Robinson v. Harris

Filing 19

ORDER DISMISSING Third Amended Complaint For Failure to State a Claim Pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Signed by Judge Marilyn L. Huff on 4/14/2014. (All non-registered users served via U.S. Mail Service) (srm)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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CORVETTE B. ROBINSON
CDCR #J-81217

Civil No.
Plaintiff,

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ORDER DISMISSING THIRD
AMENDED COMPLAINT FOR
FAILURE TO STATE A CLAIM
PURSUANT TO 28 U.S.C.
§§ 1915(e)(2) AND 1915A(b)

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vs.

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13-cv-0091-H (KSC)

M. L. HARRIS,
Defendant.

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On January 11, 2013, Corvette B. Robinson (“Plaintiff”), a state inmate
currently incarcerated at the Richard J. Donovan Correctional Facility located in San
Diego, California, and proceeding pro se, submitted a civil action pursuant to 42
U.S.C. § 1983. (Doc. No. 1.) Plaintiff also filed a certified copy of his inmate trust
account statement which the Court liberally construed as Plaintiff’s Motion to
Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). (Doc. No. 3.) On
February 25, 2013, the Court granted Plaintiff’s Motion to Proceed IFP and
simultaneously dismissed his complaint for failing to state a claim upon which relief
could be granted. (Doc. No. 5 at 6-7.) On April 8, 2013, Plaintiff filed his first
amended complaint. (Doc. No. 8.)
On July 19, 2013 the Court dismissed Plaintiff’s FAC for failing to state a
claim upon which relief could be granted, and granted Plaintiff leave to file a second
amended complaint. (Doc. No. 9.) On August 22, 2013, Plaintiff filed his second
amended complaint along with documentation of his medical treatment. (Doc. No.
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11.) On September 16, 2013, the Court dismissed Plaintiff’s SAC without prejudice.

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(Doc. No. 14.)
On November 26, 2013, Plaintiff filed his third amended complaint (“TAC”).

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(Doc. No. 18, (“TAC”).) The Court dismisses Plaintiff’s TAC.
Discussion

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I.

Legal Standard for Initial Screening per 28 U.S.C. §§ 1915(e)(2)(b)(ii) and

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1915A(b)(1)

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Notwithstanding IFP status or the payment of any partial filing fees, the Court

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must subject each civil action commenced pursuant to 28 U.S.C. § 1915(a) to mandatory

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screening and order the sua sponte dismissal of any case it finds “frivolous, malicious,

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failing to state a claim upon which relief may be granted, or seeking monetary relief from

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a defendant immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254

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F.3d 845, 845 (9th Cir. 2001) (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not

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limited to prisoners.”); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en

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banc) (noting that 28 U.S.C. § 1915(e) “not only permits but requires” the court to sua

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sponte dismiss an in forma pauperis complaint that fails to state a claim).

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

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sponte dismissal of only frivolous and malicious claims. Lopez, 203 F.3d at 1130. As

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amended, 28 U.S.C. § 1915(e)(2) mandates that the court, reviewing an action filed

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pursuant to the IFP provisions of section 1915, make and rule on its own motion to

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dismiss before directing the U.S. Marshal to effect service pursuant to Federal Rule of

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Civil Procedure 4(c)(3). See Calhoun, 254 F.3d at 845; Lopez, 203 F.3d at 1127.

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

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true all allegations of material fact and must construe those facts in the light most

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favorable to the plaintiff.” Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000); Barren

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v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that section 1915(e)(2)

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“parallels the language of Federal Rule of Civil Procedure 12(b)(6)”). District courts

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have a duty to liberally construe a pro se’s pleadings, Karim-Panahi v. Los Angeles
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Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988), that is “particularly important in civil

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rights cases.” Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). In giving liberal

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interpretation to a pro se civil rights complaint, however, the court may not “supply

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essential elements of claims that were not initially pled.” Ivey v. Bd. of Regents of the

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Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

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II.

Plaintiff’s Excessive Force Claim

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Plaintiff’s TAC alleges that Defendant Harris was the correctional officer assigned

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to the food serving line on November 22, 2011. (See TAC at 3.) On that day, Plaintiff

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alleges that Defendant Harris accused him of trying to get a second meal and cursed at

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Plaintiff. (Id.) Plaintiff alleges that Defendant Harris then grabbed a handful of “hot

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potato tots” and threw them at Plaintiff’s face. (Id. at 4.) Plaintiff alleges that he suffered

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facial burns and an eye injury. (Id.)

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Not every malevolent touch by a prison guard gives rise to a federal cause of

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action. Hudson v. McMillian, 503 U.S. 1, 10 (1992) (citing Johnson v. Glick, 481 F.2d

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1028, 1033 (2d Cir. 1973) (“Not every push or shove, even if it may later seem

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unnecessary in the peace of a judge’s chambers, violates a prisoner’s constitutional

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rights”). In order to violate the Eighth Amendment, the Defendant must use force which

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is “unnecessary” and “wanton.” Whitley v. Albers, 475 U.S. 312, 319 (1986). “It is

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obduracy and wantonness, not inadvertence or error in good faith, that characterize the

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conduct prohibited by the Cruel and Unusual Punishments Clause, whether that conduct

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occurs in connection with establishing conditions of confinement, [or] supplying medical

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needs . . . .” Id.

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A constitutional violation can only be established if force was used “maliciously

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and sadistically for the purpose of causing harm.” Id.; see also Wilson v. Seiter, 501

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U.S. 294, 298 (1991) (claims that an official has inflicted cruel and unusual punishment

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contain both an objective component as well as a subjective “inquiry into the prison

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official’s state of mind”). The Eighth Amendment’s prohibition of cruel and unusual

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punishment does not encompass de minimis uses of physical force, provided that the use
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of force is not the sort “repugnant to the conscience of mankind.” Hudson, 503 U.S. at

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10.

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Plaintiff’s TAC includes a slightly more detailed description of Plaintiff’s

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allegations, but includes no significant new allegations about Defendant’s conduct or

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Plaintiff’s injuries. (Compare TAC with Doc. Nos. 8; 11.) The Court has previously held

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that Defendant throwing a handful of food was a de minimis application of force, and

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that Plaintiff failed to allege that Defendant’s throwing of food was done “maliciously

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or sadistically for the purpose of causing harm.” (Doc. No. 9 at 4; Doc. No. 14 at 4.)

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Nothing in Plaintiff’s TAC gives grounds for the Court to reconsider its prior rulings.

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The Court dismisses Plaintiff’s Eighth Amendment excessive force claim for failing to

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state a claim upon which relief could be granted.

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III.

Plaintiff’s Deliberate Indifference to Serious Medical Need Claim

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Plaintiff once again claims that Defendant denied him breakfast on one occasion

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which interfered with this treatment for diabetes. (See TAC at 4.) Where an inmate’s

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claim is one of inadequate medical care, the inmate must allege “acts or omissions

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sufficiently harmful to evidence deliberate indifference to serious medical needs.” Estelle

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v. Gamble, 429 U.S. 97, 106 (1976). Such a claim has two elements: “the seriousness of

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the prisoner’s medical need and the nature of the defendant’s response to that need.”

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McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1991), overruled on other grounds

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by WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997). A medical need is

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serious “if the failure to treat the prisoner’s condition could result in further significant

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injury or the ‘unnecessary and wanton infliction of pain.’” McGuckin, 974 F.2d at 1059

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(quoting Estelle, 429 U.S. at 104). Indications of a serious medical need include “the

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presence of a medical condition that significantly affects an individual’s daily activities.”

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Id. at 1059-60. By establishing the existence of a serious medical need, an inmate

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satisfies the objective requirement for proving an Eighth Amendment violation. Farmer

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v. Brennan, 511 U.S. 825, 834 (1994).

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In general, deliberate indifference may be shown when prison officials deny,
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13cv0091 H (KSC)

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delay, or intentionally interfere with a prescribed course of medical treatment, or it may

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be shown by the way in which prison medical officials provide necessary care.

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Hutchinson v. United States, 838 F.2d 390, 393-94 (9th Cir. 1988). Before it can be said

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that a inmate’s civil rights have been abridged with regard to medical care, however, “the

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indifference to his medical needs must be substantial. Mere ‘indifference,’ ‘negligence,’

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or ‘medical malpractice’ will not support this cause of action.” Broughton v. Cutter

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Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 105-06); see

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also Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004).

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Plaintiff’s TAC makes no assertion that Plaintiff suffered injury as a result of

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missing his meal. In its previous orders, the Court held that Plaintiff failed to properly

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allege a deliberate indifference claim because he failed to demonstrate an injury and

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failed to demonstrate Defendant Harris knew of his diabetic condition. (Doc. No. 9 at 5;

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Doc. No. 14 at 5.) Although Plaintiff has submitted documentation to establish that he

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receives treatment for diabetes, (e.g., TAC Ex. B), Plaintiff’s TAC fails to demonstrate

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that Plaintiff suffered an injury due to missing his breakfast meal. The Court dismisses

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Plaintiff’s Eighth Amendment inadequate medical care claim for failing to state a claim

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upon which relief could be granted.
Conclusion

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The Court dismisses Plaintiff’s third amended complaint. 28 U.S.C.
§§ 1915(e)(2)(b) and 1915A(b).
IT IS SO ORDERED.
DATED: April 14, 2014
_________________________________
Marilyn L. Huff, District Judge
UNITED STATES DISTRICT COURT

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13cv0091 H (KSC)