(PC) Abdullah v. Dacuycuy

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 HANIF S. ABDULLAH, No. 2:19-cv-0804 TLN DB P

12 Plaintiff,

13 v. ORDER

14 DACUYCUY, et al.,

15 Defendants.

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17 Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C.

18 § 1983 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This

19 proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

20 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C.

21 § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.

22 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C.

23 §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in

24 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct

25 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and

26 forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments

27 of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account.

28 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time

1 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C.

2 § 1915(b)(2).

3 I. Screening Requirement

4 The in forma pauperis statute provides, “Notwithstanding any filing fee, or any portion

5 thereof, that may have been paid, the court shall dismiss the case at any time if the court

6 determines that . . . the action or appeal . . . fails to state a claim upon which relief may be

7 granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

8 II. Pleading Standard

9 Section 1983 “provides a cause of action for the deprivation of any rights, privileges, or

10 immunities secured by the Constitution and laws of the United States.” Wilder v. Virginia Hosp.

11 Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of

12 substantive rights, but merely provides a method for vindicating federal rights conferred

13 elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989).

14 To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a

15 right secured by the Constitution or laws of the United States was violated and (2) that the alleged

16 violation was committed by a person acting under the color of state law. See West v. Atkins, 487

17 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987).

18 A complaint must contain “a short and plain statement of the claim showing that the

19 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not

20 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

21 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell

22 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual

23 matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. Facial

24 plausibility demands more than the mere possibility that a defendant committed misconduct and,

25 while factual allegations are accepted as true, legal conclusions are not. Id. at 677-78.

26 III. Plaintiff’s Allegations

27 Plaintiff’s allegations arose while he was incarcerated at California Health Care Facility

28 (“CHCF”) in Stockton, California. He names the following individual defendants: Registered

1 Nurse (“RN”) Dacuyuy, RN Kristen, RN Imatong, RN R. Hortizuela, RN Jessica Halepota, RN

2 Postadan, and RN Debra Mutopo. Plaintiff brings a claim for violation of his Eighth Amendment

3 rights and a state law “intentional negligence” claim. He seeks damages.

4 Plaintiff’s allegations may be fairly summarized as follows:

5 On July 16, 2018, plaintiff underwent a total right-knee replacement surgery at Sonoma

6 Valley Hospital (“SVH”) by Dr. Michael Brown. Plaintiff was discharged back to CHCF on July

7 18, 2018, with discharge orders from Dr. Brown that plaintiff be provided a waterproof bandage

8 any time he showered.

9 Between July 19, 2018, and August 13, 2018, the seven named registered nurses were

10 assigned to provide plaintiff with post-operative care. At least three of these seven nurses did not

11 comply with Dr. Brown’s discharge order by refusing to provide a waterproof bandage when

12 plaintiff showered. As a result, plaintiff’s surgical wound became infected within a week.

13 On July 30, 2018, plaintiff’s wound became “noticeably infected”: swollen and discolored

14 (deep red in color). Between July 30, 2018, and August 6, 2018, at least two of the surgical

15 staples burst open and pus-like fluid began to ooze from the infected wound. The wound

16 continued to discharge large amounts of pus-like fluid mixed with varying amounts of blood.

17 Within one-to-two days of the first signs of infection, plaintiff became increasingly unaware of

18 his surroundings and his infection.

19 On August 13, 2018, plaintiff saw Dr. Brown in a tele-medicine appointment during

20 which the doctor “was horrified to see the week-long process in [plaintiff’s] knee.” Almost

21 immediately, plaintiff was transported to the SVH emergency room where Dr. Brown operated on

22 plaintiff that same day. This surgery required Dr. Brown to remove the permanent knee-

23 replacement, scrape out the infected and necrotic tissue from the knee cavity, clean out the cavity,

24 and insert a temporary knee-replacement. Dr. Brown determined that plaintiff had two pathogens

25 in his infected knee that took three months to clear. During that time, plaintiff lost approximately

26 18 pounds, suffered further pain and injury, and was forced to endure a second knee replacement

27 surgery.

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1 Plaintiff later underwent a second right-knee replacement at SVH, following which the

2 registered nurses assigned to his care at CHCF ensured that his wound was covered with a

3 waterproof bandage during each shower.

4 IV. Discussion

5 A. Eighth Amendment Medical Indifference

6 Where a prisoner’s Eighth Amendment claims arise in the context of medical care, the

7 prisoner must allege and prove “acts or omissions sufficiently harmful to evidence deliberate

8 indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). An Eighth

9 Amendment medical claim has two elements: “the seriousness of the prisoner’s medical need and

10 the nature of the defendant’s response to that need.” McGuckin v. Smith, 974 F.2d 1050, 1059

11 (9th Cir. 1991), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th

12 Cir. 1997) (en banc).

13 A serious medical need exists if the failure to treat the condition could result in further

14 significant injury or the unnecessary and wanton infliction of pain. Jett v. Penner, 439 F.3d 1091,

15 1096 (9th Cir. 2006). To act with deliberate indifference, a prison official must both be aware of

16 facts from which the inference could be drawn that a substantial risk of serious harm exists, and

17 he must also draw the inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). Thus, a defendant

18 is liable if he knows that plaintiff faces “a substantial risk of serious harm and disregards that risk

19 by failing to take reasonable measures to abate it.” Id. at 847. “It is enough that the official acted

20 or failed to act despite his knowledge of a substantial risk of harm.” Id. at 842.

21 In applying this standard, the Ninth Circuit has held that before it can be said that a

22 prisoner’s civil rights have been abridged, “the indifference to his medical needs must be

23 substantial. Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this cause

24 of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle,

25 429 U.S. at 105–06). “[A] complaint that a physician has been negligent in diagnosing or treating

26 a medical condition does not state a valid claim of medical mistreatment under the Eighth

27 Amendment. Medical malpractice does not become a constitutional violation merely because the

28 victim is a prisoner.” Estelle, 429 U.S. at 106; see also Anderson v. County of Kern, 45 F.3d

1 1310, 1316 (9th Cir. 1995). Even gross negligence is insufficient to establish deliberate

2 indifference to serious medical needs. See Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir.

3 1990). Additionally, a prisoner’s mere disagreement with diagnosis or treatment does not support

4 a claim of deliberate indifference. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989).

5 Delays in providing medical care may manifest deliberate indifference. Estelle, 429 U.S.

6 at 104-05. To establish a claim of deliberate indifference arising from a delay in providing care, a

7 plaintiff must show that the delay was harmful. See Berry v. Bunnell, 39 F.3d 1056, 1057 (9th

8 Cir. 1994); McGuckin, 974 F.2d at 1059; Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir.

9 1990); Shapley v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). In this

10 regard, “[a] prisoner need not show his harm was substantial; however, such would provide

11 additional support for the inmate’s claim that the defendant was deliberately indifferent to his

12 needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); see also McGuckin, 974 F.2d at

13 1060. In addition, a physician need not fail to treat an inmate altogether in order to violate that

14 inmate’s Eighth Amendment rights. Ortiz v. City of Imperial, 884 F.2d 1312, 1314 (9th Cir.

15 1989) (per curiam). A failure to competently treat a serious medical condition, even if some

16 treatment is prescribed, may constitute deliberate indifference in a particular case. Id.

17 Plaintiff has a compelling claim for medical indifference. The problem, though, is his

18 inability to identify which of the named defendants allegedly violated his constitutional rights.

19 The seven registered nurses who are named in this action worked at CHCF during the relevant

20 period, but plaintiff admits that he is not certain which of these nurses was actually involved in

21 his health care because prison officials have refused to provide him with a list of the nurses who

22 actually cared for him or any of the Nurse’s Progress Notes concerning his post-surgical care.

23 Indeed, plaintiff claims that “[t]here are possibly others.”

24 Under § 1983, the plaintiff must demonstrate that each named defendant personally

25 participated in the deprivation of his rights. Iqbal, 556 U.S. at 676-77 Simmons v. Navajo

26 County, 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235

27 (9th Cir. 2009).

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1 Since plaintiff has been unable to specify the proper individuals, his Eighth Amendment

2 claims may not proceed. However, he will be given an opportunity to amend this claim to

3 properly identify those individuals who provided medical care to him post-surgery.

4 B. California State Law “Intentional Negligence”

5 Plaintiff’s second claim alleges that the defendants were “intentionally negligent” in

6 violation of California law. California does not have an “intentional negligent” claim. Insofar as

7 plaintiff seeks to present a negligence cause, the elements of it are: “(1) a legal duty to use due

8 care; (2) a breach of such legal duty; (3) the breach was the proximate or legal cause of the

9 resulting injury; and (4) actual loss or damage resulting from the breach of the duty of care.”

10 Megargee v. Wittman, 550 F. Supp. 2d 1190, 1209 (E.D. Cal. 2008) (citations omitted)).

11 This claim is also subject to dismissal because plaintiff has not pled compliance with the

12 California Government Claims Act (“GCA”), which requires filing a claim with the California

13 Victim’s Compensation Government Claim Board prior to filing a lawsuit against a state

14 employee or entity. Cal. Gov’t Code §§ 905.2, 911.2, 945.2, 950.2; Munoz v. California, 33 Cal.

15 App. 4th 1767, 1776 (1995). Presentation of a written claim, and action on or rejection of the

16 claim are conditions precedent to suit. State v. Superior Court of Kings Cnty. (Bodde), 32 Cal. 4th

17 1234, 1239 (Cal. 2004); Mabe v. San Bernardino Cnty. Dep’t of Pub. Soc. Servs., 237 F.3d 1101,

18 1111 (9th Cir. 2001); Mangold v. California Pub. Utils. Comm’n, 67 F.3d 1470, 1477 (9th Cir.

19 1995).

20 Thus, in order to state a tort claims against a public employee, plaintiff must allege

21 compliance with the GCA and if he failed to comply, he may not bring any state law tort claims

22 in this action, regardless of the merits of those claims. Bodde, 32 Cal. 4th at 1239; Mangold, 67

23 F.3d at 1477; Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 627 (9th Cir. 1988). The

24 requirement that a plaintiff asserting claims subject to the GCA must affirmatively allege

25 compliance with the claims filing requirement applies in federal court as well. Karim-Panahi, 839

26 F.2d at 627.

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1 V. Conclusion

2 Plaintiff’s complaint fails to state a claim on which relief may be granted. The Court will

3 grant plaintiff an opportunity to file an amended complaint. Noll v. Carlson, 809 F.2d 1446, 1448-

4 49 (9th Cir. 1987). If plaintiff does not wish to amend, he may instead file a notice of voluntary

5 dismissal, and the action then will be terminated by operation of law. Fed. R. Civ. P. 41(a)(1)(A)(i).

6 Alternatively, plaintiff may forego amendment and notify the Court that he wishes to stand on his

7 complaint. See Edwards v. Marin Park, Inc., 356 F.3d 1058, 1064-65 (9th Cir. 2004) (plaintiff may

8 elect to forego amendment). If the last option is chosen, the undersigned will issue findings and

9 recommendations to dismiss the complaint, plaintiff will have an opportunity to object, and the

10 matter will be decided by a District Judge.

11 If plaintiff opts to amend, he must demonstrate that the alleged acts resulted in a deprivation

12 of his constitutional rights. Iqbal, 556 U.S. at 677-78. Plaintiff must set forth “sufficient factual

13 matter . . . to ‘state a claim that is plausible on its face.’” Id. at 678 (quoting Twombly, 550 U.S. at

14 555 (2007)). Plaintiff should note that although he has been granted the opportunity to amend his

15 complaint, it is not for the purposes of adding new and unrelated claims. George v. Smith, 507 F.3d

16 605, 607 (7th Cir. 2007). Plaintiff should carefully review this screening order and focus his efforts

17 on curing the deficiencies set forth above.

18 Finally, plaintiff is advised that Local Rule 220 requires that an amended complaint be

19 complete in itself without reference to any prior pleading. As a general rule, an amended complaint

20 supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once an

21 amended complaint is filed, the original complaint no longer serves a function in the case. Id.

22 Therefore, in an amended complaint, as in an original complaint, each claim and the involvement

23 of each defendant must be sufficiently alleged. The amended complaint should be clearly titled, in

24 bold font, “First Amended Complaint,” reference the appropriate case number, and be an original

25 signed under penalty of perjury. Plaintiff’s amended complaint should be brief. Fed. R. Civ. P. 8(a).

26 Although accepted as true, the “[f]actual allegations must be [sufficient] to raise a right to relief

27 above the speculative level . . . .” Twombly, 550 U.S. at 555 (citations omitted).

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1 Accordingly, it is HEREBY ORDERED that:

2 1. Plaintiffs request for leave to proceed in forma pauperis is granted

3 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action.

4 Plaintiff is assessed an initial partial filing fee in accordance with the provisions of

5 28 U.S.C. § 1915(b)(1). All fees shall be collected and paid in accordance with

6 this court’s order to the Director of the California Department of Corrections and

7 Rehabilitation filed concurrently herewith.

8 3. Within thirty days from the date of service of this order, plaintiff must file either:

9 a. a first amended complaint curing the deficiencies identified by the Court in this

10 order. If plaintiff intends to pursue this option but remains unable to properly

11 identify the nurses who treated him because prison officials continue to deny

12 him access to his own medical records, plaintiff shall submit a notice to that

13 effect;

14 b. anotice of election to stand on the complaint; or

15 c. anotice of voluntary dismissal, and

16 4. If plaintiff fails to respond to this Order, the Court will recommend the action be

17 dismissed, with prejudice, for failure to obey a court order and failure to state a

18 claim.

19 | Dated: J anuary 28, 2020

21

-BORAH BARNES

UNITED STATES MAGISTRATE JUDGE

23 | sper;

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