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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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

United States District Court

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DAVID G. BERUBE,

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Plaintiff,
vs.

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MICHAEL HENNESSEY, et al.,
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Defendants.
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No. C 11-03055 EJD (PR)
ORDER OF DISMISSAL

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Plaintiff, who is currently detained at the San Francisco County Jail, has filed

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a pro se civil rights complaint under 42 U.S.C. § 1983 against Sheriff Michael

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Hennessey, the City and County of San Francisco, and the San Francisco General

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Hospital (“SFGH”). Plaintiff’s motion to proceed in forma pauperis will be

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addressed in a separate order.

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DISCUSSION

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A.

Standard of Review
Federal courts must engage in a preliminary screening of cases in which

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

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governmental entity. 28 U.S.C. § 1915A(a). The court must identify cognizable
Order of Dismissal
03055Berube_dismissal.wpd

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claims or dismiss the complaint, or any portion of the complaint, if the complaint “is

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frivolous, malicious, or fails to state a claim upon which relief may be granted,” or

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“seeks monetary relief from a defendant who is immune from such relief.” Id. §

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1915A(b). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police

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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

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elements: (1) that a right secured by the Constitution or laws of the United States

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was violated, and (2) that the alleged violation was committed by a person acting

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under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

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For the Northern District of California

United States District Court

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B.

Legal Claims
Plaintiff alleges that in May 2010, while housed at the San Francisco County

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Jail, he was attacked by another inmate, whom he claims was a “Northern Prison

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Gang Drop Out who couldn’t be housed with blacks.” Plaintiff alleges that the

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inmate bit his “fourth right hand ring finger completely off.” Plaintiff was taken to

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“medical,” where he was “given no treatment except a towel around [his] hand to

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absorb blood.” Plaintiff claims that the deputies decided to take him directly to the

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hospital rather than call for an ambulance, and that he was stripped, shackled and

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taken to SFGH. At SFGH, he states that he “sat there suffering for 20 minutes”

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while “giv[ing] intake insurance information.” Plaintiff claims that when he asked

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for morphine, the nurse replied, “‘we don’t give that here.’” (Compl. at 3.)

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Plaintiff states that he “believe[s] the incident was caused by the Sheriffs

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department, covered up by the Sheriff’s department” and that he “feel[s] [he] was

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tortured by the SFGH.” (Id. at 3-4.) Plaintiff seeks monetary relief for his pain and

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suffering, and the injury to his finger.

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The complaint must be dismissed for failure to state a cognizable claim.

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Plaintiff’s claim that he “believes” the Sheriff’s Department caused and covered up

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the incident are purely speculatively and not supported by any facts, as is his claim

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against SFGH for the alleged “torture.” Liberally construed, Plaintiff is stretching
Order of Dismissal
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alleged must be, objectively, sufficiently serious, Farmer v. Brennan, 511 U.S. 825,

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834 (1994) (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)), and (2) the prison

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official possesses a sufficiently culpable state of mind, id. (citing Wilson, 501 U.S.

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at 297). In prison-conditions cases, the necessary state of mind is one of “deliberate

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indifference.” See, e.g., Farmer, 511 U.S. at 834 (inmate safety); Helling v.

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McKinney, 509 U.S. 25, 32-33 (1993) (inmate health); Estelle v. Gamble, 429 U.S.

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97, 104 (1976) (inmate health). With respect to medical needs, a prison official is

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deliberately indifferent if he knows that a prisoner faces a substantial risk of serious

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harm and disregards that risk by failing to take reasonable steps to abate it. Farmer

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For the Northern District of California

for an Eighth Amendment claim which requires a showing that: (1) the deprivation

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United States District Court

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v. Brennan, 511 U.S. 825, 837 (1994).

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First of all, Plaintiff fails to show that the Sheriff Department officials knew

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of and disregarded an excessive risk to Plaintiff’s health or safety. See Farmer, 511

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U.S. at 837. The official must both be aware of facts from which the inference could

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be drawn that a substantial risk of serious harm exists, and he must also draw the

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inference. See id. Here, Plaintiff makes no factual allegations regarding a potential

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threat to his safety at the hands of this particular inmate by which jail officials

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should have known that housing him with Plaintiff placed the latter at substantial

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risk of serious harm. Furthermore, without such factual allegations, it cannot be said

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that Defendants actually drew any inference between a potential threat and

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Plaintiff’s safety to indicate that they acted with deliberate indifference in failing to

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protect Plaintiff. See Hearns v. Terhune, 413 F.3d 1036, 1041-42 (9th Cir. 2005).

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Furthermore, there is no indication that Sheriff Department officials acted

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unlawfully in obtaining prompt medical care for Plaintiff after the attack. By

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Plaintiff’s own admission, he was taken immediately to the jail’s medical clinic,

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from which he was taken directly to SFGH. In fact, it appears that the deputy acted

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with greater expediency in taking him to the hospital himself rather than waiting for

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an ambulance to arrive. Accordingly, it cannot be said that jail officials acted with
Order of Dismissal
03055Berube_dismissal.wpd

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deliberate indifference in obtaining medical care for his injuries.
Lastly, Plaintiff’s allegation that SFGH “tortured” him is not supported by the

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facts. Assuming he had a serious medical need, Plaintiff must show that the nurse

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acted with deliberate indifference to state an Eighth Amendment medical claim. In

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order for deliberate indifference to be established, there must be a purposeful act or

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failure to act on the part of the defendant and resulting harm. See McGuckin v.

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Smith, 974 F.2d 160 (9th Cir. 1992); Shapley v. Nevada Bd. of State Prison

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Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985). Here, Plaintiff fails to show that the

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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

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For the Northern District of California

United States District Court

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and the nurse decided it was not appropriate to give it to him, Plaintiff would still

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not be able to state a claim because a showing of nothing more than a difference of

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medical opinion as to the need to pursue one course of treatment over another is

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insufficient, as a matter of law, to establish deliberate indifference, see Toguchi v.

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Chung, 391 F.3d 1051, 1059-60 (9th Cir. 2004).

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Accordingly, this action is DISMISSED for failure to state a claim upon
which relief may be granted. 28 U.S.C. § 1915A(b).

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CONCLUSION

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For the foregoing reasons, the complaint is DISMISSED with prejudice.

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November 21, 2011
DATED:_____________________

EDWARD J. DAVILA
United States District Judge

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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