Opinion
EDCV 22-1797 FWS (KS)
01-09-2023
HENRY NAVARRO, Plaintiff, v. SAN BERNADINO SHERIFFS DEPARTMENTS MEDICAL STAFF, et al., Defendants.
MEMORANDUM AND ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND
KAREN L. STEVENSON, UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
On October 11, 2022, Henry Navarro ("Plaintiff'), a California prisoner proceeding pro se and in forma pauperis filed a civil rights complaint alleging that San Bernardino County Sheriff medical staff failed to follow a prescribed course of treatment concerning an alleged broken toe ("Complaint"). (Dkt. No. 1.) Plaintiff is incarcerated at High Desert Detention Center in Adelanto, California, a facility operated by the San Bernardino County Sheriff's Department. (Dkt. No.1 at 1); also available at http://wp.sbcounty.gov/sheriff/corrections/high-desert-detention-center(last visited on January 4, 2022).
On October 25, 2022, the Court issued a Memorandum and Order dismissing the Complaint for the failure to state an Eighth Amendment claim of deliberate indifference, and for failing to state a claim against state officials acting in their official capacities. (Dkt. No. 5.) The Court granted Plaintiff leave to amend the Complaint to correct the identified deficiencies. (Id. at 11.)
Now before the Court is Plaintiffs First Amended Complaint ("FAC"), filed on November 28, 2022. (Dkt. No. 7.) The FAC is in most respects identical to the original Complaint. The FAC sues "All Medical Staff," as well as individual Defendants identified as "R/N Mrs. April," "P.A./R/N Mrs. Rios," "P.A. Jarmen," and "Mrs. Glenda." (Id. at 3-4.) Plaintiff sues all Defendants in both their individual and official capacities. (Id.)
Under Federal Rule of Civil Procedure 12(b)(6) a trial court may dismiss a claim sua sponte and without notice "where the claimant cannot possibly win relief." Omar v. Sea-Land Serv., Inc., 813 F.2d 986, 991 (9th Cir. 1987); see also Sparling v. Hoffman Constr. Co., 864 F.2d 635. 638 (9th Cir. 1988) (same); Baker v. Director, U.S. Parole Comm'n, 916 F.2d 725, 726 (D.C. Cir. 1990) (per curiam) (adopting Ninth Circuit's position in Omar and noting that in such circumstances a sua sponte dismissal "is practical and fully consistent with plaintiffs' rights and the efficient use of judicial resources"). The Court's authority in this regard includes sua sponte dismissal of claims against defendants who have not been served and defendants who have not yet answered or appeared. See Abagnin v. AMVAC Chemical Corp., 545 F.3d 733. 742-43 (9th Cir. 2008); see also Reunion, Inc. v. F.A.A., 719 F.Supp.2d 700. 701 n.l (S.D.Miss. 2010) ("[T]he fact that [certain] defendants have not appeared and filed a motion to dismiss is no bar to the court's consideration of dismissal of the claims against them for failure to state a claim upon which relief can be granted, given that a court may dismiss any complaint sua sponte for failure to state a claim for which relief can be granted pursuant to Rule 12(b)(6).").
In determining whether a complaint should be dismissed at screening, the Court applies the standard of Federal Rule of Civil Procedure 12(b)(6): "[a] complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Rosati v. Igbinoso, 791 F.3d 1037. 1039 (9th Cir. 2015). Thus, the plaintiffs factual allegations must be sufficient for the court to "draw the reasonable inference that the defendant is liable for the misconduct alleged." Cook v. Brewer, 637 F.3d 1002. 1004 (9th Cir. 2011) (citation and internal quotation marks omitted); see also Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) ("Factual allegations must be enough to raise a right to relief above the speculative level.").
When a plaintiff appears pro se in a civil rights case, the court must construe the pleadings liberally and afford the plaintiff the benefit of any doubt. Akhtar v. Mesa, 698 F.3d 1202. 1212 (9th Cir. 2012); see also Erickson v. Pardus, 551 U.S. 89. 94 (2007) ("A document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." (citations and internal quotation marks omitted)). In giving liberal interpretation to a pro se complaint, however, the court may not supply essential elements of a claim that were not initially pled, Byrd v. Maricopa County Sheriff's Dep't 629 F.3d 1135. 1140 (9th Cir. 2011), and the court need not accept as true "allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences," Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001).
If the court finds that a pro se complaint fails to state a claim, the court must give the pro se litigant leave to amend the complaint unless "it is absolutely clear that the deficiencies of the complaint could not be cured by amendment." Akhtar, 698 F.3d at 1212 (internal quotation marks omitted); Lira v. Herrera, 427 F.3d 1164. 1176 (9th Cir. 2005). However, if amendment of the pleading would be futile, leave to amend may be denied. See Gonzalez v. Planned Parenthood of Los Angeles, 759 F.3d 1112, 1116 (9th Cir. 2014) ("'Futility of amendment can, by itself, justify the denial of a motion for leave to amend,' Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995), [a]nd the district court's discretion in denying amendment is 'particularly broad' when it has previously given leave to amend.").
For the following reasons, the Court finds that the FAC fails to state a cognizable claim for relief, that Plaintiff corrected none of the defects that the Court previously identified, and, therefore, the FAC must be dismissed.[ However, in the interests of justice, the Court will grant leave to amend one final time.
Magistrate judges may dismiss a complaint with leave to amend without approval of the district judge. See McKeever v. Block, 932 F.2d 795. 798 (9th Cir. 1991).
II. ALLEGATIONS OF THE FAC
Plaintiff sues the named Defendants for failing to treat a broken toe as prescribed by a facility doctor. (Dkt. No. 7 at 5.) Plaintiff specifically alleges that his "First & Eight[h] Ammendment [sic] [rights] have been violated deliberate indifference & as well the objective component & subjective component." (Id.)
In the section of the FAC designated for supporting facts, Plaintiff alleges as follows:
On approximately 9-6-22, I put in for [a] medical request form via [illegible]. I was seen by medical staff (Mrs. Rios) in which she reffered [sic] me to x-ray, in which they discussed that I truely [sic] had a broken 2nd toe on my right foot. I was then seeing [sic] by (PA. Jarmen) in which he gave me a regimen of 2 weeks of toe tapeing [sic] to my 3rd toe on my right foot, with also a hardsole [sic] shoe, for my toe won't bend so it can heal correctly. 1) Well as of 9-18-22 I have only seen medical staff 3 times, date of 9-13-22
was my first toe tapeing [sic] & on 9-16-22 was my 2nd toe tapeing [sic], in which I didn't get the names of R/N or L.V.N, that did the tapeing [sic] & on 9-21-22 I received my 3rd toe tapeing [sic]. 2) As well as on 9-21-22 (Mrs. Rios) seeing that I haven't gotten my hardsole [sic] shoe, so she requested for me to get one. I filed a grievance on 9-18-22 & still till this day with negative response. 3) I was seeing [sic] by (R/N Mrs. April) on 9-19-22. She told me she can't refer [sic] me to see [an] orthopedic doctor nor [sic] she can't assign me medical soft shoes & chrono. Nor [sic] she can't give me copies of [the] medical file pertaining [to] my 2nd toe on right foot. 4) On 9-21-22, (R/N Mrs. Glenda) requested for me to receive medical soft shoe & chrono still with negative response. I also signed a paper to receive soft shoe & chrono & was asked my size 10.5 & submitted to (P.A. Jarmen). 5) (PA R/N Mrs. Rios) said I didn't meet criteria for medical soft shoes. 6) On 9-25-22 I was seen for my toe taping by (R/N). I asked RN for all copies of paperwork that partake with my toe with negative response. Say my lawyer need to request [sic].(Id.)
Plaintiff specifically complains that Defendants All Medical Staff "didn't follow prescribed regiemen [sic] by P.A. Jarmen," that Defendant R/N Mrs. April "would not schedule [Plaintiff] in to see orthopedic doctor nor [sic] didn't want to order medical soft shoe w/chrono," that Defendant P.A. R/N Mrs. Rios "refused to schedule [Plaintiff] in with orthopedic doctor & as well didn't obtain [for Plaintiff] a cane," and that Defendant P.A. Jarmen failed to "check[] if his own prescribed regiemen [sic] was being followed throughout his medical staff." (Id. at 3-4.) Plaintiff also alleges that Defendant Mrs. Glenda placed a wooden stick between Plaintiffs second and third toe on his right foot, and that she was unsuccessful in placing an order for soft medical shoes in Plaintiffs size. (Id. at 4.)
Plaintiff attached several exhibits to the FAC, including: (1) two grievances Plaintiff filed concerning his toe and the responses; and (2) a copy of an article in Medical News Today, dated January 9, 2022, entitled "How to treat a broken toe, and how to know if it is broken." (Id. at 7-17.) The article is thoroughly annotated by Plaintiff with comments and underlines highlighting Plaintiffs disagreement with the course of treatment he received. (Id. at 9-17.)
Plaintiff requests "propper [sic] medical attention in the form of a foot specialist preferably from the streets with experience so my 2nd right foot toe is propperly [sic] fixed." (Id. at 6.) Plaintiff also seeks an unnamed "large cash settlement for all the pain & suffering and because I now [will] need to get 2 pins on my 2nd right foot toe in which I have to resuffer [sic] the pain of haveing surguery [sic] & pins on my 2nd right toe as well [as] all expenses paid for propper [sic] treatment on my toe." (Id.) Plaintiff also seeks medical soft shoes size 10.5 or 11, and injunctive relief in the form of "mak[ing] sure anyone doesn't have to go [through] the pain & suffering like I am still going through." (Id.)
III. DISCUSSION
A. Plaintiff Fails to State an Eighth Amendment Deliberate Indifference Claim
1. Legal Standard
A prison official's deliberate indifference to an inmate's serious medical needs constitutes cruel and unusual punishment in violation of the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976). To state a claim for deliberate indifference to serious medical needs, a prisoner must show that he suffered a medical condition posing a risk of "objectively, sufficiently serious" harm and that the officials had a sufficiently culpable state of mind in denying the proper medical care. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). The test for deliberate indifference has two prongs, an objective component, and a subjective component. McGuckin v. Smith, 974 F.2d 1050 (9th Cir. 1991), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc).
To satisfy the objective component, the plaintiff must show a "serious" medical need. Doty v. County of Lassen, 37 F.3d 540. 546 (9th Cir. 1994). A "serious" medical need exists if the failure to treat a prisoner's condition could result in further significant injury or the "unnecessary and wanton infliction of pain." Id. (quoting McGuckin, 974 F.2d at 1059) Indicia of a serious medical need "include (1) the existence of an injury that a reasonable doctor would find important and worthy of comment or treatment, (2) the presence of a medical condition that significantly affects an individual's daily activities, and (3) the existence of chronic or substantial pain." Id. at 546 n.3 (citing McGuckin, 974 F.2d at 1059-60).
To satisfy the subjective component, the plaintiff must show that the defendant was aware of the medical need and defendant's response to the need was deliberately indifferent to a risk of serious harm to the Plaintiff. Farmer v. Brennan, 511 U.S. 825, 837 (1994); see also Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004). Deliberate indifference "may appear 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." McGuckin, 974 F.2d at 1059 (internal quotations omitted). "A defendant must purposefully ignore or fail to respond to a prisoner's pain or possible medical need in order for deliberate indifference to be established." Id. at 1060.
The inadvertent or negligent failure to provide adequate medical care does not itself state a claim under § 1983. Estelle, 429 U.S. at 105. Moreover, "[m]edical malpractice does not become a constitutional violation merely because the victim is a prisoner." Id. at 106. Even gross negligence is insufficient to establish a cognizable claim for deliberate indifference to serious medical needs. See Wood v. Housewright. 900 F.2d 1332. 1334 (9th Cir. 1990) To state a cognizable claim, a prisoner must allege deliberate acts sufficiently harmful such that the indifference would offend "evolving standards of decency." Estelle, 429 U.S. at 106. A mere difference of opinion on medical treatment is not enough to establish deliberate indifference so long as the care provided was medically acceptable. Homby v. Hammond, 821 F.3d 1085. 1092 (9th Cir. 2016).
To survive a motion to dismiss, the allegations against each defendant must satisfy both components of the deliberate indifference test. Holt v. Finander, No. CV 15-5089-JVS (KLS), 2017 WL 10543566, at *5 (CD. Cal. Mar. 23, 2017), report and recommendation adopted, 2017 WL 10543649 (CD. Cal. May 8, 2017).
2. Analysis
Here, to the extent that Plaintiff wishes to raise a claim for a constitutional violation arising from deliberate indifference to serious medical need, he has failed to correct the defects in the original Complaint. Specifically, Plaintiff fails to state a cognizable claim against the San Bernardino Sheriffs Department Medical Staff or any of the individual, named Defendants. Construing Plaintiff's pro se complaint liberally, Akhtar, 698 F.3d at 1212. the Court finds the FAC contains allegations sufficient to support a reasonable inference that Plaintiff injured or fractured the second toe on his right foot. However, the FAC fails to allege that any individual responsible for Plaintiffs medical care acted with deliberate indifference to a serious medical need.
With regard to the objective component, Plaintiff avers that on September 6, 2022, Defendant Rios referred Plaintiff for an x-ray, from which the facility's medical staff discovered that Plaintiffs second toe on his right foot was broken. (Dkt. No. 7 at 5.) Plaintiff was then seen by Defendant Jarmen, who ostensibly ordered Plaintiffs second toe taped to his third toe for two weeks and ordered Plaintiff a hard-soled shoe to wear so his toe would heal correctly. (Id.) From there, Plaintiff complains that the medical staff did not begin taping his toes until a week later and failed to re-tape his toe daily. (Id.) Plaintiff also alleges that he has never received a hard-soled shoes despite the fact that Defendant Rios made a request for Plaintiff to receive them. (Id.) Further, Plaintiff avers that on September 19, 2022, Defendant R/N Mrs. April told Plaintiff she could not refer him to an orthopedic doctor, assign him medical soft shoes, or provide any copies of the medical file regarding Plaintiffs injured toe. (Id.) Plaintiff claims that two days later, on September 21,2022, Defendant R/N Mrs. Glenda also made a request for Plaintiff to receive medical soft shoes, and that he even submitted his size, but that ultimately the request, submitted to Defendant Jarmen, was denied. Defendant PA R/N Mrs. Rios informed Plaintiff that he "didn't meet [the] criteria for medical soft shoes." (Id.) Plaintiffs principal exhibit, a copy of an article in Medical News Today, details ways to treat a broken toe and Plaintiff has handwritten numerous notes in the margins of that exhibit emphasizing his agreement with article and his disagreement with the course of treatment he has received from prison staff. (Id. at 9-17.)
These allegations - given liberal interpretation of Plaintiff's pro se pleading - support a reasonable inference that Plaintiff suffers from a serious medical need. See Valladares v. Hubbard, No. CV 07-441-R (PJW), 2011 WL 4434230. at *3 (CD. Cal. Aug. 26, 2011) ("As a threshold matter, ... the Court concludes that Plaintiffs broken toe constituted a serious medical need.") (citing Jett v. Penner, 439 F.3d 1091. 1096 n.l (9th Cir. 2006)).
However, as to the subjective component of the deliberate indifference analysis, the FAC fails to articulate how any individual acted with deliberate indifference. Indeed, the FAC accuses the prison's medical staff of failing to properly execute the course of treatment allegedly needed by Defendant Jarmen, but the FAC wholly fails allege any facts that demonstrate any individual responsible for Plaintiffs medical care acted with the requisite state of mind sufficient to raise a plausible inference that such individual(s) acted with deliberate indifference. (Dkt. No. 7 at 5.) Specifically, Plaintiff contends that Defendant R/N Mrs. April "would not schedule [Plaintiff] in to see orthopedic doctor nor [sic] didn't want to order medical soft shoe w/chrono," that Defendant P.A. R/N Mrs. Rios "refused to schedule [Plaintiff] in with orthopedic doctor & as well didn't obtain [for Plaintiff] a cane," that Defendant P.A. Jarmen failed to "check[] if his own prescribed regiemen [sic] was being followed throughout his medical staff," and that Defendant Mrs. Glenda placed a wooden stick between Plaintiffs second and third toe on his right foot, and that she was unsuccessful in placing an order for soft medical shoes in Plaintiffs size. (Id. at 3-4.)
Nowhere does the FAC - aside from merely articulating the words "deliberate indifference" - accuse any defendant of acting or failing to act based upon anything but the limitations of their authority. Indeed, Plaintiff states in the FAC that various staff members could not (as opposed to would not) fulfill his requests, in one case specifically because Plaintiff "didn't meet [the] criteria." (Id. at 5.) While Plaintiff does accuse Defendant R/N Mrs. April of not wanting to order him a medical soft shoe (id. at 3), Plaintiff also alleges that Defendant Mrs. April told him she could not refer him to an orthopedic doctor or assign him medical soft shoes. (Id. at 5.) The FAC contains no facts indicating any of the Defendants were acting or failing to act at any point out of deliberate indifference. Nor does the FAC accuse any defendant of intentionally denying, delaying, or interfering with Plaintiffs medical care based upon deliberate indifference to his serious medical need. At most, Plaintiff appears to be complaining about delays in re-taping his toes and the decision that he was not eligible for the shoes he was seeking. However, "a brief delay in providing medical care, without more, is insufficient to constitute an Eighth Amendment violation." Belvins v. San Bernardino County Sheriff's Dept., et al, No. CV 19-1247-MWF (AFM), 2019 WL 3255161. at *6 (CD. Cal. July 19, 2019) (citing Shapley v. Nevada Bd. of State Prison Com'rs, 766 F.2d 404. 407 (9th Cir. 1985)).
Moreover, as the Court has already explained, Plaintiff primarily takes issue with the course of treatment he has received concerning his injured toe, but a difference of opinion on medical treatment is not enough to establish deliberate indifference so long as the care provided was medically acceptable. Hamby, 821 F.3d at 1092. Plaintiff has not alleged deliberate acts or omissions on the part of any defendant that were sufficiently harmful such that the indifference would offend "evolving standards of decency." Estelle, 429 U.S. at 106.
For these reasons, the sole claim in the FAC is subject to dismissal.
B. Plaintiff Fails to State a Claim Against State Officials Acting in Their Official Capacities
1. Legal Standard
An "official-capacity suit is, in all respects other than name, to be treated as a suit against the entity" and not against the official personally. Kentucky v. Graham, 473 U.S. 159. 166 (1985). Since "the real party in interest in an official-capacity suit is the governmental entity and not the named official, the entity's policy or custom must have played a part in the violation of federal law." Hafer v. Melo, 502 U.S. 21. 25 (1991) (internal quotation marks and citations omitted); Hartmann v. Cal. Dep't of Corr. & Rehab., 707 F.3d 1114. 1127 (9th Cir. 2013) (a "plaintiff seeking injunctive relief against the State is not required to allege a named official's personal involvement in the acts or omissions constituting the alleged constitutional violation. Rather, a plaintiff need only identify the law or policy challenged as a constitutional violation and name the official within the entity who can appropriately respond to injunctive relief").
2. Analysis
Even if the Court could find that Plaintiff plausibly states a cognizable Eighth Amendment claim of deliberate indifference, his allegations against Defendants in their official capacities must be dismissed. The FAC, just as the original Complaint did, makes no allegations that any defendant was following a policy or custom that gave rise to a constitutional violation. Hafer, 502 U.S. at 25. Accordingly, Plaintiffs claims against Defendants in their official capacities fail and must also be dismissed.
IV. CONCLUSION
For the reasons stated above, the FAC is dismissed with leave to amend. If Plaintiff still wishes to pursue this action, he is granted thirty (30) days from the date of this Memorandum and Order within which to file a Second Amended Complaint. In any amended complaint, Plaintiff shall cure the defects described above.
Plaintiff shall not include new defendants or new allegations that are not reasonably related to the claims asserted in the original Complaint. Further, the Second Amended Complaint, if any, shall be complete in itself and shall bear both the designation "Second Amended Complaint" and the case number assigned to this action. It shall not refer in any manner to Plaintiffs earlier pleadings, and claims that are not expressly included in the Second Amended Complaint shall be deemed abandoned.
In any amended complaint, Plaintiff may not rely on conclusory allegations and formulaic recitations of applicable law, and may not allege that negligence, medical malpractice, or disagreements about medical treatment among medical professionals constitute a claim of deliberate indifference to serious medical needs under the Eighth Amendment. Plaintiff shall also make clear the nature and grounds for each claim, specifically identify the individual defendants he maintains are liable for that claim, and clearly and concisely explain the factual and legal basis for their liability. Finally, Plaintiff shall not include any claims against state officials in their official capacities without articulating the policy under which they acted or failed to act. Plaintiff is strongly encouraged to utilize the Central District's standard civil rights complaint form when filing any amended complaint.
Plaintiffs failure to timely comply with this Order may result in a recommendation of dismissal. If Plaintiff no longer wishes to pursue this action, in whole or in part, he may voluntarily dismiss it, or any portion of it, by filing a signed document entitled "Notice of Dismissal" in accordance with Federal Rule of Civil Procedure 41(a)(1). Finally, if Plaintiff does not cure the defects identified by the Court after being afforded this second attempt to do so, the Court will issue a Report recommending dismissal.
THIS MEMORANDUM IS NOT INTENDED NOR IS IT INTENDED TO BE INCLUDED IN OR SUBMITTED TO ANY ONLINE SERVICE SUCH AS WESTLAW OR LEXIS.