(PC) Rosenblum v. Akanne, et al, No. 2:2007cv01176 - Document 22 (E.D. Cal. 2009)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge George W. Foley on 01/07/2009 RECOMMENDING that 19 Second Amended Complaint filed by Phillip Rosenblum be dismissed, with prejudice based on Plaintiff's failure to state a claim upon which relief may be granted. Objections to F&R's are due within 10 days. Matter referred to Judge Pro. (Streeter, J) Modified on 12/21/2009 (Owen, K).
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(PC) Rosenblum v. Akanne, et al Doc. 22 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 FOR THE EASTERN DISTRICT OF CALIFORNIA 7 8 9 10 11 12 PHILLIP ROSENBLUM, ) ) Plaintiff, ) ) vs. ) ) AKANNE, et al., ) ) Defendants. ) __________________________________________) Case No. 2:07-cv-01176-PMP-GWF FINDINGS AND RECOMMENDATIONS 13 14 15 16 17 This matter is before the Court on Plaintiff’s Second Amended Complaint (#19), filed on July 23, 2008. BACKGROUND On June 18, 2007, Plaintiff filed his original Complaint (#1), which was dismissed with leave to 18 amend upon the ground it violated Fed. R. Civ. P. 8(a) and 10(a). See Order (#6). On October 12, 19 2007, Plaintiff filed his first Amended Complaint (#11), which was dismissed with leave to amend 20 because the Court also found that Plaintiff’s Amended Complaint (#11) failed to state a cognizable 21 claim against any Defendant named in this case. See Order (#14). Throughout his Amended 22 Complaint (#11), Plaintiff alleged that Defendants provided constitutionally inadequate medical care. 23 The Court specifically stated in Order (#14) that Plaintiff failed to properly state a claim under the 24 Eighth Amendment by not alleging “acts or omissions evidencing identified defendants knew of and 25 disregarded plaintiff’s serious medical needs.” See Order (#14), p. 2 (citing Estelle v. Gamble, 429 26 U.S. 97, 106, 97 S.Ct. 285, 292 (1976); Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 1979 27 (1994)). Additionally, the Court stated that “[i]n order to state a claim that a delay in providing 28 treatment violates the Eighth Amendment, plaintiff must allege that the delay was due to deliberate Dockets.Justia.com 1 indifference and that it resulted in some harm.” See Order (#14), p. 3; (citing Shapley v. Bd. of State 2 Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985) (per curiam)). The Court stated that “‘[a] medical 3 decision not to order [diagnostic] measures does not represent cruel and unusual treatment.’” Id. (citing 4 Estelle, 429 U.S. at 107, 97 S.Ct. at 293). 5 Plaintiff was required to file a second amended complaint by July 25, 2008. See Order (#18). 6 As a general rule, an amended complaint supersedes the prior pleading, the latter being treated as non- 7 existent. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Additionally, Local Rule 15-220 requires 8 that an amended complaint must be complete in itself without reference to any prior pleading. Once the 9 second amended complaint is filed, both the original complaint and the first amended complaint no 10 longer serve any function is this case. Therefore, in an amended complaint, as in an original complaint, 11 each claim and the involvement of each defendant must be sufficiently alleged. Plaintiff filed his 12 Second Amended Complaint (#19) on July 23, 2008; thus, Plaintiff has complied with Order (#18), and 13 the Court will now proceed with the screening of the Plaintiff’s Second Amended Complaint (#19) 14 pursuant to 28 U.S.C. §1915A. 15 In Count I of his Second Amended Complaint (#19), Plaintiff alleges that Defendants Dr. 16 Akanne, Dr. Pham, Dr. Galloway, Dr. Williams, Dr. Milliman, Dr. Akintola, Dr. Nale, Dr. Todd, and 17 Dr. Bai Feng (collectively “Defendants”) failed to provide him with both heart/circulatory system 18 testing and cardiologist consultation. Plaintiff alleges that proper treatment and diagnosis of his heart 19 condition by these doctors would have prevented continual, serious and irreparable injury to his health. 20 Plaintiff alleges that because of Defendants’ failure to provide necessary treatment and medication, he 21 has heart palpitations, increased heart rate, irregular heart rhythm, chest pain, pain in the heart area, 22 protruding veins, varicose veins, palpitating veins, limited circulation, and numbness and burning 23 sensation throughout the body, feet and legs. Plaintiff further alleges that the medical doctors’ 24 “deliberate indifference” to his “serious” heart/circulatory conditions are in violation of the Eighth 25 Amendment. 26 In Count II of his Second Amended Complaint (#19), Plaintiff alleges that he suffers from 27 neurological disorders. Plaintiff alleges that although he has been evaluated by Defendants regarding 28 his neurological condition, he is still not receiving treatment or diagnosis. Plaintiff alleges that 2 1 Defendants, with the exception of Dr. Nale, failed to provide Plaintiff with the necessary neurological 2 testing and specialist consultation, which would have resulted in proper treatment and diagnosis to 3 prevent continually suffering and irreparable injury. Plaintiff alleges that because of Plaintiff’s failure 4 to provide the necessary neurological testing and referrals, he has sporadic muscle spasms, twitching of 5 his muscles and foot muscles, shakiness throughout his body, muscle stiffness, tremors throughout his 6 body, loss of balance, dizziness, and loss of feeling and weakness throughout his body. Plaintiff further 7 alleges that the medical doctors’ “deliberate indifference” to his “serious” neurological conditions are in 8 violation of the Eighth Amendment. 9 10 DISCUSSION I. 11 Screening the Complaint Federal courts must conduct a preliminary screening in any case in which a prisoner seeks 12 redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 13 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims that are 14 frivolous, malicious, fail to state a claim upon which relief may be granted or seek monetary relief from 15 a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1),(2). Pro se pleadings, 16 however, must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th 17 Cir.1988). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) 18 that a right secured by the Constitution or laws of the United States was violated and (2) that the alleged 19 violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 20 42, 48 (1988). 21 In addition to the screening requirements under § 1915A, pursuant to the PLRA, a federal court 22 must dismiss a prisoner’s claims, “if the allegation of poverty is untrue,” or if the action “is frivolous or 23 malicious,” “fails to state a claim on which relief may be granted,” or “seeks monetary relief against a 24 defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2). Dismissal of a complaint for 25 failure to state a claim upon which relief may be granted is provided for in Federal Rule of Civil 26 Procedure 12(b)(6), and the Court applies the same standard under Section 1915(e)(2) when reviewing 27 the adequacy of a complaint or amended complaint. 28 ... 3 1 Review under Rule 12(b)(6) is essentially a ruling on a question of law. See Chappel v. 2 Laboratory Corp. of America, 232 F.3d 719, 723 (9th Cir. 2000). Dismissal for failure to state a claim 3 is proper only if it is clear that the plaintiff cannot prove any set of facts in support of the claim that 4 would entitle him or her to relief. See Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 1999). In making 5 this determination, the Court takes as true all allegations of material fact stated in the complaint, and the 6 Court construes them in the light most favorable to the plaintiff. See Warshaw v. Xoma Corp., 74 F.3d 7 955, 957 (9th Cir. 1996). Allegations in a pro se complaint are held to less stringent standards than 8 formal pleadings drafted by lawyers. See Hughes v. Rowe, 449 U.S. 5, 9 (1980); Haines v. Kerner, 404 9 U.S. 519, 520-21 (1972) (per curiam). While the standard under Rule 12(b)(6) does not require 10 detailed factual allegations, a plaintiff must provide more than mere labels and conclusions. Bell 11 Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964-1965 (2007). A formulaic recitation of the elements 12 of a cause of action is insufficient. Id., See Papasan v. Allain, 478 U.S. 265, 286 (1986). All or part of a complaint filed by a prisoner may therefore be dismissed sua sponte if the 13 14 prisoner’s claims lack an arguable basis either in law or in fact. This includes claims based on legal 15 conclusions that are untenable (e.g. claims against defendants who are immune from suit or claims of 16 infringement of a legal interest which clearly does not exist), as well as claims based on fanciful factual 17 allegations (e.g. fantastic or delusional scenarios). See Neitzke v. Williams, 490 U.S. 319, 327-28 18 (1989); see also McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). 19 II. 20 “Deliberate Indifference” Under 42 U.S.C. § 1983 “The unnecessary and wanton infliction of pain upon incarcerated individuals under color of law 21 constitutes a violation of the Eighth Amendment ...” Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 22 2004) (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992) (citation, alteration and 23 internal quotation marks omitted)). A violation of the Eighth Amendment occurs when prison officials 24 are deliberately indifferent to a prisoner’s needs. See Id. at 1057. 25 Under the Eighth Amendment, a prisoner “must satisfy both the objective and subjective 26 components of a two-part test.” Id. (quoting Hallet v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) 27 (citation omitted)). First there must be a demonstration that the prison official deprived the prisoner of 28 the “minimal civilized measure of life’s necessities.” Id. (citation omitted). Second, a prisoner must 4 1 demonstrate that the prison official “acted with deliberate indifference in doing so.” Id. (citation and 2 internal quotation marks omitted). 3 A deprivation of a plaintiff’s Eighth Amendment right occurs when prison officials are 4 deliberately indifferent to a prisoner’s medical needs. See Estelle, 429 U.S. at 104, 97 S.Ct. at 285. A 5 prison official acts with “deliberate indifference ... only if the [prison official] knows of and disregards 6 an excessive risk to inmate health and safety.” Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 7 1187 (9th Cir. 2002) (citation and internal quotation marks omitted). The prison official must not only 8 “be aware of facts from which the inference could be drawn that a substantial risk of serious harm 9 exists,” but that person “must also draw the inference.” Farmer, 511 U.S. at 837, 114 S.Ct. at 1979. 10 “If a [prison official] should have been aware of the risk, but was not, then the [official] has not violated 11 the Eighth Amendment, no matter how severe the risk.” Gibson, 290 F.3d at 1188 (citation omitted). 12 “Mere negligence in diagnosing or treating a medical condition, without more, does not violate a 13 prisoner’s Eighth Amendment rights.” McGuckin, 974 F.2d at 1059 (alteration and citation omitted). 14 As noted above, Plaintiff alleges in Count I that Defendants named in his Second Amended 15 Complaint (#19) were deliberately indifferent to Plaintiff’s medical needs by failing to provide him 16 with both heart/circulatory system testing and cardiologist consultation. Plaintiff alleges that heart tests 17 performed in late 2007 and throughout 2008 prove that Plaintiff has irreparable heart damage as well as 18 other heart abnormalities and irregularities. In Count II, Plaintiff alleges that Defendants, with the 19 exception of Dr. Nale, were deliberately indifferent to Plaintiff’s medical needs by failing to provide 20 Plaintiff with the necessary neurological testing and specialist consultation, which would have resulted 21 in proper treatment and diagnosis to prevent continually suffering and irreparable injury. Plaintiff 22 alleges that from April 23, 2004, to December 12, 2006, Defendants all examined Plaintiff. Plaintiff 23 further alleges that Defendants were all aware of Plaintiff’s heart and neurological conditions, but did 24 not provide testing, treatment, or diagnosis for Plaintiff’s heart and neurological conditions. Plaintiff 25 further alleges that Defendants failed to perform or order the necessary tests that would have detected 26 Plaintiff’s heart and neurological problems. Plaintiff alleges that had Defendants provided proper 27 treatment or performed the proper tests or diagnosis, Plaintiff would not currently suffer from 28 irreparable damage to his heart and body. 5 1 Pursuant to a “deliberate indifference” analysis, the Court views whether “the [prison official] 2 knows of and disregards an excessive risk to inmate health and safety.” Gibson, 290 F.3d at 1187. 3 “Deliberate indifference is a high legal standard.” Toguchi, 391 F.3d at 1060. “A showing of medical 4 malpractice or negligence is insufficient to establish a constitutional deprivation under the Eighth 5 Amendment.” Id. (citing to Hallet, 296 F.3d at 744 (“Mere medical malpractice does not constitute 6 cruel and unusual punishment.”) (citation omitted). After viewing Plaintiff’s Second Amended 7 Complaint (#19), the Court again finds that Plaintiff fails to allege facts sufficient to state a claim for 8 relief under the Eighth Amendment’s two-part test. Toguchi, 391 F.3d at 1057. Plaintiff has not 9 demonstrated that Defendants deprived him of the “minimal civilized measure of life’s necessities.” Id. 10 (citation omitted). Additionally, Plaintiff has not demonstrated that Defendants “acted with deliberate 11 indifference in doing so.” Id. Plaintiff’s allegations in his Second Amended Complaint (#19) show that 12 Plaintiff was examined by Defendants on several occasions in an attempt to treat his medical 13 conditions. The failure to perform or provide testing, treatment, or diagnosis related to Plaintiff’s 14 circulatory or neurological conditions does not constitute cruel and unusual punishment under the 15 Eighth Amendment. Thus, the Court finds that Defendants’ actions cannot constitute deliberate 16 indifference. See Gibson, 290 F.3d at 1187. 17 III. 18 Amended Complaint After viewing Plaintiff’s Amended Complaint (#11) and Second Amended Complaint (#19), the 19 Court finds that Plaintiff cannot amend his complaint to state a viable cause of action against 20 Defendants. The Court has already afforded Plaintiff two (2) opportunities to amend his complaint 21 against Defendants. Because Plaintiff’s Second Amended Complaint (#19) states the same facts as 22 Plaintiff’s Amended Complaint (#11) and offers no other relevant facts to support his claims, the Court 23 finds that allowing further opportunity to amend the complaint against Defendants would be futile. The 24 Court further finds that Plaintiff cannot amend his complaint to state a viable cause of action against 25 any of these Defendants as Defendants’ actions cannot constitute deliberate indifference under the 26 Eighth Amendment. 27 28 The screening of Plaintiff’s Second Amended Complaint (#19) has been completed pursuant to 28 U.S.C. §1915A. Accordingly, 6 1 IT IS HEREBY RECOMMENDED that Plaintiff’s Second Amended Complaint (#19) should 2 be dismissed, with prejudice based on Plaintiff’s failure to state a claim upon which relief may be 3 granted. 4 5 NOTICE Pursuant to Local Rule IB 3-2, any objection to this Finding and Recommendation must be in 6 writing and filed with the Clerk of the Court within ten (10) days. The Supreme Court has held that the 7 courts of appeal may determine that an appeal has been waived due to the failure to file objections 8 within the specified time. Thomas v. Arn, 474 U.S. 140, 142 (1985). This circuit has also held that (1) 9 failure to file objections within the specified time and (2) failure to properly address and brief the 10 objectionable issues waives the right to appeal the District Court’s order and/or appeal factual issues 11 from the order of the District Court. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991); Britt v. Simi 12 Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983). 13 DATED this 7th day of January, 2009. 14 15 16 GEORGE FOLEY, JR. UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 7
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