Thornton v. Cate et al

Filing 30

ORDER Sua Sponte DISMISSING Second Amended Complaint for Failing to State a Claim: Plaintiff's Second Amended Complaint is DISMISSED with prejudice for failing to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e )(2)(b) and § 1915A(b). IT IS FURTHER CERTIFIED that an IFP appeal from this final order of dismissal would not appear to be taken "in good faith" pursuant to 28 U.S.C. § 1915(a)(3). The Clerk shall close the file.Signed by Judge Janis L. Sammartino on 6/28/11.(All non-registered users served via U.S. Mail Service)(lmt)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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WILLIAM CECIL THORNTON,
CDCR #V-64547,

Civil No.
Plaintiff,

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ORDER SUA SPONTE
DISMISSING SECOND AMENDED
COMPLAINT FOR FAILING TO
STATE A CLAIM PURSUANT
TO 28 U.S.C. §§ 1915(e)(2)
& 1915A(b)

vs.
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MATTHEW CATE, et al.,
Defendants.

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I.

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PROCEDURAL HISTORY

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On July 27, 2010, Plaintiff, William Cecil Thornton, a state prisoner currently

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incarcerated at the California Correctional Institution located in Tehachapi, California and

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proceeding pro se, filed a civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff alleged that

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his constitutional rights were violated when he was housed at the Richard J. Donovan

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Correctional Facility (“RJD”) in 2008. (See Compl. at 1.)

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Plaintiff did not prepay the $350 civil filing fee required by 28 U.S.C. § 1914(a); instead

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he filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) [ECF.

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No. 2], as well as a Motion for Appointment of Counsel [ECF No. 5]. On September 16, 2010,

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the Court granted Plaintiff’s Motion to Proceed IFP, denied Plaintiff’s Motion for Appointment
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of Counsel and dismissed his Complaint for failing to state a claim upon which relief could be

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granted. See Sept. 16, 2010 Order at 7-8. Plaintiff was granted leave to file an Amended

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Complaint in order to correct the deficiencies of pleading identified by the Court. Id. Plaintiff

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filed his First Amended Complaint (“FAC”) on November 5, 2010. In his FAC, Plaintiff no

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longer named Matthew Cate, Richard Hernandez or George Neotti as Defendants. Thus, those

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Defendants were dismissed from this action. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir.

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1987).

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The Court, once again, dismissed Plaintiff’s First Amended Complaint for failing to state

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a claim upon which relief could be granted. See Feb. 23, 2011 Order at 6. Plaintiff was granted

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leave to file to a Second Amended Complaint in order to correct the deficiencies of pleading

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identified in the Court’s Order. Id. On June 10, 2011, Plaintiff filed his Second Amended

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Complaint (“SAC”).

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II.

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SUA SPONTE SCREENING PER 28 U.S.C. § 1915(e)(2) AND § 1915A

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A.

Standard

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As stated in the Court’s previous Orders, the Prison Litigation Reform Act (“PLRA”)

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obligates the Court to review complaints filed by all persons proceeding IFP and by those, like

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Plaintiff, who are “incarcerated or detained in any facility [and] accused of, sentenced for, or

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adjudicated delinquent for, violations of criminal law or the terms or conditions of parole,

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probation, pretrial release, or diversionary program,” “as soon as practicable after docketing.”

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See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these provisions, the Court must sua sponte

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dismiss any IFP or prisoner complaint, or any portion thereof, which is frivolous, malicious, fails

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to state a claim, or which seeks damages from defendants who are immune. See 28 U.S.C. §

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1915(e)(2)(B) and § 1915A; Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc)

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(§ 1915(e)(2)); Resnick v. Hayes, 213 F.3d 443, 446 (9th Cir. 2000) (§ 1915A).

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Before amendment by the PLRA, the former 28 U.S.C. § 1915(d) permitted sua sponte

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dismissal of only frivolous and malicious claims. Lopez, 203 F.3d at 1126, 1130. An action is

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frivolous if it lacks an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319,

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324 (1989). However 28 U.S.C. §§ 1915(e)(2) and 1915A now mandate that the court reviewing

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an IFP or prisoner’s suit make and rule on its own motion to dismiss before effecting service of

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the Complaint by the U.S. Marshal pursuant to FED.R.CIV.P. 4(c)(2). Id. at 1127 (“[S]ection

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1915(e) not only permits, but requires a district court to dismiss an in forma pauperis complaint

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that fails to state a claim.”); see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998)

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(discussing 28 U.S.C. § 1915A).

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“[W]hen determining whether a complaint states a claim, a court must accept as true all

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allegations of material fact and must construe those facts in the light most favorable to the

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plaintiff.” Resnick, 213 F.3d at 447; Barren, 152 F.3d at 1194 (noting that § 1915(e)(2)

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“parallels the language of Federal Rule of Civil Procedure 12(b)(6)”). In addition, the Court’s

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duty to liberally construe a pro se’s pleadings, see Karim-Panahi v. Los Angeles Police Dept.,

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839 F.2d 621, 623 (9th Cir. 1988), is “particularly important in civil rights cases.” Ferdik v.

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Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992).

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B.

Eighth Amendment claims

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Plaintiff alleges that Defendant Picatoste, a nurse at RJD, examined him on May 28, 2008

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regarding his lower back issues. (See SAC at 3.) Plaintiff claims that Defendant Picatoste

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refused to allow him to be examined by a medical doctor and as a result he has “atrophy in my

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left leg and nerve damage in my leg and back.” (Id.)

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“The unnecessary and wanton infliction of pain upon incarcerated individuals under

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color of law constitutes a violation of the Eighth Amendment.” Toguchi v. Chung, 391 F.3d

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1051, 1056-57 (9th Cir. 2004) (citing McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992)).

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A violation of the Eighth Amendment occurs when prison officials are deliberately indifferent

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to a prisoner’s medical needs. Id.; see also Estelle v. Gamble, 429 U.S. 97, 105 (1976).

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To allege an Eighth Amendment violation, a prisoner must “satisfy both the objective

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and subjective components of a two-part test.” Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir.

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2002) (citation omitted). First, he must allege that prison officials deprived him of the “minimal

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civilized measure of life’s necessities.” Id. (citation omitted). Second, he must allege the prison

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official “acted with deliberate indifference in doing so.” Id. (citation and internal quotation

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marks omitted).

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A prison official acts with “deliberate indifference ... only if [he is alleged to] know[] of

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and disregard[] an excessive risk to inmate health and safety.” Gibson v. County of Washoe,

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Nevada, 290 F.3d 1175, 1187 (9th Cir. 2002) (citation and internal quotation marks omitted).

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Under this standard, the official must be alleged to “be aware of facts from which the inference

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could be drawn that a substantial risk of serious harm exist[ed],” and must also be alleged to

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also have drawn that inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). “If a [prison

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official] should have been aware of the risk, but was not, then the [official] has not violated the

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Eighth Amendment, no matter how severe the risk.” Gibson, 290 F.3d at 1188 (citation

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omitted). This “subjective approach” focuses only “on what a defendant’s mental attitude

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actually was.” Farmer, 511 U.S. at 839. “Mere negligence in diagnosing or treating a medical

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condition, without more, does not violate a prisoner’s Eighth Amendment rights.” McGuckin,

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974 F.2d at 1059 (alteration and citation omitted).

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Plaintiff claims that he had only one medical examination by Defendant Picatoste but her

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actions in not allowing him to be seen by a medical doctor caused him to have nerve damage and

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“atrophy” in his leg. (See SAC at 3.) Plaintiff claims that these actions caused a three year delay

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in finding treatment for his condition. However, documents attached to his Second Amended

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Complaint, along with a Petition for Writ of Habeas Corpus1 Plaintiff has filed, indicate that

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Plaintiff was actually paroled and released from RJD on June 29, 2008. This is only one month

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after the medical examination by Defendant Picatoste. Accordingly, it is simply not plausible

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Plaintiff has filed a Petition for Writ of Habeas Corpus in Thornton v. Stainer, S.D. Cal. Civil
A court “may take notice of proceedings in other courts, both
Case No. 11cv1266 LAB (BLM).
within and without the federal judicial system, if those proceedings have a direct relation to matters at
issue.” United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248
(9th Cir. 1992).
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that her alleged failure to allow Plaintiff to be seen by a medical doctor on May 28, 2008 caused

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a three year delay in finding additional treatment. A “claim has facial plausibility when the

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plaintiff pleads factual content that allows the court to draw the reasonable inference that the

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defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, __ U.S. __, 129 S.Ct. 1937,

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1949 (2009).

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In addition, the facts as described by Plaintiff indicate a difference of opinion with regard

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to his medical needs. However, mere “difference of medical opinion” between a prisoner and

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his physicians concerning the appropriate course of treatment is “insufficient, as a matter of law,

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to establish deliberate indifference.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996).

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Instead, to allege deliberate indifference regarding choices between alternative courses of

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treatment, a prisoner must allege that the chosen course of treatment “was medically

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unacceptable under the circumstances,” and was chosen “in conscious disregard of an excessive

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risk to [the prisoner’s] health.” Id. (citation omitted). Plaintiff has failed to allege any facts

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from which the Court could find that Defendants acted with deliberate indifference to his serious

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medical needs.

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C.

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Plaintiff also claims that the actions of Defendants caused his release date to be delayed

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by several weeks. However, Plaintiff cannot bring these claims under § 1983. A prisoner

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simply may not use a civil rights action to challenge the “fact or duration of his confinement.”

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Preiser v. Rodriguez, 411 U.S. 475, 489 (1973). The prisoner must seek federal habeas corpus

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relief instead. Wilkinson v. Dotson, 544 U.S. 74, 78 (2005) (quoting Preiser, 411 U.S. at 489).

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Thus, Plaintiff’s civil action “is barred (absent prior invalidation)–no matter the relief sought

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(damages or equitable relief), no matter the target of his suit (state conduct leading to conviction

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or internal prison proceedings)–if success in that action would necessarily demonstrate the

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invalidity of confinement or its duration.” Id. at 82. Thus, Plaintiff’s claims relating to the

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validity of his release date are dismissed without leave to amend in this action.

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Fourteenth Amendment claim

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III.

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CONCLUSION AND ORDER

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Good cause appearing therefor, IT IS HEREBY ORDERED that:

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1)

Plaintiff’s Second Amended Complaint [ECF No. 29] is DISMISSED with

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prejudice for failing to state a claim upon which relief may be granted pursuant to 28 U.S.C.

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§ 1915(e)(2)(b) and § 1915A(b). Because Plaintiff has been provided two opportunities, but still

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has failed to sufficiently state a claim, the Court finds further amendment would be futile. See

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Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 339 (9th Cir. 1996) (denial of a leave to amend is

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not an abuse of discretion where further amendment would be futile); see also Robinson v.

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California Bd. of Prison Terms, 997 F. Supp. 1303, 1308 (C.D. Cal. 1998) (“Since plaintiff has

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not, and cannot, state a claim containing an arguable basis in law, this action should be dismissed

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without leave to amend; any amendment would be futile.”) (citing Newland v. Dalton, 81 F.3d

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904, 907 (9th Cir. 1996)).

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2)

IT IS FURTHER CERTIFIED that an IFP appeal from this final order of

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dismissal would not appear to be taken “in good faith” pursuant to 28 U.S.C. § 1915(a)(3). See

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Coppedge v. United States, 369 U.S. 438, 445 (1962); Gardner v. Pogue, 558 F.2d 548, 550 (9th

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Cir. 1977) (indigent appellant is permitted to proceed IFP on appeal only if appeal would not be

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frivolous).

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The Clerk shall close the file.

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IT IS SO ORDERED.

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DATED: June 28, 2011
Honorable Janis L. Sammartino
United States District Judge

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