Berube v. Hennessey et al

Filing 6

ORDER OF DISMISSAL. For the foregoing reasons, the complaint is DISMISSED with prejudice. Signed by Judge Edward J. Davila on 11/21/2011. (ecg, COURT STAFF) (Filed on 11/23/2011)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 11 For the Northern District of California United States District Court 10 DAVID G. BERUBE, 12 Plaintiff, vs. 13 14 MICHAEL HENNESSEY, et al., 15 Defendants. 16 ) ) ) ) ) ) ) ) ) ) ) No. C 11-03055 EJD (PR) ORDER OF DISMISSAL 17 Plaintiff, who is currently detained at the San Francisco County Jail, has filed 18 19 a pro se civil rights complaint under 42 U.S.C. § 1983 against Sheriff Michael 20 Hennessey, the City and County of San Francisco, and the San Francisco General 21 Hospital (“SFGH”). Plaintiff’s motion to proceed in forma pauperis will be 22 addressed in a separate order. 23 DISCUSSION 24 25 26 A. Standard of Review Federal courts must engage in a preliminary screening of cases in which 27 prisoners seek redress from a governmental entity or officer or employee of a 28 governmental entity. 28 U.S.C. § 1915A(a). The court must identify cognizable Order of Dismissal 03055Berube_dismissal.wpd 1 claims or dismiss the complaint, or any portion of the complaint, if the complaint “is 2 frivolous, malicious, or fails to state a claim upon which relief may be granted,” or 3 “seeks monetary relief from a defendant who is immune from such relief.” Id. § 4 1915A(b). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police 5 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 essential 6 7 elements: (1) that a right secured by the Constitution or laws of the United States 8 was violated, and (2) that the alleged violation was committed by a person acting 9 under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). 11 For the Northern District of California United States District Court 10 B. Legal Claims Plaintiff alleges that in May 2010, while housed at the San Francisco County 12 Jail, he was attacked by another inmate, whom he claims was a “Northern Prison 13 Gang Drop Out who couldn’t be housed with blacks.” Plaintiff alleges that the 14 inmate bit his “fourth right hand ring finger completely off.” Plaintiff was taken to 15 “medical,” where he was “given no treatment except a towel around [his] hand to 16 absorb blood.” Plaintiff claims that the deputies decided to take him directly to the 17 hospital rather than call for an ambulance, and that he was stripped, shackled and 18 taken to SFGH. At SFGH, he states that he “sat there suffering for 20 minutes” 19 while “giv[ing] intake insurance information.” Plaintiff claims that when he asked 20 for morphine, the nurse replied, “‘we don’t give that here.’” (Compl. at 3.) 21 Plaintiff states that he “believe[s] the incident was caused by the Sheriffs 22 department, covered up by the Sheriff’s department” and that he “feel[s] [he] was 23 tortured by the SFGH.” (Id. at 3-4.) Plaintiff seeks monetary relief for his pain and 24 suffering, and the injury to his finger. 25 The complaint must be dismissed for failure to state a cognizable claim. 26 Plaintiff’s claim that he “believes” the Sheriff’s Department caused and covered up 27 the incident are purely speculatively and not supported by any facts, as is his claim 28 against SFGH for the alleged “torture.” Liberally construed, Plaintiff is stretching Order of Dismissal 03055Berube_dismissal.wpd 2 alleged must be, objectively, sufficiently serious, Farmer v. Brennan, 511 U.S. 825, 3 834 (1994) (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)), and (2) the prison 4 official possesses a sufficiently culpable state of mind, id. (citing Wilson, 501 U.S. 5 at 297). In prison-conditions cases, the necessary state of mind is one of “deliberate 6 indifference.” See, e.g., Farmer, 511 U.S. at 834 (inmate safety); Helling v. 7 McKinney, 509 U.S. 25, 32-33 (1993) (inmate health); Estelle v. Gamble, 429 U.S. 8 97, 104 (1976) (inmate health). With respect to medical needs, a prison official is 9 deliberately indifferent if he knows that a prisoner faces a substantial risk of serious 10 harm and disregards that risk by failing to take reasonable steps to abate it. Farmer 11 For the Northern District of California for an Eighth Amendment claim which requires a showing that: (1) the deprivation 2 United States District Court 1 v. Brennan, 511 U.S. 825, 837 (1994). 12 First of all, Plaintiff fails to show that the Sheriff Department officials knew 13 of and disregarded an excessive risk to Plaintiff’s health or safety. See Farmer, 511 14 U.S. at 837. The official must both be aware of facts from which the inference could 15 be drawn that a substantial risk of serious harm exists, and he must also draw the 16 inference. See id. Here, Plaintiff makes no factual allegations regarding a potential 17 threat to his safety at the hands of this particular inmate by which jail officials 18 should have known that housing him with Plaintiff placed the latter at substantial 19 risk of serious harm. Furthermore, without such factual allegations, it cannot be said 20 that Defendants actually drew any inference between a potential threat and 21 Plaintiff’s safety to indicate that they acted with deliberate indifference in failing to 22 protect Plaintiff. See Hearns v. Terhune, 413 F.3d 1036, 1041-42 (9th Cir. 2005). 23 Furthermore, there is no indication that Sheriff Department officials acted 24 unlawfully in obtaining prompt medical care for Plaintiff after the attack. By 25 Plaintiff’s own admission, he was taken immediately to the jail’s medical clinic, 26 from which he was taken directly to SFGH. In fact, it appears that the deputy acted 27 with greater expediency in taking him to the hospital himself rather than waiting for 28 an ambulance to arrive. Accordingly, it cannot be said that jail officials acted with Order of Dismissal 03055Berube_dismissal.wpd 3 1 2 deliberate indifference in obtaining medical care for his injuries. Lastly, Plaintiff’s allegation that SFGH “tortured” him is not supported by the 3 facts. Assuming he had a serious medical need, Plaintiff must show that the nurse 4 acted with deliberate indifference to state an Eighth Amendment medical claim. In 5 order for deliberate indifference to be established, there must be a purposeful act or 6 failure to act on the part of the defendant and resulting harm. See McGuckin v. 7 Smith, 974 F.2d 160 (9th Cir. 1992); Shapley v. Nevada Bd. of State Prison 8 Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985). Here, Plaintiff fails to show that the 9 nurse purposefully failed to provide him with morphine when she simply stated a fact regarding the unavailability of morphine at SFGH. Even if SFGH had morphine 11 For the Northern District of California United States District Court 10 and the nurse decided it was not appropriate to give it to him, Plaintiff would still 12 not be able to state a claim because a showing of nothing more than a difference of 13 medical opinion as to the need to pursue one course of treatment over another is 14 insufficient, as a matter of law, to establish deliberate indifference, see Toguchi v. 15 Chung, 391 F.3d 1051, 1059-60 (9th Cir. 2004). 16 17 Accordingly, this action is DISMISSED for failure to state a claim upon which relief may be granted. 28 U.S.C. § 1915A(b). 18 19 CONCLUSION 20 For the foregoing reasons, the complaint is DISMISSED with prejudice. 21 22 November 21, 2011 DATED:_____________________ EDWARD J. DAVILA United States District Judge 23 24 25 26 27 28 Order of Dismissal 03055Berube_dismissal.wpd UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA DAVID GEORGE BERUBE, Case Number: CV11-03055 EJD Plaintiff, CERTIFICATE OF SERVICE v. MICHAEL HENNESSEY, et al., Defendants. / I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. 11/23/2011 That on , 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. David G. Berube #11665234 San Francisco County Jail 850 Bryant Street San Francisco, CA 94103 Dated: 11/23/2011 Richard W. Wieking, Clerk /s/ By: Elizabeth Garcia, Deputy Clerk

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