(PC) Barnett v. Suryadevara et al, No. 1:2008cv00371 - Document 21 (E.D. Cal. 2010)

Court Description: ORDER DISCHARGING 19 Order to Show Cause and ORDER GRANTING 20 Motion for Assistance with Service of Process; ORDER DISMISSING 1 COMPLAINT, WITH LEAVE TO AMEND for Failure to State Claim Under Section 1983; ORDERED that Plaintiff File an Amended Complaint within (30) days from the date of service of this order, signed by Magistrate Judge Sandra M. Snyder on 11/19/2010. (Amended Complaint due by 12/27/2010) (Martin, S)
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(PC) Barnett v. Suryadevara et al Doc. 21 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 JUDITH ANN BARNETT, 10 Plaintiff, 11 12 CASE NO. 1:08-cv-00371-SMS PC ORDER DISCHARGING ORDER TO SHOW CAUSE, AND GRANTING MOTION FOR ASSISTANCE WITH SERVICE OF PROCESS v. SURYADEVARA, et al., 13 (Docs. 19 and 20) Defendants. 14 ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE A CLAIM UNDER SECTION 1983 15 (Doc. 1) 16 THIRTY-DAY DEADLINE / 17 18 19 Screening Order I. Procedural History 20 Plaintiff Judith Ann Barnett, a state prisoner proceeding pro se, filed this civil rights action 21 pursuant to 42 U.S.C. § 1983 and California tort law on March 14, 2008. On July 1, 2009, the Court 22 issued an order finding service of the complaint appropriate, and directing Plaintiff to complete 23 service of process within one-hundred twenty days. On July 15, 2010, after Plaintiff’s second 24 extension of time expired, the Court ordered Plaintiff to show cause why this action should not be 25 dismissed for failure to effect service. Fed. R. Civ. P. 4(m). Plaintiff filed a response on July 28, 26 2010, and requested assistance in completing service. 27 The Court has reviewed the case file in its entirety and finds good cause to appoint the United 28 States Marshal effect service of process on Plaintiff’s behalf. Fed. R. Civ. P. 4(c)(2). However, in 1 Dockets.Justia.com 1 light of the change in the federal pleading standard, the Court finds, upon re-screening, that 2 Plaintiff’s complaint does not state a claim upon which relief may be granted for violation of the 3 Eighth Amendment. 28 U.S.C. § 1915A; Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). The Court 4 will provide the applicable standards and notice of the deficiencies in the sections that follow. 5 Plaintiff is granted leave to file an amended complaint. If the amended complaint states cognizable 6 claims for relief, Plaintiff may rely on the Marshal to effect service, at the Court’s direction. 7 II. Screening Standard 8 The Court is required to screen complaints brought by prisoners seeking relief against a 9 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 10 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 11 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 12 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 13 A complaint must contain “a short and plain statement of the claim showing that the pleader 14 is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 15 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, 16 do not suffice.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. 17 Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). Plaintiff must set forth “sufficient 18 factual matter, accepted as true, to ‘state a claim that is plausible on its face.’” Iqbal, 129 S.Ct. at 19 1949 (quoting Twombly, 550 U.S. at 555). Facial plausibility demands more than the mere 20 possibility that a defendant committed misconduct, Iqbal at 1950, and while factual allegations are 21 accepted as true, legal conclusion are not, id. at 1949. 22 III. Plaintiff’s Eighth Amendment Medical Care Claim 23 A. 24 Plaintiff is incarcerated at the Central California Women’s Facility in Chowchilla. On 25 October 6, 2006, Plaintiff was seen by medical staff for wrist pain. An x-ray was taken on January 26 4, 2007, and an MRI was done on April 10, 2007. On May 17, 2007, Plaintiff was referred to UC 27 Davis for a consultation, which occurred on September 12, 2007. Plaintiff was diagnosed with Stage 28 4 Kienbock’s Disease, which is progressive osteochondrosis of the semilunar bone. Stedman’s Allegations 2 1 Medical Dictionary 484 (28th ed. 2006). Plaintiff underwent surgery on January 3, 2008, and the 2 surgeon indicated a possible recovery period of up to one year. 3 Although acknowledging that the disease is difficult to diagnose, Plaintiff contends that due 4 to the delay in diagnosis and treatment, she had to have surgery and the options for Stages 1-3 of the 5 disease were not available to her. Further, an additional surgery to fuse her wrist may be necessary, 6 which will completely disable her right hand. Finally, Plaintiff is allergic to the pain medication 7 prescribed, and her requests for a medication change and a pillow were initially denied. Plaintiff 8 contends that all post-surgical rehabilitation, which includes medication, follow-up consultations and 9 physical therapy, is at risk. Plaintiff contends that Defendant Suryadevara, as Chief Medical Officer, 10 is liable under the theory of respondeat superior, and that Defendants Iyer and Sakata were aware of 11 the delays via the inmate appeals process. 12 B. 13 To constitute cruel and unusual punishment in violation of the Eighth Amendment, prison 14 conditions must involve “the wanton and unnecessary infliction of pain.” Rhodes v. Chapman, 452 15 U.S. 337, 347 (1981). A prisoner’s claim of inadequate medical care does not rise to the level of an 16 Eighth Amendment violation unless (1) “the prison official deprived the prisoner of the ‘minimal 17 civilized measure of life’s necessities,’” and (2) “the prison official ‘acted with deliberate 18 indifference in doing so.’” Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (quoting Hallett 19 v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) (citation omitted)). Legal Standard 20 A prison official does not act in a deliberately indifferent manner unless the official “knows 21 of and disregards an excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 22 834 (1994). Deliberate indifference may be manifested “when prison officials deny, delay or 23 intentionally interfere with medical treatment,” or in the manner “in which prison physicians provide 24 medical care.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other 25 grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). Where a 26 prisoner is alleging a delay in receiving medical treatment, the delay must have led to further harm 27 in order for the prisoner to make a claim of deliberate indifference to serious medical needs. 28 /// 3 1 McGuckin, 974 F.2d at 1060 (citing Shapely v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 2 407 (9th Cir. 1985)). 3 C. 4 Defendants may be held liable for violation of the Eighth Amendment only if they “[knew] 5 of and disregard[ed] an excessive risk to [Plaintiff’s] health . . ,” Farmer, 511 U.S. at 837, and 6 Plaintiff is required to show that each defendant personally participated in the deprivation of her 7 rights, Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). Defendant Suryadevara’s position as 8 Chief Medical Officer may not be used as grounds for liability under section 1983. Iqbal at 1948-49. 9 Because Plaintiff has not linked Defendant Suryadevara to any involvement in the violation of her 10 rights, other than under a theory of respondeat superior which is not permissible, she fails to state 11 a claim against him. Discussion 12 Plaintiff concedes that Kienbock’s Disease is not easy to diagnose, but alleges that 13 Defendants Sakata and Iyer were aware of the delay in diagnosing and treating her condition by 14 virtue of her inmate appeals. However, Plaintiff’s allegations do not support a claim that either 15 Defendant acted with deliberate indifference. Plaintiff’s belief that diagnosis and treatment should 16 have occurred sooner is insufficient to support an Eighth Amendment claim. “A difference of 17 opinion between a prisoner-patient and prison medical authorities regarding treatment does not give 18 rise to a s 1983 claim.” Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981) (internal citation 19 omitted). Rather, Plaintiff “must show that the course of treatment the doctors chose was medically 20 unacceptable under the circumstances . . . and . . . that they chose this course in conscious disregard 21 of an excessive risk to [her] health.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1986) (internal 22 citations omitted). Plaintiff’s allegations do not link Defendants Sakata and Iyer to a knowing 23 disregard of an excessive risk to her health, and she fails to state a claim against them. 24 /// 25 /// 26 /// 27 /// 28 /// 4 1 IV. Conclusion and Order 2 Plaintiff’s complaint does not state a claim for relief under section 1983 for violation of the 3 Eighth Amendment.1 In light of the change in the standard governing the screening of complaints 4 and because Plaintiff may be able to cure the deficiencies in her claims, Plaintiff shall be granted 5 another opportunity to amend. Plaintiff may not change the nature of this suit by adding new, 6 unrelated claims in her amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no 7 “buckshot” complaints). 8 Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but must state what each 9 named defendant did that led to the deprivation of Plaintiff’s constitutional rights, Iqbal at 1948-49. 10 There is no respondeat superior liability, and each defendant is only liable for his or her own 11 misconduct. Iqbal at 1948-49. Although accepted as true, the “[f]actual allegations must be 12 [sufficient] to raise a right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555 13 (citations omitted). 14 Finally, an amended complaint supercedes the original complaint, Forsyth v. Humana, Inc., 15 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), and must 16 be “complete in itself without reference to the prior or superceded pleading,” Local Rule 220. 17 Therefore, “[a]ll causes of action alleged in an original complaint which are not alleged in an 18 amended complaint are waived.” King, 814 F.2d at 567 (citing to London v. Coopers & Lybrand, 19 644 F.2d 811, 814 (9th Cir. 1981)); accord Forsyth, 114 F.3d at 1474. 20 /// 21 /// 22 23 24 25 26 27 1 Plaintiff also alleges a medical malpractice claim. Plaintiff may not pursue any state law claims unless she states a cognizable claim under federal law. Assuming Plaintiff is able to amend to state a federal claim, she is notified that she must allege compliance with the California Tort Claims Act to pursue a medical malpractice claim, as she did in her original complaint, and she must allege sufficient facts to support a viable malpractice claim. “The elements of a medical malpractice claim are (1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and resulting injury; and (4) actual loss or damage resulting from the professional’s negligence.” Avivi v. Centro Medico Urgente Medical Center, 159 Cal.App.4th 463, 468, n.2, 71 Cal.Rptr.3d 707, 711 (Cal. Ct. App. 2008) (internal quotations and citation omitted). 28 5 1 Based on the foregoing, it is HEREBY ORDERED that: 2 1. 3 The order to show cause filed on July 14, 2010, is DISCHARGED, and Plaintiff’s motion for assistance with service of process, filed July 28, 2010, is GRANTED; 4 2. The Clerk’s Office shall send Plaintiff a civil rights complaint form; 5 3. Plaintiff’s complaint, filed March 14, 2008, is dismissed for failure to state a claim 6 under section 1983; 7 4. 8 Within thirty (30) days from the date of service of this order, Plaintiff shall file an amended complaint; and 9 5. If Plaintiff fails to file an amended complaint in compliance with this order, this 10 action will be dismissed, with prejudice, for failure to state a claim under section 11 1983. 12 13 IT IS SO ORDERED. 14 Dated: icido3 November 19, 2010 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6