Hunt v. Otero et al

Filing 7

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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 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, 13 vs. 14 15 16 Dr. JOSE OTERO; Dr. BRUCE FOERSTER, 17 (ECF No. 4) Defendants. 18 19 RAYMOND HUNT (“Plaintiff”), a prisoner currently incarcerated at Calipatria 20 21 State Prison (“CAL”) in Calipatria, California, is proceeding pro se in this case pursuant 22 to the Civil Rights Act, 42 U.S.C. § 1983. 23 I. 24 Procedural History On March 28, 2016, the Court granted Plaintiff leave to proceed in forma pauperis 25 pursuant to 28 U.S.C. § 1915(a), but dismissed his Complaint sua sponte for failing to 26 state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1). Plaintiff has 27 since filed a First Amended Complaint (ECF No. 4). 28 /// 1 3:15-cv-2885-BEN-BGS 1 II. 2 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 3 (“PLRA”) to review complaints filed by all persons proceeding IFP and by those, like 4 Plaintiff, who are “incarcerated or detained in any facility [and] accused of, sentenced 5 for, or adjudicated delinquent for, violations of criminal law or the terms or conditions of 6 parole, probation, pretrial release, or diversionary program,” at the time of filing “as soon 7 as practicable after docketing.” See 28 U.S.C. §§ 1915(e)(2), 1915A(b). Under the 8 PLRA, the Court must sua sponte dismiss complaints, or any portions thereof, which are 9 frivolous, malicious, fail to state a claim, or which seek damages from defendants who 10 are immune. See 28 U.S.C. §§ 1915(e)(2)(B), 1915A; Rhodes v. Robinson, 621 F.3d 11 1002, 1004 (9th Cir. 2010); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en 12 banc). 13 A. 14 “The purpose of § 1915A is ‘to ensure that the targets of frivolous or malicious Standard of Review 15 suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 16 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 17 (7th Cir. 2012)). “The standard for determining whether a plaintiff has failed to state a 18 claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the 19 Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. 20 Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); accord Wilhelm v. Rotman, 680 F.3d 1113, 21 1121 (9th Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the 22 familiar standard applied in the context of failure to state a claim under Federal Rule of 23 Civil Procedure 12(b)(6)”). 24 Every complaint must contain “a short and plain statement of the claim showing 25 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations 26 are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported 27 by mere conclusory statements, do not suffice.” Iqbal v. Ashcroft, 556 U.S. 662, 678 28 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “When there are 2 3:15-cv-2885-BEN-BGS 1 well-pleaded factual allegations, a court should assume their veracity, and then determine 2 whether they plausibly give rise to an entitlement to relief.” Id. at 679. “Determining 3 whether a complaint states a plausible claim for relief [is] . . . a context-specific task that 4 requires the reviewing court to draw on its judicial experience and common sense.” Id. 5 The “mere possibility of misconduct” falls short of meeting this plausibility standard. 6 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 7 8 indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th 9 Cir. 2009) (internal quotation marks and citation omitted). Indeed, while courts “have an 10 obligation where the petitioner is pro se, particularly in civil rights cases, to construe the 11 pleadings liberally and to afford the petitioner the benefit of any doubt,” Hebbe v. Pliler, 12 627 F.3d 338, 342 n.7 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 13 (9th Cir. 1985)), it may not “supply essential elements of claims that were not initially 14 pled,” Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 15 Even before Iqbal, “[v]ague and conclusory allegations of official participation in civil 16 rights violations” were not “sufficient to withstand a motion to dismiss.” Id. Plaintiff’s Amended Complaint 17 B. 18 Plaintiff contends, as he did in his original Complaint, that Dr. Jose Otero, a 19 surgeon at Alvarado Hospital, performed surgery on his left index finger on April 16, 20 2012, two weeks after he broke it at CAL on April 2, 2012. (ECF No. 4 at 4 ¶¶ 1-2.) Dr. 21 Otero removed the cast during a follow-up examination, instructed Plaintiff to soak his 22 hand in warm water, and told him “with time he would be able to bend it and make a fist 23 again.” (Id. ¶¶ 4-6.) Plaintiff later received physical therapy, “but noticed no progress,” 24 therefore, he was examined again by Dr. Otero on June 11, 2012, via video conference. 25 (Id. at 4-5 ¶¶ 7-8.) Plaintiff claims Dr. Otero told him the surgery was “successful” and 26 recommended more physical therapy, but noted that his finger “would remain extended 27 for the rest of his life.” (Id. at 5 ¶ 9.) 28 /// 3 3:15-cv-2885-BEN-BGS 1 After Plaintiff’s physician and physical therapist at CAL later agreed his finger 2 appeared misaligned, Dr. Otero examined Plaintiff again on July 23, 2012. This time, 3 Otero offered to remove the metal plate he had previously inserted into Plaintiff’s finger, 4 but believing that the finger would still not bend “because of the surgical scar over the 5 left index knuckle,” Otero refused to perform further reconstructive surgery on grounds 6 that “it would only make it worse.” (Id. at 5-6 ¶¶ 13-14.) 7 Plaintiff claims he remained in pain and was unable to move his left finger until 8 May 30, 2013, when he alleges Dr. Foerster, another surgeon at Alvarado, performed a 9 second surgery on his left index finger. (Id. at 8 ¶¶ 16, 17.) A few days later, on June 2, 10 2013, Plaintiff claims the dressing on his hand was “soaked in blood” and he noticed “no 11 sutures closing [his] incision.” (Id. ¶¶ 18, 19.) Plaintiff claims the “open surgical 12 incision exposed [his] flesh and bone,” was “extreme[ly] pain[ful],” and became infected, 13 for which he was treated with antibiotics. (Id. ¶¶ 20-22.) 14 Plaintiff alleges he remains unable to move his left index finger or “use it in a 15 meaningful manner,” and contends that both Dr. Otero’s and Dr. Foerster’s “surgeries 16 were inadequate and below the standards of adequate medical treatment pursuant to the 17 Eighth Amendment.” (Id. at 9 ¶ 24.) 18 C. 19 Title 42 U.S.C. § 1983 provides a cause of action for the “deprivation of any rights, 42 U.S.C. § 1983 20 privileges, or immunities secured by the Constitution and laws” of the United States. 21 Wyatt v. Cole, 504 U.S. 158, 161 (1992). To state a claim under § 1983, a plaintiff must 22 allege two essential elements: (1) that a right secured by the Constitution or laws of the 23 United States was violated, and (2) that the alleged violation was committed by a person 24 acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Long v. Cnty. of 25 Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). “Under Color of State Law” 26 D. 27 Plaintiff continues to allege, as he did in his original Complaint, that both Dr. 28 Otero and Dr. Foerster were acting under contract with the California Department of 4 3:15-cv-2885-BEN-BGS 1 Corrections and Rehabilitation when they performed surgery at Alvarado Hospital on his 2 left index finger in April 2012 and May 2013. (ECF No. 4 at 2, 4, 8.) 3 “[P]rivate physician[s] or hospital[s],” like Drs. Otero and Foerster “act under 4 color of law for purposes of § 1983,” when they, as Plaintiff alleges in his Amended 5 Complaint, provide medical care as “private contractors” on behalf of the CDCR for 6 inmates within its custody. See West, 487 U.S. at 49-50; see also Lopez v. Dep’t of 7 Health Servs., 939 F.2d 881, 883 (9th Cir. 1991) (per curiam) (finding state action where 8 hospital “contract[ed] with the state . . . to provide medical services to indigent citizens”); 9 George v. Sonoma Cnty. Sheriff’s Dep’t, 732 F. Supp. 2d 922, 934 (N.D. Cal. 2010) (“A 10 private . . . hospital that contracts with a public prison system to provide treatment for 11 inmates performs a public function and acts under color of law for purposes of § 1983.”). 12 E. 13 Plaintiff further claims the injury to his left index finger “was sufficiently serious” 14 and contends “both surgeries” performed by Dr. Otero and Dr. Foerster “were inadequate 15 and [fell] below the standards of adequate medical treatment” required by the Eighth 16 Amendment because both Drs. “knew and disregarded the risk.” (ECF No. 4 at 9 ¶¶ 24- 17 26.) Eighth Amendment Inadequate Medical Care 18 Medical officials violate the Eighth Amendment if they are “deliberate[ly] 19 indifferen[t] to [a prisoner’s] serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 20 104 (1976); Peralta v. Dillard, 744 F.3d 1076, 1080-81 (9th Cir. 2014). A medical need 21 is serious if failure to treat it will result in “‘significant injury or the unnecessary and 22 wanton infliction of pain.’” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir .2006) (quoting 23 McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds by 24 WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc)). A prison official is 25 deliberately indifferent to that need if he “knows of and disregards an excessive risk to 26 inmate health.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). 27 28 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 5 3:15-cv-2885-BEN-BGS 1 need. See McGuckin, 974 F.2d at 1059; Thompson v. Shutt, No. 1:09-CV-01585 LJO, 2 2011 WL 674049, at *3 (E.D. Cal. Feb. 16, 2011) (finding a broken finger requiring 3 “urgent surgery” constituted a serious medical need); Atkins v. Brewer, No. 1:07-CV- 4 01027 OWW, 2009 WL 29873, at *4 (E.D. Cal. Jan. 5, 2009) (“Plaintiff’s allegations that 5 his finger was broken establishes that he had a serious medical need”); cf. Jett, 439 F.3d 6 at 1096 n.1 (noting undisputed fact that a fractured thumb was a serious medical need). 7 However, even assuming Plaintiff’s finger fracture was sufficiently serious, his 8 First Amended Complaint still fails to include sufficient “factual content” to show that 9 either Alvarado Hospital surgeon acted with “deliberate indifference” to his needs. 10 11 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 12 sound in negligence; in fact, he claims the medical care they provided in an attempt to 13 repair his broken finger, which included two separate surgeries “fell below the standard[] 14 . . . of care.” (ECF No. 4 at 9 ¶ 24.) And while he cites the Eighth Amendment as the 15 legal basis of his claim, “[a] pleading that offers ‘labels and conclusions’ or a ‘formulaic 16 recitation of the elements of a cause of action will not do.’” Iqbal, 556 U.S. at 678 17 (quoting Twombly, 550 U.S. at 555). “Deliberate indifference is a high legal standard. A 18 showing of medical malpractice or negligence is insufficient to establish a constitutional 19 deprivation under the Eighth Amendment.” Toguchi v. Chung, 391 F.3d 1051, 1060 (9th 20 Cir. 2004). 21 Plaintiff contends only that Dr. Otero and Dr. Foerster “were well aware of [his] 22 need to have his left . . . index finger realigned,” that he is dissatisfied with either their 23 decisions or his surgical results, and he seeks to hold them liable because he remains 24 unable to move his finger correctly or “use it in a meaningful manner.” (ECF No. 4 at 9 25 ¶¶ 23, 30.) However, “Eighth Amendment doctrine makes clear that ‘[a] difference of 26 opinion between a physician and the prisoner—or between medical professionals— 27 concerning what medical care is appropriate does not amount to deliberate indifference.’” 28 Hamby v. Hammond, 821 F.3d 1085, 1092 (9th Cir. 2016) (quoting Snow v. McDaniel, 6 3:15-cv-2885-BEN-BGS 1 681 F.3d 978, 987 (9th Cir. 2012), overruled in part on other grounds by Peralta, 744 2 F.3d at 1083.). As the Court noted in its March 28, 2016 Order, to sufficiently allege 3 deliberate indifference, Plaintiff’s pleading must include facts to “show that the course of 4 treatment the doctors chose was medically unacceptable under the circumstances and that 5 the defendants chose this course in conscious disregard of an excessive risk to [his] 6 health.” Hamby, 821 F.3d at 1092 (citing Snow, 681 at 987). Plaintiff’s Amended 7 Complaint fails to do so. Thus, the Court finds Plaintiff’s mere dissatisfaction with his surgical results does 8 9 not suffice to violate the Eighth Amendment and his Amended Complaint still lacks the 10 “further factual enhancement” to demonstrate that either Dr. Otero or Dr. Foerster 11 committed “purposeful act[s] or fail[ed] to respond to [his] pain or possible medical 12 need.” Iqbal, 556 U.S. at 678; Wilhelm, 680 F.3d at 1122 (citing Jett, 439 F.3d at 1096); 13 see also Campos v. Srivastava, No. 1:10–cv–641–LJO MJS, 2012 WL 1067168, at *3 14 (E.D. Cal. Mar. 28, 2012) (“[A] doctor is not a warrantor of cures or required to 15 guarantee results.”); Robinson v. Greer, No. 89 C 20083, 1989 WL 57783, at *1 (N.D. Ill. 16 Apr. 13, 1989) (finding prisoner failed to state a claim of deliberate indifference under 17 the Eighth Amendment where officials were alleged to have “shuffled” the plaintiff, who 18 complained of “spurs on the vertebrae in his neck, a deteriorating disc in his lower back, 19 and gastric problems of an undetermined nature,” between doctors for “various tests and 20 x-rays,” and to have provided “different kinds of medications, all to no avail,” because 21 “[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 22 23 Amendment inadequate medical care claim against either Dr. Otero or Dr. Foerster, and 24 therefore, it must be dismissed sua sponte and in its entirety pursuant to 28 U.S.C. 25 § 1915(e)(2)(B)(ii) and § 1915A(b)(1). See Lopez, 203 F.3d at 1126-27; Rhodes, 621 26 F.3d at 1004. 27 /// 28 /// 7 3:15-cv-2885-BEN-BGS 1 III. Conclusion and Order 2 For all the reasons discussed, the Court: 3 1) DISMISSES Plaintiff’s Amended Complaint (ECF No. 4) for failing to 4 state a claim upon which relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) 5 and § 1915A(b)(1); 6 (2) DENIES further leave to amend as futile. See Cahill v. Liberty Mut. Ins. 7 Co., 80 F.3d 336, 339 (9th Cir. 1996) (denial of a leave to amend is not an abuse of 8 discretion where further amendment would be futile); Gonzalez v. Planned Parenthood, 9 759 F.3d 1112, 1116 (9th Cir. 2014) (district court’s discretion in denying amendment is 10 11 “particularly broad” when it has previously granted leave to amend); (3) CERTIFIES that an appeal of this final Order of dismissal would be 12 frivolous and, therefore, not taken in good faith pursuant to 28 U.S.C. § 1915(a)(3). See 13 Coppedge v. United States, 369 U.S. 438, 445 (1962); Gardner v. Pogue, 558 F.2d 548, 14 550 (9th Cir. 1977) (indigent appellant is permitted to proceed IFP on appeal only if 15 appeal would not be frivolous); and 16 (4) 17 IT IS SO ORDERED. DIRECTS the Clerk of Court to terminate this civil action and close the file. 18 19 Dated: September 19, 2016 20 21 22 23 24 25 26 27 28 8 3:15-cv-2885-BEN-BGS

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