UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
April 20, 2013
DUANE DIXON, PLAINTIFF,
DEPARTMENT OF CORRECTIONS AND REHABILITATION, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION FOR FAILURE TO STATE A CLAIM ECF No. 39 OBJECTIONS DUE WITHIN FOURTEEN DAYS
Plaintiff Duane Dixon ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil action pursuant to 42 U.S.C. § 1983. On June 8, 2011, the Court dismissed this action with prejudice for failure to state a claim. ECF No. 19. Plaintiff appealed the judgment. On November 8, 2012, the United States Court of Appeals for the Ninth Circuit reversed and remanded to permit Plaintiff to file a second amended complaint. On November 29, 2012, Plaintiff filed his Second Amended Complaint. ECF No. 39.
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. Id. § 1915A(b)(1),(2). 2
"Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall 3 dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a 4 claim upon which relief may be granted." Id. § 1915(e)(2)(B)(ii). 5
A complaint must contain "a short and plain statement of the claim showing that the pleader 6 is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 7 "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, 8 do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 9 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). While factual allegations are accepted as true, legal conclusions are not. Id.
II. Summary of Second Amended Complaint
Plaintiff was incarcerated at Kern Valley State Prison ("KVSP") in Delano, California, where the events giving rise to this action occurred. Plaintiff names as Defendants: medical doctors J. Akanno, M. Spaeth, and M. Rodriguez, and Doe Defendants 1 through 3, medical assistants or nurses.
Plaintiff alleges the following. On April 6, 2007, Plaintiff was attacked by another inmate, and suffered a penetrating wound to his head. Plaintiff was taken to the facility's emergency room, where he was seen by a nurse only. Defendant Akanno was the on-duty physician/surgeon, and was notified by telephone. Defendant Akanno did not personally appear, made no examination of Plaintiff, and instructed the nurse to perform first aid functions only.
Over the next eighteen months, Plaintiff lived in constant, sometimes debilitating pain. The wound was not healing, and Plaintiff experienced syncopal episodes and seizures. Plaintiff was seen thirteen times by medical staff, and at no time was the true significance of the injury recognized. On July 3, 2008, Plaintiff received surgery, and a foreign body of glass-like consistency, measuring 2.5 centimeters by 1 to 1.5 centimeters, was removed.
Plaintiff contends a violation of the Eighth Amendment. Plaintiff requests as relief compensatory and punitive damages, as well as provisions for future medical issues arising from this incident. 2
The Eighth Amendment prohibits cruel and unusual punishment. "The Constitution does not 4 mandate comfortable prisons." Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quotation and citation 5 omitted). A prisoner's claim of inadequate medical care does not rise to the level of an Eighth 6
Amendment violation unless (1) "the prison official deprived the prisoner of the 'minimal civilized 7 measure of life's necessities,'" and (2) "the prison official 'acted with deliberate indifference in 8 doing so.'" Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (quoting Hallett v. Morgan, 296 9 F.3d 732, 744 (9th Cir. 2002) (citation omitted)). The deliberate indifference standard involves an objective and a subjective prong. First, the alleged deprivation must be, in objective terms, "sufficiently serious . . . ." Farmer, 511 U.S. at 834 (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)). Second, the prison official must "know of and disregard an excessive risk to inmate health or safety . . . ." Id. at 837.
"Deliberate indifference is a high legal standard." Toguchi, 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, 511 U.S. at 837). "'If a prison official should have been aware of the risk, but was not, then the official has not violated the Eighth Amendment, no matter how severe the risk.'" Id. (quoting Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)).
Plaintiff fails to state an Eighth Amendment claim against any Defendants. Plaintiff alleges at most negligence against Defendant Akanno, which fails to state a claim for deliberate indifference. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Toguchi, 391 F.3d at 1060 (holding even gross negligence is insufficient to establish deliberate indifference).
Plaintiff fails to allege facts against Defendants Spaeth, Rodriguez, or Does 1 through 3 that indicate the Defendant acted or failed to act and such action or inaction caused a violation of Plaintiff's Eighth Amendment rights. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) ("A person 'subjects' another to the deprivation of a constitutional right, within the meaning of section 1983, if he does an affirmative 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."). 2
IV. Conclusion and Recommendation
Plaintiff fails to state a claim against any Defendants. Plaintiff has now been provided two 4 opportunities to amend his complaint, and has failed to state a claim in both instances. The 5 undersigned does not find that Plaintiff can amend his pleadings to cure the deficiencies identified.6
Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc). Based on the foregoing, it is 7
HEREBY RECOMMENDED that this action be dismissed with prejudice for failure to state a claim 8 upon which relief may be granted. 9
These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) days after being served with these Findings and Recommendations, the Plaintiff may file written objections with the Court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." The Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).
IT IS SO ORDERED.
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