1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 DELROY ESPINOZA, Case No. 24-cv-06427-JST
8 Plaintiff, ORDER OF DISMISSAL WITH LEAVE 9 v. TO AMEND; DENYING AS MOOT REQUEST TO FILE COMPLAINT BY 10 JENNY WONG, MAIL 11 Defendant. Re: ECF No. 8
12 13 Plaintiff, an inmate at Pelican Bay State Prison (“PBSP”), has filed a pro se action 14 pursuant to 42 U.S.C. § 1983 against PBSP doctor Jenny Hwang. Now before the Court for 15 review pursuant to 28 U.S.C. § 1915A is Plaintiff’s complaint, ECF No. 9; and Plaintiff’s request 16 to file his complaint by mail, ECF No. 8. Plaintiff has been granted leave to proceed in forma 17 pauperis in a separate order. 18 DISCUSSION 19 A. Standard of Review 20 A federal court must conduct a preliminary screening in any case in which a prisoner seeks 21 redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 22 § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims 23 that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek 24 monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), 25 (2). Pro se pleadings must, however, be liberally construed. See United States v. Qazi, 975 F.3d 26 989, 993 (9th Cir. 2020). 27 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 1 necessary; the statement need only “‘give the defendant fair notice of what the . . . claim is and the 2 grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted). 3 While Rule 8 does not require detailed factual allegations, it demands more than an unadorned, 4 the-defendant-unlawfully-harmed-me accusation. Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009). 5 A pleading that offers only labels and conclusions, or a formulaic recitation of the elements of a 6 cause of action, or naked assertions devoid of further factual enhancement does not suffice. Id. 7 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a 8 right secured by the Constitution or laws of the United States was violated, and (2) that the alleged 9 violation was committed by a person acting under the color of state law. See West v. Atkins, 487 10 U.S. 42, 48 (1988). 11 B. Complaint 12 The complaint sues Pelican Bay State Prison doctor Jenny Hwang, alleging that she 13 provided inadequate medical care. ECF No. 9 at 2-3. The complaint states that Plaintiff was seen 14 by defendant Hwang via Zoom on July 11, 2024. Id. Plaintiff feels that defendant Hwang 15 “categorized [him] with discriminatory remarks” and demonstrated prejudice against him. Id. 16 Defendant Hwang “seem[ed] to be very derogatory” when Plaintiff expressed concern regarding 17 his weight and lack of energy, and also insinuated that Plaintiff smokes, even though he told her 18 that he “never smoked a day in [his] life.” Id. Although Plaintiff had subsequent medical 19 appointments on August 1, August 8, and August 27, his issues have not been addressed, and it 20 feels like Plaintiff’s treatment and “future plans” are “being delayed.” Id. Plaintiff believes that 21 the failure to address his issues are likely due to defendant Hwang’s negligence or “whatever notes 22 she applied to [his] records.” Id. Plaintiff requests the following relief: that his primary care be 23 handled by a different doctor than defendant Hwang, and that he receive “declaratory damages,” 24 “injunctive damages,” attorney’s fees, and over $25,000 in compensatory damages. Id. 25 C. Dismissal with Leave to Amend 26 The Court DISMISSES the complaint with leave to amend because Plaintiff has not 27 alleged any violation of federal law or the federal Constitution, as required for federal question 1 It appears that Plaintiff may be attempting to either (1) state an Eighth Amendment claim 2 for deliberate indifference to his serious medical needs, or (2) seek relief for defendant Hwang’s 3 allegedly discriminatory or derogatory comments. 4 The Eighth Amendment prohibits correctional officials from being deliberately indifferent 5 to prisoner’s serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 104 (1976). A 6 determination of “deliberate indifference” involves an examination of two elements: the 7 seriousness of the prisoner’s medical need and the nature of the defendant’s response to that need. 8 See McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled in part on other grounds 9 by WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). A “serious” 10 medical need exists if the failure to treat a prisoner’s condition could result in further significant 11 injury or the “unnecessary and wanton infliction of pain.” McGuckin, 974 F.2d at 1059 (citing 12 Estelle, 429 U.S. at 104). A prison official is deliberately indifferent if he knows that a prisoner 13 faces a substantial risk of serious harm and disregards that risk by failing to take reasonable steps 14 to abate it. Farmer v. Brennan, 511 U.S. 825, 837 (1994). “A difference of opinion between a 15 prisoner-patient and prison medical authorities regarding treatment does not give rise to a § 1983 16 claim.” Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981). Similarly, a showing of 17 nothing more than a difference of medical opinion as to the need to pursue one course of treatment 18 over another is insufficient, as a matter of law, to establish deliberate indifference. See Toguchi v. 19 Chung, 391 F.3d 1051, 1058-60 (9th Cir. 2004). A claim of medical malpractice or negligence is 20 insufficient to make out a violation of the Eighth Amendment. Id. at 1060-61. 21 The complaint fails to state an Eighth Amendment claim against defendant Hwang for the 22 following reasons. First, it is unclear what Plaintiff’s medical need is, and how it constitutes a 23 serious medical need within the meaning of the Eighth Amendment. Plaintiff states that he is 24 concerned about his weight and energy, but those statements are insufficient to establish a medical 25 need. Second, it is unclear what medical treatment is needed to resolve Plaintiff’s concerns. 26 Third, it is unclear who denied, or is refusing to provide, the needed medical treatment. Fourth, it 27 is unclear how defendant Hwang’s notes relate to the alleged denial of treatment. 1 remarks to Plaintiff also fails to state a claim for relief. Allegations of verbal harassment and 2 abuse fail to state a cognizable claim under 42 U.S.C. § 1983. See Freeman v.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 DELROY ESPINOZA, Case No. 24-cv-06427-JST
8 Plaintiff, ORDER OF DISMISSAL WITH LEAVE 9 v. TO AMEND; DENYING AS MOOT REQUEST TO FILE COMPLAINT BY 10 JENNY WONG, MAIL 11 Defendant. Re: ECF No. 8
12 13 Plaintiff, an inmate at Pelican Bay State Prison (“PBSP”), has filed a pro se action 14 pursuant to 42 U.S.C. § 1983 against PBSP doctor Jenny Hwang. Now before the Court for 15 review pursuant to 28 U.S.C. § 1915A is Plaintiff’s complaint, ECF No. 9; and Plaintiff’s request 16 to file his complaint by mail, ECF No. 8. Plaintiff has been granted leave to proceed in forma 17 pauperis in a separate order. 18 DISCUSSION 19 A. Standard of Review 20 A federal court must conduct a preliminary screening in any case in which a prisoner seeks 21 redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 22 § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims 23 that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek 24 monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), 25 (2). Pro se pleadings must, however, be liberally construed. See United States v. Qazi, 975 F.3d 26 989, 993 (9th Cir. 2020). 27 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 1 necessary; the statement need only “‘give the defendant fair notice of what the . . . claim is and the 2 grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted). 3 While Rule 8 does not require detailed factual allegations, it demands more than an unadorned, 4 the-defendant-unlawfully-harmed-me accusation. Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009). 5 A pleading that offers only labels and conclusions, or a formulaic recitation of the elements of a 6 cause of action, or naked assertions devoid of further factual enhancement does not suffice. Id. 7 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a 8 right secured by the Constitution or laws of the United States was violated, and (2) that the alleged 9 violation was committed by a person acting under the color of state law. See West v. Atkins, 487 10 U.S. 42, 48 (1988). 11 B. Complaint 12 The complaint sues Pelican Bay State Prison doctor Jenny Hwang, alleging that she 13 provided inadequate medical care. ECF No. 9 at 2-3. The complaint states that Plaintiff was seen 14 by defendant Hwang via Zoom on July 11, 2024. Id. Plaintiff feels that defendant Hwang 15 “categorized [him] with discriminatory remarks” and demonstrated prejudice against him. Id. 16 Defendant Hwang “seem[ed] to be very derogatory” when Plaintiff expressed concern regarding 17 his weight and lack of energy, and also insinuated that Plaintiff smokes, even though he told her 18 that he “never smoked a day in [his] life.” Id. Although Plaintiff had subsequent medical 19 appointments on August 1, August 8, and August 27, his issues have not been addressed, and it 20 feels like Plaintiff’s treatment and “future plans” are “being delayed.” Id. Plaintiff believes that 21 the failure to address his issues are likely due to defendant Hwang’s negligence or “whatever notes 22 she applied to [his] records.” Id. Plaintiff requests the following relief: that his primary care be 23 handled by a different doctor than defendant Hwang, and that he receive “declaratory damages,” 24 “injunctive damages,” attorney’s fees, and over $25,000 in compensatory damages. Id. 25 C. Dismissal with Leave to Amend 26 The Court DISMISSES the complaint with leave to amend because Plaintiff has not 27 alleged any violation of federal law or the federal Constitution, as required for federal question 1 It appears that Plaintiff may be attempting to either (1) state an Eighth Amendment claim 2 for deliberate indifference to his serious medical needs, or (2) seek relief for defendant Hwang’s 3 allegedly discriminatory or derogatory comments. 4 The Eighth Amendment prohibits correctional officials from being deliberately indifferent 5 to prisoner’s serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 104 (1976). A 6 determination of “deliberate indifference” involves an examination of two elements: the 7 seriousness of the prisoner’s medical need and the nature of the defendant’s response to that need. 8 See McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled in part on other grounds 9 by WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). A “serious” 10 medical need exists if the failure to treat a prisoner’s condition could result in further significant 11 injury or the “unnecessary and wanton infliction of pain.” McGuckin, 974 F.2d at 1059 (citing 12 Estelle, 429 U.S. at 104). A prison official is deliberately indifferent if he knows that a prisoner 13 faces a substantial risk of serious harm and disregards that risk by failing to take reasonable steps 14 to abate it. Farmer v. Brennan, 511 U.S. 825, 837 (1994). “A difference of opinion between a 15 prisoner-patient and prison medical authorities regarding treatment does not give rise to a § 1983 16 claim.” Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981). Similarly, a showing of 17 nothing more than a difference of medical opinion as to the need to pursue one course of treatment 18 over another is insufficient, as a matter of law, to establish deliberate indifference. See Toguchi v. 19 Chung, 391 F.3d 1051, 1058-60 (9th Cir. 2004). A claim of medical malpractice or negligence is 20 insufficient to make out a violation of the Eighth Amendment. Id. at 1060-61. 21 The complaint fails to state an Eighth Amendment claim against defendant Hwang for the 22 following reasons. First, it is unclear what Plaintiff’s medical need is, and how it constitutes a 23 serious medical need within the meaning of the Eighth Amendment. Plaintiff states that he is 24 concerned about his weight and energy, but those statements are insufficient to establish a medical 25 need. Second, it is unclear what medical treatment is needed to resolve Plaintiff’s concerns. 26 Third, it is unclear who denied, or is refusing to provide, the needed medical treatment. Fourth, it 27 is unclear how defendant Hwang’s notes relate to the alleged denial of treatment. 1 remarks to Plaintiff also fails to state a claim for relief. Allegations of verbal harassment and 2 abuse fail to state a cognizable claim under 42 U.S.C. § 1983. See Freeman v. Arpaio, 125 F.3d 3 732, 738 (9th Cir. 1997) overruled in part on other grounds by Shakur v. Schriro, 514 F.3d 878, 4 884-85 (9th Cir. 2008). This is so even if the verbal harassment is racially motivated. See 5 Hoptowit v. Ray, 682 F.2d 1237, 1252 (9th Cir. 1982) overruled on other grounds by Sandin v. 6 Conner, 515 U.S. 472 (1995) (federal court cannot order guards to refrain from using racial slurs 7 to harass prisoners). On the other hand, harassment coupled with conduct implicating the Eighth 8 Amendment's proscription against cruel and unusual punishment can sometimes constitute a 9 cognizable claim under § 1983. See, e.g., Franklin v. Oregon, 662 F.2d 1337, 1344-45 (9th Cir. 10 1981) (harassment with regards to medical problems cognizable if it constitutes deliberate 11 indifference). For verbal harassment to implicate the Eighth Amendment’s prohibition against 12 deliberate indifference to an inmate’s serious medical needs, however, there must be a substantial 13 connection between the harassment and the deliberate indifference to an inmate’s serious medical 14 needs. Id. 15 Because it appears that Plaintiff could correct the above deficiencies, the Court 16 DISMISSES the complaint with leave to amend. See Lopez v. Smith, 203 F.3d 1122, 1130 (9th 17 Cir. 2000) (“a district court should grant leave to amend even if no request to amend the pleading 18 was made, unless it determines that the pleading could not possibly be cured by the allegation of 19 other facts”) (citation and internal quotation marks omitted). 20 CONCLUSION 21 For the foregoing reasons, the Court ORDERS as follows. 22 1. The Court DENIES as moot Plaintiff’s request to file his complaint by mail. ECF 23 No. 8. Plaintiff filed his complaint by electronic mail as required by N.D. Cal. General Order 76. 24 See ECF No. 9. 25 2. The Court DISMISSES the complaint with leave to amend. Within twenty-eight 26 (28) days of the date of this order, Plaintiff shall file an amended complaint that addresses the 27 identified deficiencies. The amended complaint must include the caption and civil case number 1 on the first page. If using the court form complaint, Plaintiff must answer all the questions on the 2 || form in order for the action to proceed. An amended complaint completely replaces the previous 3 complaints. See Lacey v. Maricopa Cty., 693 F.3d 896, 925 (9th Cir. 2010). Accordingly, 4 || Plaintiff must include in his amended complaint all the claims he wishes to present and all of the 5 defendants he wishes to sue, and may not incorporate material from the prior complaint by 6 || reference. Failure to file an amended complaint in accordance with this order in the time provided 7 will result in dismissal of this action without further notice to Plaintiff. The Clerk shall include 8 || two copies of the court’s complaint form with a copy of this order to Plaintiff. 9 This order terminates ECF No. 8. 10 IT IS SO ORDERED.
11 Dated: March 5, 2025 2 JON S. TIGA 13 United States District Judge
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