Briggs v. Nguyen, et al

Filing 11

ORDER OF DIMSISSAL WITH LEAVE TO AMEND. Signed by Judge William Alsup on 6/6/16. (Attachments: # 1 Certificate/Proof of Service)(dl, COURT STAFF) (Filed on 6/7/2016)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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ALEX BRIGGS,
Plaintiff,

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ORDER OF DISMISSAL WITH
LEAVE TO AMEND

v.

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For the Northern District of California

United States District Court

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No. C 16-2520 WHA (PR)

DR. CHI NGUYEN; DR. H. UY;
CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION,

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Defendants.
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INTRODUCTION
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Plaintiff, an inmate at the California Training Facility in Soledad, California, filed this
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civil rights case under 42 U.S.C. 1983 against two dentists at CTF and the California
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Department of Corrections and Rehabilitation (“CDCR”) for providing him with inadequate
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dental care. He is granted leave to proceed in forma pauperis in a separate order. For the
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reasons discussed below, the complaint is dismissed with leave to amend.
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ANALYSIS
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A.

STANDARD OF REVIEW

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Federal courts must engage in a preliminary screening of cases in which prisoners seek
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redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C.
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1915A(a). In its review the court must identify any cognizable claims, and dismiss any claims
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which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek
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monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro

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se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699

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(9th Cir. 1990).

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Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the

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claim showing that the pleader is entitled to relief." "Specific facts are not necessary; the

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statement need only '"give the defendant fair notice of what the . . . . claim is and the grounds

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upon which it rests."'" Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (citations omitted).

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Although in order to state a claim a complaint “does not need detailed factual allegations, . . . a

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plaintiff's obligation to provide the 'grounds of his 'entitle[ment] to relief' requires more than

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labels and conclusions, and a formulaic recitation of the elements of a cause of action will not
do. . . . Factual allegations must be enough to raise a right to relief above the speculative

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For the Northern District of California

United States District Court

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level." Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007) (citations omitted). A

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complaint must proffer "enough facts to state a claim for relief that is plausible on its face." Id.

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at 1974.

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To state a claim under 42 U.S.C. 1983, a plaintiff must allege two essential elements:

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(1) that a right secured by the Constitution or laws of the United States was violated, and (2)

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that the alleged deprivation was committed by a person acting under the color of state law.

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

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B.

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LEGAL CLAIMS
Plaintiff alleges that in August 2015 defendant Dr. Nguyen severed a nerve while

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performing oral surgery to remove plaintiff’s molars. Plaintiff suffered pain and other

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symptoms and has only been able to chew on the left side of his mouth. Plaintiff further alleges

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that defendant Dr. Uy, who is Dr. Nguyen’s supervisor “approved” of Dr. Nguyen’s actions,

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and advised plaintiff that it would take six months to a year for him to heal from the nerve

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damage.

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Deliberate indifference to serious medical needs violates the Eighth Amendment's

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proscription against cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 104 (1976).

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Serious medical needs may include dental care. Hunt v. Dental Dep't, 865 F.2d 198, 200 (9th

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Cir. 1989) (dental care important medical need of inmates). It can be assumed at this stage that

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plaintiff’s dental needs amounted to a “serious” need triggering the protections of the Eighth

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Amendment.

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However liberally plaintiff’s allegations are construed, they do not show that defendants

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were deliberately indifferent. A prison official is deliberately indifferent if he knows that a

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prisoner faces a substantial risk of serious harm and disregards that risk by failing to take

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reasonable steps to abate it. Farmer v. Brennan, 511 U.S. 825, 837 (1994). The prison official

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must not only “be aware of facts from which the inference could be drawn that a substantial risk

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of serious harm exists,” but he “must also draw the inference.” Ibid. In order for deliberate
indifference to be established, therefore, there must be a purposeful act or failure to act on the

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For the Northern District of California

United States District Court

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part of the defendant and resulting harm. Shapley v. Nevada Bd. of State Prison Comm'rs, 766

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F.2d 404, 407 (9th Cir. 1985). Dr. Nguyen severing a nerve during surgery does not, on its

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own, indicate that he acted with deliberate indifference. That fact alone may suggest negligence

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or medical malpractice, but a claim of medical malpractice or negligence is insufficient to make

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out a violation of the Eighth Amendment. See Toguchi v. Chung, 391 F.3d 1051, 1060-61 (9th

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Cir. 2004). To state a claim for deliberate indifference, plaintiff must allege facts that plausibly

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show that Dr. Nguyen knew that there was a substantial risk the nerve would be severed during

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surgery, and that he failed to take reasonable steps to abate that risk. Plaintiff will be given

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leave to file an amended complaint in which he alleges such facts, if he can do so in good faith.

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Plaintiff’s allegations concerning Dr. Uy also do not state a cognizable claim for relief

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under the Eighth Amendment. Plaintiff does not allege how or when Dr. Uy “approved” of Dr.

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Nguyen’s actions. As explained above, plaintiff has not stated a plausible claim that Dr.

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Nguyen was himself deliberately indifferent. He has also not alleged facts that would, if true,

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show Dr. Uy knew that approving of Dr. Nguyen’s actions presented a substantial and

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unreasonable risk of harm to plaintiff. As a result, he has not stated a cognizable claim against

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Dr. Uy. If plaintiff wants to pursue a claim against Dr. Uy, he must correct this problem in an

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amended complaint.

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Plaintiff’s claim for monetary damages against the California Department of Corrections

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and Rehabilitation is barred by the Eleventh Amendment. See Brown v. Cal. Dep't of Corrs.,

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554 F.3d 747, 752 (9th Cir. 2009) (California Department of Corrections and California Board

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of Prison Terms entitled to 11th Amendment immunity).

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CONCLUSION

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For the reasons set out above, it is hereby ordered as follows:

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1. The complaint is DISMISSED with leave to amend, as described above, within 28

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days of the date this order is filed. The amended complaint must include the caption used in

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this order and the civil case number C 16-2520 WHA (PR) and the words FIRST AMENDED
COMPLAINT on the first page. Because an amended complaint completely replaces the

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For the Northern District of California

United States District Court

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original complaint, plaintiff must include in it all the claims he wishes to present. See Ferdik v.

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Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). He may not incorporate material from the

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original complaint by reference. Failure to amend within the designated time and in accordance

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with this order will result in the dismissal of this case.

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2. It is the plaintiff's responsibility to prosecute this case. Plaintiff must keep the court

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informed of any change of address by filing with the clerk a separate paper headed “Notice of

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Change of Address.” Papers intended to be filed in this case should be addressed to the clerk

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and not to the undersigned. Plaintiff must comply with the Court's orders in a timely fashion.

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Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to

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Federal Rule of Civil Procedure 41(b).

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3. Plaintiff’s request for assistance of counsel is denied because there is no right to

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counsel in a civil case and this case presents no extraordinary circumstances at this stage that

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warrant such an appointment.

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IT IS SO ORDERED.

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Dated: June
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, 2016.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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