Gordon v. Mudd et al

Filing 7

Order Dismissing First Amended Complaint for Failing to State a Claim Pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). The Court dismisses Plaintiff's FAC 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), and grants him 45 days leave from the date of this Order in which to file a Second Amended Complaint which cures all the deficiencies of pleading noted. Signed by Judge Michael M. Anello on 4/23/2018.(All non-registered users served via U.S. Mail Service)(rmc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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

Plaintiff,

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Case No.: 3:18-cv-00376-MMA-AGS

JARROD GORDON,
CDCR #BB-8328,
vs.
DR. MUDD; TRI CITY MEDICAL
CENTER; NURSE ERIN,

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Defendants.

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I.

Procedural History

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On February 16, 2018, Jarrod Gordon (“Plaintiff”), currently incarcerated at Mule

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Creek State Prison located in Ione, California, and proceeding pro se, filed a civil rights

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Complaint pursuant to 42 U.S.C. § 1983 (Doc. No. 1). Plaintiff did not prepay the civil

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filing fee required by 28 U.S.C. § 1914(a); instead he filed a Motion to Proceed In Forma

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Pauperis pursuant to 28 U.S.C. § 1915(a) (Doc. No. 3).
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In March 16, 2018, the Court granted Plaintiff’s Motion to Proceed IFP but

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simultaneously dismissed his Complaint for failing to state a claim upon which relief

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could be granted. (Doc. No. 4.) Plaintiff was granted leave to file an amended pleading

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in order to correct the deficiencies of pleading identified in the Court’s Order. (Id.) On

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March 28, 2018, Plaintiff filed his First Amended Complaint (“FAC”). (Doc. No. 5.)

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II.

Sua Sponte Screening per 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)

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A.

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As the Court stated in the previous Order, notwithstanding Plaintiff’s IFP status or

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Standard of Review

the payment of any partial filing fees, the Prison Litigation Reform Act (“PLRA”)

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

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

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sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or

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conditions of parole, probation, pretrial release, or diversionary program,” “as soon as

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practicable after docketing.” See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these

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statutes, 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) and 1915A(b); Lopez v. Smith, 203 F.3d

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1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Rhodes v. Robinson, 621 F.3d

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1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)).

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All complaints must contain “a short and plain statement of the claim showing that

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the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are

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not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by

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mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

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(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining whether

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a complaint states a plausible claim for relief [is] . . . a context-specific task that requires

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the reviewing court to draw on its judicial experience and common sense.” Id. The “mere

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possibility of misconduct” falls short of meeting this plausibility standard. Id.; see also

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Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).
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“When there are well-pleaded factual allegations, a court should assume their

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veracity, and then determine whether they plausibly give rise to an entitlement to relief.”

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Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000)

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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

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the plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that

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§ 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”).

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However, while the court “ha[s] an obligation where the petitioner is pro se,

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particularly in civil rights cases, to construe the pleadings liberally and to afford the

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petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir.

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2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not

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“supply essential elements of claims that were not initially pled.” Ivey v. Board of

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

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B.

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On January 24, 2018, Plaintiff was “admitted into Tri-City Medical Center for a

Plaintiff’s Allegations

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dental procedure.” (FAC at 3.) Plaintiff claims he was supposed to have a “surgical

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drain removed, as well as stitches” from his “gums and inner cheek.” (Id.) However,

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Plaintiff claimed he told “medical staff” that he was going to “refuse all treatment” due to

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his “gums and cheek not being all the way healed properly.” (Id.) Plaintiff alleges he did

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not sign any consent forms to be treated. (Id.)

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The following day, Defendant Mudd, using the “light of Nurse Erin’s cellphone,

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snatched the surgical drain” and removed Plaintiff’s stitches. (Id.) Plaintiff alleges he

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was “bleeding so much Nurse Erin” placed gauze in his mouth to stop the bleeding. (Id.)

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Plaintiff acknowledges that Defendant Mudd prescribed him “a narcotic and motrin for

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pain.” (Id.) However, Plaintiff claims that the procedure should have taken place in an

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“operating room” and he should have been provided an “I.V.” (Id.) Plaintiff was

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discharged from the hospital and alleges Defendant Mudd “falsified” Plaintiff’s medical

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records but failed to remove all of the stitches. (Id.)
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C.

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“Section 1983 creates a private right of action against individuals who, acting

42 U.S.C. § 1983

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under color of state law, violate federal constitutional or statutory rights.” Devereaux v.

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Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of

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substantive rights, but merely provides a method for vindicating federal rights elsewhere

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conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks

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and citations omitted). “To establish § 1983 liability, a plaintiff must show both (1)

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deprivation of a right secured by the Constitution and laws of the United States, and (2)

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that the deprivation was committed by a person acting under color of state law.” Tsao v.

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Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012).

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D.

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Only “deliberate indifference to serious medical needs of prisoners constitutes the

Eighth Amendment claim

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unnecessary and wanton infliction of pain ... proscribed by the Eighth Amendment.”

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Estelle v. Gamble, 429 U.S. 97, 104 (1976) (citation and internal quotation marks

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omitted). “A determination of ‘deliberate indifference’ involves an examination of two

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elements: (1) the seriousness of the prisoner’s medical need and (2) the nature of the

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defendant’s response to that need.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir.

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1991), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th

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Cir. 1997) (en banc) (quoting Estelle, 429 U.S. at 104).

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“Because society does not expect that prisoners will have unqualified access to

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health care, deliberate indifference to medical needs amounts to an Eighth Amendment

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violation only if those needs are ‘serious.’” Hudson v. McMillian, 503 U.S. 1, 9 (1992),

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citing Estelle, 429 U.S. at 103-104. “A ‘serious’ medical need exists if the failure to treat

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a prisoner’s condition could result in further significant injury or the ‘unnecessary and

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wanton infliction of pain.’” McGuckin, 914 F.2d at 1059 (quoting Estelle, 429 U.S. at

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104). “The existence of an injury that a reasonable doctor or patient would find important

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and worthy of comment or treatment; the presence of a medical condition that

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significantly affects an individual’s daily activities; or the existence of chronic and
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substantial pain are examples of indications that a prisoner has a ‘serious’ need for

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medical treatment.” Id., citing Wood v. Housewright, 900 F.2d 1332, 1337-41 (9th Cir.

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1990); Hunt v. Dental Dept., 865 F.2d 198, 200-01 (9th Cir. 1989).

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Once again, at the screening stage of these proceedings, the Court will assume that

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Plaintiff’s allegation of having suffered a dental injury grave enough to require medical

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intervention is sufficient to show he suffered an objectively serious medical need. See

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Compl. at 3; McGuckin, 914 F.2d at 1059.

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However, even assuming Plaintiff’s dental needs were sufficiently serious, his

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FAC fails to include any further “factual content” to show that either Dr. Mudd or Nurse

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Erin acted with “deliberate indifference” to those needs. McGuckin, 914 F.2d at 1060; see

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also Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); Iqbal, 556 U.S. at 678.

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Plaintiff claims that Defendant Mudd performed a dental procedure without his

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consent. See FAC at 3. Plaintiff also claims that Defendant Mudd removed the surgical

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drain and the stitches in his mouth, although Plaintiff also claims that Defendant Mudd

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failed to remove all of the stitches in his mouth. See id. Plaintiff further acknowledges

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that Defendant Mudd prescribed pain medication for him following the procedure. See

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id. As to Defendant Erin, Plaintiff’s only claim against her is her attempt to stop the

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bleeding in Plaintiff’s mouth by applying gauze. See id.

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As the Court previously informed Plaintiff, to state an Eighth Amendment claim,

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Plaintiff must include “further factual enhancement,” Iqbal, 556 U.S. at 678, which

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demonstrates both Dr. Mudd and Nurse Erin’s “purposeful act or failure to respond to

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[his] pain or possible medical need,” and the “harm caused by [this] indifference.”

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Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (citing Jett, 439 F.3d at 1096).

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This is because to be deliberately indifferent, both Mudd and Erin’s acts or omissions

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must entail more than he has alleged here—an isolated act of alleged negligence and/or

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lack of due care. Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012) (citation and

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quotation marks omitted); Wilhelm, 680 F.3d at 1122. See Toguchi, 391 F.3d at 1057

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(“Mere negligence in diagnosing or treating a medical condition, without more, does not
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violate a prisoner’s Eighth Amendment rights.”). Simply put, an “inadvertent [or

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negligent] failure to provide adequate medical care” does not state a claim under § 1983.

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Jett, 439 F.3d at 1096 (citing Estelle, 429 U.S. at 105).

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Moreover, to the extent Plaintiff objects to the decisions made by Dr. Mudd as to

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how he would remove the stitches, “[a] difference of opinion between a physician and the

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prisoner–or between medical professionals–concerning what medical care is appropriate

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does not amount to deliberate indifference.” Snow, 681 F.3d at 987 (citing Sanchez v.

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Vild, 891 F.2d 240, 242 (9th Cir. 1989)); Wilhelm, 680 F.3d at 1122-23. Instead, Plaintiff

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must plead facts sufficient to “show that the course of treatment the doctors chose was

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medically unacceptable under the circumstances and that the defendants chose this course

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in conscious disregard of an excessive risk to [his] health.” Snow, 681 F.3d at 988

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(citation and internal quotations omitted).

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As to Defendant Tri-City Medical Center, the only claims against this Defendant

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appear to be the allegations that Defendant Mudd “did not follow Tri-City Medical

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Center policy” to perform the procedure in “an operating room.” (FAC at 3.) “The

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inquiry into causation must be individualized and focus on the duties and responsibilities

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of each individual defendant whose acts or omissions are alleged to have caused a

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constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988), citing

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Rizzo v. Goode, 423 U.S. 362, 370-71 (1976); Berg v. Kincheloe, 794 F.2d 457, 460 (9th

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Cir. 1986); Estate of Brooks v. United States, 197 F.3d 1245, 1248 (9th Cir. 1999)

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(“Causation is, of course, a required element of a § 1983 claim.”) Plaintiff has not stated

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a claim against Defendant Tri-City Medical Center because he has failed to allege facts

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regarding what actions were taken or not taken by the Defendant which caused the

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alleged constitutional violations.

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Accordingly, the Court finds that Plaintiff’s FAC fails to state an Eighth

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Amendment inadequate medical care claim against any of the named Defendants, and

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that therefore, it is subject to sua sponte dismissal 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 F.3d
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at 1004. Because he is proceeding pro se, however, the Court will also grant Plaintiff an

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opportunity to amend. See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citing

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

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III.

Conclusion and Orders

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For the reasons explained, the Court:

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DISMISSES Plaintiff’s FAC for failing to state a claim upon which relief may be

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granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b), and GRANTS him forty-

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five (45) days leave from the date of this Order in which to file a Second Amended

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Complaint which cures all the deficiencies of pleading noted. Plaintiff’s Second

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Amended Complaint must be complete by itself without reference to his original

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pleading. Defendants not named and any claim not re-alleged in his Second Amended

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Complaint will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc.

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v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended

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pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir.

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2012) (noting that claims dismissed with leave to amend which are not re-alleged in an

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amended pleading may be “considered waived if not repled.”).

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If Plaintiff fails to file a Second Amended Complaint within the time provided, the

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Court will enter a final Order dismissing this civil action based both on Plaintiff’s failure

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to state a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)

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and 1915A(b), and his failure to prosecute in compliance with a court order requiring

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amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does

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not take advantage of the opportunity to fix his complaint, a district court may convert the

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dismissal of the complaint into dismissal of the entire action.”).

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IT IS SO ORDERED.
DATE: April 23, 2018

_______________________________________
HON. MICHAEL M. ANELLO
United States District Judge

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