UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
February 7, 2011
STEVEN HAIRL WILHELM,
ARON ROTMAN, ET AL.,
ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE A CLAIM (ECF No. 1)
I. Screening Requirement
Plaintiff Steven Hairl Wilhelm is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Currently pending before the Court is the complaint, filed December 31, 2009. (Compl., ECF No. 1.)
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 "fails to state a claim on which relief may be granted," or that "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B).
In determining whether a complaint states a claim, the Court looks to the pleading standard under Federal Rule of Civil Procedure 8(a). Under 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)(2). "[T]he pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (2007)).
Under section 1983, Plaintiff must demonstrate that each defendant personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 129 S. Ct. at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). "[A] complaint [that] pleads facts that are 'merely consistent with' a defendant's liability . . . 'stops short of the line between possibility and plausibility of entitlement to relief.'" Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 557). Further, although a court must accept as true all factual allegations contained in a complaint, a court need not accept a plaintiff's legal conclusions as true. Iqbal, 129 S. Ct. at 1949. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (quoting Twombly, 550 U.S. at 555).
II. Complaint Allegations
Plaintiff is in the custody of the California Department of Corrections and Rehabilitation and is currently housed at the California Substance Abuse Treatment Facility in Corcoran. Plaintiff was diagnosed with a hernia on October 7, 2005. On July 15, 2008, Plaintiff was examined by Defendant Rotman who confirmed that Plaintiff had a double hernia. On September 5, 2008, Plaintiff was seen by a surgeon, Defendant Schuster, who briefly examined Plaintiff, told him that he did not have a hernia, and refused to operate on Plaintiff. On September 8, 2008, Plaintiff submitted a medical request to see Defendant Rotman regarding Defendant Schuster's findings. (Compl. at 3, ECF 1.)
On October 12, 2008, Plaintiff submitted a letter to Defendant Rotman informing him that Plaintiff wanted to be seen about his hernia. Plaintiff saw Defendant Rotman on November 11, 2008, and requested an ultra-sound or x-ray be performed to determine if he had a hernia. Defendant Rotman informed Plaintiff that those tests would not show anything and that they would discuss his hernia at his next appointment. On December 7, 2008, Plaintiff sent a letter to Defendant Rotman requesting an appointment. On December 11, 2008, Plaintiff submitted a medical request to see Defendant Rotman. On December 24, 2008, Plaintiff saw Defendant Rotman, who indicated he would examine Plaintiff to see if he had a hernia at his next appointment. (Id. at 5.) Plaintiff saw Defendant Rotman on January 27, 2009, and was informed that he would be placed on the list for an appointment with a surgeon. During this time period Plaintiff was told that he had medical appointments on several occasions, but was not called for the appointments. (Id. at 5-6.) On March 26, 2009, Plaintiff saw Defendant Rotman again and asked why he had not been seen by the surgeon. (Id. at 6.)
On July 17, 2009, Plaintiff was interviewed in response to an inmate grievance and was told that he was removed from the list to see a surgeon because Defendant Rotman failed to file the correct paperwork. In response to a letter sent to the prison law office Plaintiff was sent to see a surgeon and surgery was scheduled. On August 26, 2009, Plaintiff was seen by Defendant Pierre who informed him that he was scheduled to be transferred to Soledad. (Id.) Plaintiff asked Defendant Pierre to put a medical hold on him so that the surgery could be performed and Defendant Pierre refused. (Id. at 6-7.)
Plaintiff alleges that he was in daily pain, endured significant pain and suffering, and was unable to do his normal exercise or daily routine for four years*fn1 due to the hernia . (Id. at 20.) He brings this suit against Defendants Rotman, Schuster, and Pierre for deliberate indifference in violation of the Eighth Amendment seeking monetary damages. (Id. at 16-1, 217.) For the reasons set forth below, Plaintiff has failed to state a cognizable claim for relief. Plaintiff shall be given the opportunity to file an amended complaint curing the deficiencies described by the Court in this order. In the paragraphs that follow, the Court will provide Plaintiff with the legal standards that appear to apply to his claims. Plaintiff should carefully review the standards and amend only those claims that he believes, in good faith, are cognizable.
"[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, 104 (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." Conn v. City of Reno, 591 F.3d 1081, 1095 (9th Cir. 2010) (quoting Jett, 439 F.3d at 1096).
Deliberate indifference is shown where there was "a purposeful act or failure to respond to a prisoner's pain or possible medical need" and the indifference caused harm. Conn, 591 F.3d at 1095 (quoting Jett, 439 F.3d at 1096). "Deliberate indifference is a high legal standard." Simmons v. Navajo County, Arizona, 609 F.3d 1011, 1019 (9th Cir. 2010); Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). The prison official must be aware of facts from which he could make an inference that "a substantial risk of serious harm exists" and he must make the inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994).
Plaintiff fails to allege facts demonstrating that his hernia was a serious medical condition requiring surgery. The mere fact that Plaintiff was diagnosed with a hernia does state a plausible claim that he required surgery. Iqbal, 129 S. Ct. at 1949-50. The complaint is devoid of any facts that would indicate his hernia was not being appropriately treated, that Defendants were aware that Plaintiff could suffer any further significant injury, or there was 'unnecessary and wanton infliction of pain. Conn, 591 F.3d 1095. Plaintiff's disagreement regarding treatment fails to state a cognizable claim. Franklin v. Oregon, 662 F.2d 1337, 1355 (9th Cir. 1981); Mayfield v. Craven, 433 F.2d 873, 874 (9th Cir. 1970). Additionally, while Plaintiff was requesting surgery, the facts fail to allege that he suffered any significant harm from the delay in surgery. Hallett v. Morgan, 296 F.3d 732, 746 (9th Cir. 2002); Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir. 1990); Shapley v. Nevada Board of State Prison Commissioners, 766 F.2d 404, 407 (9th Cir. 1984).
Plaintiff alleges that Defendant Schuster failed to diagnose his hernia and recommend surgery, however, a difference of opinion between medical providers regarding treatment does not amount to deliberate indifference. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). Nor does an allegation by a prisoner that a physician has been merely indifferent or negligent or has committed medical malpractice in diagnosing or treating a medical condition state a constitutional claim.
Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980); Toguchi, 391 F.3d at 1057. "Medical malpractice does not become a constitutional violation merely because the victim is a prisoner." Estelle, 429 U.S. at 106.
IV. Conclusion and Order
For the reasons stated, Plaintiff's complaint does not state a cognizable claim for relief for a violation of his constitutional rights. Plaintiff is granted leave to file an amended complaint within thirty days. 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).
Plaintiff's amended complaint should be brief, Fed. R. Civ. P. 8(a), but must state what each named defendant did that led to the deprivation of Plaintiff's constitutional or other federal rights, Iqbal, 129 S. Ct. at 1948-49. "The inquiry into causation must be individualized and focus on the duties and responsibilities of each individual defendant whose acts or omissions are alleged to have caused a constitutional deprivation." Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988). Although accepted as true, the "[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level . . . ." Twombly, 550 U.S. at 555 (citations omitted).
Finally, an amended complaint supercedes the original complaint, Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); 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 220. "All causes of action alleged in an original complaint which are not alleged in an amended complaint are waived." King, 814 F.2d at 567 (citing to London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981)); accord Forsyth, 114 F.3d at 1474.
Based on the foregoing, it is HEREBY ORDERED that:
1. The Clerk's Office shall send Plaintiff a civil rights complaint form;
2. Plaintiff's complaint, filed December 31, 2009, is dismissed for failure to state a claim upon which relief may be granted under section 1983;
3. Within thirty (30) days from the date of service of this order, Plaintiff shall file an amended complaint; and
4. If Plaintiff fails to file an amended complaint in compliance with this order, this action will be dismissed, with prejudice, for failure to state a claim.
IT IS SO ORDERED.
UNITED STATES MAGISTRATE JUDGE