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CARLOS v. LUSTMAN

United States District Court, N.D. California


September 13, 2004.

FRANCISCO CARLOS, Plaintiff,
v.
DR. LILLIAN LUSTMAN, Defendant.

The opinion of the court was delivered by: MAXINE CHESNEY, District Judge

ORDER OF DISMISSAL; INSTRUCTIONS TO CLERK

In 2002, plaintiff Francisco Carlos, a California prisoner incarcerated at Salinas Valley State Prison ("SVSP"), filed this pro se civil rights action under 42 U.S.C. § 1983 in the Central District of California. Over two years later, the case was transferred to this district. During the time the case was pending in the Central District, plaintiff was granted leave to proceed in forma pauperis, the complaint was served, the parties filed various motions, and the complaint was dismissed with leave to amend. Plaintiff filed a first amended complaint, which was served upon defendant Dr. Lillian Lustman. The case was then transferred to this Court.

DISCUSSION

  A. Standard of Review

  A federal court must conduct a preliminary screening in any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek monetary relief from a defendant who is immune from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings, however, must be liberally construed. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated and (2) that the alleged violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).

  B. Legal Claims

  Plaintiff alleges that Dr. Lustman prescribed the wrong medication and that it nearly killed plaintiff. Deliberate indifference to serious medical needs violates the Eighth Amendment's proscription against cruel and unusual punishment. See Estelle v. Gamble, 429 U.S. 97, 104 (1976); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). A determination of "deliberate indifference" involves an examination of two elements: the seriousness of the prisoner's medical need and the nature of the defendant's response to that need. See McGuckin, 974 F.2d at 1059. A claim of mere negligence related to medical problems is not enough to make out a violation of the Eighth Amendment. See Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981); O'Loughlin v. Doe, 920 F.2d 614, 617 (9th Cir. 1990) (holding isolated occurrences of neglect may constitute grounds for medical malpractice but do not rise to level of unnecessary and wanton infliction of pain).

  Here, plaintiff's claim that Dr. Lustman prescribed him the wrong medicine, as set forth in his original complaint, was dismissed by the district court in the Central District because it did not allege anything more than negligence. Plaintiff was given leave to amend to allege additional facts regarding his medical treatment, in order to plead, if he could do so, a cognizable claim for deliberate indifference under the Eighth Amendment. In his amended complaint, plaintiff has not alleged any additional facts regarding the medical care he received from Dr. Lustman. Accordingly, plaintiff's claim against Dr. Lustman will be dismissed.

  In the caption of his amended complaint, which is filed on a form provided by the district court, plaintiff has written "Dr. Lustman et al." In the section of the amended complaint titled "Parties," however, plaintiff lists only Dr. Lustman as a defendant. (See First Amended Complaint at 2, § II(B).) He names no other individuals or entities as defendants in the amended complaint. Plaintiff's amended complaint does refer to allegations plaintiff had made in the original complaint, and exhibits attached thereto, concerning inadequate medical care he allegedly received from a Dr. Clarke and a Nurse Lipes in 1996 and 1997. In dismissing the original complaint, however, the district court in the Central District found plaintiff's claims against another doctor arising out of events occurring in 1999 were barred by the applicable statute of limitations. See generally Maldonado v. Harris, 370 F.3d 945, 954 (9th Cir. 2004) (holding applicable statute of limitations in § 1983 actions is two-year period for personal injury actions as set forth in California Code of Civil Procedure § 335.1). To the extent plaintiff intended to incorporate allegations from his original complaint as the basis for claims against Dr. Clarke and Nurse Lipes in the amended complaint, such claims are barred by the applicable statute of limitations.

  Plaintiff requests ninety days to conduct "full discovery" before this action is dismissed. Plaintiff does not indicate what information he hopes to discover. Moreover, the action has been pending in the federal courts for over two years and concerns matters of which plaintiff has personal knowledge, specifically, his own medical care. As there is no indication that plaintiff would be able to cure the deficiencies in his pleadings if allowed additional time for discovery, his request is denied.

  CONCLUSION

  For the foregoing reasons, the above-titled action is hereby DISMISSED.

  The Clerk shall serve a copy of this order upon defendant's counsel, who has appeared on behalf of defendant in this action, and add him to this Court's docket, as follows:

Mark V. Santa Romana California Attorney General's Office 300 S. Spring Street, Suite 7000 Los Angeles, California 90013-1230.
This order terminates Docket No. 3.
  The Clerk shall close the file and terminate any pending motions.

  IT IS SO ORDERED.

  [EDITORS' NOTE: THIS PAGE CONTAINS "CERTIFICATE OF SERVICE".] JUDGMENT IN A CIVIL CASE

  [] Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict.

  [X] Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.

  IT IS ORDERED AND ADJUDGED the above-titled action is hereby DISMISSED.

20040913

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