombly, 550 U.S. at 555-56), construe those allegations in the light most favorable to the

19

plaintiff, Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 960 (9th

20

Cir. 2010) (citing Twombly, 550 U.S. 544), cert. denied, 131 S. Ct. 3055 (2011), and resolve all

21

doubts in the plaintiff's favor. Hebbe v. Pliler, 627 F.3d 338, 340 (9th Cir. 2010) (citing Hospital

22

Bldg. Co. v. Trustees of Rex Hospital, 425 U.S. 738 (1976)).

23

II. THE COMPLAINT

24

Plaintiff alleges that he developed a serious medical problem in his scrotum. ECF No. 1

25

at 5. Plaintiff suffered serious pain, and noted that a “bump/lump” had developed there. Id.

26

Plaintiff believes his condition is called “epididymitis.” Id., at 7. The CDCR doctor at CHCF –

27

who was not a “scrotum specialist” – misdiagnosed the medical problem, stating that there was no

28

lump. Id., at 5. The doctors at CHCD then allowed plaintiff to suffer with the pain of this
2

1
2

condition for months. Id., at 6. The pain has become chronic. Id.
On October 7, 2014, plaintiff was sent to the hospital, but not allowed to see the urologist.

3

Id., at 7. On October 9, 2014, plaintiff did see a urologist at CHCF, who ordered antibiotics for

4

plaintiff and told him to return in three weeks. Id. (plaintiff comments that this created “more

5

time to suffer”).

6

Plaintiff alleges that his condition constitutes a medical emergency “which may cause

7

tissue death in the scrotum or ED,” that he should have been seen right away by a specialist

8

“urologist/surgeon,” and that the “lump/bump” should have been removed. Id. Plaintiff ends his

9

factual recitation by stating: “Procrastination, maliciousness in medical treatment.” Id.

10

III. ANALYSIS

11

A. Deliberate Indifferent to Serious Medical Needs

12

The State has an obligation “to provide medical care for those whom it is punishing by

13

incarceration.” Estelle v. Gamble, 429 U.S. 97, 103 (1976). Accordingly, “deliberate

14

indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton

15

infliction of pain’ proscribed by the Eighth Amendment.” Id., 429 U.S. 104. Such “deliberate

16

indifference” to a prisoner's serious medical needs “states a cause of action under § 1983.” Id.,

17

429 U.S. at 105.

18

In order to state a § 1983 claim for violation of the Eighth Amendment based on

19

inadequate medical care, plaintiff must allege “acts or omissions sufficiently harmful to evidence

20

deliberate indifference to serious medical needs.” Id., 429 U.S. at 106. To prevail, plaintiff must

21

show both that his medical needs were objectively “serious,” Hudson v. McMillian, 503 U.S. 1, 9

22

(1992), and that defendants possessed a sufficiently culpable state of mind. Wilson v. Seiter, 501

23

U.S. 294, 299 (1991). The requisite state of mind for an Eighth Amendment claim relating to

24

medical treatment is “deliberate indifference.” Hudson, 503 U.S. at 5.

25

A serious medical need exists if failure to treat the injury or condition “could result in

26

further significant injury or cause the unnecessary and wanton infliction of pain.” Colwell v.

27

Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014) (internal quotation marks omitted). Indications

28

that a plaintiff has a serious medical need include: “[t]he existence of an injury that a reasonable
3

1

doctor or patient would find important and worthy of comment or treatment; the presence of a

2

medical condition that significantly affects an individual's daily activities; or the existence of

3

chronic and substantial pain.” Colwell, 763 F.3d at 1066 (internal quotation marks omitted).

4

In Farmer v. Brennan, 511 U.S. 825 (1994), the Supreme Court established a very

5

demanding standard for “deliberate indifference.” Negligence is insufficient. Farmer, 511 U.S.

6

at 835. Even civil recklessness (failure to act in the face of an unjustifiably high risk of harm

7

which is so obvious that it should be known) is insufficient to establish an Eighth Amendment

8

violation. Id., at 836-37. It not enough that a reasonable person would have known of the risk or

9

that a defendant should have known of the risk. Id. at 842. Rather, deliberate indifference is

10

established only where the defendant subjectively “knows of and disregards an excessive risk to

11

inmate health and safety.” Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (internal

12

quotation marks omitted) (emphasis added).

13

A physician need not fail to treat an inmate altogether in order to violate that inmate's

14

Eighth Amendment rights. Ortiz v. City of Imperial, 884 F.2d 1312, 1314 (9th Cir. 1989).

15

Failure to competently treat a serious medical condition, even if some treatment is prescribed,

16

may be evidence that prison officials are deliberately indifferent to inmates’ serious medical

17

needs. Id. However, mere differences of opinion concerning the appropriate treatment cannot be

18

the basis of an Eighth Amendment violation. Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir.),

19

cert. denied, 519 U.S. 1029 (1996); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989)

20

(difference of medical opinion as to treatment of serious medical needs does not amount to

21

deliberate indifference).

22

To make out a claim for deliberate indifference that turns on a difference of medical

23

opinion, the plaintiff must allege “that the course of treatment the doctors chose was medically

24

unacceptable under the circumstances and that the defendants chose this course in conscious

25

disregard of an excessive risk to plaintiff's health.” Snow v. McDaniel, 681 F.3d 978, 988 (9th

26

Cir. 2012) (internal quotation marks omitted)1.

27
28

1

Overruled on other grounds, Peralta v. Dillard, 744 F.3d 1076, 1083 (9th Cir. 2014) (en banc),
petition for certiorari filed, 83 U.S.L.W. 3239 (U.S. Sep. 19, 2014) (No. 14-328).
4

1

A finding that an inmate was seriously harmed by the defendant's action or inaction tends

2

to provide additional support for a claim of deliberate indifference; however, it does not end the

3

inquiry. McGuckin v. Smith, 974 F.2d 1050, 1060 (9th Cir.1992), overruled on other grounds,

4

WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1135 (9th Cir. 1997) (en banc). In summary,

5

“the more serious the medical needs of the prisoner, and the more unwarranted the defendant's

6

actions in light of those needs, the more likely it is that a plaintiff has established deliberate

7

indifference on the part of the defendant.” McGuckin, 974 F.2d at 1061.

8

B. Application to Allegations of this Complaint

9

Plaintiff sufficiently alleges that he suffers from a serious medical condition. Among

10

other things, he alleges that he was eventually sent to the hospital for the condition, and that he

11

suffers serious, chronic pain from it. However, plaintiff’s remaining allegations are that he was

12

“misdiagnosed,” that his doctors did not give him the treatment he believes he should have

13

received, and that he was seen, initially, only by a general doctor rather than the specialist

14

plaintiff believes should have been treating him. These allegations do not state an Eighth

15

Amendment claim for deliberate indifference to serious medical needs.

16

The allegation of a “misdiagnosis” is an allegation solely of medical negligence, and is not

17

cognizable as a § 1983 claim. Wilhelm v. Rotman, 680 F.3d 1113, 1123 (9th Cir. 2012) (“Dr.

18

Schuster's alleged failure was negligent misdiagnosis, or a disagreement with Dr. Rotman.

19

Therefore, the allegations are insufficient to establish deliberate indifference by Dr. Schuster.”).

20

Plaintiff’s assertions that he should have had the “lump/bump” removed, rather than have it

21

treated with pain medication and antibiotics, and that he should have been seen by a specialist

22

rather than a general doctor, amount to no more a difference of opinion between plaintiff and his

23

treating doctors. Indeed, the medical choices alleged here, like those in Estelle v. Gamble, were

24

“classic example[s]” of matters “for medical judgment.” 429 U.S. at 107. The allegation that

25

defendants chose one type of treatment over another, or deployed one type of doctor over another,

26

are not allegations of “cruel and unusual punishment.” They are, at most, allegations of medical

27

negligence, not cognizable in a § 1983 claim. Id.

28

Plaintiff does include in his complaint the following statement: “Procrastination,
5

1

maliciousness in medical treatment.” ECF No. 1 at 7. The factual allegations of the complaint,

2

however, establish nothing more than negligence on the part of plaintiff’s treating and supervising

3

doctors. Adding the word “maliciousness” to the end of the complaint does not change this. If

4

plaintiff wants to allege that the doctors were deliberately indifferent to his serious medical needs,

5

he must allege facts from which this court can reasonably draw that inference. It is not enough to

6

simply state the conclusion – unconnected to any specific factual allegations – that the doctors

7

acted with “maliciousness.”

8

The complaint will be dismissed but plaintiff will be granted leave to amend.

9

C. Amendment

10

If plaintiff chooses to amend the complaint, he must demonstrate how the conditions

11

complained of have resulted in a deprivation of plaintiff's constitutional rights. See Ellis v.

12

Cassidy, 625 F.2d 227 (9th Cir. 1980), abrogated on other (attorney’s fees) grounds, Kay v.

13

Ehrler, 499 U.S. 432 (1991). Also, the complaint must allege in specific terms how each named

14

defendant is involved. There can be no liability under 42 U.S.C. § 1983 unless there is some

15

affirmative link or connection between a defendant's actions and the claimed deprivation. Rizzo

16

v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir.1980); Johnson v.

17

Duffy, 588 F.2d 740, 743 (9th Cir.1978). Furthermore, vague and conclusory allegations of

18

official participation in civil rights violations are not sufficient. See Ivey v. Board of Regents,

19

673 F.2d 266, 268 (9th Cir.1982).

20

In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to

21

make plaintiff's amended complaint complete. Local Rule 220 requires that an amended

22

complaint be complete in itself without reference to any prior pleading. This is because, as a

23

general rule, an amended complaint supersedes the original complaint. See Lacey v. Maricopa

24

County, 693 F.3d 896, 927 (9th Cir. 2012) (en banc) (“the general rule is that an amended

25

complaint [supersedes] the original complaint and renders it without legal effect . . ..”) Once

26

plaintiff files an amended complaint, the original pleading no longer serves any function in the

27

case. Therefore, in an amended complaint, as in an original complaint, each claim and the

28

involvement of each defendant must be sufficiently alleged.
6

1

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

2

1. Plaintiff’s complaint is DISMISSED with leave to amend; and

3

2. Plaintiff is granted thirty (30) days from the date of service of this order to file an

4

amended complaint that complies with the requirements of the Civil Rights Act, the Federal Rules

5

of Civil Procedure, and the Local Rules of Practice; the amended complaint must bear the docket

6

number assigned this case and must be labeled “First Amended Complaint.” Plaintiff must file an

7

original and two copies of the amended complaint; failure to file an amended complaint in

8

accordance with this order will result in a recommendation that this action be dismissed.

9

DATED: December 19, 2014

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
7