THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
August 20, 2009
CARLOS JIMENEZ, PLAINTIFF,
MARTHA SPAETH, DEFENDANT.
The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
ORDER REQUIRING PLAINTIFF TO EITHER FILE AMENDED COMPLAINT OR NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY ON CLAIM FOUND TO BE COGNIZABLE (Doc. 11)
Plaintiff Carlos Jimenez is a state prisoner, proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983 and California negligence law. Plaintiff filed his first amended complaint on December 11. 2008.*fn1
I. Screening Requirement
The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 915(e)(2)(B)(ii).
"Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions," none of which applies to § 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002). Pursuant to Rule 8(a), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a). "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, supra, 534 U.S. at 512. Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of the cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949 (2009), citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). "Plaintiff must set forth sufficient factual matter accepted as true, to 'state a claim that is plausible on its face.'" Iqbal, supra, 129 S.Ct. at 1949, quoting Twombly, supra, 550 U.S. at 555. While factual allegations are accepted as true, legal conclusions are not. Ibid.
Although accepted as true, "[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level." Id. at 555 (citations omitted). A plaintiff must set forth "the grounds of his entitlement to relief," which "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action." Id. at 555-56 (internal quotation marks and citations omitted). To adequately state a claim against a defendant, plaintiff must set forth the legal and factual basis for his claim.
In screening a complaint, a court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. Id. at 514. "'The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test.'" Jackson v. Carey, 353 F.3d 750, 755 (9th Cir. 2003), quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see also Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004) ("'Pleadings need suffice only to put the opposing party on notice of the claim . . . .'"), quoting Fontana v. Haskin, 262 F.3d 871, 977 (9th Cir. 2001). However, "the liberal pleading standard . . . applies only to a plaintiff's factual allegations." Neitzke v. Williams, 490 U.S. 319, 330 n. 9 (1989). "[A] liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled." Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997), quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982).
II. Plaintiff's Claim
A. Factual Background
Plaintiff, presently an inmate at California State Prison, Corcoran ("CSPC"), fell while attempting to descend from his upper bunk at Kern Valley State Prison ("KVSP"), striking the back of his head and his neck on a desk. Plaintiff immediately experienced severe pain and weakness in his neck and was taken to the KVSP medical unit where he was initially examined by Nurse Campos at approximately 0300 hours. Defendant, Dr. Martha Spaeth, examined plaintiff at 0835 hours, observing swelling of the back of plaintiff's neck. Plaintiff advised her that he was in severe pain, experiencing tingling in his finger tips, weakness in his neck, and jolts of intense pain whenever he moved his neck. Defendant refused to take x-rays, informing plaintiff that if his neck were broken, he would be in much more severe pain. Pronouncing plaintiff's neck "fine" and opining that the pain would subside on its own, defendant directed correctional officers to return plaintiff to his cell. Defendant prescribed no pain medication.
For two days, plaintiff endured severe pain whenever he attempted such typical daily activities such as using the restroom or attempting to sleep or eat. After numerous requests for medical care and pain medication, plaintiff saw Dr. Lopez, who immediately transferred plaintiff to Kern Medical Center in Bakersfield where Dr. Wrobel diagnosed a cervical spine fracture requiring emergency surgery to remove a damaged disc and stabilize plaintiff's spine.
B. Eighth Amendment Claim -- Deliberate Indifference to Serious Medical Needs (Infliction of Pain)
Plaintiff contends that by failing to prescribe pain killers and allowing him to suffer great pain, defendant demonstrated deliberate indifference to plaintiff's serious medical needs constituting cruel and unusual punishment in violation of the Eighth Amendment to the U.S. Constitution.
"[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate must show 'deliberate indifference to serious medical needs.'" Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006), quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976). The two-part test for deliberate indifference requires the plaintiff to show (1) "'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,'" and (2) "the defendant's response to the need was deliberately indifferent." Jett, 439 F.3d at 1096, quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc) (internal quotations omitted). Deliberate indifference is shown by "a purposeful act or failure to respond to a prisoner's pain or possible medical need, and harm caused by the indifference." Ibid. Deliberate indifference may be manifested "when prison officials deny, delay or intentionally interfere with medical treatment, or it may be shown by the way in which prison physicians provide medical care." Ibid. (internal quotations omitted). Where a prisoner is alleging a delay in receiving medical treatment, the delay must have led to further harm in order for the prisoner to make a claim of deliberate indifference to serious medical needs. McGuckin, supra, 974 F.2d at 1060, citing Shapely v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985).
To constitute cruel and unusual punishment in violation of the Eighth Amendment, prison conditions must involve "the wanton and unnecessary infliction of pain." Rhodes v. Chapman, 452 U.S. 337, 347 (1981). A prisoner's claim of inadequate medical care does not rise to the level of an Eighth Amendment violation unless (1) "the prison official deprived the prisoner of the 'minimal civilized measure of life's necessities,' and (2) "the prison official 'acted with deliberate indifference in doing so.'" Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004), quoting Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) (citation omitted).
"Deliberate indifference is a high legal standard." Toguchi, supra, 391 F.3d at 1060. "Under this standard, the prison official must not only 'be aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists,' but that person 'must also draw the inference.'" Id. at 1057, quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994). A prison official does not act in a deliberately indifferent manner unless the official "knows of and disregards an excessive risk to inmate health or safety." Farmer, supra, 511 U.S. at 834. Deliberate indifference may be manifested "when prison officials deny, delay or intentionally interfere with medical treatment," or in the manner "in which prison physicians provide medical care." McGuckin, supra, 974 F.2d at 1059.
Plaintiff's allegations are sufficient to state a cause of action against defendant for deliberate indifference to serious medical need resulting in the necessary and wanton infliction of pain. The complaint is unclear with regard to any aggravation of plaintiff's medical condition resulting from the delay in treatment of his broken neck. If plaintiff intends to allege further significant injury from the treatment delay, he must amend his complaint to more completely allege the further injuries that resulted from the delay.
C. Eighth Amendment Claim - Deliberate Indifference to Serious Medical Needs (Malpractice)
Plaintiff further contends that defendant's failure to diagnose and treat his broken neck constituted malpractice violative of the Eighth Amendment.
Medical malpractice is a tort of negligence. "[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." Estelle, supra, 429 U.S. at 106. See also Jett, supra, 439 F.3d at 1096; Toguchi, supra, 391 F.3d at 1057, 1060 (stating that "[d]eliberate indifference is a high legal standard."); Clement v. Gomez, 298 F.3d 898, 904-05 (9th Cir. 2002); Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 200) (en banc); Frost v. Agnos, 152 F.3d 1124, 1130 (9th Cir. 1998); Anderson v. County of Kern, 45 F.3d 1310, 1316 (9th Cir. 1997)(en banc); McGuckin, supra, 974 F.2d at 1059; Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1998); Toussaint v. McCarthy, 801 F.2d 1080, 1113 (9th Cir. 1986), cert. denied, 481 U.S. 1069 (1987), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472 (1995). Even gross negligence is insufficient to establish deliberate indifference to serious medical needs. See Toguchi, supra, 391 F.3d at 1060.
To the extent that plaintiff's claims sound in medical malpractice, they do not state an Eighth Amendment claim for deliberate indifference to serious medical need upon which relief can be granted.
D. State Claims
Plaintiff's allegations of malpractice potentially state a negligence claim under California state law. Section 1983 does not provide a cause of action for violations of state law. See Weilburg v. Shapiro, 488 F.3d 1202, 1207 (9th Cir. 2007); Galen v. County of Los Angeles, 477 F.3d 652, 662 (9th Cir. 2007); Ove v. Gwinn, 264 F.3d 817, 824 (9th Cir. 2001); Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997); Lovell v. Poway Unified School Dist., 90 F.3d 367, 370 (9th Cir. 1996); Draper v. Coombs, 792 F.2d 915, 921 (9th Cir. 1986); Ybarra v. Bastian, 647 F.2d 891, 892 (9th Cir.), cert. denied, 454 U.S. 857 (1981). Pursuant to 28 U.S.C. § 1367(a), however, in any civil action in which the district court has original jurisdiction, the district court "shall have supplemental jurisdiction over all other claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III," except as provided in subsections (b) and (c). "[O]nce judicial power exists under § 1367(a), retention of supplemental jurisdiction over state law claims under 1367(c) is discretionary." Acri v. Varian Assoc., Inc., 114 F.3d 999, 1000 (9th Cir. 1997).
Since defendant is a state employee, any tort action against her must proceed pursuant to the California Tort Claims Act (Cal. Gov't Code §810 et seq.). Provided that he has satisfied all requirements precedent to an action under the Act, plaintiff's malpractice claims would be cognizable by this court under its supplementary jurisdiction. Whether the public employee acted with due care is a question of material fact. Ogborn v. City of Lancaster, 124 Cal.Rptr.2d 238, 248 (Cal. Ct. App. 2002). Accordingly, to pursue a malpractice claim under the California Tort Claims Act, plaintiff must amend his complaint to set forth allegations of all elements of malpractice and to include allegations indicating that he has satisfied all requirements, including notice requirements, necessary to bring a malpractice action under California law.
E. Injunctive Relief
Among the relief that plaintiff seeks is an injunction ordering therapy and additional diagnostic testing and treatment. His request presents several problems. First, the complaint includes no allegations regarding a need for therapy or for additional diagnosis or treatment. If plaintiff intends to seek an injunction, he must amend his complaint to include such allegations.
More importantly, plaintiff has been transferred from KVSP to CSPC. Spaeth, the only defendant in this action, is unlikely to be a physician at CSPC with the ability to provide therapy or medical care. Plaintiff's complaint names no appropriate defendant at CSPC. The court is unable to issue an order against entities which are not parties to a suit pending before it. Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 110 (1969).
Plaintiff has not stated a claim for which the court can provide the requested injunctive relief.
III. Conclusion and Order
Plaintiff's complaint states a claim under the Eighth Amendment against defendant for deliberate indifference to serious medical needs resulting in the unnecessary and wanton infliction of pain. If he also intends to claim that his injury was aggravated by the delay in treatment, however, he must more fully allege the aggravated injuries resulting from the delay. In addition, Plaintiff's malpractice claim is not cognizable as a constitutional violation but may constitute a valid state tort claim provided plaintiff fully alleges the elements of the tort and compliance with all requirements, including notice requirements, necessary to bring a malpractice claim under California law. Finally, the complaint does not include any claim for which the court can provide the requested injunctive relief.
This court will provide plaintiff with the opportunity to file an amended complaint curing the deficiency identified in this order. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff may not change the nature of this suit by adding new, unrelated claims in his amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no "buckshot" complaints).
If plaintiff does not wish to file an amended complaint and is agreeable to proceeding only on his Eighth Amendment claim against defendant for deliberate indifference to serious medical need leading to infliction of severe pain, plaintiff may so notify the court in writing, and the court will issue a recommendation for dismissal from this action of plaintiff's other claims. The court will then forward to plaintiff a summons and USM-285 form for completion and return. Upon receipt of the completed forms, the court will direct the United States Marshal to initiate service of process on defendant.
If plaintiff elects to file an amended complaint, plaintiff is advised that an amended complaint supercedes the original complaint, Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997), aff'd, 525 U.S. 299 (1999); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), and must be "complete in itself without reference to the prior or superceded pleading," Local Rule 15-220. Plaintiff is warned that "[a]ll causes of action alleged in an original complaint which are not alleged in an amended complaint are waived." King, supra, 814 F.2d at 567; accord Forsyth, supra, 114 F.3d at 1474.
Based on the foregoing, it is HEREBY ORDERED that:
1. Plaintiff's complaint fails to state a cause of action against defendant Spaeth;
2. The Clerk's Office shall send plaintiff a civil rights complaint form;
3. Within thirty (30) days from the date of service of this order, plaintiff must either:
a. File an amended complaint curing the deficiencies identified by the court in this order, or
b. Notify the court in writing that he does not wish to file an amended complaint and wishes to proceed only against defendant Spaeth on his Eighth Amendment claim of deliberate indifference to serious medical needs resulting in the necessary and wanton infliction of pain;
4. If plaintiff fails to comply with this order, this action will be dismissed for failure to obey a court order.
IT IS SO ORDERED.