# (PC) Hernandez v. Borbolla

> District Court, E.D. California · June 4, 2020

URL: https://www.frixlaw.com/law-library/cases/10019579

## Case

- **Court:** District Court, E.D. California
- **Decided:** June 4, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

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11 BRIAN HERNANDEZ, CASE NO. 1:19-cv-1698 JLT (PC)

12 Plaintiff, ORDER DIRECTING PLAINTIFF TO
FILE A RESPONSE
13 v. (Doc. 1)

14 OLIVIA BORBOLLA, et al., THIRTY-DAY DEADLINE

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Defendants.
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17 Plaintiff has filed a complaint asserting constitutional claims against governmental employees
18 and/or entities. (Doc. 1.) Generally, the Court is required to screen such complaints (28 U.S.C.
19 § 1915A(a)) and dismiss a complaint or portion thereof if the prisoner has raised claims that are
20 legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that
21 seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),
22 (2); 28 U.S.C. § 1915(e)(2)(B)(ii) [“Notwithstanding any filing fee, or any portion thereof, that may
23 have been paid, the court shall dismiss the case at any time if the court determines that . . . the action
24 or appeal . . . fails to state a claim upon which relief may be granted.”]
25 I. Pleading Standard
26 A complaint must contain “a short and plain statement of the claim showing that the pleader
27 is entitled to relief. . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but
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1 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
2 do not suffice,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly,
3 550 U.S. 544, 555 (2007)), and courts “are not required to indulge unwarranted inferences,” Doe I
4 v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation
5 omitted). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 556 U.S.
6 at 678.
7 Prisoners may bring § 1983 claims against individuals acting “under color of state law.”
8 See 42 U.S.C. § 1983, 28 U.S.C. § 1915(e) (2)(B)(ii). Under § 1983, Plaintiff must demonstrate that
9 each defendant personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d
10 930, 934 (9th Cir. 2002). This requires the presentation of factual allegations sufficient to state a
11 plausible claim for relief. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969
12 (9th Cir. 2009). Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings
13 liberally construed and to have any doubt resolved in their favor, Hebbe v. Pliler, 627 F.3d 338, 342
14 (9th Cir. 2010) (citations omitted), but nevertheless, the mere possibility of misconduct falls short
15 of meeting the plausibility standard, Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.
16 II. Plaintiff’s Allegations
17 Plaintiff brings an Eighth Amendment medical indifference claim against Dr. John Pearce
18 and Registered Nurse Olivia Borbolla, both employed at California State Prison in Corcoran,
19 California at all times relevant to this action. Plaintiff seeks damages.
20 Plaintiff alleges that on January 7, 2019, Dr. Pearce diagnosed Plaintiff with rheumatoid
21 arthritis and prescribed Naproxen without conducting preliminary tests to determine whether
22 Plaintiff would be susceptible to any side effects. Subsequently, Plaintiff developed severe
23 abdominal pains.
24 On January 25, 2019, Plaintiff met with RN Borbolla regarding the pain, but she insisted it
25 was only a stomach virus; she did not order any lab tests. He saw her a second time regarding the
26 pain on January 31 and insisted that she order tests. On Plaintiff’s third visit to medical on February
27 5, Dr. Pearce misread the test results and informed Plaintiff that his appendix was causing the pain.
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1 Somehow, Plaintiff was then referred to the emergency room where the doctor read the labs and
2 immediately sent Plaintiff to an outside hospital. There, it was determined that bleeding ulcers
3 caused by the Naproxen were causing the severe abdominal pains.
4 III. Discussion
5 Where a prisoner’s Eighth Amendment claims arise in the context of medical care, the
6 prisoner must allege and prove “acts or omissions sufficiently harmful to evidence deliberate
7 indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). An Eighth
8 Amendment medical claim has two elements: “the seriousness of the prisoner’s medical need and
9 the nature of the defendant’s response to that need.” McGuckin v. Smith, 974 F.2d 1050, 1059
10 (9th Cir. 1991), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th
11 Cir. 1997) (en banc).
12 A serious medical need exists if the failure to treat the condition could result in further
13 significant injury or the unnecessary and wanton infliction of pain. Jett v. Penner, 439 F.3d 1091,
14 1096 (9th Cir. 2006). To act with deliberate indifference, a prison official must both be aware of
15 facts from which the inference could be drawn that a substantial risk of serious harm exists, and
16 he must also draw the inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). Thus, a defendant
17 is liable if he knows that plaintiff faces “a substantial risk of serious harm and disregards that risk
18 by failing to take reasonable measures to abate it.” Id. at 847. “It is enough that the official acted
19 or failed to act despite his knowledge of a substantial risk of harm.” Id. at 842.
20 In applying this standard, the Ninth Circuit has held that before it can be said that a
21 prisoner’s civil rights have been abridged, “the indifference to his medical needs must be
22 substantial. Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this cause
23 of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle,
24 429 U.S. at 105–06). “[A] complaint that a physician has been negligent in diagnosing or treating
25 a medical condition does not state a valid claim of medical mistreatment under the Eighth
26 Amendment. Medical malpractice does not become a constitutional violation merely because the
27 victim is a prisoner.” Estelle, 429 U.S. at 106; see also Anderson v. County of Kern, 45 F.3d
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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 accuses Dr. Pearce and RN Borbolla of being deliberately indifferent to his
18 serious medical needs: Dr. Pearce is accused of failing to conduct preliminary tests before
19 prescribing Naproxen and RN Borbolla is accused of failing to properly investigate and determine
20 the cause of his pain for approximately two weeks. Unfortunately, there is no constitutional
21 violation on these facts as there is no suggestion that these Defendants were aware of a substantial
22 risk of serious harm that they purposefully disregarded. At best, Plaintiff’s claim sounds in
23 negligence or medical malpractice, but, as noted, “a complaint that a physician has been negligent
24 in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment
25 under the Eighth Amendment. Medical malpractice does not become a constitutional violation
26 merely because the victim is a prisoner.” Estelle, 429 U.S. at 106. Accordingly, Plaintiff fails to
27 state a claim against either Defendant.
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1 IV. 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 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, the Court ORDERS:
2 1. Within thirty days from the date of service of this order, Plaintiff must file either a
3 first amended complaint curing the deficiencies identified by the Court in this order,
4 a notice of voluntary dismissal, or a notice of election to stand on the complaint; and
5 2. If Plaintiff fails to file a first amended complaint or notice of voluntary dismissal,
6 the Court will recommend the action be dismissed, with prejudice, for failure to
7 obey a court order and failure to state a claim.
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IT IS SO ORDERED.
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10 Dated: June 3, 2020 /s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10019579. Public record. Not legal advice.