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Bjorkstrand v. Dubose

December 24, 2008


The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge


Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff's first amended complaint (Doc. 26).*fn1

The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if it: (1) is frivolous or malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover, the Federal Rules of Civil Procedure require that complaints contain a ". . . short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). This means that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the complaint gives the defendant fair notice of the plaintiff's claim and the grounds upon which it rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff must allege with at least some degree of particularity overt acts by specific defendants which support the claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is impossible for the court to conduct the screening required by law when the allegations are vague and conclusory.

As in his original complaint, plaintiff names the following as defendants: DuBose, Hasimoto, Williams, Tucker, and Martel. Plaintiff's factual allegations are substantially the same as those set forth in the original complaint, which the court summarized as follows in its October 29, 2008, order:

. . . Plaintiff states that he was sent to an outside hospital for surgery on his right ear. Defendant DuBose performed the surgery but, according to plaintiff, "not before he cut into my left ear, which is the wrong ear." Plaintiff states that, when he awoke following the surgery there was blood coming out of his left ear. He adds that a transport officer present at the time of the surgery who was in plaintiff's room when he awoke began to laugh and stated: "that doctor had started to operate on the wrong ear, but stopped before he went to far."

According to plaintiff, he was seen at the prison medical clinic several days later by defendant Tucker, a prison nurse. He states that, on examination, defendant Tucker noted a small amount of dried blood in the left ear canal and referred plaintiff to see defendant Hasimoto, a prison doctor. Plaintiff claims that defendant Hasimoto refused to acknowledge or treat the cut in plaintiff's left ear.

Plaintiff then filed an inmate grievance outlining his situation. He states that the second level response was written by defendant Williams, the prison health care manager. According to plaintiff, defendant Williams' response stated that the prison "is not responsible for the actions of any outside consultants, clinicians, or physicians that are under contract with C.D.C.R." Plaintiff states that this is incorrect under state law.

Plaintiff summarizes his claims as follows:

To summarize my complaint, Dr. DuBose performed malpractice on me when he cut into the wrong ear which was an [sic] negligent act. . . . R.N. Tucker was the first to notice the dried blood in my left ear canal, but failed to notify a doctor that their [sic] may have been a possibility that I was harmed during the operation. . . . Dr. Hasimoto failed to treat the bleeding in my left ear, which is a negligence act and a deliberate indifference to my medical treatment. . . . When I filed my [inmate grievance], Dr. Williams the Health Care Manager . . . failed to investigate ANY of my allegations of misconduct by the medical department at the prison. Finally, Warden Martel is responsible for ALL of the inmates in his custody not just me and for him to ignore any allegations of staff misconduct by me or any inmate is a clear violation of the California Code of Regulations.

In the instant first amended complaint, plaintiff states that defendant DuBose is a doctor and that he performed surgery on plaintiff. Plaintiff claims that he "operated on the wrong ear" and "committed a negligent act . . . when he failed to acknowledge and correct his mistake." As to defendant Tucker, plaintiff states that she noted a small incision and bleeding in his left year but failed "to act accordingly." Plaintiff claims defendant Tucker is liable because "she should have followed institutional procedure by sending me to the prison's central treatment center . . . for the bleeding in my left year." Instead, according to plaintiff defendant Tucker told him to return to his cell and "wait to be ducated" to see the doctor. Plaintiff ultimately was seen by defendant Hasimoto, also a doctor. As to defendant Hasimoto, plaintiff alleges that, despite being told about defendant DuBose's error and that he was in pain, he did not alleviate the pain. Plaintiff claims that defendant Williams is responsible for failing to investigate his claims when he submitted a prison grievance. Finally, plaintiff continues to assert that defendant Martel is responsible as the prison warden.

The court outlined the applicable legal standards in the October 29, 2008, order dismissing the original complaint with leave to amend. Those standards will not be repeated here. The court finds that the first amended complaint, which sets forth essentially the same allegations as those outlined in the original complaint, suffers from the same defects. In the October 29, 2008, order, the court outlined the following defects:

. . . First, as to defendant DuBose, plaintiff admits that his claim is based on alleged medical malpractice. Because negligence does not give rise to a claim cognizable under § 1983, he cannot state a claim against defendant DuBose. Plaintiff's sole remedy for medical malpractice lies in the state court.

As to defendant Tucker, plaintiff alleges that she examined his ear and referred him for further evaluation and/or treatment by a doctor. At best plaintiff's claim is one based on negligence. In other words, because she provided some treatment and did not ignore his medical needs, it cannot be said that she was deliberately indifferent. As with defendant DuBose, plaintiff cannot state a claim against defendant Tucker.

As to defendant Hasimoto, plaintiff alleges that he did not acknowledge or treat defendant DuBose's ear. However, plaintiff has not alleged that he presented to defendant Hasimoto with any serious medical condition. Rather, he specifically states that there was some dried blood in the left ear canal. This indicates that there was no emergency problem with the left ear, such as active bleeding. Further, plaintiff states that Dr. DuBose stopped the procedure on the left ear before he "went too far." Thus, based on plaintiff's ...

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