Ferguson v. Mindoro, MD et al

Filing 6

ORDER OF DISMISSAL. Signed by Judge Jon S. Tigar on April 5, 2017. (Attachments: # 1 Certificate/Proof of Service) (wsn, COURT STAFF) (Filed on 4/5/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 GEORGE EDWARD FERGUSON, Plaintiff, 8 S. STEINHAUS, et al., Defendants. 11 United States District Court Northern District of California ORDER OF DISMISSAL v. 9 10 Case No. 16-cv-06417-JST (PR) 12 INTRODUCTION 13 14 Plaintiff, a California prisoner incarcerated at the Correctional Training Facility (CTF), 15 filed this pro se civil rights action pursuant to 42 U.S.C. § 1983, alleging claims for deliberate 16 indifference to serious medical needs against two CTF doctors. The Court identified various 17 deficiencies in plaintiff’s complaint and dismissed it with leave to amend. Plaintiff has filed an 18 amended complaint (FAC), in which he no longer names the doctor defendants but instead names 19 two CTF nurses as defendants. The FAC is now before the Court for review under 28 U.S.C. 20 § 1915A. 21 BACKGROUND 22 The following allegations are taken from the FAC: 23 On November 5, 2015, while in class, plaintiff began experiencing severe abdominal pain 24 and vomiting. His instructor directed him to return to his housing unit. His housing unit floor 25 officer then directed plaintiff to report to Central Medical. Defendant Nurse Steinhaus attended to 26 plaintiff and conducted a physical plan. Nurse Steinhaus then consulted with CTF Dr. Mindoro by 27 telephone. Dr. Mindoro ordered a gastrointestinal (GI) cocktail and instructed plaintiff to drink 28 extra fluids, consume light chicken soup, and place a sick call request if symptoms did not resolve 1 by the next morning. 2 Plaintiff’s abdominal pain continued for two more days. On November 7, 2015, he 3 returned to Central Medical, where he was examined by defendant Nurse Mandich. Nurse 4 Mandich consulted with CTF Dr. Branch by telephone. Plaintiff was again given a GI cocktail 5 along with intravenous fluids for dehydration and medication for his diarrhea. On November 9, 2015, plaintiff returned to Central Medical where he was examined by 6 7 CTF Dr. Sweet. Dr. Sweet ordered x-rays, which showed gallstones. Plaintiff was transported to 8 Natividad Medical Center for surgery. DISCUSSION 9 10 United States District Court Northern District of California 11 A. Standard of Review A federal court must conduct a preliminary screening in any case in which a prisoner seeks 12 redress from a governmental entity or officer or employee of a governmental entity. See 28 13 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any 14 claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek 15 monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), 16 (2). Pro se pleadings must, however, be liberally construed. See Balistreri v. Pacifica Police 17 Dep’t., 901 F.2d 696, 699 (9th Cir. 1988). 18 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 19 claim showing that the pleader is entitled to relief.” “Specific facts are not necessary; the 20 statement need only “ ‘give the defendant fair notice of what the . . . claim is and the grounds upon 21 which it rests.’ ” Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (citations omitted). Although 22 in order to state a claim a complaint “does not need detailed factual allegations, . . . a plaintiff’s 23 obligation to provide the grounds of his ‘entitle[ment] to relief’ requires more than labels and 24 conclusions, and a formulaic recitation of the elements of a cause of action will not do. . . . 25 Factual allegations must be enough to raise a right to relief above the speculative level.” Bell 26 Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007) (citations omitted). A complaint 27 must proffer “enough facts to state a claim for relief that is plausible on its face.” Id. at 1974. 28 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: 2 1 (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that 2 the alleged violation was committed by a person acting under the color of state law. See West v. 3 Atkins, 487 U.S. 42, 48 (1988). 4 B. 5 Legal Claims Plaintiff alleges that Nurses Steinhaus and Mandich acted with deliberate indifference to 6 his serious medical needs by failing to fully report plaintiff’s symptoms over the telephone to 7 Doctors Mindoro and Branch. Specifically, plaintiff alleges that Nurse Steinhaus described 8 plaintiff’s condition as nausea and vomiting but failed to report plaintiff’s abdominal pain. 9 Plaintiff similarly alleges that Nurse Mandich “omitted to report her observation of very tender and painful abdominal condition.” FAC at 7. This allegation is contradicted by Nurse Mandich’s 11 United States District Court Northern District of California 10 “encounter form,” in which she noted that plaintiff had “moderate or severe abdominal pain” as 12 well as “moderate . . . tenderness on palpation.” FAC at 21. Even accepting Plaintiff’s allegations 13 as true, however, the FAC fails to show that Nurses Steinhaus and Mandich acted with the 14 necessary mental state for deliberate indifference. 15 Deliberate indifference to a prisoner’s serious medical needs amounts to the cruel and 16 unusual punishment prohibited by the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104 17 (1976); Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004); McGuckin v. Smith, 974 F.2d 18 1050, 1059 (9th Cir. 1992), overruled on other grounds by WMX Technologies, Inc. v. Miller, 104 19 F.3d 1133, 1136 (9th Cir. 1997) (en banc). A prison official violates the Eighth Amendment only 20 when two requirements are met: (1) the deprivation alleged is, objectively, sufficiently serious, 21 and (2) the official is, subjectively, deliberately indifferent to the inmate’s health or safety. 22 Farmer v. Brennan, 511 U.S. 825, 834 (1994). 23 Neither negligence nor gross negligence warrant liability under the Eighth Amendment. 24 Id. at 835-36 & n4. An “official’s failure to alleviate a significant risk that he should have 25 perceived but did not, . . . cannot under our cases be condemned as the infliction of punishment.” 26 Id. at 838. Instead, “the official’s conduct must have been ‘wanton,’ which turns not upon its 27 effect on the prisoner, but rather, upon the constraints facing the official.” Frost v. Agnos, 152 28 F.3d 1124, 1128 (9th Cir. 1998) (citing Wilson v. Seiter, 501 U.S. 294, 302-03 (1991)). Prison 3 1 officials violate their constitutional obligation only by “intentionally denying or delaying access to 2 medical care.” Estelle, 429 U.S. at 104-05. A defendant is deliberately indifferent if he knows 3 that a prisoner faces a substantial risk of serious harm and disregards that risk by failing to take 4 reasonable steps to abate it. Farmer, 511 U.S. at 837. The defendant must not only “be aware of 5 facts from which the inference could be drawn that a substantial risk of serious harm exists,” but 6 he “must also draw the inference.” Id. Here, plaintiff admits that Nurses Steinhaus and Mandich physically examined him and 8 obtained medications and other treatment from CTF doctors commensurate with his symptoms. 9 He does not allege that the defendant nurses failed to treat him, but only that they downplayed or 10 failed to report one of his symptoms when reporting to the CTF doctors. Nothing in the amended 11 United States District Court Northern District of California 7 complaint or attached exhibits shows that plaintiff received treatment that was “medically 12 unacceptable under the circumstances” and that defendants embarked on a course of treatment “in 13 conscious disregard of an excessive risk to [plaintiff’s] health.” See Toguchi, 391 F.3d at 1058 14 (citations omitted). Plaintiff describes actions that might constitute at worst negligence or gross 15 negligence, neither of which constitutes deliberate indifference. See Farmer, 511 U.S. at 835-36 16 & n.4. CONCLUSION 17 18 For the foregoing reasons, this case is DISMISSED. Dismissal is without leave to amend 19 because plaintiff has been given an opportunity to amend and it appears that further amendment 20 would be futile. However, dismissal is without prejudice to plaintiff pursuing in state court any 21 claims he may have under state law. The Clerk shall enter judgment in favor of defendants, and 22 close the file. 23 24 IT IS SO ORDERED. Dated: April 5, 2017 25 26 JON S. TIGAR United States District Judge 27 28 4

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