Hunt v. Otero et al
Filing
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ORDER DISMISSING First Amended Complaint for Failing to State a Claim. Signed by Judge Roger T. Benitez on 9/19/2016.(All non-registered users served via U.S. Mail Service)(knb)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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RAYMOND HUNT,
CDCR #F-45185,
Case No.: 3:15-cv-2885-BEN-BGS
ORDER DISMISSING FIRST
AMENDED COMPLAINT FOR
FAILING TO STATE A CLAIM
PURSUANT TO
28 U.S.C. § 1915(e)(2)(B)(ii) AND
28 U.S.C. § 1915A(b)(1)
Plaintiff,
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vs.
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Dr. JOSE OTERO;
Dr. BRUCE FOERSTER,
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(ECF No. 4)
Defendants.
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RAYMOND HUNT (“Plaintiff”), a prisoner currently incarcerated at Calipatria
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State Prison (“CAL”) in Calipatria, California, is proceeding pro se in this case pursuant
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to the Civil Rights Act, 42 U.S.C. § 1983.
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I.
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Procedural History
On March 28, 2016, the Court granted Plaintiff leave to proceed in forma pauperis
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pursuant to 28 U.S.C. § 1915(a), but dismissed his Complaint sua sponte for failing to
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state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1). Plaintiff has
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since filed a First Amended Complaint (ECF No. 4).
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II.
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Initial Screening Pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b)
As Plaintiff knows, the Court is obligated by the Prison Litigation Reform Act
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(“PLRA”) 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
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for, or adjudicated delinquent for, violations of criminal law or the terms or conditions of
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parole, probation, pretrial release, or diversionary program,” at the time of filing “as soon
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as practicable after docketing.” See 28 U.S.C. §§ 1915(e)(2), 1915A(b). Under the
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PLRA, the Court must sua sponte dismiss complaints, or any portions thereof, which are
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frivolous, malicious, fail to state a claim, or which seek damages from defendants who
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are immune. See 28 U.S.C. §§ 1915(e)(2)(B), 1915A; Rhodes v. Robinson, 621 F.3d
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1002, 1004 (9th Cir. 2010); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en
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banc).
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A.
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“The purpose of § 1915A is ‘to ensure that the targets of frivolous or malicious
Standard of Review
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suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920
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n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681
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(7th Cir. 2012)). “The standard for determining whether a plaintiff has failed to state a
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claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the
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Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v.
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Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); accord Wilhelm v. Rotman, 680 F.3d 1113,
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1121 (9th Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the
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familiar standard applied in the context of failure to state a claim under Federal Rule of
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Civil Procedure 12(b)(6)”).
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Every complaint must contain “a short and plain statement of the claim showing
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that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations
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are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported
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by mere conclusory statements, do not suffice.” Iqbal v. Ashcroft, 556 U.S. 662, 678
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(2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “When there are
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well-pleaded factual allegations, a court should assume their veracity, and then determine
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whether they plausibly give rise to an entitlement to relief.” Id. at 679. “Determining
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whether a complaint states a plausible claim for relief [is] . . . a context-specific task that
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requires the reviewing court to draw on its judicial experience and common sense.” Id.
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The “mere possibility of misconduct” falls short of meeting this plausibility standard.
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Id.; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).
While a plaintiff’s factual allegations are taken as true, courts “are not required to
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indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th
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Cir. 2009) (internal quotation marks and citation omitted). Indeed, while courts “have an
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obligation where the petitioner is pro se, particularly in civil rights cases, to construe the
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pleadings liberally and to afford the petitioner the benefit of any doubt,” Hebbe v. Pliler,
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627 F.3d 338, 342 n.7 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1
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(9th Cir. 1985)), it may not “supply essential elements of claims that were not initially
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pled,” Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
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Even before Iqbal, “[v]ague and conclusory allegations of official participation in civil
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rights violations” were not “sufficient to withstand a motion to dismiss.” Id.
Plaintiff’s Amended Complaint
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B.
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Plaintiff contends, as he did in his original Complaint, that Dr. Jose Otero, a
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surgeon at Alvarado Hospital, performed surgery on his left index finger on April 16,
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2012, two weeks after he broke it at CAL on April 2, 2012. (ECF No. 4 at 4 ¶¶ 1-2.) Dr.
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Otero removed the cast during a follow-up examination, instructed Plaintiff to soak his
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hand in warm water, and told him “with time he would be able to bend it and make a fist
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again.” (Id. ¶¶ 4-6.) Plaintiff later received physical therapy, “but noticed no progress,”
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therefore, he was examined again by Dr. Otero on June 11, 2012, via video conference.
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(Id. at 4-5 ¶¶ 7-8.) Plaintiff claims Dr. Otero told him the surgery was “successful” and
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recommended more physical therapy, but noted that his finger “would remain extended
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for the rest of his life.” (Id. at 5 ¶ 9.)
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After Plaintiff’s physician and physical therapist at CAL later agreed his finger
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appeared misaligned, Dr. Otero examined Plaintiff again on July 23, 2012. This time,
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Otero offered to remove the metal plate he had previously inserted into Plaintiff’s finger,
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but believing that the finger would still not bend “because of the surgical scar over the
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left index knuckle,” Otero refused to perform further reconstructive surgery on grounds
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that “it would only make it worse.” (Id. at 5-6 ¶¶ 13-14.)
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Plaintiff claims he remained in pain and was unable to move his left finger until
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May 30, 2013, when he alleges Dr. Foerster, another surgeon at Alvarado, performed a
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second surgery on his left index finger. (Id. at 8 ¶¶ 16, 17.) A few days later, on June 2,
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2013, Plaintiff claims the dressing on his hand was “soaked in blood” and he noticed “no
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sutures closing [his] incision.” (Id. ¶¶ 18, 19.) Plaintiff claims the “open surgical
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incision exposed [his] flesh and bone,” was “extreme[ly] pain[ful],” and became infected,
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for which he was treated with antibiotics. (Id. ¶¶ 20-22.)
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Plaintiff alleges he remains unable to move his left index finger or “use it in a
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meaningful manner,” and contends that both Dr. Otero’s and Dr. Foerster’s “surgeries
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were inadequate and below the standards of adequate medical treatment pursuant to the
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Eighth Amendment.” (Id. at 9 ¶ 24.)
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C.
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Title 42 U.S.C. § 1983 provides a cause of action for the “deprivation of any rights,
42 U.S.C. § 1983
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privileges, or immunities secured by the Constitution and laws” of the United States.
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Wyatt v. Cole, 504 U.S. 158, 161 (1992). To state a claim under § 1983, a plaintiff must
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allege two essential elements: (1) that a right secured by the Constitution or laws of the
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United States was violated, and (2) that the alleged violation was committed by a person
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acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Long v. Cnty. of
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Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006).
“Under Color of State Law”
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D.
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Plaintiff continues to allege, as he did in his original Complaint, that both Dr.
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Otero and Dr. Foerster were acting under contract with the California Department of
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Corrections and Rehabilitation when they performed surgery at Alvarado Hospital on his
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left index finger in April 2012 and May 2013. (ECF No. 4 at 2, 4, 8.)
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“[P]rivate physician[s] or hospital[s],” like Drs. Otero and Foerster “act under
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color of law for purposes of § 1983,” when they, as Plaintiff alleges in his Amended
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Complaint, provide medical care as “private contractors” on behalf of the CDCR for
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inmates within its custody. See West, 487 U.S. at 49-50; see also Lopez v. Dep’t of
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Health Servs., 939 F.2d 881, 883 (9th Cir. 1991) (per curiam) (finding state action where
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hospital “contract[ed] with the state . . . to provide medical services to indigent citizens”);
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George v. Sonoma Cnty. Sheriff’s Dep’t, 732 F. Supp. 2d 922, 934 (N.D. Cal. 2010) (“A
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private . . . hospital that contracts with a public prison system to provide treatment for
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inmates performs a public function and acts under color of law for purposes of § 1983.”).
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E.
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Plaintiff further claims the injury to his left index finger “was sufficiently serious”
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and contends “both surgeries” performed by Dr. Otero and Dr. Foerster “were inadequate
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and [fell] below the standards of adequate medical treatment” required by the Eighth
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Amendment because both Drs. “knew and disregarded the risk.” (ECF No. 4 at 9 ¶¶ 24-
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26.)
Eighth Amendment Inadequate Medical Care
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Medical officials violate the Eighth Amendment if they are “deliberate[ly]
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indifferen[t] to [a prisoner’s] serious medical needs.” Estelle v. Gamble, 429 U.S. 97,
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104 (1976); Peralta v. Dillard, 744 F.3d 1076, 1080-81 (9th Cir. 2014). A medical need
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is serious if failure to treat it will result in “‘significant injury or the unnecessary and
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wanton infliction of pain.’” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir .2006) (quoting
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McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds by
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WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc)). A prison official is
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deliberately indifferent to that need if he “knows of and disregards an excessive risk to
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inmate health.” Farmer v. Brennan, 511 U.S. 825, 837 (1994).
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The facts alleged in Plaintiff’s Amended Complaint, like his original, are sufficient
to plausibly show that his broken index finger presented an objectively serious medical
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need. See McGuckin, 974 F.2d at 1059; Thompson v. Shutt, No. 1:09-CV-01585 LJO,
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2011 WL 674049, at *3 (E.D. Cal. Feb. 16, 2011) (finding a broken finger requiring
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“urgent surgery” constituted a serious medical need); Atkins v. Brewer, No. 1:07-CV-
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01027 OWW, 2009 WL 29873, at *4 (E.D. Cal. Jan. 5, 2009) (“Plaintiff’s allegations that
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his finger was broken establishes that he had a serious medical need”); cf. Jett, 439 F.3d
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at 1096 n.1 (noting undisputed fact that a fractured thumb was a serious medical need).
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However, even assuming Plaintiff’s finger fracture was sufficiently serious, his
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First Amended Complaint still fails to include sufficient “factual content” to show that
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either Alvarado Hospital surgeon acted with “deliberate indifference” to his needs.
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McGuckin, 974 F.2d at 1060; Jett, 439 F.3d at 1096; Iqbal, 556 U.S. at 678.
As currently pleaded, Plaintiff’s claims against Dr. Otero and Dr. Foerster plainly
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sound in negligence; in fact, he claims the medical care they provided in an attempt to
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repair his broken finger, which included two separate surgeries “fell below the standard[]
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. . . of care.” (ECF No. 4 at 9 ¶ 24.) And while he cites the Eighth Amendment as the
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legal basis of his claim, “[a] pleading that offers ‘labels and conclusions’ or a ‘formulaic
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recitation of the elements of a cause of action will not do.’” Iqbal, 556 U.S. at 678
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(quoting Twombly, 550 U.S. at 555). “Deliberate indifference is a high legal standard. A
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showing of medical malpractice or negligence is insufficient to establish a constitutional
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deprivation under the Eighth Amendment.” Toguchi v. Chung, 391 F.3d 1051, 1060 (9th
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Cir. 2004).
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Plaintiff contends only that Dr. Otero and Dr. Foerster “were well aware of [his]
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need to have his left . . . index finger realigned,” that he is dissatisfied with either their
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decisions or his surgical results, and he seeks to hold them liable because he remains
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unable to move his finger correctly or “use it in a meaningful manner.” (ECF No. 4 at 9
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¶¶ 23, 30.) However, “Eighth Amendment doctrine makes clear that ‘[a] difference of
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opinion between a physician and the prisoner—or between medical professionals—
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concerning what medical care is appropriate does not amount to deliberate indifference.’”
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Hamby v. Hammond, 821 F.3d 1085, 1092 (9th Cir. 2016) (quoting Snow v. McDaniel,
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681 F.3d 978, 987 (9th Cir. 2012), overruled in part on other grounds by Peralta, 744
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F.3d at 1083.). As the Court noted in its March 28, 2016 Order, to sufficiently allege
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deliberate indifference, Plaintiff’s pleading must include facts to “show that the course of
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treatment the doctors chose was medically unacceptable under the circumstances and that
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the defendants chose this course in conscious disregard of an excessive risk to [his]
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health.” Hamby, 821 F.3d at 1092 (citing Snow, 681 at 987). Plaintiff’s Amended
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Complaint fails to do so.
Thus, the Court finds Plaintiff’s mere dissatisfaction with his surgical results does
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not suffice to violate the Eighth Amendment and his Amended Complaint still lacks the
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“further factual enhancement” to demonstrate that either Dr. Otero or Dr. Foerster
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committed “purposeful act[s] or fail[ed] to respond to [his] pain or possible medical
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need.” Iqbal, 556 U.S. at 678; Wilhelm, 680 F.3d at 1122 (citing Jett, 439 F.3d at 1096);
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see also Campos v. Srivastava, No. 1:10–cv–641–LJO MJS, 2012 WL 1067168, at *3
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(E.D. Cal. Mar. 28, 2012) (“[A] doctor is not a warrantor of cures or required to
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guarantee results.”); Robinson v. Greer, No. 89 C 20083, 1989 WL 57783, at *1 (N.D. Ill.
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Apr. 13, 1989) (finding prisoner failed to state a claim of deliberate indifference under
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the Eighth Amendment where officials were alleged to have “shuffled” the plaintiff, who
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complained of “spurs on the vertebrae in his neck, a deteriorating disc in his lower back,
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and gastric problems of an undetermined nature,” between doctors for “various tests and
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x-rays,” and to have provided “different kinds of medications, all to no avail,” because
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“[t]he Constitution does not guarantee a cure for a prisoner’s ailments.”).
For these reasons, Plaintiff’s Amended Complaint still fails to state an Eighth
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Amendment inadequate medical care claim against either Dr. Otero or Dr. Foerster, and
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therefore, it must be dismissed sua sponte and in its entirety pursuant to 28 U.S.C.
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§ 1915(e)(2)(B)(ii) and § 1915A(b)(1). See Lopez, 203 F.3d at 1126-27; Rhodes, 621
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F.3d at 1004.
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III.
Conclusion and Order
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For all the reasons discussed, the Court:
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1)
DISMISSES Plaintiff’s Amended Complaint (ECF No. 4) for failing to
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state a claim upon which relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)
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and § 1915A(b)(1);
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(2)
DENIES further leave to amend as futile. See Cahill v. Liberty Mut. Ins.
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Co., 80 F.3d 336, 339 (9th Cir. 1996) (denial of a leave to amend is not an abuse of
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discretion where further amendment would be futile); Gonzalez v. Planned Parenthood,
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759 F.3d 1112, 1116 (9th Cir. 2014) (district court’s discretion in denying amendment is
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“particularly broad” when it has previously granted leave to amend);
(3)
CERTIFIES that an appeal of this final Order of dismissal would be
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frivolous and, therefore, not 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,
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550 (9th Cir. 1977) (indigent appellant is permitted to proceed IFP on appeal only if
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appeal would not be frivolous); and
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(4)
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IT IS SO ORDERED.
DIRECTS the Clerk of Court to terminate this civil action and close the file.
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Dated: September 19, 2016
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