Coles v. Ma et al

Filing 14

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 03/13/18 ORDERING the Clerk of the Court assign a district court judge to this case. Also, RECOMMENDING that this action be dismissed for failure to state a claim upon which relief can be granted. Assigned and referred to Judge Morrison C. England Jr. Objections due within 14 days. (Plummer, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JAMEEL R. COLES, 12 No. 2:17-cv-2234 CKD P Plaintiff, 13 v. 14 JIAN MA, et al., 15 ORDER AND FINDINGS AND RECOMMENDATIONS Defendants. 16 Plaintiff is a state prisoner proceeding pro se and seeking relief pursuant to 42 U.S.C. § 17 18 1983. On November 8, 2017, the court screened plaintiff’s complaint as the court is required to 19 do under 28 U.S.C. § 1915A(a). The complaint was dismissed with leave to amend. Plaintiff has 20 now filed an amended complaint. The court is required to screen complaints brought by prisoners seeking relief against a 21 22 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 23 court must dismiss a complaint or portion thereof if, among other things, the prisoner has raised 24 claims that fail to state a claim upon which relief may be granted. 28 U.S.C. § 1915A(b)(1),(2). 25 When considering whether a complaint states a claim upon which relief can be granted, the court 26 must accept the allegations as true, Erickson v. Pardus, 551 U.S. 89, 93-4 (2007), and construe the 27 complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 28 (1974). 1 In the court’s November 8, 2017 order dismissing his complaint, plaintiff was informed as 1 2 follows concerning the contents of any amended complaint: 3 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions complained of have resulted in a deprivation of plaintiff’s constitutional rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). Plaintiff complains about medical care. Denial or delay of medical care may constitute a violation of the prisoner’s Eighth Amendment rights. Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). An individual is liable for such a violation only when injury results from deliberate indifference to a prisoner’s serious medical needs. Id. A difference of opinion about the proper course of treatment is not deliberate indifference, nor does a dispute between a prisoner and prison officials over the necessity for or extent of medical treatment amount to a constitutional violation. See, e.g., Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004). Furthermore, mere delay of medical treatment, “without more, is insufficient to state a claim of deliberate medical indifference.” Shapley v. Nev. Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). Where a prisoner alleges that delay of medical treatment is deliberate indifference, the prisoner must show that the delay caused “significant harm and that Defendants should have known this to be the case.” Hallett v. Morgan, 296 F.3d 732, 745-46 (9th Cir. 2002). 4 5 6 7 8 9 10 11 12 13 14 After screening plaintiff’s amended complaint, the court finds that it too fails to state a 15 claim upon which relief can be granted. Plaintiff complains that the medical treatment he has 16 received for pain in his right knee has not been adequate. As indicated above, in order to state a 17 claim under the Eighth Amendment for cruel and unusual punishment with respect to medical 18 care, plaintiff must allege facts demonstrating at least deliberate indifference to a serious medical 19 need. The facts alleged do not establish indifference as it is clear from plaintiff’s exhibits that 20 plaintiff has been seen by doctors a number of times with respect to his knee and has received 21 advice and treatment. See ECF No. 13 at 14-41. Most notably, defendant Dr. Ma referred 22 plaintiff for a consultation with an orthopedic surgeon (ECF No. 13 at 15) which occurred on 23 June 13, 2017 (ECF No. 13 at 21-22). At the advice of the orthopedic surgeon, defendant Ma 24 recommended on June 21, 2017 that an MRI of plaintiff’s knee be taken. ECF No. 13 at 18. That 25 request was approved. ECF No. 13 at 34. Plaintiff is not satisfied with the treatment he has 26 received as he still has pain in his knee. But he does not suggest what treatment he should 27 ///// 28 ///// 2 1 receive. Also, plaintiff does not point to anything suggesting any of defendant’s treatment was 2 incorrect or even negligent1 let alone amounting to indifference. For these reasons, plaintiff’s amended complaint does not include facts suggesting he has 3 4 been subjected to cruel and unusual punishment. Considering the advice given to plaintiff 5 following the dismissal of his original complaint and considering that in his amended complaint 6 plaintiff still does not allege facts amounting to a claim upon which plaintiff may proceed, 7 granting plaintiff leave to amend a second time appears futile. 8 9 In accordance with the above, IT IS HEREBY ORDERED that the Clerk of the Court assign a district court judge to this case; and 10 11 IT IS HEREBY RECOMMENDED that this action be dismissed for failure to state a claim upon which relief can be granted. 12 These findings and recommendations will be submitted to the United States District Judge 13 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 14 after being served with these findings and recommendations, plaintiff may file written objections 15 with the court. The document should be captioned “Objections to Findings and 16 Recommendations.” Plaintiff is advised that failure to file objections within the specified time 17 may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th 18 Cir. 1991). 19 Dated: March 13, 2018 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 1 cole2234.frs 26 27 28 1 If plaintiff can allege facts suggesting any defendant was or is being negligent with respect to their treatment of plaintiff’s knee, plaintiff may have a cause of action arising under California law which he could pursue in a California court. 3

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