(PC) Fleming v. United States of America et al, No. 1:2007cv00461 - Document 18 (E.D. Cal. 2009)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gary S. Austin on 10/08/2009 recommending that 10 Amended Complaint be DISMISSED. Objections to F&R due by 11/10/2009. (Lundstrom, T)
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(PC) Fleming v. United States of America et al Doc. 18 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 MARVIN FLEMING, 10 11 CASE NO. 1:07-cv-00461-OWW-YNP PC Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION v. (Doc. 10) 12 UNITED STATES OF AMERICA, et al., OBJECTIONS DUE WITHIN 30 DAYS 13 Defendants. / 14 15 Plaintiff Marvin Fleming (“Plaintiff”) is a federal prisoner proceeding pro se and in forma 16 pauperis in this civil action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau 17 of Narcotics, 403 U.S. 388, 91 S.Ct. 1999 (1971), which provides a remedy for the violation of civil 18 rights by federal actors.1 Plaintiff was incarcerated at Taft Correctional Institution (“Taft”) at the 19 time the events in his complaint took place. Plaintiff is suing under Bivens for the violation of his 20 rights under the Eighth Amendment. Plaintiff names Jeff Wrigley (warden), the United States of 21 America, GEO Group, Ndukewe N. Odeluga (medical doctor), Pam Dougles (medical nurse), and 22 Nygren R. Cotr as defendants. For the reasons set forth below, the Court finds that Plaintiff’s First 23 Amended Complaint fails to state any cognizable claims and that Plaintiff’s claims are not curable 24 by granting further leave to amend. The Court will recommend that Plaintiff’s claims be dismissed, 25 without leave to amend, for failure to state any cognizable claims. 26 27 28 1 Plaintiff has filed his complaint on a form complaint used for actions under 42 U.S.C. § 1983. Section 1983 provides a remedy for the violation of civil rights by state actors. Plaintiff is suing the United States, the federal Bureau of Prisons, and employees of an institution under contract with the federal Bureau of Prisons. Thus this lawsuit is more appropriately brought under Bivens. 1 Dockets.Justia.com 1 I. Screening Requirement 2 The Court is required to screen complaints brought by prisoners seeking relief against a 3 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 4 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 5 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 6 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 7 “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall 8 dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a 9 claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 10 In determining whether a complaint fails to state a claim, the Court uses the same pleading 11 standard used under Federal Rule of Civil Procedure 8(a). Under Rule 8(a), a complaint must 12 contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. 13 R. Civ. P. 8(a)(2). “[T]he pleading standard Rule 8 announces does not require ‘detailed factual 14 allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me 15 accusation.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. 16 Twombly, 550 U.S. 544, 555 (2007)). “[A] complaint must contain sufficient factual matter, 17 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550 18 U.S. at 570). “[A] complaint [that] pleads facts that are ‘merely consistent with’ a defendant’s 19 liability . . . ‘stops short of the line between possibility and plausibility of entitlement to relief.’” Id. 20 (quoting Twombly, 550 U.S. at 557). Further, although a court must accept as true all factual 21 allegations contained in a complaint, a court need not accept a plaintiff’s legal conclusions as true. 22 Id. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory 23 statements, do not suffice.” Id. (quoting Twombly, 550 U.S. at 555). 24 II. Background 25 A. 26 Plaintiff filed the Original Complaint in this action on March 22, 2007. (Doc. #1.) Plaitniff’s 27 Original Complaint was screened by the Court on July 7, 2008. (Doc. #8.) The Court dismissed 28 Plaintiff’s Original Complaint with leave to amend because Plaintiff failed to state any claims. The Procedural Background 2 1 Court found that Plaintiff’s claims for injunctive relief were rendered moot because Plaintiff was 2 transferred to a different prison. The Court also found that Plaintiff failed to state any federal claims 3 arising from Defendants’ actions in providing medical treatment because their actions did not rise 4 to the level of a constitutional violation. Plaintiff’s claim also failed to allege a sufficient link 5 between supervisory defendants and the alleged rights that were violated. Finally, the Court noted 6 that Plaintiff’s vague and conclusory allegations were insufficient to state a claim under the Federal 7 Rules of Civil Procedure. 8 The Court granted Plaintiff leave to amend his complaint to cure the deficiencies identified 9 by the Court in its screening order. Plaintiff filed his First Amended Complaint on August 13, 2008. 10 (Doc. #10.) This action proceeds on Plaintiff’s First Amended Complaint. 11 B. 12 Plaintiff alleges that he suffered injury to his right eye that resulted in permanent blindness. 13 On April 19, 2006, Plaintiff was hit in the right eye by a flying billiards ball while he was sitting in 14 a chair. A correctional officer observed the incident and rushed over and took Plaintiff to get 15 medical help. Defendant was seen by the nurse, Defendant Pam Dougles. Plaintiff told Dougles that 16 he was in severe pain and requested an ice pack and some type of pain medication. Dougles 17 performed an eye exam but did not provide an ice pack or medication. Plaintiff requested to see an 18 eye doctor but Dougles told Plaintiff that there was no doctor there and there was no need to see a 19 doctor. Plaintiff left medical and asked the “Unit Team” to see a doctor. Plaintiff was told that 20 medical staff had did everything they could and Plaintiff was sent to his cell. On April 20, 2006, 21 Plaintiff returned to sick call because his eye was completely closed due to swelling. Dougles 22 provided Plaintiff with Tylenol and told Plaintiff that a referral to see a doctor would be made. Factual Background 23 On April 23, 2006, Plaintiff was seen by a staff doctor, Defendant Ndukewe N. Odeluga. 24 Odeluga took an x-ray of Plaintiff’s eye. Plaintiff asked for stronger pain medication but Odeluga 25 told Plaintiff that he was not authorized to give any other pain medication. 26 In late April, Plaintiff was told that he had an appointment with a doctor scheduled for June 27 7, 2006. On May 10, 2006, Plaintiff was called to the Lieutenant’s Office and was taken to the 28 Special Housing Unit for an investigation by the “Unit Team” concerning the billiards ball incident. 3 1 Plaintiff did not receive any medical attention for over three weeks. On November 11, 2006, 2 Dougles answered Plaintiff’s written complaint about his pain and dizziness. Dougles scheduled an 3 appointment with an eye doctor. 4 III. Discussion 5 A. 6 Plaintiff attempts to sue the United States of America and BOP under Bivens for the violation 7 of his constitutional rights. The United States may not be sued in a Bivens action. Cato v. U.S., 70 8 F.3d 1103, 1110 (9th Cir. 1995). Nor can a federal agency be sued in a Bivens action. FDIC v. 9 Meyer, 510 U.S. 471, 484 (1994). BOP is a federal agency. Plaintiff may not maintain a Bivens 10 action against the United States or BOP. Plaintiff fails to state any cognizable claims against the 11 United States of America or BOP. Bivens Claims Against the United States of America and the Bureau of Prisons 12 B. 13 Plaintiff names GEO Group as a defendant. Plaintiff alleges that GEO Group is an agency 14 contracted by the United States government and runs the Taft Correctional Institution. Bivens 15 actions may not be brought against a private corporation operating under contract with the federal 16 Bureau of Prisons. Correctional Services Corp. v. Malesko, 534 U.S. 61, 63 (2001). Plaintiff fails 17 to state any cognizable claims against GEO Group. Bivens Claims Against GEO Group 18 C. 19 Plaintiff claims that Defendants violated his rights under the Eighth Amendment through 20 their deliberate indifference toward his medical needs. The Eighth Amendment prohibits the 21 imposition of cruel and unusual punishments and “embodies ‘broad and idealistic concepts of 22 dignity, civilized standards, humanity and decency.’” Estelle v. Gamble, 429 U.S. 97, 102 (1976) 23 (quoting Jackson v. Bishop, 404 F.2d 571, 579 (8th Cir. 1968)). A prison official violates the Eighth 24 Amendment only when two requirements are met: (1) the objective requirement that the deprivation 25 is “sufficiently serious”, Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quoting Wilson v. Seiter, 501 26 U.S. 294, 298 (1991), and (2) the subjective requirement that the prison official has a “sufficiently 27 culpable state of mind”, Id. (quoting Wilson, 501 U.S. at 298). The objective requirement that the 28 deprivation be “sufficiently serious” is met where the prison official’s act or omission results in the Eighth Amendment Claims 4 1 denial of “the minimal civilized measure of life’s necessities”. Id. (quoting Rhodes v. Chapman, 452 2 U.S. 337, 347 (1981)). The subjective requirement that the prison official has a “sufficiently 3 culpable state of mind” is met where the prison official acts with “deliberate indifference” to inmate 4 health or safety. Id. (quoting Wilson, 501 U.S. at 302-303). A prison official acts with deliberate 5 indifference when he/she “knows of and disregards an excessive risk to inmate health or safety”. 6 Id. at 837. “[T]he official must both be aware of facts from which the inference could be drawn that 7 a substantial risk of serious harm exists, and he must also draw the inference.” Id. 8 Deliberate indifference to a prisoner’s serious illness or injury violates the Eighth 9 Amendment. Estelle, 429 U.S. at 105. In order to state an Eighth Amendment claim based on 10 deficient medical treatment, a plaintiff must show: (1) a serious medical need; and (2) a deliberately 11 indifferent response by the defendant. Conn v. City of Reno, 572 F.3d 1047, 1055 (9th Cir. 2009) 12 (quoting Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006)). A serious medical need is shown by 13 alleging that the failure to treat the plaintiff’s condition could result in further significant injury, or 14 the unnecessary and wanton infliction of pain. Id. A deliberately indifferent response by the 15 defendant is shown by a purposeful act or failure to respond to a prisoner’s pain or possible medical 16 need and harm caused by the indifference. Id. In order to constitute deliberate indifference, there 17 must be an objective risk of harm and the defendant must have subjective awareness of that harm. 18 Id. However, “a complaint that a physician has been negligent in diagnosing or treating a medical 19 condition does not state a valid claim of medical mistreatment under the Eighth Amendment. 20 Medical malpractice does not become a constitutional violation merely because the victim is a 21 prisoner.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). Isolated occurrences of neglect do not 22 constitute deliberate indifference to serious medical needs. See Jett v. Penner, 439 F.3d 1091, 1096 23 (9th Cir. 2006); McGuckin v. Smith, 974 F.2d 1050, 1060 (9th Cir. 1992); O’Loughlin v. Doe, 920 24 F.2d 614, 617 (9th Cir. 1990). 25 Plaintiff’s allegations do not rise to the level of a constitutional violation. In order to state 26 a Bivens claim against Defendants for violation of his rights under the Eighth Amendment, Plaintiff 27 must provide allegations that demonstrate that Defendants acted with deliberate indifference. 28 Plaintiff, at most, establishes that Defendants provided negligent medical care. Bivens does not 5 1 provide a remedy for medical malpractice. In order to constitute deliberate indifference, Plaintiff 2 must allege that Defendants were aware that their actions or inactions would pose an excessive risk 3 to Plaintiff’s safety. Plaintiff has only alleged that Defendants’ should have provided stronger 4 medication and should have referred Plaintiff to an eye doctor sooner. Defendants’ actions, even if 5 erroneous, are not violations of the Eighth Amendment. Plaintiff does not allege that Defendants 6 deliberately chose to provide weaker pain medication or refused to refer Plaintiff to an eye doctor 7 with the subjective awareness that their actions would present a serious risk of pain and harm to 8 Plaintiff. Plaintiff fails to state a claim for violation of his Eighth Amendment rights. 9 Plaintiff was previously informed of the deficiencies in his Eighth Amendment medical care 10 claim and was provided with the proper legal standards for stating a cognizable claim in the Court’s 11 prior screening order. (Order Dismissing Compl. With Leave To Amend 2:15-3:2, July 7, 2008.) 12 Plaintiff has not amended his claim in any way that meaningfully addresses the deficiencies 13 identified by the Court. The Court will recommend that Plaintiff’s claims be dismissed without 14 leave to amend. 15 D. 16 Plaintiff claims that Defendant Jeff Wringley, the warden at Taft, and Nygren R. Cotr, an 17 official with the federal Bureau of Prisons, are liable for failing to hire proper professional medical 18 staff capable of handling the type of emergency situation that resulted in Plaintiff’s right eye injury. 19 Supervisory personnel are not liable under Bivens for the actions of their employees under a theory 20 of respondeat superior. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948 (2009). Thus, supervisory 21 personnel are not liable for the unconstitutional conduct of their subordinates. In order to state a 22 claim against supervisory personnel, a plaintiff must plead that the supervisor’s own individual 23 actions violated the Constitution. Id. Claims Against Supervisory Officials 24 Plaintiff’s vague and conclusory allegations regarding Wringley and Cotr’s participation in 25 the alleged violations are not sufficient to state any claims against them. In order to state a 26 cognizable claim against them, Plaintiff must demonstrate a greater degree of personal participation. 27 Plaintiff does not allege that Wringley and Cotr were aware that the medical staff employed at Taft 28 was not qualified. Nor does Plaintiff allege how their hiring policy was so deficient that the policy 6 1 itself is a repudiation of constitutional rights and is the moving force of the constitutional violation. 2 See Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989). Further, Plaintiff has not alleged that 3 Wringley and Cotr acted with deliberate indifference–that they had subjective awareness of a serious 4 risk to Plaintiff’s health or safety. Plaintiff fails to state any cognizable claims against Defendants 5 Wringley and Cotr for the violation of his rights under the Eighth Amendment. 6 Plaintiff was previously informed of the deficiencies in his claims against supervisory 7 officials. (Order Dismissing Compl. With Leave To Amend 3:3-8, July 7, 2008.) Plaintiff has not 8 amended his claim in any way that meaningfully addresses the deficiencies identified by the Court. 9 The Court will recommend that Plaintiff’s claims against Wringley and Cotr be dismissed without 10 leave to amend. 11 IV. Conclusion and Recommendation 12 The Court has screened Plaintiff’s First Amended Complaint and finds that it fails to state 13 any claims upon which relief may be granted under Bivens. The Court’s July 7, 2008 screening 14 order notified Plaintiff of the same deficiencies in Plaintiff’s Original Complaint. Plaintiff was 15 provided with the opportunity to amend. Plaintiff’s First Amended Complaint failed to remedy the 16 deficiencies in his claims. Therefore, the Court finds that Plaintiff’s claims are not curable by further 17 leave to amend. 18 19 Accordingly, it is HEREBY RECOMMENDED that Plaintiff’s First Amended Complaint be dismissed for failure to state a claim. 20 These Findings and Recommendations will be submitted to the United States District Judge 21 assigned to this case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within thirty (30) 22 days after being served with these Findings and Recommendations, Plaintiff may file written 23 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 24 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 25 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 26 1153 (9th Cir. 1991). 27 28 IT IS SO ORDERED. Dated: October 8, 2009 /s/ Gary S. Austin 7 1 6i0kij UNITED STATES MAGISTRATE JUDGE 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8
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