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Darryl Lee Dunsmore, Cdcr # Ad-6237 v. San Diego County Sheriff's Dep't

November 8, 2011

DARRYL LEE DUNSMORE, CDCR # AD-6237,
PLAINTIFF,
v.
SAN DIEGO COUNTY SHERIFF'S DEP'T, ET AL.
DEFENDANTS.



The opinion of the court was delivered by: Hon. Irma E. Gonzalez, Chief Judge United States District Court

ORDER: (1) DENYING MOTION FOR TEMPORARY RESTRAINING ORDER [ECF No. 39]; (2) DENYING MOTION FOR APPOINTMENT OF COUNSEL [ECF No. 28]; (3) DENYING MOTIONS FOR RELIEF FROM JUDGMENT PURSUANT TO FRCP 60(b) [ECF Nos. 34, 37]; and (4) DISMISSING SECOND AMENDED COMPLAINT FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b)

I. PROCEDURAL HISTORY

On January 14, 2011, Plaintiff, a state inmate currently incarcerated at the California State Prison located in Lancaster, California, and proceeding pro se, filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. In his original Complaint, Plaintiff alleges that his constitutional rights were violated when he was housed in the San Diego Central Jail. In addition, Plaintiff filed a Motion to Proceed In Forma Pauperis (IFP) pursuant to 28 U.S.C. § 1915(a). The Court granted Plaintiff's Motion to Proceed IFP and sua sponte dismissed his Complaint for failing to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b). See Mar. 1, 2011 Order at 5-6. Plaintiff was granted leave to file an Amended Complaint in order to correct the deficiencies of pleading identified by the Court. Id. Plaintiff filed his First Amended Complaint on April 8, 2011. Plaintiff also filed a number of miscellaneous motions, along with four Motions for Temporary Restraining Order.

The Court, once again, screened Plaintiff's First Amended Complaint and ruled on all pending motions. See May 17, 2011 Order at 1-8. The Court took note of the fact that Plaintiff was adding new claims pertaining to allegations arising from the time Plaintiff was incarcerated at the Richard J. Donovan Correctional Facility ("Donovan"). Id. at 3. The Court denied Plaintiff's Motion for Appointment of Counsel, denied his Motions for a Temporary Restraining Order and dismissed his First Amended Complaint for failing to state a claim upon which § 1983 relief could be granted. Id. at 8. Plaintiff, once again, was granted leave to file an Amended Complaint in order to correct the deficiencies of pleading identified by the Court. Id.

On August 2, 2011, Plaintiff filed his Second Amended Complaint ("SAC"), along with a renewed Motion for Appointment of Counsel. Plaintiff has also filed a renewed Motion for Temporary Restraining Order, along with two Motions for Relief from Judgment pursuant to FED.R.CIV.P. 60(b).

II. SCREENING PURSUANT TO 28U.S.C.§§1915(e)(2)&1915A(b)

As stated in the Court's previous Order, the Prison Litigation Reform Act ("PLRA")'s amendments to 28 U.S.C. § 1915 obligates the Court to review complaints filed by all persons proceeding IFP and by those, like Plaintiff, who are "incarcerated or detained in any facility [and] accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or conditions of parole, probation, pretrial release, or diversionary program," "as soon as practicable after docketing." See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). Under these provisions, the Court must sua sponte dismiss any prisoner civil action and all other IFP complaints, or any portions thereof, which are frivolous, malicious, fail to state a claim, or which seek damages from defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Resnick v. Hayes, 213 F.3d 443, 446 n.1 (9th Cir. 2000) (§ 1915A).

A. Eighth Amendment*fn1 claims

The basis of Plaintiff's Second Amended Complaint is his allegation that jail officials and prison officials failed to timely provide him with medication he claims was necessary to treat his "arthritis anklylosing spondylitis." (See SAC at 3-4.) Plaintiff claims that he had prescriptions by jail and prison doctors ordering that he receive "enbrel injections" once a week. (Id.) However, Plaintiff claims that there was often a one (1) to three (3) day delay in receiving his injections. (Id.)

In order to assert a claim for inadequate medical care, Plaintiff must allege facts which are sufficient to show that each person sued was "deliberately indifferent to his serious medical needs." Helling v. McKinney, 509 U.S. 25, 32 (1993); Estelle v. Gamble, 429 U.S. 97, 106 (1976). Officials must purposefully ignore or fail to respond to Plaintiff's pain or medical needs; neither an inadvertent failure to provide adequate medical care, nor mere negligence or medical malpractice constitutes a constitutional violation. Estelle, 429 U.S. at 105-06.

Thus, to state a claim, Plaintiff must allege facts sufficient to show both: (1) an objectively "serious" medical need, i.e., one that a reasonable doctor would think worthy of comment, one which significantly affects his daily activities, or one which is chronic and accompanied by substantial pain, see Doty v. County of Lassen, 37 F.3d 540, 546 (9th Cir. 1994); and (2) a subjective, and "sufficiently culpable" state of mind on the part of each individual Defendant. See Wilson v. Seiter, 501 U.S. 294, 302 (1991).

Here, the chief allegation by Plaintiff is that prison and jail officials had a "pattern of negligence" that caused a one to three day delay in receiving his medication. (See SAC at 3.) First, inadequate treatment due to malpractice, or even gross negligence, does not amount to a constitutional violation. Estelle, 429 U.S. at 106; Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990). Second, to the extent that Plaintiff alleges there was a delay in treatment, there are no facts in the Second Amended Complaint from which the Court can determine whether he has suffered any injury as a result of the Defendants alleged delay in providing treatment. See Shapley v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985) (a prisoner can make "no claim for deliberate medical indifference unless the denial was harmful.")

Thus, Plaintiff's cruel and unusual punishment claims must dismissed for failing to state a claim upon ...


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