“Mere negligence in diagnosing 24 or treating a medical condition, without more, does not violate a 25 prisoner’s Eighth Amendment rights.” (citation omitted)
How later courts described this case
- “Mere negligence in diagnosing 24 or treating a medical condition, without more, does not violate a 25 prisoner’s Eighth Amendment rights.” (citation omitted)
- “[W]e are not required to accept as true 12 conclusory allegations which are contradicted by documents 13 referred to in the complaint.”
- “medical decision not to order an X-ray, 20 or like measures, does not represent cruel and unusual 21 punishment” and “[a]t most . . . is medical malpractice” properly 22 challenged under state tort law
- “When a magistrate judge believes she is issuing a nondispositive order, she may warn the 27 litigants that, if they disagree and think the matter dispositive, they have the right to file an objection to that determination with 28 the district judge.”
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10
TRINIDAD LEDESMA, ) Case No. EDCV 19-1686-FMO (JPR)
11
)
Plaintiff, )
12
) ORDER DISMISSING COMPLAINT WITH
v. ) LEAVE TO AMEND
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)
VASILE CRASNEAN, Registered )
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Nurse, )
)
15
Defendant. )
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17 On September 4, 2019, Plaintiff Trinidad Ledesma, a former
18 state prisoner at the California Rehabilation Center proceeding
19 pro se, filed a civil-rights action under 42 U.S.C. § 1983. He
20 was subsequently granted leave to proceed in forma pauperis. He
21 sues Vasile Crasnean, a registered nurse at CRC,1 alleging that
22 he was deliberately indifferent to Plaintiff’s serious medical
23 needs.2
24
25 1 Because Plaintiff does not indicate the capacity in which he
sues Defendant but seeks damages, the Court presumes that it is in
26 his individual capacity. See Shoshone–Bannock Tribes v. Fish &
Game Comm’n, 42 F.3d 1278, 1284 (9th Cir. 1984).
27
2 On December 28, 2015, Plaintiff, proceeding pro se, sued
28
Defendant, among others, for the same alleged constitutional
1
1 After screening the Complaint under 28 U.S.C. § 1915(e)(2),
2 the Court finds that its allegations fail to state a claim on
3 which relief might be granted. Because at least some of its
4 claims might be cured by amendment, the Complaint is dismissed
5 with leave to amend. See Lopez v. Smith, 203 F.3d 1122, 1130-31
6 (9th Cir. 2000) (en banc) (holding that pro se litigant must be
7 given leave to amend complaint unless absolutely clear that
8 deficiencies cannot be cured). If Plaintiff desires to pursue
9 any of his claims, he is ORDERED to file a first amended
10 complaint within 28 days of the date of this order, remedying the
11 deficiencies discussed below.
12 ALLEGATIONS OF THE COMPLAINT
13 On September 30, 2015, Plaintiff, at that time a state
14 prisoner at CRC assigned to work as a dorm porter, dropped a
15 five-gallon bucket filled with water on his right foot. (Compl.
16 at 2-3.) The bucket tore the nail off of his big toe and caused
17 the toe to “swell[]” and “turn[] blue.” (Id. at 3; see id. at 6-
18 7.) When Plaintiff reported to the medical unit, Defendant, a
19 registered nurse, “looked at the injury” and issued a “three day
20 lay-in” — a three-day exemption from work. (Id. at 4; see id.,
21
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24
25
26 violation claimed here. See Compl., Ledesma v. Cal. Rehab. Ctr.,
EDCV 15-2638-FMO (JPR) (Dec. 28, 2015), ECF No. 1. That lawsuit
27 was dismissed without prejudice on May 10, 2016, for failure to
state a claim and failure to prosecute. See Order Dismissing
28 Action, id., ECF No. 12.
2
1 Ex. C at 273 (lay-in order).)4 No “further care or treatment”
2 was provided that day. (Compl. at 4.) The next day, October 1,
3 Defendant “summoned” Plaintiff back to the medical unit without
4 sending somebody to pick him up in a wheelchair. (Id.) After
5 looking at his foot, Defendant give him a “band-aide [sic] and
6 [a] bottle of aspirin” and ordered that x-rays be taken “in a
7 couple of days.” (Id.)5
8 After the three-day lay-in had expired, Plaintiff was still
9 in pain and had not yet had x-rays taken or been seen by a
10 doctor. (Id. at 5.) He wrapped a “make-shift” bandage around
11 his foot and returned to work. (Id.; see id. at 6.) In the
12 ensuing months, he submitted multiple requests for additional
13 medical care. (Id. at 5, 12.) Between October and December
14 2015, he submitted three “Health Care Services Request Form[s],”
15 complaining that he was still in significant pain, was being
16 forced to work while hurt, and had not yet had x-rays taken or
17 been seen by a doctor. (Id., Ex. F at 42-43, 45.) Plaintiff
18 claims that Defendant “screen[ed]” these complaints (Compl. at
19
3 Because the exhibits attached to the Complaint are not
20 separately paginated, the Court uses the pagination generated by
21 the official Case Management/Electronic Case Filing system.
22 4 The lay-in order, which Plaintiff has attached to the
Complaint, appears to be for four days — from 5:45 p.m. on
23 September 30 to 4:30 p.m. on October 4 — not three. (See Compl.,
Ex. C at 27 (lay-in order).) And although Plaintiff alleges that
24 Defendant authorized the lay-in, the order appears to be signed by
two registered nurses; the signatures are not entirely legible, but
25
neither appears to be Defendant’s. (See id.)
26
5 Plaintiff has attached to the Complaint an x-ray order dated
27 September 30, apparently signed by the same registered nurses who
authorized the three-day lay-in. (See Compl., Ex. C at 27 (x-ray
28 order).)
3
1 12), but they were not addressed to him and he was not mentioned
2 in them (see id., Ex. F at 42-53). On November 1, 2015, he
3 reiterated his concerns in a written complaint to the “Facility
4 Business Manager,” and on November 12, he sent a letter to CDCR’s
5 Office of Internal Affairs, reporting that “[m]edical [o]fficials
6 at CRC” were deliberately disregarding his medical needs on the
7 warden’s orders; he did not mention Defendant in either
8 communication. (Id., Ex. F at 40, 44.)
9 On December 2, 2015, Plaintiff saw Defendant to get
10 eyeglasses. (Compl. at 4.) He asked Defendant why x-rays of his
11 foot had not yet been taken and explained that he was still in
12 pain. (Id.) Defendant replied, “You are here for your eyes, I’m
13 not concerned with your foot, I’m here to hear about your eyes”;
14 he then allegedly asked Plaintiff to leave. (Id. at 4-5.) Two
15 days later, on December 4, “Dr. Pima” ordered x-rays. (Id. at
16 12; see id., Ex. D at 30-31.) The x-rays, which were apparently
17 taken that same day, revealed that his foot was not broken,
18 although Plaintiff apparently later told a doctor that a
19 radiology tech had told him that it was. (See id., Ex. D at 30-
20 31.)
21 Plaintiff continued to file health-care request forms to the
22 medical unit, disagreeing with the conclusion that his foot was
23 not broken and maintaining that he was in “extreme pain” and
24 wrongly being forced to work. (Compl. at 5-6; see id., Ex. F at
25 46-53.) He also addressed complaints to that effect to “Chief
26 Medical Officer Maxwell” and “Dr. Pima.” (Id., Ex. F at 52-53.)
27 He claims that none of these were responded to. (Compl. at 5.)
28 Once he was paroled, in “Spring of 2016” (id., Ex. D at 30),
4
1 Plaintiff pursued additional treatment, having “fusion” surgery
2 on his toe in September 2017 (Compl. at 9; id., Ex. D at 30). He
3 then applied for disability benefits, claiming that he could not
4 perform his past work as a heavy-truck driver because of the
5 injuries he sustained to his right foot. (Compl. at 8; see id.,
6 Ex. D at 29-37.) According to the doctor who evaluated him for
7 disability eligibility, the treatment he received while
8 incarcerated was “incomplete” and x-rays “should have been taken
9 within the first few days at most.” (Id., Ex. D at 31.) When
10 they were “finally taken 9 weeks later, any acute fracture was in
11 all medical probability already healed,” and the “chronic injury
12 left” was all that was reflected. (Id.; see also Compl. at 4.)
13 She opined that the “treatment delay may have worsened the
14 outcome.” (Compl., Ex. D at 35; see Compl. at 7-8.)
15 Plaintiff seeks $1.1 million in compensatory and punitive
16 damages for “past, present, and future” physical and mental
17 suffering, loss of wages, and “permanent disability and
18 disfigurement.” (Compl. at 17-18.)
19 STANDARD OF REVIEW
20 A complaint may be dismissed as a matter of law for failure
21 to state a claim “where there is no cognizable legal theory or an
22 absence of sufficient facts alleged to support a cognizable legal
23 theory.” Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d
24 1035, 1041 (9th Cir. 2010) (as amended) (citation omitted);
25 accord O’Neal v. Price, 531 F.3d 1146, 1151 (9th Cir. 2008). In
26 considering whether a complaint states a claim, a court must
27 generally accept as true all the factual allegations in it.
28 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Hamilton v. Brown,
5
1 630 F.3d 889, 892-93 (9th Cir. 2011). The court need not accept
2 as true, however, “allegations that are merely conclusory,
3 unwarranted deductions of fact, or unreasonable inferences.” In
4 re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008)
5 (citation omitted); see also Shelton v. Chorley, 487 F. App’x
6 388, 389 (9th Cir. 2012) (finding that district court properly
7 dismissed civil-rights claim when plaintiff’s “conclusory
8 allegations” did not support it).
9 Although a complaint need not include detailed factual
10 allegations, it “must contain sufficient factual matter, accepted
11 as true, to ‘state a claim to relief that is plausible on its
12 face.’” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v.
13 Twombly, 550 U.S. 544, 570 (2007)); Yagman v. Garcetti, 852 F.3d
14 859, 863 (9th Cir. 2017). A claim is facially plausible when it
15 “allows the court to draw the reasonable inference that the
16 defendant is liable for the misconduct alleged.” Iqbal, 556 U.S.
17 at 678. “A document filed pro se is ‘to be liberally construed,’
18 and ‘a pro se complaint, however inartfully pleaded, must be held
19 to less stringent standards than formal pleadings drafted by
20 lawyers.’” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
21 curiam) (citations omitted); Byrd v. Phx. Police Dep’t, 885 F.3d
22 639, 642 (9th Cir. 2018) (per curiam).
23 Plaintiff Fails to State an Eighth Amendment Claim
24 I. Applicable Law
25 Plaintiff was a state prisoner at the time of the alleged
26 deprivation and so his deliberate-indifference claim is properly
27 analyzed under the Eighth Amendment’s Cruel and Unusual
28 Punishments Clause. See Castro v. Cnty. of L.A., 833 F.3d 1060,
6
1 1067 (9th Cir. 2016) (en banc). The Eighth Amendment’s
2 prohibition against cruel and unusual punishment encompasses the
3 government’s obligation to provide medical care to prisoners.
4 Estelle v. Gamble, 429 U.S. 97, 103 (1976). To establish a
5 constitutional claim based on inadequate medical care, a
6 plaintiff must show that the defendant was deliberately
7 indifferent to his serious medical needs. Id. at 104. A
8 “serious” medical need exists when failure to treat the plaintiff
9 could result in “further significant injury” or the “unnecessary
10 and wanton infliction of pain.” McGuckin v. Smith, 974 F.2d
11 1050, 1059 (9th Cir. 1992) (citing Gamble, 429 U.S. at 104),
12 overruled on other grounds by WMX Techs., Inc. v. Miller, 104
13 F.3d 1133, 1136 (9th Cir. 1997) (en banc).
14 Deliberate indifference “may appear when prison officials
15 deny, delay or intentionally interfere with medical treatment, or
16 it may be shown by the way in which prison physicians provide
17 medical care.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir.
18 2006) (citing McGuckin, 974 F.2d at 1059). The defendant must
19 have purposefully ignored or failed to respond to the plaintiff’s
20 pain or medical needs. McGuckin, 974 F.2d at 1060. An
21 inadvertent failure to provide adequate medical care, negligence,
22 a mere delay in medical care, or a difference of opinion over
23 proper medical treatment are all insufficient to violate the
24 Eighth Amendment. See Gamble, 429 U.S. at 105-07; Wilhelm v.
25 Rotman, 680 F.3d 1113, 1122-23 (9th Cir. 2012); Sanchez v. Vild,
26 891 F.2d 240, 242 (9th Cir. 1989). Even medical malpractice or
27 gross negligence does not by itself establish deliberate
28 indifference to serious medical needs. See Gamble, 429 U.S. at
7
1 106; Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990)
2 (“mere malpractice, or even gross negligence, does not suffice”
3 to show Eighth Amendment violation).
4 II. Analysis
5 The Complaint’s allegations are insufficient to state a
6 colorable deliberate-indifference claim against Defendant. To be
7 sure, Plaintiff likely has adequately alleged that he suffered a
8 serious injury to his right foot, that the treatment he received
9 while incarcerated was “incomplete,” and that the “delay” in
10 receiving treatment may have exacerbated the injury. (Compl. at
11 3, 6-7, 12; id., Ex. D at 31, 35.) But he has failed to allege
12 that any inadequacy or delay in treatment was caused by
13 Defendant’s deliberate indifference.
14 To start, Plaintiff acknowledges that when he reported to
15 the medical unit immediately after injuring his toe, Defendant
16 authorized a three-day lay-in, excusing him from work. (Compl.
17 at 4.) Defendant then proactively sought him out the next day,
18 providing him with a band-aid and painkillers and ordering that
19 x-rays be taken. (Id.) Thus, his own allegations reflect that
20 Defendant swiftly undertook to treat his injury. See Jackson v.
21 Paramo, No. 17CV882-CAB (BLM), 2018 WL 4952596, at *11 (S.D. Cal.
22 Oct. 12, 2018) (holding that plaintiff did not adequately allege
23 that defendant was deliberately indifferent given allegations
24 that he referred him for x-rays and further treatment), accepted
25 by 2018 WL 5919676 (S.D. Cal. Nov. 9, 2018); cf. Rich v.
26 Stratton, No. 2:17-cv-0432 DB P, 2019 WL 2339533, at *5 (E.D.
27 Cal. June 3, 2019) (holding that defendants’ “refusal to refer
28 [plaintiff] for an x-ray or an MRI does suggest deliberate
8
1 indifference as it shows that they failed to act despite
2 knowledge of a substantial risk of harm”).
3 And even if Defendant should have sent someone with a
4 wheelchair to bring Plaintiff to the medical unit the day after
5 the incident, taken additional steps to treat his injury, or
6 followed up about whether the x-rays he ordered had been taken
7 (see Compl. at 13-14 (“What medical attention rendered was so
8 woefully inadequate as to amount to no treatment at all.”)),
9 those alleged missteps do not amount to deliberate indifference.
10 See Warner v. Velardi, No. 16-cv-1924-LAB (DHB), 2018 WL 3853943,
11 at *6 (S.D. Cal. Aug. 14, 2018) (holding that “even assuming
12 . . . [defendant] was negligent by not scheduling plaintiff for
13 an earlier appointment” with doctor, her conduct did not rise to
14 level of deliberate indifference), accepted by 2018 WL 5829972
15 (S.D. Cal. Nov. 6, 2018); Nam Ba Nguyen v. Cal. Prison Health
16 Serv., No. 2:13-cv-963-MCE-EFB P, 2017 WL 3208718, at *11 (E.D.
17 Cal. July 28, 2017) (finding no deliberate indifference based on
18 delay in processing of plaintiff’s x-ray request); see also
19 Gamble, 429 U.S. at 107 (“medical decision not to order an X-ray,
20 or like measures, does not represent cruel and unusual
21 punishment” and “[a]t most . . . is medical malpractice” properly
22 challenged under state tort law); Hutchinson v. United States,
23 838 F.2d 390, 394 (9th Cir. 1988) (“Mere negligence in diagnosing
24 or treating a medical condition, without more, does not violate a
25 prisoner’s Eighth Amendment rights.” (citation omitted)).
26 Plaintiff’s claim that Defendant was deliberately
27 indifferent to his medical needs boils down to the suggestion
28 that in the weeks and months following the incident Defendant
9
1 disregarded his repeated complaints that he was still in
2 significant pain and his requests for additional treatment. But
3 he does not allege any facts to permit the inference that
4 Defendant was aware of any of these complaints or requests except
5 one, and his conclusory suggestions to the contrary are belied by
6 the exhibits attached to the Complaint. See Sprewell v. Golden
7 State Warriors, 266 F.3d 979, 988 (9th Cir.) (noting that
8 plaintiff can “plead himself out of a claim by including . . .
9 details contrary to his claims”), amended by 275 F.3d 1187 (9th
10 Cir. 2001); Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1295-
11 96 (9th Cir. 1998) (“[W]e are not required to accept as true
12 conclusory allegations which are contradicted by documents
13 referred to in the complaint.”).
14 Plaintiff submitted nine health-care request forms between
15 October 2015 and February 2016: three before x-rays of his foot
16 were taken in December and six after. (See Compl., Ex. F at 42-
17 43, 45-51.) He also addressed complaints about his medical
18 treatment to the prison’s “business manager” (id. at 44), the
19 prison’s “chief medical officer” (id. at 52), the doctor who in
20 December ordered that x-rays be taken (id. at 53), and the CDCR’s
21 Office of Internal Affairs (id. at 40-41). But none of these
22 were addressed to Defendant or so much as mentioned him, and they
23 bear no indication that he reviewed them. Thus, although
24 Plaintiff claims that Defendant was aware of their contents
25 because he “screened” them (Compl. at 12), he nowhere alleges how
26 he knows that to be true.
27 Plaintiff makes only one specific allegation about informing
28 Defendant of his medical needs: on December 2, 2015, while
10
1 visiting Defendant to get eyeglasses, Plaintiff told him that he
2 was in severe pain and had not yet had x-rays of his foot taken.
3 (Id. at 4.) Plaintiff points to Defendant’s response — he
4 allegedly told Plaintiff that “you are here for your eyes, I’m
5 not concerned with your foot” and told him to leave (id.) — as
6 proof of Defendant’s deliberate indifference. But just two days
7 after that visit, Plaintiff received the x-rays he had been
8 requesting (id. at 12; id., Ex. D at 30-31), suggesting that
9 Defendant acted on the one complaint that was actually directed
10 to him. In that light, Plaintiff’s allegations likely do not
11 support a claim that Defendant was deliberately indifferent to
12 his medical needs.
13 Thus, the Complaint’s allegations do not support Plaintiff’s
14 accusations that Defendant was deliberately indifferent because
15 he “knew the extent of [his] pain” and that “the course of
16 treatment was largely ineffective and still declined to do
17 anything” (Compl. at 12-13; see id. at 8-9, 14, 16) because of
18 “personal hostility” (id. at 13). Indeed, Plaintiff nowhere
19 alleges any potential basis for Defendant’s purported hostility.
20 Without adequate factual support, those conclusory allegations
21 fail to state a colorable Eighth Amendment claim. See Bradford
22 v. Jordan, No. CV 18-6730-SVW (KK), 2018 WL 4961652, at *6 (C.D.
23 Cal. Oct. 12, 2018) (dismissing as conclusory plaintiff’s claim
24 that defendant knowingly disregarded his serious medical need);
25 Jackson, 2018 WL 4952596, at *11 (dismissing as conclusory
26 plaintiff’s allegation that defendant failed to provide adequate
27 treatment due to “bias[]”); see generally Iqbal, 556 U.S. at 678
28 (plaintiff must allege more than “sheer possibility” that
11
1 defendant acted unlawfully).
2 Accordingly, Plaintiff has not alleged a plausible
3 deliberate-indifference claim against Defendant. Should he wish
4 to pursue an Eighth Amendment claim in an amended pleading, he
5 must allege specific facts showing that Defendant was aware of
6 his medical needs, knew that additional treatment was necessary,
7 and consciously chose to disregard the risk that a delay in
8 treatment would result in further injury.6
9 *********************
10 If Plaintiff desires to pursue any of the claims in the
11 Complaint, he is ORDERED to file a first amended complaint within
12 28 days of the date of this order, remedying the deficiencies
13 discussed above. The FAC should bear the docket number assigned
14
15 6 Plaintiff is warned that his lawsuit is likely time barred.
A deliberate-indifference claim accrues when a plaintiff knew of or
16 had reason to know of a defendant’s deliberate indifference. See
TwoRivers v. Lewis, 174 F.3d 987, 991-92 (9th Cir. 1999). Here,
17
Plaintiff knew of Defendant’s alleged deliberate indifference as
18 early as October 2015, when he submitted the first of his written
complaints about the medical treatment he was receiving, and no
19 later than December 28, 2015, when he filed his original § 1983
action against Defendant and others on the same grounds raised
20 here. California’s statute of limitations for personal-injury
claims — the one applicable to § 1983 actions, see Pesnell v.
21
Arsenault, 543 F.3d 1038, 1043 (9th Cir. 2008), abrogated on other
22 grounds by Simmons v. Himmelreich, 136 S. Ct. 1843 (2016) — is two
years. Cal. Civ. Proc. Code § 335.1. Because Plaintiff’s claim
23 accrued while he was incarcerated, the statute of limitations began
running when he was paroled, apparently in Spring 2016. See Jones
24 v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004) (California law tolls
the statute of limitations “for a period of up to two years based
25
on the disability of imprisonment” (citing Cal. Civ. Proc. Code §
26 352.1)). Plaintiff filed this lawsuit on September 4, 2019,
however, more than three years after he was paroled and well after
27 the statute of limitations had apparently run. In any amended
pleading he files, Plaintiff may want to allege facts, if he is
28 able, demonstrating that the lawsuit is not time barred.
12
1 to this case, be labeled “First Amended Complaint,” and be
2 complete in and of itself, without reference to the Complaint or
3 any other pleading, attachment, or document. Plaintiff is warned
4 that if he fails to timely file a sufficient FAC, this action
5 will likely be dismissed on the grounds set forth above and/or
6 for failure to diligently prosecute.7
7 Plaintiff is advised that he may wish to seek help from one
8 of the federal “pro se” clinics in this District. The clinics
9 offer free on-site information and guidance to individuals who
10 are representing themselves in federal civil actions. They are
11 administered by nonprofit law firms, not by the Court. The
12 clinic closest to Plaintiff is located in Room 1055 of the Ronald
13 Reagan Federal Building and U.S. Courthouse, 411 West 4th Street,
14 Santa Ana, CA 92701. It is open Tuesdays from 1 to 4 p.m. and
15 Thursdays from 10 a.m. to 12 p.m. and 1:30 to 3:30 p.m. Useful
16 information is also available on the clinics’ website,
17 http://prose.cacd.uscourts.gov/federal-pro-se-clinics.
18
19
20 DATED: November 26, 2019 /s/
JEAN ROSENBLUTH
21 U.S. MAGISTRATE JUDGE
22
23
24 7 If Plaintiff believes this order erroneously disposes of any
of his claims, he may file objections with the district judge
25
within 20 days of the date of the order. See Bastidas v. Chappell,
26 791 F.3d 1155, 1162 (9th Cir. 2015) (“When a magistrate judge
believes she is issuing a nondispositive order, she may warn the
27 litigants that, if they disagree and think the matter dispositive,
they have the right to file an objection to that determination with
28 the district judge.”).
13