Alba v. M.C.C.C. Facility et al

Filing 6

ORDER DISMISSING COMPLAINT WITH LEAVE GRANTED TO AMEND 1 . Signed by JUDGE HELEN GILLMOR on 6/10/2013. ~ 1. The Complaint is DISMISSED for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(a). 2. Pl aintiff is granted leave to file an amended complaint on or before July 26, 2013, in compliance with this Order. If Plaintiff fails to do so, this action shall be DISMISSED without further notice and the Clerk of Court SHALL enter judgment stating t hat the dismissal was pursuant to 28 U.S.C. § 1915. 3. The Clerk of Court is DIRECTED to forward a copy of the courts prisoner civil rights complaint form to Plaintiff so that he may comply with this Order. 4. Any pending motions are DENIED. Pla intiff is NOTIFIED that he may not file, and the court will take no action, on any motions he files until he has submitted a sufficient amended complaint that cures the deficiencies noted herein. (ecs, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participant Johnny Alba was served by first class mail on the date of this docket entry with a copy of the court's prisoner civil rights complaint form and Instructions.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
JOHNNY ALBA,
Plaintiff,
vs.
M.C.C.C. FACILITY MEDICAL
AND CORRECTIONAL STAFF,
H.C.F. FACILITY MEDICAL AND
CORRECTIONAL STAFF,
Defendants.
____________________________

CIV. NO. 13-00231 HG/KSC

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ORDER DISMISSING COMPLAINT WITH
LEAVE GRANTED TO AMEND

ORDER DISMISSING COMPLAINT WITH LEAVE GRANTED TO AMEND
Before the court is pro se Plaintiff Johnny Alba’s
prisoner civil rights complaint brought pursuant to 42 U.S.C.
§ 1983.

See Compl., ECF No. 1.

Alba alleges that unidentified

medical and correctional staff at the Maui Community Correctional
Center (“MCCC”) and Halawa Correctional Facility (“HCF”) acted
with deliberate indifference to his health and safety, violating
his rights under the United States Constitution.
The court has screened the Complaint pursuant to 28
U.S.C. §§ 1915(e)(2) and 1915(A)(b)(1), and finds that Plaintiff
fails to state a cognizable claim.

The Complaint is DISMISSED

with leave to amend as discussed below.
I. PLAINTIFF’S ALLEGATIONS
The Complaint is somewhat cryptic.

Plaintiff alleges

that unidentified MCCC staff knowingly put him in a cell with
another inmate who “was exposed” to tuberculosis (“TB”) and

Hepatitis C.

See Compl., ECF No. 1 at PageID #5 (Count I).

Plaintiff concludes that MCCC Defendants did this because he is
an unidentified minority, and based on the unidentified nature of
his crime.

Plaintiff claims that he then developed lung cancer;

he does not allege that he developed either TB or Hepatitis C.
Plaintiff next alleges that, although he is being
treated for his lung cancer, MCCC and HCF medical staff refuse to
provide him with a “specialist.”

Id., PageID #6 (Count II).

Plaintiff further alleges that HCF medical staff gave him
medication for his cancer that causes dizziness and nausea.
PageID #7 (Count III).

Id.,

He says he is becoming weaker and seeks

treatment for his lung cancer.
II. STATUTORY SCREENING
The court must screen all civil actions brought by
prisoners relating to prison conditions and/or seeking redress
from a governmental entity, officer, or employee of a
governmental entity.

28 U.S.C. § 1915A(a).

The court must

dismiss a complaint or portion thereof if its claims are legally
frivolous, malicious, fail to state a claim on which relief may
be granted, or seek monetary relief from a defendant who is
immune from such relief.

28 U.S.C. § 1915(e)(2); 28 U.S.C.

§ 1915A(b); 42 U.S.C. § 1997e(c)(1).
A complaint may be dismissed for failure to state a
claim if it (1) lacks a cognizable legal theory; or (2) contains

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insufficient facts under a cognizable legal theory.

Balistreri

v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).

To

state a claim, a pleading must contain a “short and plain
statement of the claim showing that the pleader is entitled to
relief.”

Fed. R. Civ. P. 8(a)(2).

While Rule 8 does not demand

detailed factual allegations, “it demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.”
Iqbal, 556 U.S. 662, 678 (2009).

Ashcroft v.

“Threadbare recitals of the

elements of a cause of action, supported by mere conclusory
statements, do not suffice.”

Id.

A sufficient complaint must

plead “enough facts to state a claim to relief that is plausible
on its face.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007).
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.”

Iqbal, 556 U.S. at 678.

“Determining

whether a complaint states a plausible claim for relief [is]
. . . a context-specific task that requires the reviewing court
to draw on its judicial experience and common sense.”
679.

Id. at

Thus, “where the well-pleaded facts do not permit the court

to infer more than the mere possibility of misconduct, the
complaint has alleged — but it has not ‘show[n]’ — ‘that the

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pleader is entitled to relief.’”

Id. (quoting Fed. Rule Civ.

Proc. 8(a)(2)).
The court must construe a pro se complaint liberally,
accept all allegations of material fact as true, and construe
those facts in the light most favorable to the plaintiff.

See

Erickson v. Pardus, 551 U.S. 89, 94 (2007)(per curiam); Hebbe v.
Pliler, 611 F.3d 1202, 1205 (9th Cir. 2010).

A “complaint [filed

by a pro se prisoner] ‘must be held to less stringent standards
than formal pleadings drafted by lawyers.’”
342 (quoting Erickson, 551 U.S. at 94).

Hebbe, 627 F.3d at

Leave to amend should be

granted unless it appears that amendment is futile.
Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).

Lopez v.

The court should

not, however, advise the litigant how to cure the defects.

This

type of advice “would undermine district judges’ role as
impartial decisionmakers.”

Pliler v. Ford, 542 U.S. 225, 231

(2004); see also Lopez, 203 F.3d at 1131 n.13 (declining to
decide whether the court was required to inform a litigant of
deficiencies).
III. DISCUSSION
“To sustain an action under section 1983, a plaintiff
must show ‘(1) that the conduct complained of was committed by a
person acting under color of state law; and (2) that the conduct
deprived the plaintiff of a federal constitutional or statutory
right.’”

Hydrick v. Hunter, 500 F.3d 978, 987 (9th Cir. 2007)
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(citation omitted), vacated and remanded on other grounds, 129 S.
Ct. 2431 (2009); see also West v. Atkins, 487 U.S. 42, 48 (1988);
42 U.S.C. § 1983.
A.

Deliberate Indifference
The Eighth Amendment prohibits cruel and unusual

punishment, thus, it imposes a duty on prison officials to
provide prisoners humane conditions of confinement.
Brennan, 511 U.S. 825, 832 (1994).

Farmer v.

Prison officials must ensure

that inmates receive adequate food, clothing, shelter, and
medical care.

Id.

To state a constitutional violation under the Eighth
Amendment, a prisoner must satisfy a two-part test that has
objective and subjective components: (1) the deprivation alleged
must be objectively sufficiently serious, and (2) the prison
official must have a sufficiently culpable state of mind.
Farmer, 511 U.S. at 834.

With respect to the subjective prong,

the state of mind is one of deliberate indifference to inmate
health or safety.

Id.

Under this standard, the prison official

must be aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists, and the prison
official must also draw that inference.
F.3d 1051, 1057 (9th Cir. 2004).
//

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Toguchi v. Chung, 391

B.

Count I: Alleged Exposure to TB and Hepatitis C
Exposure to contagious diseases may violate the Eighth

Amendment if prison officials, acting with deliberate
indifference, expose a prisoner to a sufficiently substantial
“risk of serious damage to his future health.”
McKinney, 509 U.S. 25, 35 (1993).

Helling v.

Thus, an Eighth Amendment

violation may occur if an inmate is confined with a fellow
prisoner known to have a serious contagious disease spread by
airborne particles, such as active cases of TB.

See Weeks v.

Espinda, 2011 WL 3290415 *3-*4 (D. Haw. July 29, 2011); Bolton v.
Goord, 992 F. Supp. 604, 628 (S.D.N.Y. 1998).

A Hepatitis C

infection can also “quite obviously cause serious health
problems,” Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir.
2007).1
Plaintiff relates insufficient facts for the court to
infer that Defendants acted with deliberate indifference to his
health regarding his claims in Count I.

First, Plaintiff fails

to allege that he was put in a cell with an inmate who actually
had active TB; rather, he says he was put in a cell “with a guy
who was exposed with T.B. & H.C.”

1

Compl., ECF No. 1 at PageId

“Hepatitis C is usually spread when blood from a person
infected with the Hepatitis C virus enters the body of someone
who is not infected. Today, most people become infected with the
Hepatitis C virus by sharing needles or other equipment to inject
drugs.” Centers for Disease Control and Prevention; Hepatitis C
Information for the Public; http://www.cdc.gov/hepatitis/c/.
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#5.

That is, Plaintiff does not claim that the other inmate had

active (or even latent) TB or Hepatitis C, only that the other
inmate had been exposed to these diseases.

And Plaintiff no

facts supporting his conclusions that prison staff housed him
with this allegedly-infected inmate because he was a minority and
they disapproved of the nature of his crime.
Second, even accepting that the other inmate was
actually infected with TB or Hepatitis C, Plaintiff fails to set
forth when he was housed with the inmate, how long they remained
together, whether he developed either TB or Hepatitis C
thereafter and most importantly, when he was diagnosed with
cancer.

That is, Plaintiff fails to allege that he contracted

either disease or explain how exposure to an inmate with TB or
Hepatitis C caused his lung cancer, which is the gravamen of his
claim.
Third, Plaintiff fails to link or provide facts showing
that any particular, sufficiently identified MCCC correctional or
medical staff member committed or is responsible for the
challenged act.

As in all § 1983 cases, a complaint alleging

deliberate indifference to an inmate’s health or serious medical
need must state in specific terms how each named defendant is
involved.

There is no liability under § 1983 unless there is

some affirmative link or connection between an individual
defendant’s actions and the claimed deprivation.

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Rizzo v. Goode,

423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir.
1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
Further, to the extent Plaintiff alleges claims against any
supervisory Defendant, vague and conclusory allegations of
official participation in civil rights violations are
insufficient.
Cir. 1982).

Ivey v. Board of Regents, 673 F.2d 266, 268 (9th

While Plaintiff need not identify specific

defendants at the outset of his case, he must provide enough
details to allow an inference that some particular individual or
individuals acted with deliberate indifference to his health.
To survive dismissal for failure to state a claim, a
complaint must contain more than “naked assertions,” “labels and
conclusions” or “a formulaic recitation of the elements of a
cause of action.”

Twombly, 550 U.S. at 555–57.

“Threadbare

recitals of the elements of a cause of action, supported by mere
conclusory statements do not suffice.”

Iqbal, 556 U.S. at 678.

Plaintiff’s claim in Count I, that unnamed Defendants caused him
to contract lung cancer by housing him with another inmate who
was exposed to or infected with TB or Hepatitis C, fails to state
a claim and is DISMISSED with leave to amend.
C.

Counts II and III: Alleged Inadequate Medical Treatment
To successfully allege that inadequate or negligent

medical care constitutes cruel and unusual punishment, a
plaintiff must show “a serious medical need by demonstrating that
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failure to treat a prisoner’s condition could result in further
significant injury or the unnecessary and wanton infliction of
pain” and that “the defendant’s response to the need was
deliberately indifferent.”
(9th Cir. 2006).

Jett v. Penner, 439 F.3d 1091, 1096

The second prong “is satisfied by showing (a) a

purposeful act or failure to respond to a prisoner’s pain or
possible medical need and (b) harm caused by the indifference.”
Id.

A prison official must “know[ ] of and disregard[ ] an

excessive risk to inmate health or safety; the official must both
be aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw
the inference.”

Farmer, 511 U.S. at 837.

Clearly, lung cancer is a serious medical condition.
Plaintiff, however, does not allege that Defendants denied or
delayed his treatment with deliberate indifference to his health.
Rather, Plaintiff admits that he is being treated for his lung
cancer, but he apparently disagrees with the treatment.
Compl., ECF No. 1, PageID #6-7.

See

Plaintiff complains that he is

not being treated by a “specialist” and that his medication makes
him dizzy and nauseated.

Id.

First, it is commonly known that cancer treatment often
causes nausea and other distressing side effects.

Without more

detail, the court cannot infer that Defendants prescribed
Plaintiff medication that causes unpleasant symptoms with

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deliberate indifference to his pain and discomfort.

See Iqbal,

556 U.S. at 679 (“Determining whether a complaint states a
plausible claim for relief [is] . . . a context-specific task
that requires the reviewing court to draw on its judicial
experience and common sense.”).
Second, allegations of inadequate or negligent medical
care are not enough to establish a constitutional violation;
there must also be a showing of deliberate indifference.

Estelle

v. Gamble, 429 U.S. 97, 105-06 (1976); Frost v. Agnos, 152 F.3d
1124, 1130 (9th Cir. 1998).

A difference of opinion about the

proper course of treatment is not deliberate indifference, nor
does a dispute between a prisoner and prison officials over the
necessity for or extent of medical treatment amount to a
constitutional violation.

See, e.g., Toguchi, 391 F.3d 1051,

1058 (9th Cir. 2004); Sanchez v. Vild, 891 F.2d 240, 242 (9th
Cir. 1989).

Defendants may have negligently prescribed

Plaintiff’s medicine, although the facts are inadequate to
support that claim also, but nothing suggests the acted with
deliberate indifference.
Third, Plaintiff does not allege that Defendants’
treatment plan for his lung cancer is “medically unacceptable”
and done “in conscious disregard of an excessive risk to [his]
health.”

Toguchi, 391 F.3d at 1058.

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Plaintiff therefore fails

to state a claim under the Eighth Amendment regarding the cancer
treatment he has been provided.
The bare facts alleged in Counts II and III do not show
that Defendants acted with deliberate indifference.

Rather, they

exhibit Plaintiff’s disagreement with the treatment provided.
Plaintiff’s recitation of his facts presented fail to nudge
Plaintiff’s claims from the “possible” to the “plausible.”
Twombly, 550 U.S. at 570.

See

In short, there is insufficient

factual content in the Complaint to allow the court to reasonably
infer that HCF or MCCC medical staff are liable for deliberate
indifference to Plaintiff’s need for medical care.

Iqbal, 556

U.S. at 678.
This is not to say that Plaintiff cannot allege
sufficient facts to show that he is being inadequately treated
for his cancer.

While he may not be entitled to the physician of

his choice, or a specific “specialist,” he is entitled to care by
a physician with experience in treating cancer.

But as it

stands, the Complaint does not allow the inference that Plaintiff
is not receiving such care at present.
IV.

LEAVE TO AMEND

Plaintiff’s Complaint is DISMISSED for failure to state
a claim.

Plaintiff may file a proposed amended complaint on or

before July 26, 2013, curing the specific deficiencies noted
above.

The amended complaint must provide sufficient facts to
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support Plaintiff’s claim that Defendants are responsible for his
contracting lung cancer because they exposed him to an inmate who
was exposed or infected with TB and Hepatitis C, and that they
denied him adequate medical care for his lung cancer with
deliberate indifference to his health or serious medical needs.
The amended complaint must clearly designate that it is
the “First Amended Complaint.”

It must be retyped or rewritten

in its entirety on court-approved forms and may not incorporate
any part of the original Complaint by reference.
Bonzelet, 963 F.2d 1258 (9th Cir. 1992).

Ferdik v.

Any claims that are

dismissed herein with prejudice and without leave to amend need
not be repled in the amended complaint to preserve them for
appeal.

See Lacey v. Maricopa Cnty., 693 F.3d 896, 925, 928 (9th

Cir. 2012) (overruling previous Ninth Circuit law that “all
claims alleged in a dismissed complaint which are not realleged
in an amended complaint” are waived) (quoting Forsyth v. Humana,
Inc., 114 F.3d 1467, 1474 (9th Cir. 1997)).

However, “any claims

that have been dismissed with leave to amend and are not repled
in the amended complaint will be considered waived.”
V.

Id. at 928.

28 U.S.C. § 1915(g)

If Plaintiff fails to file an amended complaint
correcting the deficiencies identified in this Order, this
dismissal may count as a “strike” under the “3-strikes” provision
of 28 U.S.C. § 1915(g).

Under the 3-strikes provision, a
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prisoner may not bring a civil action or appeal a civil judgment
in forma pauperis under 28 U.S.C. § 1915
if the prisoner has, on 3 or more prior
occasions, while incarcerated or detained in
any facility, brought an action or appeal in
a court of the United States that was
dismissed on the grounds that it is
frivolous, malicious, or fails to state a
claim upon which relief may be granted,
unless the prisoner is under imminent danger
of serious physical injury.
28 U.S.C. § 1915(g).
VI.
1.

CONCLUSION

The Complaint is DISMISSED for failure to state a

claim pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(a).
2.

Plaintiff is granted leave to file an amended

complaint on or before July 26, 2013, in compliance with this
Order.

If Plaintiff fails to do so, this action shall be

DISMISSED without further notice and the Clerk of Court SHALL
enter judgment stating that the dismissal was pursuant to 28
U.S.C. § 1915.
3.

The Clerk of Court is DIRECTED to forward a copy of

the court’s prisoner civil rights complaint form to Plaintiff so
that he may comply with this Order.
4.

Any pending motions are DENIED.

Plaintiff

is NOTIFIED that he may not file, and the court will take no
action, on any motions he files until he has submitted a

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sufficient amended complaint that cures the deficiencies noted
herein.
IT IS SO ORDERED.
DATED: June 10, 2013, Honolulu, Hawaii.

/S/ Helen Gillmor
Helen Gillmor
United States District Judge

Alba v. M.C.C.C. Fac. Medical Staff, et al., 1:13-cv-00231 HG/KSC;
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