Opinion
No. CV 1:07-0982-SMM.
May 20, 2011
ORDER
On March 3, 2011, the Court dismissed Plaintiff's Second Amended Complaint for failure to state a claim with leave to file a Third Amended Complaint. (Doc. 34.) Plaintiff filed his Third Amended Complaint on April 29, 2011. (Doc. 37.) The Court will now conduct statutory screening of Plaintiff's Third Amended Complaint pursuant to 28 U.S.C. § 1915A.
All claims alleged in Plaintiff's prior complaints are waived if they are not alleged in his Third Amended Complaint. See Hal Roach Studios v. Richard Feiner Co., 896 F.2d 1542, 1546 (9th Cir. 1990) ("an amended pleading supersedes the original"); King v. Atiyeh, 814 F.2d 565 (9th Cir. 1987). After amendment, the Court treats the prior complaints as nonexistent. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Accordingly, the Court will consider only those claims specifically asserted in Plaintiff's Third Amended Complaint (Doc. 29).
BACKGROUND
On July 10, 2007, Plaintiff brought suit alleging violations of California law and his First and Eighth Amendment rights under the United States Constitution in ten claims for relief. (Doc. 1.) The Court's Screening Order dismissed Plaintiff's Complaint for failure to state a claim with leave to file an amended complaint. (Doc. 9.) On August 31, 2009, Plaintiff filed a First Amended Complaint alleging eight claims for relief. (Doc. 10.) The Court's Screening Order dismissed all but two of Plaintiff's claims. (Doc. 11.) On October 15, 2010, Plaintiff filed a Second Amended Complaint without first seeking leave of the Court or receiving Defendant's consent (Doc. 18). That Second Amended Complaint was stricken on November 10, 2010 as improperly filed. (Doc. 21.) On December 10, 2010, Plaintiff filed his Motion for Leave to Amend Complaint (Doc. 27) and lodged his Second Amended Complaint, alleging thirteen claims against fifteen Defendants (Doc. 29). The Court granted Plaintiff leave to amend, but after conducting statutory screening pursuant to 28 U.S.C. § 1915A, dismissed Plaintiff's Second Amended Complaint for failure to state a claim with leave to file a Third Amended Complaint. (Doc. 34.) On April 29, 2011, Plaintiff filed his Third Amended Complaint. (Doc. 37.) In this Order the Court will conduct statutory screening pursuant to 28 U.S.C. § 1915A.LEGAL STANDARD
Complaints brought by prisoners seeking redress from a governmental entity, officer, or employee of a governmental entity must be screened by the Court. 28 U.S.C. § 1915A(a). If the complaint is "frivolous, malicious, or fails to state a claim upon which relief may be granted" or "seeks monetary relief from a defendant who is immune from such relief," the complaint, or a portion thereof, must be dismissed. 28 U.S.C. § 1915A(b)(1), (2).
"A pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a). Even though a complaint subject to dismissal for failure to state a claim is not required to provide "detailed factual allegations," a plaintiff must present more than labels and conclusions, or a formulaic recitation of the elements of the asserted cause of action. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A plaintiff must state enough facts so that the claim is plausible on its face. Id. at 570. The Supreme Court does not require a heightened pleading standard, just enough facts to push the claim across the threshold of conceivable to plausible. Id.
Prior to Twombly, the standard of review for failure to state a claim was established by Conley v. Gibson, 355 U.S. 41 (1957). The Court in Conley held that a complaint may only be dismissed for failure to state a claim if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id. at 45-46; Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). AfterTwombly, however, it was unclear if the new plausibility standard applied to all civil complaints or only to antitrust complaints. Recently, the Supreme Court clarified the scope of the Twombly holding by reiterating that it applied to all civil actions.Ashcroft v. Iqbal, 129 S.Ct. 1937, 1953 (2009) ("Our decision inTwombly expounded the pleading standard for 'all civil actions.'").
The Court will treat all allegations of material fact in the complaint as true and construe the complaint in the light most favorable to the plaintiff. W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). But "conclusory allegations of law and unwarranted inferences are insufficient." Ove v. Gwinn, 264 F.3d 817, 821 (9th Cir. 2001) (citing Associated Gen. Contractors v. Metro. Water Dist. of S. Cal., 159 F.3d 1178, 1187 (9th Cir. 1998)). When evaluating claims under Twombly and Iqbal, courts must "continue to construe pro se filings liberally." Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). If the Court finds that the plaintiff does not allege enough facts to support a cognizable legal theory, the Court may dismiss the claim.SmileCare Dental Grp. v. Delta Dental Plan of Cal., Inc., 88 F.3d 780, 783 (9th Cir. 1996).
DISCUSSION
In his Third Amended Complaint, Plaintiff sues the following Defendants: (1) California Correctional Institution ("CCI") Chief Medical Officer Harold Tate; (2) CCI Staff Physician C. O'Brien; and (3) CCI Medical Appeals Analyst L. Bluford. (Doc. 37 at 1.) Plaintiff's Second Amended Complaint alleges violations of the Eighth Amendment under the United States Constitution and of California law in four claims for relief. (Doc. 37 at 4-11.) Counts I alleges that Defendant O'Brien violated the Eighth Amendment through deliberate indifference to Plaintiff's need for treatment of his gastrointestinal pain. (Doc. 37 at 4-8.) Count II alleges that Defendants Bluford, O'Brien, and Tate violated California law by failing to summon immediate medical care for Plaintiff. (Doc. 37 at 8-9.) Count III alleges that Defendant O'Brien violated California law by failing to meet the required medical standard of care. (Doc. 37 at 9-10.) Count IV alleges that Defendant O'Brien violated the Eighth Amendment through deliberate indifference to Plaintiff's need for treatment of his gastrointestinal tract problems. (Doc. 37 at 9-13.) Plaintiff seeks declaratory, injunctive, and monetary relief. (Doc. 37 at 1.)
I. Plaintiff's Eighth Amendment Claims
Not every prisoner claim of inadequate medical treatment states a violation of the Eighth Amendment. To state a § 1983 medical claim, a plaintiff must show that the defendants acted with "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)). A plaintiff must show (1) "'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 "was deliberately indifferent." Jett, 439 F.3d at 1096 (quoting McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1991)).
To act with deliberate indifference, a prison official must both know of and disregard an excessive risk to inmate health; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists and he must also draw the inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). Deliberate indifference in the medical context may be shown by a purposeful act or failure to respond to a prisoner's pain or possible medical need and harm caused by the indifference. Jett, 439 F.3d at 1096. Deliberate indifference may also be shown when a prison official intentionally denies, delays, or interferes with medical treatment or by the way prison doctors respond to the prisoner's medical needs. Estelle, 429 U.S. at 104-05; Jett, 439 F.3d at 1096.
Deliberate indifference is a higher standard than negligence or lack of ordinary due care for the prisoner's safety. Farmer, 511 U.S. at 835. "Neither negligence nor gross negligence will constitute deliberate indifference." Clement v. Cal. Dep't Corrs., 220 F. Supp. 2d 1098, 1105 (N.D. Cal. 2002);see also Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980) (mere claims of "indifference," "negligence," or "medical malpractice" do not support a claim under § 1983). "[A] mere 'difference of medical opinion . . . [is] insufficient, as a matter of law, to establish deliberate indifference.'" Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). A mere delay in medical care, without more, is insufficient to state a claim against prison officials for deliberate indifference. See Shapley v. Nev. Bd. State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985). The indifference must be substantial. The action must rise to a level of "unnecessary and wanton infliction of pain." Estelle, 429 U.S. at 105-06.
A. Count I
Plaintiff's Count I alleges an Eighth Amendment violation because Defendant O'Brien allegedly failed to properly treat Plaintiff's complaints of pain. (Doc. 37 at 4.) Plaintiff allegedly first saw Defendant O'Brien in February or March 2006 with complaints of rectal bleeding, abnormal bowel movements, abdominal pains, abdominal cramping, temporary spasms, and painful bowel movements. (Doc. 37 at 4.) During that visit, Plaintiff claims that Defendant O'Brien prescribed a stool softener but denied his request for a colonoscopy because he first needed to see stool test results. (Doc. 37 at 5.) On or about April 17, 2006, Defendant O'Brien allegedly told Plaintiff that the stool test results were "positive." (Doc. 37 at 5.) Plaintiff also allegedly complained that the stool softener had not helped, causing Defendant O'Brien to order a blood test and prescribe a stronger stool softener. (Doc. 37 at 5.) And Defendant O'Brien allegedly denied Plaintiff's request for pain medication based upon Plaintiff's medical condition. (Doc. 37 at 5.)
On May 18, 2006, Defendant O'Brien allegedly told Plaintiff that Plaintiff had the Helicobacter pylori (H. pylori) intestinal bacteria. (Doc. 37 at 5.) Defendant O'Brien then prescribed Plaintiff various medications, denied Plaintiff's request for pain medication based upon Plaintiff's medical condition, and ordered a colonoscopy. (Doc. 37 at 5.) Plaintiff alleges that his February 13, 2007 colonoscopy revealed one internal hemorrhoid and three small ruptures of his long intestine. (Doc. 37 at 7.) On May 18, 2007, Defendant O'Brien allegedly advised Plaintiff that the rupture was caused by constipation, and advised certain dietary restrictions for Plaintiff, but again stated that he could not prescribe Plaintiff pain medication given Plaintiff's medical condition. (Doc. 37 at 7.)
The Court finds that Plaintiff's allegations in Count I that Defendant O'Brien failed to treat Plaintiff's pain fails to state a claim. Rather, Plaintiff's allegations suggest nothing more than a disagreement with Defendant O'Brien's considered judgment about the appropriate course of diagnosis and treatment of Plaintiff's medical conditions. Plaintiff's factual allegations reflect that he received consistent and regular treatment, testing, and monitoring of his gastrointestinal condition. Defendant O'Brien initially treated Plaintiff with a stool softener, and treatment was adjusted when Plaintiff complained that his symptoms had not abated. (Doc. 37 at 5-8.) Diagnostic testing also started with Plaintiff's first visit and additional tests and medications were ordered when the need for them became apparent. (Doc. 37 at 5-8.)
When Defendant O'Brien denied Plaintiff his requested pain medication, Defendant O'Brien explained to Plaintiff that such medication would be inappropriate given Plaintiff's medical condition. (Doc. 37 at 5, 7.) Defendant O'Brien placed Plaintiff on numerous medications and treatment regimes in an attempt to ease Plaintiff's symptoms. (Doc. 37 at 5-8.) Plaintiff appears to argue that Defendant O'Brien should have interrupted this course of treatment in favor of one that would have enabled Plaintiff to receive his preferred pain medication. (Doc. 37 at 5-8.)
To prevail on a claim involving choices between alternative courses of treatment, a prisoner must show that the course of treatment the doctor chose was medically unacceptable in light of the circumstances and that it was chosen in conscious disregard of an excessive risk to the prisoner's health. See Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996). Plaintiff's allegations do not support a plausible inference that Defendant O'Brien consciously disregarded an excessive risk to Plaintiff's health. See Toguchi, 391 F.3d at 1060. Instead, the allegations suggest that Defendant O'Brien consistently exercised his judgment in an attempt to balance the need to treat Plaintiff's condition while easing his symptoms and pain. At most, Plaintiff's allegations give rise to an inference that Defendant O'Brien may have been negligent in not prescribing certain pain medications. But a "showing of medical malpractice or negligence is insufficient to establish a constitutional deprivation under the Eighth Amendment." Id. Plaintiff's pain allegation against Defendant O'Brien cannot support a cognizable Eighth Amendment claim, and the Court will dismiss Count I with prejudice.
B. Count IV
Counts II and III allege state law claims. These claims will be addressed later in this Order.
Count IV alleges that Defendant O'Brien violated Plaintiff's Eighth Amendment rights by choosing a course of treatment that posed an excessive risk to Plaintiff's health. (Doc. 37 at 10.) On October 18, 2006, Plaintiff allegedly told Defendant O'Brien that he suspected that he was having side-effects from his Proton Pump Inhibitor ("PPI") medication, and that he was suffering from dry mouth and throat, swollen saliva glands, dizzy spells, sore throat, pain in his chest and upper abdomen, acid reflux, and vomiting. (Doc. 37 at 10-11.) In response, Defendant O'Brien allegedly discontinued Plaintiff's PPIs and prescribed him liquid Maalox. (Doc. 37 at 11.) On February 6, 2007, Plaintiff allegedly informed Defendant O'Brien that most of his symptoms had subsided, but that he was suffering from irregular bowel movements, chest pains, dry mouth and throat, and acid reflux. (Doc. 37 at 11.)
On an unspecified later date, Plaintiff allegedly told Defendant O'Brien that he still had these symptoms and that his bowel movements were becoming hard again. (Doc. 37 at 11.) Although Plaintiff believed he would receive new medications, Plaintiff allegedly received the same medications he had taken previously. (Doc. 37 at 11.) Plaintiff states that he then suffered an allergic reaction, which allegedly caused swelling of his body, "extreme" swelling of his left arm, and difficulty breathing. (Doc. 37 at 11.) Plaintiff was then taken to a clinic and given antihistamines by an unnamed nurse. (Doc. 37 at 12.) Plaintiff alleges that Defendant O'Brien's failure to properly document Plaintiff's drug allergies in Plaintiff's medical file caused the allergic reaction. (Doc. 37 at 12.)
The Court finds, incorporating the same reasoning set forth in part I.A of this Order, that Plaintiff's Count IV fails to state a claim. At most, Plaintiff's allegations that Defendant O'Brien failed to adequately treat and document his allergies constitutes negligence, which is insufficient to support an Eighth Amendment claim. Broughton, 622 F.2d at 460. Plaintiff's allegations cannot support a plausible inference that Defendant O'Brien was subjectively aware of and consciously disregarded an excessive risk to Plaintiff's health. See Toguchi, 391 F.3d at 1060. Therefore, the Court will dismiss Count IV with prejudice.
II. Plaintiff's State Law Claims
Plaintiff's Counts II and III allege violations of California law. (Doc. 37 at 8-10.) Under 28 U.S.C. § 1367(a), subject to exceptions which are not relevant here, the district courts has supplemental jurisdiction over state law claims in any civil action in which the district courts also have original federal jurisdiction over all other claims in the case. But "once judicial power exists under § 1367(a), retention of supplemental jurisdiction over state law claims under § 1367(c) is discretionary." Acri v. Varian Assoc., Inc., 114 F.3d 999, 1000 (9th Cir. 1997) (en banc). "The district court may decline to exercise supplemental jurisdiction over a claim under subsection (a) if . . . the district court has dismissed all claims over which it has original jurisdiction." 28 U.S.C. § 1367(c)(3). Moreover, the Supreme Court has cautioned that "if the federal claims are dismissed before trial, . . . the state claims should be dismissed as well." United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966).
Here, the Court has dismissed Counts I and IV of Plaintiff's Third Amended Complaint, which alleged violations of the Eighth Amendment of the United States Constitution. All that remains of Plaintiff's Third Amended Complaint are Counts II and III, which allege violations of California state law. The Court will not exercise jurisdiction over Plaintiff's state law claims because Plaintiff has failed to allege a viable federal claim in his Third Amended Complaint. Gibbs, 383 U.S. at 726; 28 U.S.C. § 1367(c)(3). Therefore, Plaintiff's Counts II and III are dismissed.
CONCLUSION
IT IS HEREBY ORDERED DISMISSING Plaintiff's Third Amended Complaint for failure to state a claim with prejudice.
DATED this 18th day of May, 2011.