Brewer v. Alta Bates Summit Medical Center et al

Filing 16

ORDER OF DISMISSAL. Signed by Judge Thelton E. Henderson on 10/18/2011. (Attachments: # 1 Certificate of Service)(tmi, COURT STAFF) (Filed on 10/20/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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No. C-11-2703 TEH (PR)

KEVIN BREWER, a/k/a MICHAEL
GREEN,

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Plaintiff,
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ORDER OF DISMISSAL

v.
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ALTA BATES SUMMIT MEDICAL CENTER,
et. al.,
(Doc. ## 3 & 12)

Defendant(s).
/

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Plaintiff Kevin D. Brewer, a/k/a Michael Green, currently

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a prisoner at Mule Creek State Prison, filed in this Court a pro se

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civil action against Alta Bates Summit Medical Center.

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is now before the Court for review under 28 U.S.C. § 1915A.

This action

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I
In his Complaint, Plaintiff discusses having a medical

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procedure done at Alta Bates Summit Medical Center on his thumb that

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unexpectedly resulted in a partial amputation of that thumb.

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alleges the following:

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to Alta Bates Medical Center for an incision and drainage of his

He

On November 18, 2007, Plaintiff was admitted

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right thumb.

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procedure, during which Plaintiff was unconscious, was performed by

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Dr. Rebecca Yu.

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Plaintiff had to have a right thumb partial amputation during that

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procedure.

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throughout his Complaint as an apparent basis on which to hold

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Defendants liable.

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whether Plaintiff was in custody at the time of the incident, i.e.,

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whether he went to the hospital as a jail inmate or a free citizen.

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On November 20, 2007, the incision and drainage

Due to alleged negligence by multiple Defendants,

Plaintiff refers to the doctrine of res ipsa loquitur

It cannot be determined from the Complaint

See Doc. #1.

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II

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A federal court must engage in a preliminary screening of

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any case in which a prisoner seeks redress from a governmental

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entity or officer or employee of a governmental entity.

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U.S.C. § 1915A(a).

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cognizable claims, and dismiss any claims which are frivolous,

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malicious, fail to state a claim upon which relief may be granted or

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seek monetary relief from a defendant who is immune from such

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relief.

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apply – as, for example, occurs when the prisoner-plaintiff does not

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seek redress from a governmental entity or officer or employee of a

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governmental entity – 28 U.S.C. § 1915 permits the Court to review a

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complaint filed in forma pauperis and dismiss the action if the

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complaint fails to state a claim upon which relief may be granted.

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See 28 U.S.C. § 1915(e)(2)(B)(ii).

In its review the Court must identify any

See id. at § 1915A(b).

Even if 28 U.S.C. § 1915A does not

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See 28

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Pro se pleadings must be

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liberally construed.

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Cir. 2010); Balistreri v. Pacifica Police Dep’t., 901 F.2d 696, 699

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(9th Cir. 1990).

See Hebbe v. Pliler, 627 F.3d 338, 342 (9th

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III

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Federal courts are courts of limited jurisdiction.

As

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relevant here, the Court has jurisdiction to entertain this action

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only if it raises a federal question, such as a civil rights claim

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asserted under 42 U.S.C. § 1983.

(There are other federal statutes

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that grant other bases of federal court jurisdiction, but none are

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applicable to this action.)

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proceed in federal court if a claim is stated under 42 U.S.C. §

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1983; if the Complaint does not state a claim under that federal

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statute, Plaintiff’s only redress is to file a new action in state

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court alleging violations of state tort law.

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In simple terms, this action may

To state a claim under 42 U.S.C. § 1983, a plaintiff must

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allege two elements:

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state law (2) violated a right secured by the Constitution or laws

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of the United States.

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As set forth below, Plaintiff’s Complaint fails on both prongs.

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(1) that a person acting under the color of

See West v. Atkins, 487 U.S. 42, 48 (1988).

First, Plaintiff has not alleged that any Defendant was a

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person acting under the color of state law.

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does not act under color of state law – an essential element of a 42

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U.S.C. § 1983 action.

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(1980).

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covered under 42 U.S.C. § 1983.

See Gomez v. Toledo, 446 U.S. 635, 640

Purely private conduct – no matter how wrongful – is not
See Van Ort v. Estate of Stanewich,

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A private individual

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92 F.3d 831, 835 (9th Cir. 1996).

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action thus fails to state a claim on which relief may be granted

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because the alleged wrong was not done by a state actor.

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Bates or Dr. Yu or some other one of the Defendant health care

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providers named by Plaintiff was under contract to provide services

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for the jail – assuming Plaintiff was in custody at the time – that

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entity or person might be a state actor, but even if so, that would

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only take care of one of the two elements required for a 42 U.S.C. §

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1983 action.

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Plaintiff’s 42 U.S.C. § 1983

If Alta

Second, Plaintiff’s Complaint does not allege a violation

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of a right secured by the Constitution or laws of the United States.

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The facts he alleges show, at most, negligence by the doctor who

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performed the procedure on Plaintiff’s thumb.

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citations in the Complaint are to state statutes covering tortious

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conduct.

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the prison context under 42 U.S.C. § 1983.

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511 U.S. 825, 835-36 & n.4 (1994); Wood v. Housewright, 900 F.2d

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1332, 1334 (9th Cir. 1990) (gross negligence insufficient to state

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claim for denial of medical needs to prisoner).

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actionable under 42 U.S.C. § 1983 outside of the prison context.

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The Constitution does not guarantee due care on the part of state

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officials; liability for negligently-inflicted harm is categorically

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beneath the threshold of constitutional due process.

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Sacramento v. Lewis, 523 U.S. 833, 849 (1998).

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Amendment’s prohibition of cruel and unusual punishment applies to

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prison medical care (and the Fourteenth Amendment’s right to due

Neither negligence nor gross negligence is actionable in

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Indeed most of the

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See Farmer v. Brennan,

Nor is negligence

See County of

The Eighth

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process applies to jail medical care); however, an Eighth Amendment

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or Fourteenth Amendment violation occurs only if there is deliberate

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indifference to a known risk to a prisoner’s serious medical

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condition.

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does not allege deliberate indifference to a medical need because

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that high standard requires that the Defendant actually know, and

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act in conscious disregard, of a serious risk to Plaintiff’s health.

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Plaintiff’s Complaint plainly shows that he does not know what went

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wrong that caused him to have a partial amputation, but only that it

Even with liberal construction, Plaintiff’s Complaint

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was not what he expected or consented to when he signed up for an

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incision and drainage of his right thumb.

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he would not be able to amend to allege an Eighth or Fourteenth

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Amendment claim.

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without leave to amend for failure to state a claim upon which

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relief may be granted.

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This, in turn, shows that

Accordingly, the Complaint will be dismissed

Plaintiff is advised that he may have a negligence claim,

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but that claim must be pursued in state court if at all.

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Plaintiff’s requests that a lawyer be appointed to help him proceed

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with his action, see Doc. ## 3 & 12, Plaintiff is further advised

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that this Court will not appoint a lawyer for him because this

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action is being dismissed and this court does not appoint lawyers to

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represent plaintiffs in state court.

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a lawyer to help him with a state court action, he may write to

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local bar associations (i.e., the local lawyers’ associations) or to

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the local superior court to see if it has a lawyer referral service

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or is able to provide him with forms to use in that court.

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As for

If Plaintiff wishes to obtain

Finally,

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Plaintiff is further advised that he should act diligently to

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preserve his legal rights, if any, in state court.

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IV

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For the foregoing reasons, this action is DISMISSED

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without leave to amend.

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prejudice to plaintiff filing a new action in state court.

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The dismissal of this action is without

The clerk is directed to terminate any pending motions as
moot and to close the file.

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IT IS SO ORDERED.
DATED

10/18/2011
THELTON E. HENDERSON
United States District Judge

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G:\PRO-SE\TEH\CR.11\Brewer-11-2703-dismissal.wpd

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