Stonebraker v. Kick

          ORDER OF DISMISSAL WITH LEAVE TO AMEND

          RONALD M. WHYTE UNITED STATES DISTRICT JUDGE

         Plaintiff, a California state pretrial detainee, proceeding pro se, filed a civil rights complaint pursuant to 42 U.S.C. § 1983. Plaintiff has been granted leave to proceed in forma pauperis in a separate order. For the reasons stated below, the court dismisses the complaint with leave to amend.

         DISCUSSION

         A. Standard of Review

         A federal court must conduct a preliminary screening in any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek monetary relief from a defendant who is immune from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings must, however, be liberally construed. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988).

         To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged deprivation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

         B. Plaintiffs Claims

         In the complaint, plaintiff alleges that in February 2016, he had a phone conversation with Nurse Herhinder Dhanoa regarding an eye examination. Nurse Joy Kick then examined plaintiff's eyes, and told him that his eyes were "really bad." Plaintiff told both nurses that he was experiencing headaches, migraines, felt fatigued, had pain in his eyes, and was seeing black spots. Plaintiff alleges that both nurses failed to provide pain relief medication and failed to consult a physician. Three days later, Nurse Joy Kick told plaintiff that she consulted with Dr. Dennis McBride, who would not provide plaintiff with pain medication, and informed plaintiff to buy Ibuprofen from the commissary. On April 22, 2016, plaintiff sent a grievance to Health Administrator Sam Rosales, but Sam Rosales did not take any action. Plaintiff finally alleges that Contra Costa County has an unofficial policy of not providing its inmates with pain relief.

         It appears that plaintiff is attempting to raise the claim that defendants were deliberately indifferent to his serious medical needs. Deliberate indifference to serious medical needs violates the Eighth Amendment's proscription against cruel and unusual punishment. See Estelle v. Gamble, 429 U.S. 97, 104 (1976); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). A determination of "deliberate indifference" involves an examination of two elements: the seriousness of the prisoner's medical need and the nature of the defendant's response to that need. See McGuckin, 974 F.2d at 1059. As currently, pled, plaintiff has not set forth facts sufficient to support a plausible claim that defendants exhibited deliberate indifference to his serious medical needs. A prison official is deliberately indifferent if he knows that a prisoner faces a substantial risk of serious harm and disregards that risk by failing to take reasonable steps to abate it. Farmer v. Brennan, 511 U.S. 825, 837 (1994). The prison official must not only "be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, " but he "must also draw the inference." Id. Here, there are no facts to show that any defendant was aware that the failure to prescribe pain medication would create a substantial risk of serious harm to plaintiff. Accordingly, the complaint is dismissed with leave to amend if plaintiff believes in good faith that he can state a cognizable claim.

         In addition, plaintiff is reminded that the Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, 110 Stat. 1321 (1996) ("PLRA"), amended 42 U.S.C. § 1997e to provide that "[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). An action must be dismissed unless the prisoner exhausted his available administrative remedies before he or she filed suit, even if the prisoner fully exhausts while the suit is pending. McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002); see Vaden v. Summerhill, 449 F.3d 1047, 1051 (9th Cir. 2006) (where administrative remedies are not exhausted before the prisoner sends his complaint to the court it will be dismissed even if exhaustion is completed by the time the complaint is filed).

         The court notes that here, plaintiff submitted an informal grievance on April 11, 2016, and then a first formal grievance to Health Administrator Sam Rosales on April 22, 2016. Normally, an inmate must submit his first formal level grievance to a deputy. It does not appear that plaintiff should have submitted his grievance to Health Administrator Sam Rosales for processing. Moreover, plaintiff submitted this federal civil rights complaint a mere four days after he submitted his first formal grievance before asserting in this complaint that he received no response from Health Administrator Sam Rosales. The court notes that inmates are not required to specifically plead or prove proper exhaustion in their complaints. See Jones v. Bock, 549 U.S. 199, 204, 215-17 (2007). The court also recognizes that the Martinez Detention Facility has a grievance policy in place that sets forth the grievance process. If plaintiff believes that he has indeed properly exhausted all available remedies as required by the PLRA, he may file an amended complaint to correct the deficiencies listed in the previous paragraph.

         CONCLUSION

         For the foregoing reasons, the court hereby orders as follows:

         1. The complaint is DISMISSED with leave to amend. If plaintiff believes he can cure the above-mentioned deficiencies in good faith, he must file an amended complaint within twenty-eight days from the date this order is filed. The amended complaint must include the caption and civil case number used in this order (C 16-2402 RMW (PR)) and the words AMENDED COMPLAINT on the first page. Failure to file an ...