United States District Court, N.D. California
September 13, 2004.
FRANCISCO CARLOS, Plaintiff,
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.
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.
For the foregoing reasons, the above-titled action is hereby
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
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
© 1992-2004 VersusLaw Inc.