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Hunt v. Otero

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
Mar 28, 2016
Case No. 15-cv-2885 BEN (BGS) (S.D. Cal. Mar. 28, 2016)

Opinion

Case No. 15-cv-2885 BEN (BGS)

03-28-2016

RAYMOND HUNT, CDCR #F-45185, Plaintiff, v. JOSE OTERO, M.D.; BRUCE FOERSTER, M.D., Defendants.


ORDER:

(1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS

(2) DISMISSING CIVIL ACTION FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(e)(2)(B)(ii) AND § 1915A(b)(1)

Plaintiff Raymond Hunt, a prisoner currently incarcerated at Calipatria State Prison ("CAL") in Calipatria, California, and proceeding pro se, has filed a civil rights complaint pursuant to 42 U.S.C. § 1983. (Doc. No. 1.)

Plaintiff claims two private orthopedic surgeons from Alvarado Hospital, who contracted with the California Department of Corrections and Rehabilitation ("CDCR") to provide surgical care for an injury Plaintiff sustained to his left index finger while he was incarcerated at CAL in April 2012, and again in May 2013, violated his Eighth Amendment rights. (See Compl. at 2, 8-11.) Plaintiff seeks declaratory relief as well as general and punitive damages. (Id. at 11-12.) Plaintiff has not prepaid the civil filing fee; instead he has filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a). (Doc. No. 2.)

I. PLAINTIFF'S MOTION TO PROCEED IFP

All parties instituting any civil action, suit or proceeding in a district court of the United States, except an application for writ of habeas corpus, must pay a filing fee of $400. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff's failure to prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to proceed IFP remains obligated to pay the entire fee in increments or installments and regardless of whether his action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Bruce v. Samuels, 136 S. Ct. 627, 630 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2014). The additional $50 administrative fee does not apply to persons granted leave to proceed IFP. Id.

Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act ("PLRA"), a prisoner seeking leave to proceed IFP must submit a "certified copy of [his] trust fund account statement (or institutional equivalent) for . . . the six-month period immediately preceding the filing of the complaint." 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account statement, the Court assesses an initial payment of 20% of (a) the average monthly deposits in the account for the past six months, or (b) the average monthly balance in the account for the past six months, whichever is greater, unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the prisoner then collects subsequent payments, assessed at 20% of the preceding month's income, in any month in which his account exceeds $10, and forwards those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2).

In support of his IFP Motion, Plaintiff has submitted the certified copies of his trust account statements required by 28 U.S.C. § 1915(a)(2) and CivLR 3.2. The Court has reviewed Plaintiff's trust account statements, as well as the attached prison certificate issued by an accounting specialist at CAL verifying Plaintiff's account history and available balances. Plaintiff's statements show he has had $16.44 in monthly deposits, has carried an average balance of $12.45 in his account during the 6-month period preceding the filing of this action, and had $4.95 in available funds to his credit at the time of filing. Based on this financial information, the Court GRANTS Plaintiff's Motion to Proceed IFP (ECF Doc. No. 2), and assesses Plaintiff's initial partial filing fee to be $3.28 pursuant to 28 U.S.C. § 1915(b)(1).

However, the Court will direct the Secretary of the CDCR, or his designee, to collect this initial fee only if sufficient funds are available in Plaintiff's account at the time this Order is executed. See 28 U.S.C. § 1915(b)(4) ("In no event shall a prisoner be prohibited from bringing a civil action or appealing a civil action or criminal judgment for the reason that the prisoner has no assets and no means by which to pay the initial partial filing fee."); Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a "safety-valve" preventing dismissal of a prisoner's IFP case based solely on a "failure to pay . . . due to the lack of funds available to him when payment is ordered."). The remaining balance of the $350 total fee owed in this case must be collected and forwarded to the Clerk of the Court pursuant to the installment payment provisions set out in 28 U.S.C. § 1915(b)(1). II. INITIAL SCREENING PER 28 U.S.C. §§ 1915(e)(2)(B) AND 1915A(b)

A. Standard of Review

Notwithstanding Plaintiff's IFP status or the payment of any partial filing fees, the PLRA also obligates the Court to review complaints filed by all persons proceeding IFP and by those, like Plaintiff, who are "incarcerated or detained in any facility [and] accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or conditions of parole, probation, pretrial release, or diversionary program," "as soon as practicable after docketing." 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these statutes, the Court must sua sponte dismiss complaints, or any portions thereof, which are frivolous, malicious, fail to state a claim, or which seek damages from defendants who are immune. 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b); see also Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing § 1915A(b)).

All complaints must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. The "mere possibility of misconduct" falls short of meeting this plausibility standard. Id.; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).

"When there are well-pleaded factual allegations, a court should assume their veracity, and then determine whether they plausibly give rise to an entitlement to relief." Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) ("[W]hen determining whether a complaint states a claim, a court must accept as true all allegations of material fact and must construe those facts in the light most favorable to the plaintiff."); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that section 1915(e)(2) "parallels the language of Federal Rule of Civil Procedure 12(b)(6)").

However, while the court "ha[s] an obligation where the petitioner is pro se, particularly in civil rights cases, to construe the pleadings liberally and to afford the petitioner the benefit of any doubt," Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not "supply essential elements of claims that were not initially pled." Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

B. Plaintiff's Allegations

Plaintiff claims that on April 2, 2012, he "accidently broke his left hand index finger, while in [his] cell." (Compl. ¶ 6.) Plaintiff contends he was referred to Jose Otero, M.D., a "private contractor medical surgeon" at Alvarado Hospital, who operated on his finger. Afterward, Plaintiff claims he remained in pain for "over a year," and was unable to bend his finger, which was "twisted sideways, misaligned, looked crooked, and [was] locked to one side." (Id. ¶¶ 7-9.)

Approximately one year later, on May 30, 2013, Plaintiff contends he was again "taken to an outside hospital (in San Diego, CA) for a second surgery . . . conducted by defendant M.D. Bruce Foerster, for the specific purpose of correcting the previous surgery." (Id. ¶ 12.) On June 2, 2013, Plaintiff claims his bandage came loose, and he noticed "no sutures closing the surgical wound." (Id. ¶ 14.) Plaintiff claims this "resulted in [his] catching an infection," which required anti-biotic treatment. (Id. ¶ 15.)

Plaintiff concludes both Dr. Otero and Dr. Foerster "fail[ed] to provide proper medical care," which "resulted in a deliberate indifference." (Id. ¶ 19.)

C. 42 U.S.C.§ 1983

"Section 1983 creates a private right of action against individuals who, acting under color of state law, violate federal constitutional or statutory rights." Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 "is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred." Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks and citations omitted). "To establish § 1983 liability, a plaintiff must show both (1) deprivation of a right secured by the Constitution and laws of the United States, and (2) that the deprivation was committed by a person acting under color of state law." Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012).

D. Inadequate Medical Care

There is no question that prison officials act "under color of state law" when housing and providing medical care to prisoners. See West v. Atkins, 487 U.S. 42, 49-50 (1988) ("[G]enerally, a public employee acts under color of state law while acting in his official capacity or while exercising his responsibilities pursuant to state law."). West also holds that a "private physician or hospital," like the Alvarado surgeons Plaintiff names as Defendants here, "act under color of law for purposes of § 1983," when they, as Plaintiff alleges, act as "contractors [] on behalf of the CDCR for Calipatria State Prison." (Compl. ¶ 4); see also Lopez v. Dep't of Health Servs., 939 F.2d 881, 883 (9th Cir. 1991) (per curiam) (finding state action where hospital "contract[ed] with the state . . . to provide medical services to indigent citizens"); George v. Sonoma Cnty. Sheriff's Dep't, 732 F. Supp. 2d 922, 934 (N.D. Cal. 2010) ("A private . . . hospital that contracts with a public prison system to provide treatment for inmates performs a public function and acts under color of law for purposes of § 1983.").

Therefore, in order to determine whether Plaintiff has pleaded a plausible claim for relief based on alleged denials of medical care, the Court must review his Complaint and decide whether it contains sufficient "factual content that allows [it] to draw the reasonable inference" that "each Government-official defendant, through the official's own individual actions, has violated the Constitution," and thus, may be held "liable for the misconduct alleged." Iqbal, 556 U.S. 676, 678.

Only "deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain . . . proscribed by the Eighth Amendment." Estelle v. Gamble, 429 U.S. 97, 103, 104 (1976) (citation and internal quotation marks omitted). "A determination of 'deliberate indifference' involves an examination of two elements: (1) the seriousness of the prisoner's medical need and (2) the nature of the defendant's response to that need." McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1991), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc) (quoting Estelle, 429 U.S. at 104).

First, "[b]ecause society does not expect that prisoners will have unqualified access to health care, deliberate indifference to medical needs amounts to an Eighth Amendment violation only if those needs are 'serious.'" Hudson v. McMillian, 503 U.S. 1, 9 (1992) (citing Estelle, 429 U.S. at 103-04). "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.'" McGuckin, 974 F.2d at 1059 (quoting Estelle, 429 U.S. at 104). "The existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain are examples of indications that a prisoner has a 'serious' need for medical treatment." Id. (citing Wood v. Housewright, 900 F.2d 1332, 1337-41 (9th Cir. 1990); Hunt v. Dental Dept., 865 F.2d 198, 200-01 (9th Cir. 1989)).

Plaintiff's allegation of having suffered a finger injury grave enough to require two referrals to an orthopedic surgeon is sufficient to show an objectively serious medical need. (See Compl. at 8-9, Pl.'s App'x A at 18); see also McGuckin, 974 F.2d at 1059; Thompson v. Shutt, No. 1:09-CV-01585 LJO, 2011 WL 674049, at *3 (E.D. Cal. Feb. 16, 2011) (finding a broken finger requiring "urgent surgery" constituted a serious medical need); Atkins v. Brewer, No. 07cvl027, 2009 WL 29873, at *4 (E.D. Cal. Jan. 5, 2009) ("Plaintiff's allegations that his finger was broken establishes that he had a serious medical need"); cf. Jett v. Penner, 439 F.3d 1091, 1096 n.1 (9th Cir. 2006) (noting undisputed fact that a fractured thumb was a serious medical need).

Even though Plaintiff's alleged medical needs are sufficiently serious, his Complaint fails to include any further "factual content" to show that either Dr. Otero or Dr. Foerster acted with "deliberate indifference" to his needs. McGuckin, 974 F.2d at 1060; see also Jett, 439 F.3d at 1096; Iqbal, 556 U.S. at 678. Specifically, Plaintiff must do more than conclude that Dr. Otero was "deliberately indifferent" simply because Plaintiff was "unable to bend [said] finger or make a fist," and continued to experience pain after his April 2012 surgery. (Compl. at 9.) He must also do more than speculate that any infection he may have contracted after his second surgery was caused by Dr. Foerster's "deliberate indifference." (Id. at 10); see Iqbal, 556 U.S. at 678 ("A pleading that offers 'labels and conclusions' or a 'formulaic recitation of the elements of a cause of action will not do.'") (quoting Twombly, 550 U.S. at 555).

Instead, Plaintiff must include "further factual enhancement" which demonstrates both Otero and Foerster's "purposeful act or failure to respond to [his] pain or possible medical need," and the "harm caused by [this] indifference." Wilhelm v. Rotman, 680 F.3d 1113,1122 (9th Cir. 2012) (citing Jett, 439 F.3d at 1096). This is because to be deliberately indifferent, both Otero and Foerster's acts or omissions must entail more than isolated acts of alleged negligence or the lack of due care. Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012) (citation and quotation marks omitted); see also Wilhelm, 680 F.3d at 1122; Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) ("Mere negligence in diagnosing or treating a medical condition, without more, does not violate a prisoner's Eighth Amendment rights.").

In fact, as currently pleaded, Plaintiff's Complaint merely suggests that he disagreed with Otero's initial decision to operate "based on the fact that [his] finger joint wasn't damaged," and he "was still able to bend [his] finger" despite the fracture. (Compl. at 8.) However, "[a] difference of opinion between a physician and the prisoner-or between medical professionals-concerning what medical care is appropriate does not amount to deliberate indifference." Snow, 681 F.3d at 987 (citing Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989)); Wilhelm, 680 F.3d at 1122-23. Instead, Plaintiff must plead facts sufficient to "show that the course of treatment the doctors chose was medically unacceptable under the circumstances and that the defendants chose this course in conscious disregard of an excessive risk to [his] health." Snow, 681 F.3d at 988 (citation and internal quotations omitted).

Plaintiff's allegations regarding Dr. Foerster fare no better, for they depend upon his non-expert medical assessment that a lack of sutures following Dr. Foerster's second surgery "resulted in ... an infection." Plaintiff must instead allege facts to show Foerster purposely or consciously failed to respond to a known risk that Plaintiff faced a serious risk of harm. Wilhelm, 680 F.3d at 1122; Snow, 681 F.3d at 988; Martin v. Traquina, No. CIV S 05-0557 ALA P, 2007 WL 2254437, at *7 (E.D. Cal. Aug. 3, 2007) (finding no deliberate indifference even where facts, if known, "could have" or "should have" alerted prison doctor that inmate "faced a significant risk of infection.").

Accordingly, the Court finds that Plaintiff's Complaint fails to state an Eighth Amendment inadequate medical care claim against either Dr. Otero or Dr. Foerster, and that therefore, it is subject to sua sponte dismissal in its entirety pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1). Because he is proceeding pro se, however, the Court having now provided him with "notice of the deficiencies in his complaint," will also grant Plaintiff an opportunity to amend. See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)).

III. CONCLUSION AND ORDER

Good cause appearing, the Court:

1. GRANTS Plaintiff's Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a). (Doc. No. 2.)

2. ORDERS the Secretary of the CDCR, or his designee, to collect from Plaintiff's trust account the $3.28 initial filing fee assessed, if those funds are available at the time this Order is executed, and to forward whatever balance remains of the full $350 owed in monthly payments in an amount equal to twenty percent (20%) of the preceding month's income to the Clerk of the Court each time the amount in Plaintiff's account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS MUST BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS ACTION;

3. DIRECTS the Clerk of the Court to serve a copy of this Order on Scott Kernan, Secretary, California Department of Corrections and Rehabilitation, P.O. Box 942883, Sacramento, California, 94283-0001.

4. DISMISSES Plaintiff's Complaint (ECF Doc. No. 1) for failing to state a claim upon which § 1983 relief can granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).

5. GRANTS Plaintiff forty-five (45) days leave from the date of this Order in which to re-open this case by filing an Amended Complaint which cures all the deficiencies of pleading described in this Order. If Plaintiff elects to file an Amended Complaint, it must be complete by itself without reference to his original pleading. See CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1989) ("[A]n amended pleading supersedes the original."); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend which are not re-alleged in an amended pleading may be "considered waived if not repled.").

If Plaintiff fails to file an Amended Complaint within the time provided, this civil action shall remain dismissed without prejudice.

IT IS SO ORDERED. DATED: March 28, 2016

/s/_________

HON. ROGER T. BENITEZ

United States District Judge


Summaries of

Hunt v. Otero

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
Mar 28, 2016
Case No. 15-cv-2885 BEN (BGS) (S.D. Cal. Mar. 28, 2016)
Case details for

Hunt v. Otero

Case Details

Full title:RAYMOND HUNT, CDCR #F-45185, Plaintiff, v. JOSE OTERO, M.D.; BRUCE…

Court:UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

Date published: Mar 28, 2016

Citations

Case No. 15-cv-2885 BEN (BGS) (S.D. Cal. Mar. 28, 2016)