(PC) Connor v. CDCR ( 2020 )


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  • 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BARBARA A. CONNOR, No. 2:19-cv-2088-TLN-EFB P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 CALIFORNIA DEPARTMENT OF CORRECTIONS, et al., 15 Defendants. 16 17 Plaintiff is a former state prisoner proceeding without counsel in an action brought under 18 42 U.S.C. § 1983. After dismissal of her two prior complaints pursuant to 28 U.S.C. § 1915(e)(2) 19 (ECF Nos. 6 & 8), she has filed a second amended complaint (ECF No. 9), which the court must 20 now screen.1 21 The second amended complaint reads in its entirety, as follows: 22 23 I, Barbara A. Connor, claim “Deliberate Indifference” against the California Department of Corrections and Rehabilitation and Dr. Jerry W. Weiner. I believe 24 that Dr. Jerry Weiner knew of my criminal case because of the proximity of 25 Stockton to Manteca w[h]ere Dr. Weiner’s practice is at Doctor’s Hospital and 26 1 Pursuant to § 1915(e)(2), the court must dismiss the case at any time if it determines the 27 allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from 28 suit. 1 office, being just outside of Stockton. I believe Dr. Weiner is homophobic and made a deliberate [and] conscious decision to give me a mastectomy without the 2 Biopsy Report. Not only did he not give [me] an alternate treatment plan but he 3 also unknowing[ly] removed thirteen noncancerous lymph nodes. I told Dr. Mitchell and Dr. Garcia of this concern I had about Dr. Jerry Weiner and this was 4 documented in my medical files at Central California Women’s Facility. I am suffering physical trauma from the removal of thirteen noncancerous lymph nodes 5 which has also caused nerve damage. Dr. Jerry Weiner’s failure to give me the proper treatment has cause[d] me more health issues than what I would have if he 6 had not ignored the biopsy report and given me a less invasive surgery. I believe 7 his personal prejudice motivated him to misdiagnose and mistreat me. I should not have been given a mastectomy and I should not have had thi[r]teen noncancerous 8 lymph nodes removed. 9 Plaintiff seeks damages of $5,000,000. 10 ECF No. 9 at 2. 11 Like the prior complaints, the second amended complaint fails to demonstrate that in 12 removing the non-cancerous lymph nodes and performing a mastectomy, defendant Weiner acted 13 with the deliberate indifference required for an Eighth Amendment claim. If Weiner 14 “unknowingly” removed non-cancerous lymph nodes, as plaintiff alleges, his conduct was 15 negligent at worst, not the product of a deliberate decision to cause her harm. Further, plaintiff’s 16 conclusory statement of her belief that Weiner performed a mastectomy on her for no reason 17 other than being a suspected homophobe and having knowledge of her criminal case is entirely 18 speculative. At bottom, plaintiff’s claim is based on her disagreement with the course of 19 treatment chosen by Dr. Weiner. Mere differences of opinion concerning the appropriate 20 treatment cannot be the basis of an Eighth Amendment violation. Jackson v. McIntosh, 90 F.3d 21 330, 332 (9th Cir. 1996); Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981). 22 Leave to Amend 23 The court has afforded plaintiff two chances to amend her complaint, yet her amendments 24 have not been responsive to the court’s screening orders. Consequently, it declines to offer her 25 further opportunity to amend. See McGlinchy v. Shell Chemical Co., 845 F.2d 802, 809-10 (9th 26 Cir. 1988) (“Repeated failure to cure deficiencies by amendments previously allowed is another 27 valid reason for a district court to deny a party leave to amend.”). 28 wOAOe 2 VEVOOU TEINS BP MVVUPITOCIIN tt Pt eciec Faye Vv VI 1 Conclusion 2 Accordingly, it is RECOMMENDED that plaintiff’ second amended complaint (ECF No. 3 || 9) be DISMISSED without leave to amend and the Clerk be directed to close the case. 4 These findings and recommendations are submitted to the United States District Judge 5 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days 6 || after being served with these findings and recommendations, any party may file written 7 || objections with the court and serve a copy on all parties. Such a document should be captioned 8 || “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 9 | within the specified time may waive the right to appeal the District Court’s order. Turner v. 10 || Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 11 || Dated: September 22, 2020. 12 tid, PDEA B EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Document Info

Docket Number: 2:19-cv-02088

Filed Date: 9/22/2020

Precedential Status: Precedential

Modified Date: 6/19/2024