Epps v. Salinas Valley Department of State Hospital et al

Filing 9

ORDER OF DISMISSAL (ECF No. 8). Signed by Judge Charles R. Breyer on 3/12/2018. (lsS, COURT STAFF) (Filed on 3/12/2018)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 ROBERT DAMON EPPS, P53887, Plaintiff, 9 United States District Court Northern District of California 12 ORDER OF DISMISSAL v. 10 11 Case No. 17-cv-07048-CRB (PR) SALINAS VALLEY DEPARTMENT OF STATE HOSPITAL, et al., (ECF No. 8) Defendant(s). 13 14 Plaintiff, a prisoner at Salinas Valley State Prison (SVSP), has filed a pro se complaint for 15 damages under 42 U.S.C. § 1983 alleging “swelling, pain and itching” after he received a 16 “Haloperidol Deconate injection 300 mg to right buttock.” Compl. (ECF No. 1) at 3. According 17 to plaintiff, he has taken this injection for years without problem, but Dr. Strieble improperly 18 changed the dosage from 250 mg to 300 mg and had him take the shot on “7-14-17 instead of 19 waiting” until “7-20-17.” Id. Plaintiff also seeks appointment of counsel under 28 U.S.C. § 1915. 20 DISCUSSION 21 22 23 A. Standard of Review Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 24 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion of 25 the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which relief 26 may be granted,” or “seeks monetary relief from a defendant who is immune from such relief.” Id. 27 § 1915A(b). Pro se pleadings must be liberally construed, however. Balistreri v. Pacifica Police 28 Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a 1 right secured by the Constitution or laws of the United States was violated, and (2) that the alleged 2 violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 3 42, 48 (1988). 4 B. Legal Claims 5 Deliberate indifference to serious medical needs violates the Eighth Amendment’s 6 proscription against cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 104 (1976). 7 8 9 A “serious medical need” exists if the failure to treat a prisoner’s condition could result in further significant injury or the “unnecessary and wanton infliction of pain.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992) (citing Estelle, 429 U.S. at 104), overruled in part on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). A prison official is “deliberately indifferent” only if he knows that a prisoner faces a substantial risk of 11 United States District Court Northern District of California 10 serious harm and disregards that risk by failing to take reasonable steps to abate it. Farmer v. 12 Brennan, 511 U.S. 825, 837 (1994). 13 14 Neither negligence nor gross negligence warrant liability under the Eighth Amendment. Id. at 835-36 & n.4. An “official’s failure to alleviate a significant risk that he should have perceived but did not . . . cannot under our cases be condemned as the infliction of punishment.” 15 Id. at 838. Instead, “the official’s conduct must have been ‘wanton,’ which turns not upon its 16 effect on the prisoner, but rather, upon the constraints facing the official.” Frost v. Agnos, 152 17 F.3d 1124, 1128 (9th Cir. 1998) (citing Wilson v. Seiter, 501 U.S. 294, 302-03 (1991)). Prison 18 officials violate their constitutional obligation only by “intentionally denying or delaying access to 19 medical care.” Estelle, 429 U.S. at 104-05. 20 21 Plaintiff’s allegations that he suffered swelling, pain and itching after Dr. Strieble changed plaintiff’s Haloperidol Deconate injection dosage from 250 mg to 300 mg, and had the injection administered to plaintiff several days too early, may be enough for plaintiff to pursue a negligence 22 or medical malpractice claim against Dr. Strieble in state court, but they are not enough to state a 23 deliberate indifference to serious medical needs claim under § 1983 against Dr. Strieble in federal 24 court. See Farmer, 511 U.S. at 835-36 & n.4; see also Toguchi v. Chung, 391 F.3d 1051, 1060-61 25 (9th Cir. 2004) (a claim of negligence or medical malpractice insufficient to make out 8th 26 Amendment violation). There is no indication whatsoever that Dr. Strieble’s alleged shortcomings were wanton so as to implicate the Eighth Amendment. Cf. Wilson, 501 U.S. at 302-03. 27 28 CONCLUSION For the foregoing reasons, the complaint is DISMISSED under 28 U.S.C. § 1915A(b) for failure to 2 1 state a claim upon which relief may be granted, and plaintiff’s motion for appointment of counsel (ECF No. 8) is DENIED as moot. 2 3 4 5 6 IT IS SO ORDERED. Dated: March 12, 2018 ______________________________________ CHARLES R. BREYER United States District Judge 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ROBERT DAMON EPPS, Case No. 3:17-cv-07048-CRB Plaintiff, 8 v. CERTIFICATE OF SERVICE 9 SALINAS VALLEY DEPARTMENT OF STATE HOSPITAL, et al., 11 United States District Court Northern District of California 10 Defendants. 12 13 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. 14 15 16 17 18 That on March 12, 2018, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. 19 20 21 Robert Damon Epps ID: P53887 Salinas Valley State Prison P.O. Box 1050 Soledad, CA 93960-1050 22 23 24 25 Dated: March 12, 2018 Susan Y. Soong Clerk, United States District Court 26 27 28 By:________________________ Lashanda Scott, Deputy Clerk to the Honorable CHARLES R. BREYER 4

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