1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 MINH CONG DO, 11 Case No. 23-cv-05906 BLF (PR) Plaintiff, 12 ORDER OF DISMISSAL WITH LEAVE TO AMEND 13 v.
14 CA CORRECTIONS HEALTH CARE SERVICES, et al., 15
Defendants. 16
17 18 Plaintiff, a state inmate, filed the instant pro se civil rights action pursuant to 42 19 U.S.C. § 1983 against medical staff at Pelican Bay State Prison (“PBSP”) where he was 20 formerly housed. Dkt. No. 8 at 1.1 Plaintiff has filed a motion for leave to proceed in 21 forma pauperis which will be addressed in a separate order. Dkt. No. 9. 22 23 DISCUSSION 24 A. Standard of Review 25 A federal court must conduct a preliminary screening in any case in which a 26
27 1 The Court granted Plaintiff relief from PBSP’s email filing procedures after his transfer 1 prisoner seeks redress from a governmental entity or officer or employee of a 2 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 3 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 4 upon which relief may be granted or seek monetary relief from a defendant who is immune 5 from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings must, however, be liberally 6 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 7 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 8 elements: (1) that a right secured by the Constitution or laws of the United States was 9 violated, and (2) that the alleged violation was committed by a person acting under the 10 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 11 B. Plaintiff’s Claims 12 Plaintiff alleges “medical malpractice, medical negligence, and [i]nadequate 13 medical care” by PBSP and contracted employees with the California Corrections Health 14 Care Services (“CCHCS”). Dkt. No. 8 at 2. He names various medical staff of PBSP and 15 CCHCS. Id. at 2-4. Specifically, Plaintiff alleges the “careless” administration of a 16 shingles vaccine on March 29, 2023, by Nurse Hakaki which caused nerve damage in his 17 left arm resulting in the loss of partial mobility, according to staff at Curry Medical Center 18 (“CMC”). Id. at 5. He was referred for further care to CMC on June 26, 2023, where an 19 examination noted weakness, loss of sensation, and pain in Plaintiff’s left arm. Id. at 5-7. 20 Plaintiff alleges that PBSP later made its own evaluation of his test results and concluded 21 that they were “within normal limits” and that no follow-up was required. Id. at 8. 22 Plaintiff assert that he has an ongoing medical issue with his left arm and that PBSP’s 23 conclusion “completely contradicts every note, statement and admission” of all relevant 24 parties. Id. He asserts that Defendants acted with deliberate indifference to his serious 25 medical needs, in violation of his Eighth Amendment rights. Id. at 9. He seeks declaratory 26 and injunctive relief, as well as damages. Id. at 10. 1 proscription against cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 104 2 (1976); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other 3 grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en 4 banc). A determination of a “deliberate indifference” claim involves an examination of 5 two elements: the seriousness of the prisoner’s medical need and the nature of the 6 defendant’s response to that need. Id. at 1059. 7 Regarding the first element, a serious medical need exists if the failure to treat a 8 prisoner’s condition could result in further significant injury or the “unnecessary and 9 wanton infliction of pain.” Id. The existence of an injury that a reasonable doctor or 10 patient would find important and worthy of comment or treatment, the presence of a 11 medical condition that significantly affects an individual’s daily activities, or the existence 12 of chronic and substantial pain are examples of indications that a prisoner has a serious 13 need for medical treatment. Id. at 1059-60. With regard to the second element, a prison 14 official is deliberately indifferent if he or she knows that a prisoner faces a substantial risk 15 of serious harm and disregards that risk by failing to take reasonable steps to abate it. 16 Farmer at 837. The prison official must not only “be aware of facts from which the 17 inference could be drawn that a substantial risk of serious harm exists,” but “must also 18 draw the inference.” Id. If a prison official should have been aware of the risk, but did not 19 actually know, the official has not violated the Eighth Amendment, no matter how severe 20 the risk. Gibson v. County of Washoe, 290 F.3d 1175, 1188 (9th Cir. 2002). 21 Plaintiff’s allegations are insufficient to state a cognizable Eighth Amendment 22 claim. His allegations essentially indicate nothing more than a difference of opinion 23 regarding the course of treatment. “A difference of opinion between a prisoner-patient and 24 prison medical authorities regarding treatment does not give rise to a § 1983 claim.” 25 Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981). Similarly, a showing of nothing 26 more than a difference of medical opinion as to the need to pursue one course of treatment 1 Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004); Sanchez v. Vild, 891 F.2d 240, 2 242 (9th Cir. 1989). “But this is true only if both dueling medical opinions are medically 3 acceptable under the circumstances.” Porretti v. Dzurenda, 11 F.4th 1037, 1048 (9th Cir. 4 2021) (internal quotation marks and citation omitted) (finding that “[w]ith only one 5 credible and medically acceptable recommendation, [plaintiff’s] case did not involve a 6 mere disagreement of medical opinion between experts over different acceptable 7 treatments”). In order to prevail on a claim involving choices between alternative courses 8 of treatment, a plaintiff must show that the course of treatment the doctors chose was 9 medically unacceptable under the circumstances and that he or she chose this course in 10 conscious disregard of an excessive risk to plaintiff’s health. Toguchi, 391 F.3d at 1058; 11 Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996). Plaintiff’s allegations are 12 insufficient to indicate that PBSP and CCHCS medical staff acted with deliberate 13 indifference in their alternative course of treatment to satisfy the subjective element for an 14 Eighth Amendment claim. Specifically, there is no allegation that PBSP/CCHCS’s 15 conclusion was medically acceptable under the circumstances and that their chosen course 16 was in conscious disregard of an excessive risk to Plaintiff’s health. Id.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 MINH CONG DO, 11 Case No. 23-cv-05906 BLF (PR) Plaintiff, 12 ORDER OF DISMISSAL WITH LEAVE TO AMEND 13 v.
14 CA CORRECTIONS HEALTH CARE SERVICES, et al., 15
Defendants. 16
17 18 Plaintiff, a state inmate, filed the instant pro se civil rights action pursuant to 42 19 U.S.C. § 1983 against medical staff at Pelican Bay State Prison (“PBSP”) where he was 20 formerly housed. Dkt. No. 8 at 1.1 Plaintiff has filed a motion for leave to proceed in 21 forma pauperis which will be addressed in a separate order. Dkt. No. 9. 22 23 DISCUSSION 24 A. Standard of Review 25 A federal court must conduct a preliminary screening in any case in which a 26
27 1 The Court granted Plaintiff relief from PBSP’s email filing procedures after his transfer 1 prisoner seeks redress from a governmental entity or officer or employee of a 2 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 3 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 4 upon which relief may be granted or seek monetary relief from a defendant who is immune 5 from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings must, however, be liberally 6 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 7 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 8 elements: (1) that a right secured by the Constitution or laws of the United States was 9 violated, and (2) that the alleged violation was committed by a person acting under the 10 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 11 B. Plaintiff’s Claims 12 Plaintiff alleges “medical malpractice, medical negligence, and [i]nadequate 13 medical care” by PBSP and contracted employees with the California Corrections Health 14 Care Services (“CCHCS”). Dkt. No. 8 at 2. He names various medical staff of PBSP and 15 CCHCS. Id. at 2-4. Specifically, Plaintiff alleges the “careless” administration of a 16 shingles vaccine on March 29, 2023, by Nurse Hakaki which caused nerve damage in his 17 left arm resulting in the loss of partial mobility, according to staff at Curry Medical Center 18 (“CMC”). Id. at 5. He was referred for further care to CMC on June 26, 2023, where an 19 examination noted weakness, loss of sensation, and pain in Plaintiff’s left arm. Id. at 5-7. 20 Plaintiff alleges that PBSP later made its own evaluation of his test results and concluded 21 that they were “within normal limits” and that no follow-up was required. Id. at 8. 22 Plaintiff assert that he has an ongoing medical issue with his left arm and that PBSP’s 23 conclusion “completely contradicts every note, statement and admission” of all relevant 24 parties. Id. He asserts that Defendants acted with deliberate indifference to his serious 25 medical needs, in violation of his Eighth Amendment rights. Id. at 9. He seeks declaratory 26 and injunctive relief, as well as damages. Id. at 10. 1 proscription against cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 104 2 (1976); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other 3 grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en 4 banc). A determination of a “deliberate indifference” claim involves an examination of 5 two elements: the seriousness of the prisoner’s medical need and the nature of the 6 defendant’s response to that need. Id. at 1059. 7 Regarding the first element, a serious medical need exists if the failure to treat a 8 prisoner’s condition could result in further significant injury or the “unnecessary and 9 wanton infliction of pain.” Id. The existence of an injury that a reasonable doctor or 10 patient would find important and worthy of comment or treatment, the presence of a 11 medical condition that significantly affects an individual’s daily activities, or the existence 12 of chronic and substantial pain are examples of indications that a prisoner has a serious 13 need for medical treatment. Id. at 1059-60. With regard to the second element, a prison 14 official is deliberately indifferent if he or she knows that a prisoner faces a substantial risk 15 of serious harm and disregards that risk by failing to take reasonable steps to abate it. 16 Farmer at 837. The prison official must not only “be aware of facts from which the 17 inference could be drawn that a substantial risk of serious harm exists,” but “must also 18 draw the inference.” Id. If a prison official should have been aware of the risk, but did not 19 actually know, the official has not violated the Eighth Amendment, no matter how severe 20 the risk. Gibson v. County of Washoe, 290 F.3d 1175, 1188 (9th Cir. 2002). 21 Plaintiff’s allegations are insufficient to state a cognizable Eighth Amendment 22 claim. His allegations essentially indicate nothing more than a difference of opinion 23 regarding the course of treatment. “A difference of opinion between a prisoner-patient and 24 prison medical authorities regarding treatment does not give rise to a § 1983 claim.” 25 Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981). Similarly, a showing of nothing 26 more than a difference of medical opinion as to the need to pursue one course of treatment 1 Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004); Sanchez v. Vild, 891 F.2d 240, 2 242 (9th Cir. 1989). “But this is true only if both dueling medical opinions are medically 3 acceptable under the circumstances.” Porretti v. Dzurenda, 11 F.4th 1037, 1048 (9th Cir. 4 2021) (internal quotation marks and citation omitted) (finding that “[w]ith only one 5 credible and medically acceptable recommendation, [plaintiff’s] case did not involve a 6 mere disagreement of medical opinion between experts over different acceptable 7 treatments”). In order to prevail on a claim involving choices between alternative courses 8 of treatment, a plaintiff must show that the course of treatment the doctors chose was 9 medically unacceptable under the circumstances and that he or she chose this course in 10 conscious disregard of an excessive risk to plaintiff’s health. Toguchi, 391 F.3d at 1058; 11 Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996). Plaintiff’s allegations are 12 insufficient to indicate that PBSP and CCHCS medical staff acted with deliberate 13 indifference in their alternative course of treatment to satisfy the subjective element for an 14 Eighth Amendment claim. Specifically, there is no allegation that PBSP/CCHCS’s 15 conclusion was medically acceptable under the circumstances and that their chosen course 16 was in conscious disregard of an excessive risk to Plaintiff’s health. Id. Plaintiff shall be 17 granted leave to amend, to attempt to state sufficient facts to indicate that each named 18 Defendant knew that Plaintiff faced a substantial risk of serious harm with regard to the 19 condition of his left arm and disregarded that risk by failing to take reasonable steps to 20 abate it. Farmer at 837. 21 Furthermore, Plaintiff’s claims for malpractice and negligence are not cognizable 22 under § 1983, for such claims are insufficient to make out a violation of the Eighth 23 Amendment. See Toguchi, 391 F.3d at 1060; Hallett v. Morgan, 296 F.3d 732, 744 (9th 24 Cir. 2002); Franklin, 662 F.2d at 1344. Accordingly, these state law claims must be 25 dismissed for failure to state a claim unless there is a basis to assert supplemental 26 jurisdiction under 28 U.S.C. § 1367 (1993). 1 Liability may be imposed on an individual defendant under § 1983 only if Plaintiff can 2 show that the defendant proximately caused the deprivation of a federally protected right. 3 See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). A person deprives another of a 4 constitutional right within the meaning of section 1983 if he does an affirmative act, 5 participates in another’s affirmative act or omits to perform an act which he is legally 6 required to do, that causes the deprivation of which the plaintiff complaints. See Leer, 844 7 F.2d at 633. 8 9 CONCLUSION 10 For the foregoing reasons, the Court orders as follows: 11 1. The complaint is DISMISSED with leave to amend. Within twenty-eight 12 (28) days of the date this order is filed, Plaintiff shall file an amended complaint to correct 13 the deficiencies described above. The amended complaint must include the caption and 14 civil case number used in this order, Case No. 23-cv-05906 BLF (PR), and the words 15 “AMENDED COMPLAINT” on the first page. If using the court form complaint, Plaintiff 16 must answer all the questions on the form in order for the action to proceed. The amended 17 complaint supersedes the original, the latter being treated thereafter as non-existent. 18 Ramirez v. Cty. Of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015). Consequently, 19 claims not included in an amended complaint are no longer claims and defendants not 20 named in an amended complaint are no longer defendants. See Ferdik v. Bonzelet, 963 21 F.2d 1258, 1262 (9th Cir.1992). 22 2. Failure to respond in accordance with this order in the time provided 23 will result in the dismissal with prejudice of this action for failure to state a claim, 24 without further notice to Plaintiff. 25 3. The Clerk shall include two copies of the court’s complaint with a copy of 26 this order to Plaintiff. 1 IT ISSO ORDERED. 2 || Dated: __ April 2, 2024 felicia _ BETH LABSON FREEMAN 3 United States District Judge 4 5 6 7 8 9 10 11 12
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16 Z 18 19 20 21 22 23 24 rder of Dism. With Leave to Amend 25 PRO-SEWBLFICR.23005006D0. dla 26 27