Robert Bowie v. M. Vu
Filing
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ORDER DISMISSING Action, With Prejudice, for Failure to State a Claim Under Section 1983 and COUNTING DISMISSAL as a STRIKE Under 28 U.S.C. § 1915(G), signed by Magistrate Judge Sheila K. Oberto on 6/21/11. (CASE CLOSED)(Hellings, J)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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ROBERT BOWIE,
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Plaintiff,
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CASE NO. 1:10-cv-01033-SKO PC
ORDER DISMISSING ACTION, WITH
PREJUDICE, FOR FAILURE TO STATE A
CLAIM UNDER SECTION 1983 AND
COUNTING DISMISSAL AS A STRIKE
UNDER 28 U.S.C. § 1915(G)
v.
DR. M. VU,
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Defendant.
(Doc. 14)
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Screening Order
I.
Screening Requirement and Standard
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Plaintiff Robert Bowie, a state prisoner proceeding pro se and in forma pauperis, filed this
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civil rights action pursuant to 42 U.S.C. § 1983 on June 1, 2010. On May 19, 2011, the Court
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dismissed Plaintiff’s complaint, with leave to amend, for failure to state a claim. Plaintiff filed an
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amended complaint on June 13, 2011.
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The Court is required to screen complaints brought by prisoners seeking relief against a
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governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The
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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally
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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek
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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).
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“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall
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dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a
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claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).
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A complaint must contain “a short and plain statement of the claim showing that the pleader
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is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but
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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
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do not suffice,” Ashcroft v. Iqbal, ___ U.S. ___, ___, 129 S.Ct. 1937, 1949 (2009) (citing Bell
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Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)), and courts “are not required
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to indulge unwarranted inferences,” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir.
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2009) (internal quotation marks and citation omitted). While factual allegations are accepted as true,
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legal conclusions are not. Iqbal, 129 S.Ct. at 1949.
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To state a claim, Plaintiff must demonstrate that each defendant personally participated in
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the deprivation of his rights. Id. at 1949. This requires the presentation of factual allegations
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sufficient to state a plausible claim for relief. Iqbal, 129 S.Ct. at 1949-50; Moss v. U.S. Secret
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Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of
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meeting this plausibility standard. Iqbal, 129 S.Ct. at 1949-50; Moss, 572 F.3d at 969.
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II.
Plaintiff’s Eighth Amendment Medical Care Claim
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Plaintiff brings this action against Defendant M. Vu, a physician at the California
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Correctional Institution in Tehachapi. Plaintiff alleges only that Defendant Vu was unprofessional
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and committed malpractice in treating the gunshot wound to Plaintiff’s right foot.
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To constitute cruel and unusual punishment in violation of the Eighth Amendment, prison
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conditions must involve “the wanton and unnecessary infliction of pain.” Rhodes v. Chapman, 452
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U.S. 337, 347, 101 S.Ct. 2392 (1981). A prisoner’s claim of inadequate medical care does not rise
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to the level of an Eighth Amendment violation unless (1) “the prison official deprived the prisoner
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of the ‘minimal civilized measure of life’s necessities,’” and (2) “the prison official ‘acted with
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deliberate indifference in doing so.’” Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004)
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(quoting Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) (citation omitted)). A prison official
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does not act in a deliberately indifferent manner unless the official “knows of and disregards an
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excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970
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(1994).
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Plaintiff’s conclusory allegation is insufficient to state a claim under section 1983. Lack of
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professionalism and malpractice do not rise to the level of an Eighth Amendment violation, Estelle
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v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285 (1977); Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th
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Cir. 1987), and Plaintiff’s amended complaint is devoid of any facts suggesting that Defendant Vu
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knowingly disregarded a substantial risk of harm to Plaintiff’s health, Farmer, 511 U.S. at 837.
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Accordingly, Plaintiff fails to state a cognizable claim against Defendant Vu. Plaintiff’s previous
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complaint suffered from the same deficiencies and therefore, further leave to amend will not be
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granted.
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III.
Conclusion and Order
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Plaintiff’s amended complaint fails to state a claim upon which relief may be granted under
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section 1983. Plaintiff was previously provided with notice of the deficiencies in his claim and an
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opportunity to amend, but he was unable to cure the deficiencies and further leave to amend is not
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warranted. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); Noll v. Carlson, 809 F.2d 1446,
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1448-49 (9th Cir. 1987).
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Accordingly, based on the foregoing, it is HEREBY ORDERED that:
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1.
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This action is dismissed, with prejudice, for failure to state a claim under section
1983; and
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2.
The dismissal shall count as a strike under 28 U.S.C. § 1915(g).
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IT IS SO ORDERED.
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Dated:
ie14hj
June 21, 2011
/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE
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