(PC) Navarro v. Singh,et al. ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LARRY H. NAVARRO, No. 1:19-cv-00018-NONE-SKO (PC) 12 Plaintiff, ORDER ADOPTING FINDINGS AND 13 v. RECOMMENDATIONS TO DISMISS THE ACTION 14 SINGH, et al., (Doc. No. 12) 15 Defendants. 16 17 18 Plaintiff Larry H. Navarro is a state prisoner proceeding pro se and in forma pauperis in 19 this civil rights action brought under 42 U.S.C. § 1983. This matter was referred to a United 20 States magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 Plaintiff filed his original complaint alleging that defendants, medical personnel at the 22 prison where plaintiff is incarcerated, were deliberately indifferent to his medical needs in 23 violation of the Eighth Amendment to the United States Constitution. (Doc. No. 1 at 3–4.) In 24 addition, plaintiff brought a claim for negligence under state law. (Id. at 5.) The assigned 25 magistrate judge issued a screening order finding that plaintiff did not state a cognizable claim 26 under the Eighth Amendment and explained that this federal court would not likely exercise 27 supplemental jurisdiction over the state claim so long as there was no viable federal claim 1 reasserting both claims with little additional facts. (Doc. No. 9 at 3–4.) The assigned magistrate 2 judge issued a second screening order dismissing the FAC because it failed to state a claim but 3 provided plaintiff the opportunity to amend his complaint yet again. (Doc. No. 10 at 5–6.) 4 Plaintiff filed his second amended complaint (“SAC”) asserting a single cause of action 5 under the Eighth Amendment. (Doc. No. 11 at 3–4.) In his SAC plaintiff alleges as follows. 6 Plaintiff had problems with his left index finger and sought treatment from various medical 7 personnel at the prison where he is incarcerated. (Id. at 3.) In 2015 and 2016, various nurses 8 diagnosed plaintiff as suffering from arthritis and gave him medication, but the nurses failed to 9 write down the diagnosis. (Id. at 3–4.) Although not referenced in the SAC, in his FAC plaintiff 10 alleged that a doctor told him that his left finger was swollen due to the cold weather and arthritis. 11 (Doc. No. 9 at 3–4.) Finally, in his original complaint and in his SAC, plaintiff alleged that he 12 underwent surgery in March 2017 to remove an infection and receive a bone graft on his finger 13 and that he now suffers pain in his finger and his wrist. (Doc. Nos. 1 at 16–18; 11 at 5.) 14 The assigned magistrate judge issued findings and recommendations recommending that 15 the SAC be dismissed for failure to state a cognizable claim. (Doc. No. 12.) Given that plaintiff 16 had been granted two prior opportunities to amend his complaint to cure the noted deficiencies 17 (see Doc. Nos. 8, 10), the assigned magistrate judge found that the granting of further leave to 18 amend would be futile. (Doc. No. 12 at 1, 6.) The findings and recommendations were served on 19 plaintiff and contained notice that any objections thereto were to be filed within 21 days of 20 service. (Id. at 6.) Plaintiff has not filed objections and the time to do so has passed. 21 The findings and recommendations correctly concluded that plaintiff’s SAC failed to state 22 a claim for deliberate indifference to plaintiff’s medical needs in violation of the Eighth 23 Amendment. To state a claim for deliberate indifference, plaintiff must allege: (1) “a serious 24 medical need by demonstrating that failure to treat [his] condition could result in further 25 significant injury or the unnecessary and wanton infliction of pain”; and (2) “the defendants’ 26 response to the need was deliberately indifferent.” Wilhelm v. Rotman, 680 F.3d 113, 1122 (9th 27 Cir. 2012). With respect to the second prong, deliberate indifference “describes a state of mind 1 prisoner’s interests or safety.” Farmer v. Brennan, 511 U.S. 825, 835 (1994) (internal quotations 2 and citation omitted). Deliberate indifference exists where a prison official “knows that [an] 3 inmate[] face[s] a substantial risk of serious harm and disregards that risk by failing to take 4 reasonable measures to abate it.” Id. at 847. Here, the allegations of the SAC satisfy the first 5 prong of the deliberate indifference test because plaintiff alleges that he had an infection that 6 caused reoccurring pain and required surgery (Doc. Nos. 9 at 3–4; 11 at 5), which is, at least at 7 the pleading stage, an “important” injury “worthy of . . . treatment.” Colwell v. Bannister, 763 8 F.3d 1060, 1066 (9th Cir. 2014) (citation omitted). However, in his SAC plaintiff has failed to 9 allege sufficient facts in support of the second prong, i.e., defendants disregarded of a known risk 10 to plaintiff. See Wilhelm, 680 F.3d at 1122. Plaintiff appears to imply, although it is not clear 11 from the allegations, that defendants misdiagnosed the cause of the pain to his finger as arthritis 12 when the true cause was an infection. (See Doc. No. 9 at 3–4.) But a misdiagnosis, though 13 potentially negligent, is not enough to allege deliberate indifference under the Eighth 14 Amendment. See Estelle v. Gamble, 429 U.S. 97, 104 (1976) (explaining that “a complaint that a 15 physician has been negligent in diagnosing or treating a medical condition does not state a valid 16 claim” under the Eighth Amendment). Further, plaintiff alleges that he underwent surgery for his 17 condition and was given medication to abate his pain (Doc. No. 11 at 3–5), which strongly 18 suggests that defendants were not deliberately indifferent to his medical condition. See Farmer, 19 511 U.S. at 847. The SAC therefore fails to plausibly allege that defendants were deliberately 20 indifferent to plaintiff’s medical needs. 21 Given that plaintiff has now had three opportunities to allege facts stating a cognizable 22 claim but has failed to do so, the court finds that granting further leave to amend would be futile 23 in this case. See Akhtar v. Mesa, 698 F.3d 1202, 1212–13 (9th Cir. 2012). Accordingly, this 24 action should be dismissed with prejudice. 25 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a 26 de novo review of this case. Having carefully reviewed the entire file, the court finds the findings 27 and recommendations to be supported by the record and proper analysis. 1 Accordingly: 2 1. The findings and recommendations issued on February 3, 2020 (Doc. No. 12) are 3 adopted; 4 2. The second amended complaint (Doc. No. 11) is dismissed with prejudice; and 5 3. The Clerk of the Court is directed to assign a district judge to this case for the 6 purposes of closure and to close this case. 7 | ITIS SO ORDERED. si am 8 Li. wh F Dated: _ March 19, 2020 wae oe 9 UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28