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McGill v. Tranquina


June 9, 2009


The opinion of the court was delivered by: David O. Carter United States District Judge Sitting by Designation


Bruce McGill ("Plaintiff") is a state prisoner incarcerated at the California State Prison in Solano, California. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983. Plaintiff's complaint has made the showing required by 28 U.S.C. § 1915A and may proceed accordingly.


Under 28 U.S.C. § 1915A, this Court must "review, before docketing... or ... as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity." 28 U.S.C. § 1915A(a). "On review, the court [must] identify cognizable claims or dismiss... any portion of the complaint, if the complaint -- (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C. §1915A(b). This Court must therefore determine whether the Complaint states a cognizable claim for relief with respect to each named defendant.

A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.

Rule 8(a)(2) of the Federal Rules of Civil Procedure "requires only a 'short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the ... claim is and the grounds upon which it rests." Bell Atlantic Corp v. Twombly, 127 S.Ct. 1955, 1964 (2007)(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, in order to survive a dismissal for failure to state a claim, a complaint must contain more than a "formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic, 127 S.Ct. at 1965. In reviewing a complaint under this standard, the Court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

The Civil Rights Act under which this action was filed provides as follows: Every person who, under color of [state law] ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution ... shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

42 U.S.C. §1983. The statute requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See Monell v. Dept. of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. (1976). "A person 'subjects' another to the deprivation of a constitutional right, within the meaning of 1983, if he does an affirmatives act, participates in another's affirmative acts or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

Moreover, supervisory personnel are generally not liable under 1983 for the actions of their employees under a theory of respondeat superior and, therefore, when a named defendant holds a supervisorial position, the causal link between him and the claimed constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Finally, vague and conclusory allegations concerning the involvement of official personnel in civil rights violations are not sufficient. See Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982).


In 2006, at the age of 44, Plaintiff was diagnosed with glaucoma while incarcerated. In April 2008, Plaintiff began inconsistently receiving his glaucoma medicine, which was required daily. Plaintiff filed an emergency appeal when he had not received his medicine for 30 days. His appeal was granted, and the medical staff apologized for the delay in medical treatment and for any pain the delay had caused. Despite the appeal, Plaintiff did not receive all of his medication. Plaintiff then made an unsuccessful appeal to the prison's warden. Plaintiff submitted a second level appeal, which was granted, but his medication was delivered at a time later than promised. Plaintiff alleges he was denied his glaucoma medication for four months.

As a result of being deprived of his medication, Plaintiff has suffered loss of vision in his left eye, pain in his eye, and headaches. Plaintiff alleges that the prison doctor, Alvaroc Tranquina ("Defendant"), engaged in a custom, policy, and/or practice to fail and refuse to give Plaintiff his medication and that he refused to treat the resulting symptoms of headache, eye pain, and vision loss. Plaintiff argues that the Defendant's conduct constituted deliberate indifference to his constitutional rights and violated the prohibition against cruel and unusual punishment under the Eighth Amendment. Plaintiff requests compensatory damages, punitive damages, attorney's fees, costs of the suit, and other and further relief as the Court deems proper.

Deliberate indifference to prisoners' medical needs is cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 102-06, 97 S.Ct. 285, 290-92 (1976); See also Hoptowit v. Ray, 682 F.2d 1237 (9th Cir.1982) (holding that the deficiency of medical care in the Washington State Penitentiary reflected a deliberate indifference to the serious medical needs of prisoners, but that standards of care set by medical experts described an ideal level of care rather than a constitutional minimum level of care).

Deliberate indifference to serious medical needs of prisoners constitutes the 'unnecessary and wanton infliction of pain' proscribed by the Eighth Amendment. Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909 (1976). This is true whether the indifference is manifested by prison doctors in their response to the prisoner's needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed. Regardless of how evidenced, deliberate indifference to a prisoner's serious illness or injury states a cause of action under § 1983.

Estelle, supra, at 105.

In the medical context, an inadvertent failure to provide adequate medical care cannot be said to constitute "an unnecessary and wanton infliction of pain" or to be "repugnant to the conscience of mankind." Thus, a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner. In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. It is only such indifference that can offend "evolving standards of decency" in violation of the Eighth Amendment.

Id. at 105-06.

In the Ninth Circuit, the test for deliberate indifference consists of two parts. First, 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. This second prong-defendant's response to the need was deliberately indifferent-is satisfied by showing (a) a purposeful act or failure to respond to a prisoner's pain or possible medical need and (b) harm caused by the indifference. Jett v. Penner, 439 F.3d at 1096 (internal citations & quotations omitted); see also McGuckin v. Smith, 974 F.2d 1050, 1060 (9th Cir.1992), overruled in part on other grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir.1997).

Plaintiff has sufficiently shown that his failure to receive medication may have been due to deliberate indifference. Plaintiff was successful on his administrative appeals, but the delivery of his medication was delayed, and he was not given the entire amount of the medication. Additionally, Plaintiff's medical appointments were cancelled after the appeals and he was again denied medical treatment. Despite the successful appeals, Plaintiff was not receiving the proper medical treatment and has sufficiently alleged a complaint against the Defendant.

Plaintiff has demonstrated that he has a serious medical condition that, if deliberately left untreated, would result in the unnecessary and wanton infliction of pain. Plaintiff has also shown that the denial of medical treatment may have been deliberately indifferent as Plaintiff was still denied treatment and medication after a successful appeal. Additionally Plaintiff has shown that as a result of the alleged deliberate indifference, his symptoms of headache, eye pain, and vision loss were aggravated.

Accordingly, Plaintiff has stated a cognizable claim for relief and may proceed with his complaint.


In accordance with the above, IT IS HEREBY ORDERED that:

1. Service is appropriate for Alvaroc Tranquina, MD, Chief Medical Officer and Health Care Manager of the California State Prison, Solano.

2. The Clerk of the Court shall send plaintiff one (1) USM-285 form, one summons, an instruction sheet an a copy of the Complaint, filed October 2, 2008.

5. Within thirty days from the date of this order, plaintiff shall complete the attached Notice of Submission of Documents and submit the following documents to the court:

a. The completed Notice of Submission of Documents;

b. One completed summons;

c. One completed USM-285 form for each defendant listed in number 3 above;

d. Two (2) copies of the endorsed complaint filed October 2, 2008.

6. Plaintiff need not attempt service on defendant and need not request waiver of service. Upon receipt of the above-described documents, the Court will direct the United States Marshal to serve the above-named defendant pursuant to Federal Rule of Civil Procedure 4 without payment of costs.


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