Machin v. Costas et al, No. 3:2009cv00444 - Document 13 (S.D. Cal. 2009)
Court Description: ORDER granting Defendant Officer Costa's 9 Motion to Dismiss and 9 Motion for Summary Judgment. Court dismisses the action as to Dfts MCC and John Does 1-10 for failure to prosecute and for lack of personal jurisdiction pursuant to FRCP 4(m) . Court grants Dft Costa's Motion to Dismiss Pla's state law tort claims as barred by the FELRTCA, grants Dft Costa's Motion to Dismiss Pla's state law tort claims under the FTCA as pre-empted by 18 USC 4126, and grants Dft Costa& #039;s Motion for Summary Judgment as to Pla's inadequate medical care claims pursuant to FRCP 56. Court directs Clerk to enter judgment for Dft Costa. Court certifies that an IFP appeal would not be taken in good faith. Signed by Judge Irma E. Gonzalez on 11/16/2009. Case is closed. (All non-registered users served via U.S. Mail Service)(jah) (kaj).
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Machin v. Costas et al Doc. 13 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JESUS ARGELO MACHIN, Civil No. 09-444 IEG (WVG) 12 Plaintiff, 13 vs. 14 15 16 OFFICER COSTAS; METROPOLITAN CORRECTIONAL CENTER; DOES 1-10, Defendants. 17 18 I. ORDER GRANTING DEFENDANT’S MOTION TO DISMISS AND FOR SUMMARY JUDGMENT PURSUANT TO FED.R.CIV.P. 12(b)(6) AND FED.R.CIV.P. 56(c) [Doc. No. 9] Procedural Background 19 Jesus Argelio Machin (“Plaintiff”), a former criminal pretrial detainee at the Metropolitan 20 Correctional Center (“MCC”) in San Diego, is proceeding in pro se and in forma pauperis with 21 this civil action, which he filed pursuant to 42 U.S.C. § 1983. 22 Plaintiff claims to have been injured on August 11, 2005 at MCC while he was on kitchen 23 duty and under the supervision of Defendant Kevin Costa, erroneously sued as “Officer 24 Costas.”1 Plaintiff claims Costa violated his right to be free from cruel and unusual punishment, 25 intentionally inflicted severe mental and emotional distress upon him and was negligent in 26 27 28 1 Plaintiff’s Complaint names as Defendants Officer Costas, the MCC and John Does 1-10. The only person served with the Complaint and summons, and thus, the only party moving to dismiss and/or for summary judgment is Officer Kevin Costa. See Compl. at 1, 2. 09cv444 Dockets.Justia.com 1 violation of the Eighth Amendment and several provisions of the California Penal Code. 2 (Compl. at 3-4.) Plaintiff seeks injunctive relief in the form of a grand jury investigation as well 3 as “reasonable fees” and punitive damages. (Id. at 5.) 4 On July 31, 2009, Defendant Costa filed a Motion to Dismiss pursuant to FED.R.CIV.P. 5 12(b)(6) and for Summary Judgment pursuant to FED.R.CIV.P. 56 [Doc. No. 9]. On August 7, 6 2009, in an abundance of caution, the Court provided Plaintiff with written notice of the 7 requirements for opposing summary judgment pursuant to Rand v. Rowland, 154 F.3d 952 (9th 8 Cir. 1998) (en banc) and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988) [Doc. No. 10], 9 despite the fact that he was not incarcerated at the time he filed this action, nor does the docket 10 reflect he is currently incarcerated. Nevertheless, Plaintiff has failed to file any Opposition. 11 II. Proper Parties 12 First, the Court notes that Plaintiff includes both the MCC and John Does 1-10 in the 13 caption of his Complaint as Defendants. However, Plaintiff has not effected service upon the 14 MCC, nor has he identified or served any of the Does. Because Plaintiff has failed to effect 15 service of the summons and Complaint upon these purported Defendants, the Court has no 16 personal jurisdiction over them and they are not considered parties to this action. See 17 FED.R.CIV.P. 4(m); Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 18 (1999) (“In the absence of service of process (or waiver of service by the defendant),” under 19 FED.R.CIV.P. 4, “a court ordinarily may not exercise power over a party the complaint names 20 as a defendant.” ); see also Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 21 (1987) (“Before a ... court may exercise personal jurisdiction over a defendant, the procedural 22 requirement of service of summons must be satisfied.”). 23 Thus, to the extent Plaintiff’s Complaint includes allegations against the MCC and John 24 Does 1-10, the Court dismisses the action for insufficient service and lack of personal 25 jurisdiction. See FED.R.CIV.P. 4(m); Murphy Bros., 526 U.S. at 350; Omni Capital, 484 U.S. 26 at 104. 27 /// 28 /// 2 09cv444 1 III. Factual Background 2 On August 11, 2005, Plaintiff was a criminal pretrial detainee at MCC. (Compl. at 3; 3 Def.’s Exs. A & B.) A few weeks before, Plaintiff was examined by MCC medical personnel, 4 who noted that while Plaintiff had undergone seven surgeries on his left thumb between 1982 5 and 1988, he was nevertheless “qualified for regular [work] duty.” (Def.’s Ex. H.) On August 6 4, 2005, Plaintiff was assigned to work in the MCC kitchen under the supervision of Defendant 7 Costa, the Cook Supervisor. (Compl. at 3, 8; Defs.’ Ex. D, Inmate Work Detail; Ex. E, Decl. 8 of Kevin A. Costa [hereafter “Costa Decl.”] ¶ 2.) 9 washing dishes,” but Costa “transferred [him] to another line of work,” even though Plaintiff 10 informed Costa of his previous surgeries. (Pl.’s Affidavit in Supp. of Compl. [hereafter “Pl.’s 11 Ex. A”] at 9.) Plaintiff claims Costa threatened to place him in the hole if he didn’t follow 12 orders, so he “continue[d] to work with extreme caution.” (Id.) Despite his caution, however, 13 Plaintiff claims “one of [his] co-worker[s] push[ed] a food cart,” and it “collid[ed] with [his] left 14 hand and hit [his] left thumb,” causing him “unimaginable pain.” (Id.) Plaintiff claims he was “comfortable ... 15 Plaintiff informed Costa he was in “great pain and ... need[ed] to see ... medical 16 personnel.” (Pl.’s Ex. A.) Plaintiff alleges Costa “just told [him] to sit down.” (Id.) After 17 “more than one hour,” Plaintiff claims he “beg[ged]” Costa to take him to the “medical floor,” 18 but Costa replied, “Your hand is not ... falling [off],” and that he would “bring [Plaintiff] to the 19 Dr. when [he] fel[t] like it.” (Id.) Plaintiff claims he was injured at 11:45 a.m, and to have 20 waited two hours “in great pain” before Costa transported him to medical, (id.); however, the 21 MCC’s medical records report Plaintiff was injured at 1:30 p.m. and transported to Health 22 Service at 2:40 p.m. (Def.’s Ex. F.) 23 Defendant Costa does not remember Plaintiff or the incident in the kitchen on August 11, 24 2005. (Def.’s Ex. E [hereafter “Costa Decl.”] ¶ 3.) However, as both a Bureau of Prison’s 25 (“BOP”) employee and a Cook Supervisor, Costa has been trained on BOP medical emergency 26 procedures. (Id. ¶¶ 8-9.) Costa claims that in an emergency, “such as when an inmate is 27 unconscious or is bleeding profusely, it is [his] custom and practice to push [his] body alarm” 28 and to “initiate preliminary first aid until medical personnel arrive.” (Id. ¶ 10.) In non3 09cv444 1 emergency situations, Costa “call[s] the Health Services Department,” and describes the incident 2 to medical personnel” who ask him questions in order to assess the severity of injury and 3 investigate whether any security concerns prevent Plaintiff’s transport to Health Services. (Id. 4 ¶ 11.) If no security concerns exist, Costa calls an escort officer. (Id.) Costa claims he has “no 5 control over when the escort officer reports to the kitchen,” but once one does, he “give[s] the 6 officer the inmate’s work crew card, which contains the inmate’s key information and picture.” 7 (Id.) Once an injured inmate is escorted to Health Services, Costa claims, as a Cook Supervisor, 8 he has no further involvement in the inmate’s medical problem. (Id.) Thus, Costa asserts that 9 while he does not recall Plaintiff or his injury, he “would not have been involved in giving [him] 10 any medical care,” “would not have had any more interactions with him, unless he came back 11 to work in the kitchen,” and would have had “no reason” to “delay[] reporting [Plaintiff’s] injury 12 or assisting him in obtaining medical care.” (Id. ¶ 12.) 13 For his part, Plaintiff claims that once he arrived at Health Services on August 11, 2005, 14 “one of the nurses look[ed] at his hand,” “gave [him] a pill,” and “put a bandage and wrap 15 around [his] thumb,” before sending him back to his housing unit. (Pl.’s Ex. A.) Plaintiff alleges 16 the medication “did not stop the pain.” (Id.) Plaintiff refers only once more to his thumb injury 17 and Defendant Costa: on August 17, 2005, he claims to have been “recalled to work in the 18 kitchen,” and threatened with seclusion if he did not follow orders. (Id.) Plaintiff claims he still 19 suffered from pain and a swollen thumb, which he reported to “the employee of the facility.” 20 (Id.) Plaintiff asserts that while he was “forced” to report for kitchen duty, he “just s[a]t in pain 21 ... not able to do anything.” (Id.) Later on the same day Plaintiff claims to have been stuck in 22 a hot elevator for two hours along with 24 other individuals, and alleges Defendant Costa “did 23 not even use the radio in his possession to get help.” (Id.) 24 Dr. Debra Lucy, the Clinical Director of the Health Services at MCC, however, has 25 submitted a sworn Declaration recounting Plaintiff’s medical treatment, as well as copies of the 26 medical records which chronicle his care from the date of the incident, August 11, 2005, through 27 December 9, 2005. (Def.’s Ex. G, I-Q, S-U.) According to Dr. Lucy, Plaintiff was first assessed 28 by a physician’s assistant, Virgilio Camagay, in the Health Services Unit on August 11, 2005. 4 09cv444 1 (Def.’s’ Ex. G ¶ 6; Def.’s Exs. F, J.) Camagay noted minimal swelling of Plaintiff’s left thumb 2 with a limited range of motion, no bruising, no rupture and no active bleeding. (Def.’s Ex. G 3 ¶ 6.) An x-ray, taken of Plaintiff’s left thumb that same day showed “no acute fracture,” but did 4 show Plaintiff had a “fusion” of the “metacarpophalangeal joint” as the result of previous 5 surgeries as well as an implanted “plate and screws for stabilization.” (Id; see also Def.’s Ex. 6 I “Radiological Consultation Request/Report” dated August 11, 2005.) Plaintiff was prescribed 7 800 mg of Ibuprofin three times a day to “reduce swelling and pain.” (Def.’s Ex. G ¶ 6.) 8 On August 16, 2005, Plaintiff returned to Health Services complaining of increased pain 9 and throbbing in his left thumb. (Id. ¶ 7; see also Def.’s Ex. K “Chronological Record of 10 Medical Care” dated August 16, 2005.) Plaintiff’s thumb was no longer swollen, but “redness 11 measuring 3 mm was noted in the web between [his] thumb and index finger.” (Def.’s Ex. G 12 ¶ 7.) Plaintiff was prescribed an anti-steroidal medication, given a bandage and was referred to 13 a physician. (Id.) 14 On August 25, 2005, Plaintiff again returned to Health Services complaining of 15 “throbbing pain in his left thumb” radiating into his arm. (Def.’s Ex. L.) Plaintiff’s thumb was 16 again swollen and a blister was noted, as well as an abrasion, discharge and a bruise around the 17 base of the thumb. (Def.’s Ex. G ¶ 8.) At this time, Plaintiff was “diagnosed with an infection,” 18 “administered an injection to combat the infection,” “prescribed oral antibiotics,” and had his 19 wound dressed. (Id.) Another x-ray and lab tests were ordered. (Id.; see also Def.’s Exs. M, 20 N.) Plaintiff’s x-ray results did not differ from those taken on August 11, 2005. (Def.’s Ex. G 21 at ¶ 8; Def.’s Ex. N.) Plaintiff’s lab culture, taken on August 25, 2005 and released on August 22 27, 2005, confirmed he had a staph infection in his left hand wound, but “no MRSA [was] 23 isolated.” (Def.’s Ex. M.) 24 On August 26, 2005, Plaintiff returned to Health Services, and had removed the dressing 25 from the day before. (Def.’s Ex. G ¶ 9, Def.’s Ex. L.) Dr. Lucy claims Plaintiff was directed 26 not to remove the dressing because it could worsen his infection, which nevertheless showed 27 signs of improvement– “no discharge, less swelling and less redness.” (Id.) Plaintiff’s hand was 28 then soaked in betadine, a topical antiseptic. (Id.) Plaintiff was thereafter examined every day 5 09cv444 1 in Health Services from August 26, 2005 through September 14, 2005, to “check the status of 2 the infection.” (Id.) As of August 29, 2005, Plaintiff’s hand showed no “open areas” or 3 drainage. (Id. ¶ 12.) 4 On August 26, 2005, Dr. Lucy also authorized Plaintiff’s referral to an orthopedic 5 surgeon who specializes in hand surgery. (Def.’s Ex. G ¶ 10, Def.’s Ex. P.) Dr. Lucy claims she 6 did not send the referral to the Utilization Review Committee’s (“URC”) because as Chair of the 7 URC, she “knew the referral would be approved.” (Def.’s Ex. G ¶ 10.) Dr. Lucy claims this 8 accelerated Plaintiff’s referral “by three to four weeks.” (Id.) 9 Plaintiff’s surgical referral was coordinated through the United States Marshal Service, 10 which was responsible for providing an escort. (Id. ¶ 11.) On September 15, 2005, Plaintiff 11 was examined by Dr. Jose Otero, an orthopedic surgeon at Alvarado Hospital, (Id. ¶¶ 11, 13; 12 Def.’s Ex. O.) According to Dr. Lacy, Dr. Otero “diagnosed Plaintiff with nerve damage as a 13 result of the previous surgeries,” and “recommended surgery to remove the hardware implanted 14 during those surgeries.” (Def.’s Ex. G ¶ 13.) 15 On October 5, 2005, Dr. Otero performed surgery on Plaintiff’s left hand. (Id., Def.’s Ex. 16 Q.) During the surgery, Dr. Otero found a “rigid, severely scarred thumb, both on the dorsum 17 and on the palmar side.” (Def.’s Ex. Q.) Otero removed a “plate and multiple screws,” although 18 three screws broke as he was attempting to remove them, and the shafts had to be left in the 19 bone. (Id.) Dr. Otero further noted severe scarring, tendon, nerve and tissue damage, some of 20 which he attributed to “previous multiple infections.” (Id.) While “the extent of the preexisting 21 damage limited some ... surgical options that would have otherwise been attempted,” (Def.’s Ex. 22 G ¶ 13), Dr. Otero was able to repair a dislocated extensor pollicis longus tendon, perform 23 neurolysis on some digital nerves and to use some soft tissue from the thenar eminence and palm 24 to cover the nerves and isolate them from the heavily scarred skin. (Def.’s Ex. Q.) Afterwards, 25 Otero applied a fiberglass cast “from the tip of the thumb to the elbow area in standard fashion.” 26 (Id.) Dr. Otero’s operative notes indicate the procedure was “well tolerated” and Plaintiff was 27 sent to recovery in satisfactory condition. (Id.) 28 /// 6 09cv444 1 Plaintiff returned to Dr. Otero for a surgical follow-up consultation on October 21, 2005. 2 (Def.’s Ex. G ¶ 14, Def.’s Ex. S.) Dr. Otero noted Plaintiff had “no complaints,” and was “doing 3 well.” (Def.’s Ex. S.) Dr. Otero recommended a follow-up appointment in two weeks in order 4 to remove Plaintiff’s cast. (Id.) Dr. Lucy further claims Plaintiff was recommended for, and 5 provided physical therapy “in house.” (Def.’s Ex. G ¶ 14.) 6 On November 23, 2005, Dr. Lucy again referred Plaintiff to Dr. Otero because he 7 continued to complain of pain in his left hand. (Id., Def.’s Ex. T.) On December 9, 2005, Dr. 8 Lucy claims Plaintiff was examined by Dr. Otero, who recommended that therapy continue and 9 a return follow-up appointment in four weeks. (Def.’s Ex. G ¶ 14, Def.’s Ex. U.) However, 10 Plaintiff was transferred from MCC prior to that time, and MCC was “no longer involved in 11 [Plaintiff’s] medical care.” (Def.’s Ex. G ¶ 14.) 12 Plaintiff has attached to Complaint, however, copies of medical records post-dating his 13 transfer from MCC which indicate an ongoing course of medical examinations, x-rays and 14 treatment for his hand at both FMC Fort Worth and FCI Taft. See Compl. Ex. B [Doc. No. 1-2] 15 at 60-69, [Doc. No. 1-1] at 1-30, 52-54, 56-80, 110-119. 16 IV. Defendants’ Motion FED.R.CIV.P. 12(b)(6) Standard of Review 17 A. 18 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “tests the legal 19 sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Because Rule 20 12(b)(6) focuses on the “sufficiency” of a claim rather than the claim’s substantive merits, “a 21 court may [typically] look only at the face of the complaint to decide a motion to dismiss.” Van 22 Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002). Thus, when resolving 23 a motion to dismiss for failure to state a claim, the court may not generally consider materials 24 outside the pleadings, except for exhibits which are attached. See FED.R.CIV.P. 10(c) (“A copy 25 of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.”); 26 Schneider v. California Dept. of Corrections, 151 F.3d 1194, 1197 n.1 (9th Cir. 1998). 27 A motion to dismiss should be granted if a plaintiff’s complaint fails to contain “enough 28 facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 7 09cv444 1 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that 2 allows the court to draw the reasonable inference that the defendant is liable for the misconduct 3 alleged.” Ashcroft v. Iqbal, 556 U.S. __, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 4 U.S. at 556, 570). 5 While allegations of material fact are accepted as true and construed in the light most 6 favorable to the nonmoving party, Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337-38 (9th 7 Cir. 1996), the court need not accept as true generic legal conclusions, unwarranted deductions 8 of fact or unreasonable inferences. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 9 (9th Cir. 2001); Iqbal, 129 S.Ct. at 1949 (“Threadbare recitals of the elements of a cause of 10 action, supported by mere conclusory statements, do not suffice.”); Twombly, 550 U.S. at 555 11 (on motion to dismiss court is “not bound to accept as true a legal conclusion couched as a 12 factual allegation.”). “The pleading standard Rule 8 announces does not require ‘detailed factual 13 allegations,’ but it demands more than an unadorned, the defendant-unlawfully-harmed-me 14 accusation.” Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). 15 Thus, “[w]hile legal conclusions can provide the framework of a complaint, they must 16 be supported by factual allegations. When there are well-pleaded factual allegations, a court 17 should assume their veracity and then decide whether they plausibly give rise to an entitlement 18 to relief.” Iqbal, 129 S.Ct. at 1950. “The plausibility standard is not akin to a ‘probability 19 requirement,’ but it asks for more than a sheer possibility that defendant has acted unlawfully.” 20 Id. at 1949. Where a complaint pleads facts that are “merely consistent with” a defendant’s 21 liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.’” 22 Id.; Twombly, 550 U.S. at 570 (when a plaintiff has not “nudged [his] claims across the line 23 from conceivable to plausible, [his] complaint must be dismissed.”). 24 “In sum, for a complaint to survive a motion to dismiss, the non-conclusory ‘factual 25 content,’ and reasonable inferences [drawn] from that content, must be plausibly suggestive of 26 a claim entitling the plaintiff to relief.” Moss v. United States Secret Service, 572 F.3d 962, 969 27 (9th Cir. 2009) (quoting Iqbal, 129 S. Ct. at 1949). 28 /// 8 09cv444 1 B. FED.R.CIV.P. 56 Standard of Review 2 Summary judgment is proper where there is no genuine issue of material fact in dispute 3 and the moving party has shown it is entitled to judgment as a matter of law. Bias v. Moynihan, 4 508 F.3d 1212, 1218 (9th Cir. 2007) (citing FED.R.CIV.P. 56(c)). 5 Under summary judgment practice, the moving party always bears the initial 6 responsibility of informing the district court of the basis for its motion, and identifying those 7 portions of “the pleadings, depositions, answers to interrogatories, and admissions on file, 8 together with the affidavits, if any,” which it believes demonstrate the absence of a genuine issue 9 of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting FED.R.CIV.P. 10 56(c)); Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). The “purpose of 11 summary judgment is to ‘pierce the pleadings and to assess the proof in order to see whether 12 there is a genuine need for trial.’” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 13 U.S. 574, 587 (1986) (citations omitted). 14 If the moving party meets its initial responsibility, the burden then shifts to the 15 nonmoving party to establish, beyond the pleadings, that there is a genuine issue for trial. 16 Celotex, 477 U.S. at 324; Bias, 508 F.3d at 1218. To avoid summary judgment, the non-moving 17 party is “required to present significant, probative evidence tending to support h[is] allegations,” 18 Bias, 508 F.3d at 1218 (citations omitted), and must point to some evidence in the record that 19 demonstrates “a genuine issue of material fact [which], with all reasonable inferences made in 20 the plaintiff[]’s favor, could convince a reasonable jury to find for the plaintiff[].” Reese v. 21 Jefferson School Dist. No. 14J, 208 F.3d 736, 738 (9th Cir. 2000) (citing FED.R.CIV.P. 56; 22 Celotex, 477 U.S. at 323)); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). 23 Thus, to “defeat a summary judgment motion ..., the non-moving party ‘may not rest upon the 24 mere allegations or denials’ in the pleadings. FED.R.CIV.P. 56(e); Berg v. Kincheloe, 794 F.2d 25 457, 459 (9th Cir. 1986) (opposing party cannot rest solely on conclusory allegations of fact or 26 law). Instead, the non-moving party “must establish the existence of a genuine factual dispute 27 on the basis of admissible evidence; bare allegations without evidentiary support are insufficient 28 t o s u r 9 v i v e 09cv444 1 /// 2 summary judgment.” Estate of Tucker ex rel. Tucker v. Interscope Records, Inc., 515 F.3d 1019, 3 1033 n.14 (9th Cir. 2008). 4 C. Unopposed Summary Judgment 5 This Court’s Local Rules further provide that “[i]f an opposing party fails to file papers 6 in the manner required by Local Rule 7.1(e)(2), that failure may constitute a consent to the 7 granting of a motion or other request for ruling by the court.” S.D. CAL. CIVLR 7.1(f)(3)(c). 8 However, the court may not simply grant summary judgment because the nonmovant has failed 9 to respond. Martinez v. Stanford, 323 F.3d 1178, 1182-83 (9th Cir. 2003) (discussing S.D. CAL. 10 CIVLR 7.1(f)(3)(c)). Rather, the court must consider whether the movant’s papers are sufficient 11 on their face to sustain summary judgment. Id. at 1183 (citing Marshall v. Gates, 44 F.3d 722, 12 725 (9th Cir. 1995); Henry v. Gill Industries, Inc., 983 F.2d 943, 950 (9th Cir. 1993) (“[T]he 13 party opposing summary judgment is under no obligation to offer affidavits or any other 14 materials in support of its opposition. Summary judgment may be resisted and must be denied 15 on no other grounds than the movant has failed to meet its burden of demonstrating the absence 16 of triable issues.”)). 17 Here, while Plaintiff has failed to oppose Defendant’s Motion, he has filed two affidavits, 18 one in support of his Motion to Proceed In Forma Pauperis [Doc. No. 2], and one which is 19 attached at Exhibit A to his Complaint, both which verify that the “contents of the complaint” 20 and the declarations in his affidavit are true under penalty of perjury and in conformance with 21 28 U.S.C. § 1746. See Compl. at 9. A verified complaint or motion may be used as an opposing 22 affidavit under FED.R.CIV.P. 56. Schroeder v. McDonald, 55 F.3d 454, 460 (9th Cir. 1995 23 (complaint); Johnson v. Meltzer, 134 F.3d 1393, 1399-1400 (9th Cir. 1998) (motion). 24 Thus, to the extent Plaintiff’s Complaint and his attached affidavit are based on personal 25 knowledge and set forth specific facts admissible in evidence, they may be considered as 26 opposing affidavits under FED.R.CIV.P. 56(e); Schroeder, 55 F.3d at 460; see also California 27 Pro-Life Council v. Randolph, 507 F.3d 1172, 1176 (9th Cir. 2007) (“‘A verified complaint may 28 serve as an affidavit for purposes of summary judgment if [1] it is based on personal knowledge 10 09cv444 1 /// 2 3 and if [2] it sets forth the requisite facts with specificity.’”) (quoting Moran v. Selig, 447 F.3d 4 748, 760 n.16 (9th Cir. 2006) (citation omitted)). 5 D. Defendants’ Arguments 6 Defendant seeks to dismiss some of Plaintiff’s claims as a matter of law pursuant to 7 FED.R.CIV.P. 12(b)(6), and a summary judgment pursuant to FED.R.CIV.P. 56 as to others. First, 8 Defendant Costa seeks to dismiss Plaintiff’s common law tort claims for intentional infliction 9 of emotional distress and negligence for failing to state a claim pursuant to FED.R.CIV.P. 10 12(b)(6) on grounds that: 1) he is statutorily immune under the Federal Employees Liability and 11 Tort Compensation Act (“FELRTCA”) (Def.’s P&A’s in Supp. of Mot. [Doc. No. 9-2] at 9-10); 12 2) to the extent Plaintiff’s tort claims may be construed against the United States under the 13 Federal Tort Claims Act, 28 U.S.C. § 2679(d)(1), they are pre-empted by the Inmate Accident 14 Compensation Act, 18 U.S.C. § 4126, (id. at 10-11); and 3) a civil rights action may not be 15 brought against a federal actor pursuant to 42 U.S.C. § 1983. (Id. at 12.) 16 Defendant Costa further seeks summary judgment pursuant to FED.R.CIV.P. 56 on 17 grounds that: 1) to the extent Plaintiff’s medical care claims arise under Bivens v. Six Unknown 18 Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), no evidence in the 19 record shows Costa was personally involved in providing Plaintiff any constitutionally 20 inadequate medical care, (id. at 12-14); 2) he is entitled to qualified immunity as to any damages 21 Plaintiff seeks because no genuine issues of material fact exist to show that Costa was 22 deliberately indifferent to Plaintiff’s medical needs (id. at 14-18), and the “application of the 23 Fifth Amendment to the circumstances presented was not clearly established at the time of 24 Plaintiff’s injury.” (Id. at 18-19.) 25 As noted previously, Plaintiff has not opposed Defendant’s Motion; however, to the 26 extent his Complaint and affidavit attached comply with 28 U.S.C. § 1746, they will be 27 construed as opposing affidavits under FED.R.CIV.P. 56(e); Schroeder, 55 F.3d at 460; 28 California Pro-Life Council, 507 F.3d at 1176. 11 09cv444 1 /// 2 /// 1. 3 Common Law Tort Claims a. 4 Statutory Immunity under FELRTCA 5 Defendant Costa first claims immunity from Plaintiff’s state law tort claims for alleged 6 acts of negligence and the intentional infliction of emotional distress because as a federal 7 employee acting within the scope of his employment, the Federal Employees Liability Reform 8 and Tort Compensation Act (FELRTCA) acts as a bar to Plaintiff’s claims. (Defs.’s P&A’s in 9 Supp. of Mot. [Doc. No. 9-2] at 9-10.) 10 The Federal Tort Claims Act (FTCA) authorizes “claims against the United States, for 11 money damages ... for injury or loss of property ... caused by the negligent or wrongful act or 12 omission of any employee of the Government while acting within the scope of his office or 13 employment.” 28 U.S.C. § 1346(b)(1). Ali v. Federal Bureau of Prisons, 522 U.S. 831, 835 14 (2008). While Plaintiff has not expressly named the United States as a Defendant in this action, 15 and a FTCA claim may not be brought against a federal employee in his official capacity, see 16 United States v. Johnson, 481 U.S. 681, 700 (1987) (“[L]iability under the FTCA is imposed 17 upon the Government, and not upon individual employees.”), the FELRTCA, also known as the 18 Westfall Act,2 makes the FTCA the exclusive remedy for any “for injury or loss of property, or 19 personal injury ... arising or resulting from the negligent or wrongful act or omission of any 20 employee of the Government while acting within the scope of his office or employment.” 28 21 U.S.C. § 2679(b)(1). See Osborn v. Haley, 549 U.S. 225, 237 (2007) (describing the Westfall 22 Act as “a measure designed to immunize covered federal employees not simply from liability, 23 2 24 25 26 27 28 The Westfall Act was enacted in response to Westfall v. Erwin, 484 U.S. 292 (1988). In Westfall, the Supreme Court held that the judicially created doctrine of official immunity did not provide absolute immunity to Government employees for torts committed in the scope of their employment. United States v. Smith, 499 U.S. 160, 162 (1991). Instead, the Supreme Court ruled that such official immunity required a case-by-case determination, dependent on whether “the contribution to effective government in particular contexts” from granting immunity “outweighs the potential harm to individual citizens.” Id. at 162 (citing Westfall, 484 U.S. at 299). In response to Westfall, Congress enacted the FELRTCA to establish an absolute immunity for Government employees that the Court declined to recognize under the common law in Westfall. “The Act confers such immunity by making an FTCA action against the Government the exclusive remedy for torts committed by Government employees in the scope of their employment.” Smith, 499 U.S. at 162-63. 09cv444 12 1 but from suit.”) (internal citations omitted); Pelletier v. Federal Home Loan Bank of San 2 Francisco, 968 F.2d 865, 873-74 (9th Cir. 1992). 3 Thus, if the United States Attorney certifies that the employee was acting within the scope 4 of his or her employment at the time Plaintiff was injured, the United States is substituted as the 5 defendant in the action, and the FELRTCA “acts as a general grant of immunity [from suit] to 6 [the] government employee for all such acts.” Casteneda v. United States, 546 F.3d 682, 695 7 (9th Cir. 2008), cert. granted sub. nom, Migliaccio v. Castaneda, __S.Ct. __, 2009 WL 8 1649115, 77 USLW 3692 (U.S. Sep. 30, 2009) (No. 08-1529) (citing 28 U.S.C. § 2679(d)(1)). 9 Here, the United States Attorney has certified pursuant to 28 U.S.C. § 2679(d) and 28 10 C.F.R. § 15.3, that “United States Bureau of Prisons (“BOP”) Correctional Officer Kevin Costa 11 (incorrectly named as “Officer Costas”) ...was acting within the scope of his employment as a 12 BOP employee, with regard to the events described in Plaintiff’s Complaint.” (Def.’s Ex. V.) 13 Thus, Plaintiff’s state law tort claims based on negligence and the intentional infliction of 14 emotional distress, whether they arise from the circumstances surrounding Plaintiff’s initial 15 injury on August 11, 2005 or his medical care afterward, may not proceed against Defendant 16 Costa. Castaneda, 546 F.3d at 695-96. Pursuant to 28 U.S.C. § 2679(d)(1), the United States 17 is substituted as defendant, and Plaintiff’s state-law tort claims “fall[] under the governance of 18 the Federal Tort Claims Act.” Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 420 (1995). 19 20 21 Accordingly, the Court GRANTS Defendant Costa’s Motion to Dismiss Plaintiff’s state law tort claims as precluded by the FELRTCA. b. Pre-emption under Inmate Accident Compensation Act 22 Defendant also seeks dismissal of Plaintiff’s claims under the FTCA on grounds that they 23 are pre-empted by the Inmate Accident Compensation Act, 18 U.S.C. § 4126. (See Def.’s 24 P&A’s in Supp. of Mot. at 10-11.) The Court agrees. 25 The FTCA “was designed to remove the sovereign immunity of the United States from 26 suits in tort and, with certain specific exceptions, to render the Government liable in tort as 27 private a individual would be in like circumstances.” Sosa v. Alvarez-Machain, 542 U.S. 28 692,700 (2004) (internal citation omitted); see also 28 U.S.C. § 1346(b). 13 The Inmate 09cv444 1 Compensation Act, 18 U.S.C. § 4126, is one of those exceptions in that it provides an alternate 2 exclusive means by which a federal prisoner injured on the job may recover for work-related 3 injuries through the Prison Industries Fund. See United States v. Demko, 385 U.S. 149 (1966); 4 Vander v. U.S. Dep’t of Justice, 268 F.3d 661 (9th Cir. 2001); 18 U.S.C. § 4126(c)(4); 28 C.F.R. 5 § 301.301(b); see also Paschal v. United States, 302 F.3d 768, 769 (7th Cir. 2002) (finding that 6 18 U.S.C. § 4126(c), providing exclusive remedy for federal inmates injured while working, 7 applies to federal prisoners and pretrial detainees alike). 8 In Demko, a federal prisoner received compensation under 18 U.S.C. § 4126. Demko, 385 9 U.S. at 149. He later brought suit in federal court under the FTCA, alleging that his injury was 10 due to the government’s negligence. Id. at 150. However, the Supreme Court held that the 11 Demko’s recovery under Prison Industries Fund was his exclusive remedy, further noting that 12 18 U.S.C. § 4126 is “an adequate substitute for a system of recovery by common-law torts.” Id. 13 at 153. 14 The Ninth Circuit has similarly refused to allow a federal prisoner to proceed in a suit 15 under the Federal Tort Claims Act for work-related injuries. Vander, 268 F.3d at 663. In 16 Vander, a federal prisoner alleged, like Plaintiff here, that he had a pre-existing knee injury 17 which he strained while working on a prison work detail and which he claimed was exacerbated 18 when prison officials acted negligently by delaying medical treatment. 19 Demko, the Ninth Circuit found Vander’s claims barred under the FTCA because 18 U.S.C. § 20 4126 provides the exclusive remedy for work-related injuries. 21 expressly found that claims related to injuries that are exacerbated as a result of prison officials’ 22 negligent treatment are also barred if the cause of the original injury is work-related. Id. at 663- 23 64; see also 28 C.F.R. § 301.301(b) (“Compensation may ... be paid for work-related injuries or 24 claims alleging improper medical treatment of a work-related injury.” ) Id. Relying on Id. at 663-64. The Court 25 Plaintiff’s case is indistinguishable from Vander. Like Vander, Plaintiff had a pre- 26 existing injury which was further aggravated as a result of an on-the-job kitchen accident at 27 MCC. (Compl. at 3.) Plaintiff also claims, like Vander, to have been denied proper medical 28 treatment as a result of the kitchen injury. (Id.) Thus, because Plaintiff suffered a work-related 14 09cv444 1 injury, an FTCA action is barred by 18 U.S.C. § 4126(c) and the regulations thereunder. Vander, 2 268 F.3d at 664; Demko, 385 U.S. at 152 (noting nothing in legislative history of FTCA suggests 3 Congress’ intent to supplement tort recovery for prisoners already protected by 18 U.S.C. 4 § 4126). 5 6 Accordingly, the Court GRANTS Defendant’s Motion to Dismiss Plaintiff’s state law tort claims under the FTCA as pre-empted by 18 U.S.C. § 4126. 2. 7 Constitutional Torts a. 8 Bivens not 42 U.S.C. § 1983 9 Defendant also moves to dismiss Plaintiff’s Complaint to the extent he alleges the 10 violation of his Eighth Amendment right to be free from cruel and unusual punishment and seeks 11 relief pursuant to the Civil Rights Act, 42 U.S.C. § 1983.3 (Def.’s P&A’s in Supp. of Mot. at 12; 12 Compl. at 1, 4.) 13 Defendant is correct: section 1983 requires allegations of a constitutional violation by 14 a person acting under color of state, not federal law. See 42 U.S.C. § 1983; Morse v. North 15 Coast Opportunities, Inc., 118 F.3d 1338, 1343 (9th Cir. 1997) (“[B]y its very terms, § 1983 16 precludes liability in federal government actors.”). However, because Plaintiff is proceeding 17 pro se, the Court construes his Complaint to arise under Bivens, the “federal analog to suits 18 brought under ... 42 U.S.C. § 1983.” Iqbal, 129 S.Ct. at 1948 (citing Hartman v. Moore, 547 19 U.S. 250, 254 n.2 (2006)). Bivens “established that the victims of a constitutional violation by 20 a federal agent have a right to recover damages against the official in federal court despite the 21 absence of any statute conferring such a right.” Carlson v. Green, 446 U.S. 14, 18 (1980); see 22 23 3 24 25 26 27 28 Plaintiff also alleges Defendant Costa committed “serious felon[ies]” in violation of the California Penal Code. (Compl. at 4.) While Defendant does not address this assertion, the Court hereby dismisses them sua sponte pursuant to 28 U.S.C. § 1915(e)(2), as there is no question that Plaintiff has no private cause of action for violations of state criminal laws under § 1983 or Bivens. See Lovell v. Poway Unified Sch. Dist., 90 F.3d 367, 370 (9th Cir. 1996) (explaining that a violation of state law may not form the basis of a section 1983 action); Ellis v. City of San Diego, 176 F.3d 1183, 1189-90 (9th Cir. 1999) (affirming dismissal of alleged violations of 16 sections of the California Penal Code and one violation of the California Health and Safety Code on grounds that “these code sections do not create enforceable individual rights.”); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (court must sua sponte dismiss any civil action brought pursuant to 28 U.S.C. § 1915(a), which is frivolous, malicious, fails to state a claim, or seeking damages from defendants who are immune). 09cv444 15 1 also Vaccarro v. Dobre, 81 F.3d 854 (9th Cir. 1996) (holding that 18 U.S.C. § 4126 does not bar 2 a Bivens claim). 3 /// 4 To state a private cause of action under Bivens, Plaintiff must allege: (1) the violation of 5 a right secured by the Constitution of the United States, and (2) that the alleged deprivation was 6 committed by a federal actor. See Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991) (§ 1983 7 and Bivens actions are identical save for the replacement of a state actor under § 1983 by a 8 federal actor). In this case, Plaintiff claims Defendant Costa, while acting under color of federal 9 law, violated his Eighth Amendment right to be free from cruel and unusual punishment by 10 delaying his access to medical care. (Compl. at 4, 8-9.) b. 11 Personal Liability and Causation 12 Even if construed to arise under Bivens, Defendant Costa seeks dismissal of Plaintiff’s 13 Eighth Amendment claims4 on grounds that Plaintiff has failed to adequately allege Costa was 14 either personally involved in providing or failing to provide Plaintiff medical care or otherwise 15 caused Plaintiff’s injury. (Def.’s P&A’s in Supp. of Mot. at 12-14.) 16 “Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must 17 plead that each Government-official defendant, through the official’s own individual actions, has 18 violated the constitution.” Iqbal, 129 S.Ct. at 1948. Like all other facts on a motion to dismiss, 19 facts alleging causation are presumed to be true. See Twombly, 550 U.S. at 556. And “[w]hile 20 legal conclusions can provide the framework of a complaint, they must be supported by factual 21 allegations.” Iqbal, 129 S.Ct. at 1950. If this “factual content, and reasonable inferences from 22 that content ... are plausibly suggestive of a claim entitling the plaintiff to relief,” the complaint 23 will survive a motion to dismiss it. Moss, 572 F.3d at 969. 24 A person deprives another of a constitutional right where that person “does an affirmative 25 act, participates in another’s affirmative acts, or omits to perform an act which [that person] is 26 4 27 28 Because Plaintiff was a federal pretrial detainee, and not a convicted prisoner at the time he was injured, (see Def.’s Ex. C), it is the Fifth Amendment’s due process clause, and not the Eighth Amendment, which applies. Graham v. Connor, 490 U.S. 386, 395 n.10 (1989) (“The Due Process Clause protects a pretrial detainee from ... punishment.” (citing Bell v. Wolfish, 441 U.S. 520, 535-539 (1979)). 09cv444 16 1 legally required to do that causes the deprivation of which the complaint is made.” Johnson v. 2 Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). Indeed the “requisite causal connection can be 3 established not only by some kind of direct personal participation in the deprivation, but also by 4 setting in motion a series of acts by others which the actor knows or reasonably should know 5 would cause others to inflict the constitutional injury.” Id. at 743-44; see also Kwai Fun Wong 6 v. United States, 373 F.3d 952, 966 (9th Cir. 2004)). 7 In his Complaint, Plaintiff alleges Costa as “supervisor” of the MCC kitchen 8 “substantially abused [his] authority by denying ... Plaintiff for medical attention,” and that he 9 has suffered “unimaginable pain, sleepless nights, severe mental anguish, verbal abuse[], 10 emotional distress and [a] series of surgeries as the result of the denial of medical attention.” 11 (Compl. at 3.) In the affidavit submitted in support of his Complaint, Plaintiff specifically 12 alleges only that after he was injured in the kitchen on August 11, 2005, Defendant Costa told 13 him to sit, that his hand was not “falling [off],” and that he would “bring [Plaintiff] to the Dr. 14 when [he] fel[t] like it.” (Id. at 8.) Plaintiff thereafter claims to heave waited from 2 hours in 15 the kitchen before “Costa[] finally transferred [him] to the medical floor.” (Id. at 9.) 16 Once in the infirmary, Plaintiff claims to have “waited another two (2) hours and thirty 17 minutes,” before having his wounds treated. (Id.) Plaintiff also claims to have been denied 18 medical attention for 21 days after the August 11th incident, “despite [] everyday begging for 19 medical attention.” (Id. at 4.) Critically, however, Plaintiff does not identify the person or 20 persons to whom his entreaties were directed nor by whom they were denied. In fact, the only 21 other mention of Defendant Costa involves an elevator malfunction on August 17, 2005, and 22 Costa’s failure to “use the radio in his possession to get help.” (Id. at 9.) Nowhere in his 23 Complaint, affidavit, or in the exhibits attached to Plaintiff’s Complaint, is Defendant Costa 24 alleged to have been directly or indirectly involved in either providing or failing to provide 25 Plaintiff with medical care. 26 Thus, in this case, the Court finds Plaintiff has failed to plead sufficient factual content 27 to support his conclusory claim that Costa’s initial response to Plaintiff’s injury on August 11, 28 2005 caused a violation of his constitutional rights. See Iqbal, 129 S. Ct. at 1948 (“Threadbare 17 09cv444 1 recitals of the elements of a cause of action, supported merely by conclusory statements,” are 2 insufficient to survive a motion to dismiss); Johnson, 588 F.2d at 743; McGuckin v. Smith, 974 3 F.2d 1050, 1059-60 (9th Cir. 1992), overrruled on other grounds by WMX Techs., Inc. v. Miller, 4 104 F.3d 1133 (9th Cir. 1997) (en banc) (mere delay in treatment does not constitute a violation 5 of the Eighth Amendment, unless the delay or denial was harmful). 6 The Court further finds Plaintiff has failed to provide sufficient factual content that might 7 plausibly suggest it was reasonably foreseeable to Costa that his actions in the kitchen on August 8 11, 2005 would lead to any further injury. See Gini v. Las Vegas Metro. Police Dep’t, 40 F.3d 9 1041, 1044 (9th Cir. 1994) (where official did not directly cause a constitutional violation, 10 plaintiff must show the violation was reasonably foreseeable to him); see also Hunt v. Dental 11 Dep’t, 865 F.2d 198, 200 (9th Cir. 1989) (finding prison official who “played [no] role in 12 denying [plaintiff] medical care” “c[ould not] be held vicariously liable for the fault of [medical] 13 personnel at [the prison].”) 14 Thus, the Court GRANTS Defendant Costa’s Motion to Dismiss Plaintiff’s constitutional 15 claims against Defendant Costa on grounds because Plaintiff has failed to plead enough facts to 16 state a constitutional claim for relief which is “plausible on its face.” Iqbal, 129 S.Ct. at 1949; 17 Twombly, 550 U.S. at 570; Moss, 572 F.3d at 969. 18 c. Qualified Immunity 19 Finally, Costa seeks summary judgment arguing that even if Plaintiff’s Complaint alleges 20 facts sufficient to state a constitutional claim, he is qualifiedly immune because no evidence in 21 the record shows he acted with deliberate indifference to Plaintiff’s serious medical needs, or 22 that he violated a clearly established law. (Def.’s P&A’s in Supp. of Mot. at 14-19.) 23 “Government officials enjoy qualified immunity from civil damages unless their conduct 24 violates ‘clearly established statutory or constitutional rights of which a reasonable person would 25 have known.’” Jeffers v. Gomez, 267 F.3d 895, 910 (9th Cir. 2001) (quoting Harlow v. 26 Fitzgerald, 457 U.S. 800, 818 (1982)). When presented with a qualified immunity defense, the 27 central questions for the court are: (1) whether the facts alleged, taken in the light most 28 favorable to Plaintiff, demonstrate that the Defendant’s conduct violated a statutory or 18 09cv444 1 constitutional right; and (2) whether the right at issue was “clearly established” at the time it is 2 alleged to have been violated. Saucier v. Katz, 533 U.S. 194, 201 (2001). Although Saucier 3 originally required the Court to answer these questions in order, the U.S. Supreme Court has 4 recently held that “while the sequence set forth there is often appropriate, it should no longer be 5 regarded as mandatory.” Pearson v. Callahan,__U.S. __, 129 S.Ct. 808, 818 (2009). 6 If the Court finds that Plaintiff’s allegations do not make out a statutory or constitutional 7 violation, “there is no necessity for further inquiries concerning qualified immunity.” Saucier, 8 533 U.S. at 201. Similarly, if the Court determines that the right at issue was not clearly 9 established at the time of the defendant’s alleged misconduct, the court may end further inquiries 10 concerning qualified immunity without determining whether the allegations in fact make out a 11 statutory or constitutional violation. Pearson, 129 S.Ct. at 818. 12 As noted above, Plaintiff’s constitutional claims against Defendant Costa are rooted in 13 the Fifth Amendment’s Due Process clause, not the Eighth Amendment’s prohibition on cruel 14 and unusual punishment. Castaneda, 546 F.3d at 688 n. 6 (citing Bell v. Wolfish, 441 U.S. 520, 15 536-37 & n.16 (1979)); Conn v. City of Reno, 572 F.3d 1047, 1054 (9th Cir. 2009) (the Eighth 16 Amendment and substantive due process guarantee that “inmates and detainees receive 17 constitutionally adequate medical and mental health care.”). 18 However, “[w]ith regard to medical needs, the due process clause imposes, at a minimum, 19 the same duty the Eighth Amendment imposes.” Gibson v. County of Washoe, 290 F.3d 1175, 20 1187 (9th Cir. 2002); Gary H. v. Heggstrom, 831 F.2d 1430, 1432 (9th Cir. 1987) (the Due 21 Process Clause “implicitly incorporates the cruel and unusual punishments clause standards”). 22 The Eighth Amendment protects inmates from cruel and unusual punishment, which 23 includes the denial of medical care. Estelle v. Gamble, 429 U.S. 97, 102-03 (1976). If an 24 official is deliberately indifferent to a “substantial risk of serious harm to an inmate–including 25 the deprivation of a serious medical need”– he violates the Eighth Amendment, as well as the 26 Due Process Clause. Conn, 572 F.3d at 1054-55 (citing Farmer v. Brennan, 511 U.S. 825, 828 27 (1994)). 28 19 09cv444 1 2 3 4 5 Thus, to set forth a constitutional claim predicated upon the failure to provide medical treatment, [f]irst, the plaintiff must show a “serious medical need” by demonstrating that “failure to treat a prisoner's condition could result in further significant injury or the ‘unnecessary and wanton infliction of pain.’” Second, the plaintiff must show the defendant’s response to the need was deliberately indifferent. 6 Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (internal citations omitted). The second 7 prong requires both “(a) a purposeful act or failure to respond to a prisoner’s pain or possible 8 medical need and (b) harm caused by the indifference.” Id. Deliberate indifference thus requires 9 an objective risk of harm and a subjective awareness of that harm. Farmer, 511 U.S. at 837; 10 Conn, 572 F.3d at 1055. 11 Here, Defendants have shown no genuine issues of material fact exist to support 12 Plaintiff’s claims that Defendant Costa denied him adequate medical care. Celotex, 477 U.S. at 13 323. While the evidence in the record does show Plaintiff’s August 11, 2005 kitchen injury, in 14 light of his pre-existing condition, was sufficiently serious to require some medical attention, see 15 Compl. at 3, 8; Pl.’s Ex. B; Lacy Decl. ¶ 6, Def.’s Exs. F, J, Plaintiff has failed to “present 16 significant, probative evidence tending to support his allegations,” Bias, 508 F.3d at 1218, and 17 therefore, no rational jury could find Costa acted with “deliberate indifference” in response to 18 his need. See Celotex, 477 U.S. at 323; Conn, 572 F.3d at 1055. 19 Specifically, the only evidence pertaining to Defendant Costa and Plaintiff’s injury are 20 Plaintiff’s sworn allegations that after another co-worker pushed a food cart into his left hand 21 and thumb, Defendant Costa directed him to sit, downplayed his pain by saying, “Your hand[] 22 is not yet falling [off],” and told him he would “bring [Plaintiff] to the doctor when he [fe[lt] like 23 it.” (Compl. at 8.) Plaintiff claims he was injured at 11:45 a.m, and to have waited two hours 24 before Costa transported him to medical, and an additional “two hours and thirty minutes” after 25 he arrived at the infirmary (id. at 9); however, the MCC’s medical records report Plaintiff was 26 injured at 1:30 p.m. and transported to Health Service at 2:40 p.m. (Def.’s Ex. F.) Thus, 27 construing this evidence in the light most favorable to Plaintiff, it appears he was required at 28 20 09cv444 1 most to have waited almost four hours before being treated in the infirmary. See Compl. at 8-9; 2 cf. Def.’s Ex. F. 3 A mere delay in treatment does not constitute a violation of the constitution, unless the 4 delay was harmful. See McGuckin, 974 F.2d at 1060; Shapley v. Nevada Bd. of State Prison 5 Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985); Hunt, 865 F.2d at 200 (“[D]elay in providing a 6 prisoner with dental treatment, standing alone, does not constitute an Eighth Amendment 7 violation.”); see also Sealock v. Colorado, 218 F.3d 1205, 1210 (10th Cir. 2000) (“Certainly, not 8 every twinge of pain suffered as the result of delay in medical care is actionable.”). 9 In this case, absolutely nothing in the record suggests Defendant Costa acted with 10 deliberate indifference to Plaintiff’s serious medical need or that he was harmed by any delay 11 in getting to Health Services. See McGuckin, 974 F.2d at 1060. In fact, Plaintiff’s medical 12 records corroborate both Defendant Costa and Dr. Lacy’s assessment of Plaintiff’s August 11, 13 2005 injury as a “non-emergency.” See Def.’s Exs. F, J; Costa Decl. ¶¶ 9-12; Lacy Decl. ¶ 6. 14 When Plaintiff arrived at Health Services, Physician’s Assistant Camagay noted only minimal 15 swelling to Plaintiff’s left thumb, a limited range of motion, no hematoma and no abrasions. 16 (Def.’s Ex. F.) Camagay recommended an x-ray, prescribed Plaintiff Ibuprofin or Motrin for 17 pain and swelling, and classified his injury as requiring only “minor first aid.” (Id.; see also 18 Def.’s Ex. J.) An x-ray taken later that same day, and another taken on August 26, 2005 revealed 19 no acute fracture. (Defs.’s Exs. I, N; Lacy Decl. ¶ 6.) And, while Plaintiff later developed and 20 was treated for an infection, (Def.’s Exs. K-M; Lacy Decl. ¶ 8), and on October 5, 2005, received 21 orthopedic surgery on his hand in order to repair nerve damage and scarring which Dr. Otero 22 attributed to “multiple past surgeries and infections,” (Lacy Decl. ¶ 13, Def.’s Ex. Q), none of 23 this evidence shows that Defendant Costa caused either his initial injury–or any additional harm 24 to him simply by making him wait in the kitchen for a transport officer before releasing him to 25 Health Services. See McGuckin, 974 F.2d at 1059-60; Shapley, 766 F.2d at 407; Wood v. 26 Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990) (finding mere delay in providing medical 27 treatment, without a showing of resulting harm, insufficient to show deliberate indifference). 28 21 09cv444 1 Moreover, the fact that Defendant Costa allegedly made harsh or unsympathetic 2 “comments” to Plaintiff in the kitchen in response to his pain does not, by itself, rise to the level 3 of deliberate indifference. See e.g., Oltarzewski v. Ruggerio, 830 F.2d 136, 138 (9th Cir. 1987) 4 (finding claims of verbal harassment or abuse by guards do not state a constitutional 5 deprivation); Franklin v. State of Or., State Welfare Div., 662 F.2d 1337, 1345 (9th Cir. 1981) 6 (noting that prisoners have “no constitutional right not to be the subject of swearing”); Toguchi 7 v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004) (“Deliberate indifference is a high legal 8 standard.”). 9 Thus, because the Court finds the evidence, when viewed in the light most favorable to 10 Plaintiff, reveals no genuine issues of material fact as to Plaintiff’s inadequate medical care 11 claim against Defendant Costa, it need not further determine whether Costa is also entitled to 12 qualified immunity because the law was not “clearly established.” Saucier, 533 U.S. at 201 (“If 13 no constitutional right would have been violated were the allegations established, there is no 14 necessity for further inquiries concerning qualified immunity.” ); Pearson, 129 S. Ct. at 818 15 (“The judges of the district courts and the courts of appeals should be permitted to exercise their 16 sound discretion in deciding which of the two prongs of the qualified immunity analysis should 17 be addressed first in light of the circumstances in the particular case at hand.”). Accordingly, Defendant Costa’s Motion for Summary Judgment as to Plaintiff’s 18 19 inadequate medical care claims is GRANTED. 20 V. Conclusion and Order 21 For all the reasons set forth herein, the Court: 22 1) prosecute and for lack of personal jurisdiction pursuant to FED.R.CIV.P. 4(m); 23 24 2) 27 GRANTS Defendant Costa’s Motion to Dismiss Plaintiff’s state law tort claims as barred by the FELRTCA; 25 26 DISMISSES the action as to Defendants MCC and John Does 1-10 for failure to 3) GRANTS Defendant Costa’s Motion to Dismiss Plaintiff’s state law tort claims under the FTCA as pre-empted by 18 U.S.C. § 4126; 28 22 09cv444 1 4) GRANTS Defendant Costa’s Motion for Summary Judgment as to Plaintiff’s inadequate medical care claims pursuant to FED.R.CIV.P. 56; 2 3 5) DIRECTS the Clerk of Court to enter judgment for Defendant Costa; and 4 6) CERTIFIES that an in forma pauperis appeal in this matter would not be taken in 5 good faith. See 28 U.S.C. § 1915(a)(3). 6 7 IT IS SO ORDERED. 8 9 DATED: November 16, 2009 10 11 IRMA E. GONZALEZ, Chief Judge United States District Court 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 23 09cv444
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