Juliano v. Clark County Detention Center et al

Filing 20

ORDER that 17 Plaintiff's Amended Complaint is DISMISSED with prejudice and without leave to amend. IT IS FURTHER ORDERED that the Clerk shall ENTER JUDGMENT accordingly and close this case. Signed by Chief Judge Robert C. Jones on 3/25/2013. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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JOSEPH JULIANO,
#94100

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Plaintiff,
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vs.
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CLARK COUNTY DETENTION
CENTER, et al.,
Defendants.

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2:12-cv-02160-RCJ-VCF
ORDER

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Plaintiff, who is a prisoner in the custody of the Nevada Department of Corrections, has

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filed an amended 42 U.S.C. § 1983 complaint (ECF #17) pursuant to this court’s order (ECF #15). The

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court now reviews the amended complaint.

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I. Screening Pursuant to 28 U.S.C. § 1915A

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Federal courts must conduct a preliminary screening in any case in which a prisoner seeks

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redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. §

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1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims that are

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frivolous, malicious, fail to state a claim upon which relief may be granted or seek monetary relief from

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a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1),(2). Pro se pleadings,

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however, must be liberally construed. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Hebbe v. Pliler, 627

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F.3d 338, 342 (9th Cir. 2010); Balistreri v. Pacifica Police Dep’t, 901 F.2d. 696, 699 (9th Cir. 1988).

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right

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secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation

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was committed by a person acting under color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).

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In addition to the screening requirements under § 1915A, pursuant to the Prison Litigation

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Reform Act of 1995 (PLRA), a federal court must dismiss a prisoner’s claim, “if the allegation of

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poverty is untrue,” or if the action “is frivolous or malicious, fails to state a claim on which relief may

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be granted, or seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C.

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§ 1915(e)(2). Dismissal of a complaint for failure to state a claim upon which relief can be granted is

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provided for in Federal Rule of Civil Procedure 12(b)(6), and the court applies the same standard under

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§ 1915 when reviewing the adequacy of a complaint or an amended complaint. When a court dismisses

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a complaint under § 1915(e), the plaintiff should be given leave to amend the complaint with directions

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as to curing its deficiencies, unless it is clear from the face of the complaint that the deficiencies could

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not be cured by amendment. See Cato v. United States, 70 F.3d. 1103, 1106 (9th Cir. 1995).

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Review under Rule 12(b)(6) is essentially a ruling on a question of law. See Chappel v.

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Laboratory Corp. of America, 232 F.3d 719, 723 (9th Cir. 2000). Dismissal for failure to state a claim

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is proper only if it is clear that the plaintiff cannot prove any set of facts in support of the claim that

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would entitle him or her to relief. See Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 1999). In making

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this determination, the court takes as true all allegations of material fact stated in the complaint, and the

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court construes them in the light most favorable to the plaintiff. See Warshaw v. Xoma Corp., 74 F.3d

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955, 957 (9th Cir. 1996). Allegations of a pro se complainant are held to less stringent standards than

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formal pleadings drafted by lawyers. See Hughes v. Rowe, 449 U.S. 5, 9 (1980); Haines v. Kerner, 404

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U.S. 519, 520 (1972) (per curiam); Hebbe, 627 F.3d at 342. While the standard under Rule 12(b)(6)

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does not require detailed factual allegations, a plaintiff must provide more than mere labels and

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conclusions. Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964-65 (2007). A formulaic recitation

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of the elements of a cause of action is insufficient. Id., see Papasan v. Allain, 478 U.S. 265, 286 (1986).

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Additionally, a reviewing court should “begin by identifying pleadings [allegations] that,

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because they are no more than mere conclusions, are not entitled to the assumption of truth.” Ashcroft

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v. Iqbal, 129 S.Ct. 1937, 1950 (2009). “While legal conclusions can provide the framework of a

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complaint, they must be supported with factual allegations.” Id. “When there are well-pleaded factual

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allegations, a court should assume their veracity and then determine whether they plausibly give rise to

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an entitlement to relief. Id. “Determining whether a complaint states a plausible claim for relief [is] a

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context-specific task that requires the reviewing court to draw on its judicial experience and common

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sense.” Id.

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Finally, all or part of a complaint filed by a prisoner may therefore be dismissed sua

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sponte if the prisoner’s claims lack an arguable basis either in law or in fact. This includes claims based

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on legal conclusions that are untenable (e.g., claims against defendants who are immune from suit or

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claims of infringement of a legal interest which clearly does not exist), as well as claims based on

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fanciful factual allegations (e.g., fantastic or delusional scenarios). See Neitzke v. Williams, 490 U.S.

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319, 327-28 (1989); see also McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991).

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II. Instant Complaint

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In his amended complaint, plaintiff, who is incarcerated at High Desert State Prison

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(“HDSP”), has sued Clark County Detention Center (“CCDC”), Clark County Sheriff Douglas Gillespie,

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Naphcare, Naphcare’s medical director Dr. Newman, Dr. Shazia Hamid, Sunrise Hospital as well as Doe

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defendants. Plaintiff claims that when he was a pretrial detainee at CCDC defendants were deliberately

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indifferent to his serious medical needs in violation of his Eighth Amendment rights.

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Plaintiff alleges the following: he sustained two serious gunshot wounds during the

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incident for which he was arrested. At Sunrise Hospital he underwent several surgeries, a finger

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amputation, and multiple skin grafts. Defendants Sunrise Hospital and Dr. Hamid allowed him to be

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transferred to the CCDC after only 30 days when they knew or should have known that he would not

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get constitutionally sufficient medical care there. At the CCDC, Nurse Jane Doe told plaintiff that what

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was ultimately diagnosed as a serious staph infection in the skin graft was just normal scar tissue.

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Officer John Doe did not deliver medical request forms that plaintiff submitted.

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Such claims by pretrial detainees are analyzed under the Due Process Clause of the

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Fourteenth Amendment. Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir.1998). The same standard

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applies to a pretrial detainee’s claim of deliberate indifference under the Fourteenth Amendment as to

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a prisoner’s claim under the Eighth Amendment. Id. The Eighth Amendment prohibits the imposition

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of cruel and unusual punishments and “embodies broad and idealistic concepts of dignity, civilized

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standards, humanity and decency.” Estelle v. Gamble, 429 U.S. 97, 102 (1976). A detainee or prisoner’s

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claim of inadequate medical care does not constitute cruel and unusual punishment unless the

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mistreatment rises to the level of “deliberate indifference to serious medical needs.” Id. at 106. The

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“deliberate indifference” standard involves an objective and a subjective prong. First, the alleged

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deprivation must be, in objective terms, “sufficiently serious.” Farmer v. Brennan, 511 U.S. 825, 834

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(1994) (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)). Second, the prison official must act with a

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“sufficiently culpable state of mind,” which entails more than mere negligence, but less than conduct

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undertaken for the very purpose of causing harm. Farmer, 511 U.S. at 837. A prison official does not

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act in a deliberately indifferent manner unless the official “knows of and disregards an excessive risk

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to inmate health or safety.” Id.

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In applying this standard, the Ninth Circuit has held that before it can be said that a

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prisoner’s civil rights have been abridged, “the indifference to his medical needs must be substantial.

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Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this cause of action.”

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

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“[A] complaint that a physician has been negligent in diagnosing or treating a medical condition does

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not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does

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not become a constitutional violation merely because the victim is a prisoner.” Estelle v. Gamble, 429

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U.S. at 106; see also Anderson v. County of Kern, 45 F.3d 1310, 1316 (9th Cir. 1995); McGuckin v.

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Smith, 974 F.2d 1050, 1050 (9th Cir. 1992) (overruled on other grounds), WMX Techs., Inc. v. Miller,

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104 F.3d 1133, 1136 (9th Cir. 1997)(en banc). Even gross negligence is insufficient to establish

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deliberate indifference to serious medical needs. See Wood v. Housewright, 900 F.2d 1332, 1334 (9th

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Cir. 1990). A prisoner’s mere disagreement with diagnosis or treatment does not support a claim of

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deliberate indifference. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989).

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Delay of, or interference with, medical treatment can also amount to deliberate

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indifference. See Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); Clement v. Gomez, 298 F.3d 898,

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905 (9th Cir. 2002); Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002); Lopez v. Smith, 203 F.3d 1122,

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1131 (9th Cir. 1996); Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996); McGuckin v. Smith, 974 F.2d

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1050, 1059 (9th Cir. 1992) overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133,

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(9th Cir. 1997) (en banc); Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988). Where the

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prisoner is alleging that delay of medical treatment evinces deliberate indifference, however, the prisoner

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must show that the delay led to further injury. See Hallett, 296 F.3d at 745-46; McGuckin, 974 F.2d at

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1060; Shapley v. Nev. Bd. Of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985) (per curiam).

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Plaintiff’s amended complaint suffers from several defects and must be dismissed. First,

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as plaintiff was advised previously, while he has named the CCDC as a defendant, the detention facility

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itself is not a “person” acting under the color of state law for purposes of § 1983 actions. 42 U.S.C. §

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1983; see also Howlett v. Rose, 496 U.S. 356, 365 (1990). Relatedly, plaintiff names Sunrise Hospital

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and Dr. Hamid as defendants, however, this private hospital and private doctor are not state actors so

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as to make them amenable to suit under § 1983. Crumpton v. Gates, 947 F.2d 1481, 1420 (9th Cir. 1991)

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(“Traditionally, the requirements for relief under [§] 1983 have been articulated as: (1) a violation of

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rights protected by the Constitution or created by federal statute, (2) proximately caused (3) by conduct

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of a ‘person’ (4) acting under color of state law.”).

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Next, as plaintiff also was advised previously, while he names defendants Gillespie and

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Newman in their capacity as supervisors, “[l]iability under [§] 1983 arises only upon a showing of

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personal participation by the defendant. A supervisor is only liable for the constitutional violations of

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. . . subordinates if the supervisor participated in or directed the violations, or knew of the violations and

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failed to act to prevent them. There is no respondeat superior liability under [§] 1983.” Taylor v. List,

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880 F.2d 1040, 1045 (9th Cir. 1989).

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Finally, while plaintiff alleges that Nurse Doe initially told him that what turned out to

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be an infection was merely scar tissue, and that Officer Doe failed to deliver certain medical kites,

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plaintiff does not allege that any delay in treatment led to further injury. See Hallett, 296 F.3d at 745-46;

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McGuckin, 974 F.2d at 1060; Shapley, 766 F.2d at 407. As plaintiff has already been granted leave to

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amend, it appears that any further leave would be futile. Accordingly, his amended complaint is

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dismissed with prejudice and without leave to amend.

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III. Conclusion

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IT IS THEREFORE ORDERED that plaintiff’s amended complaint (ECF #17) is
DISMISSED with prejudice and without leave to amend.
IT IS FURTHER ORDERED that the Clerk shall ENTER JUDGMENT accordingly
and close this case.
DATED this

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day of March, 2013.

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UNITED STATES DISTRICT JUDGE

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