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Thomas v. Bruce

United States District Court, D. Nevada

June 3, 2014

HORACE THOMAS, Plaintiff,
v.
MERLE BRUCE MD, Defendant.

SCREENING ORDER

MIRANDA M. DU, District Judge.

Plaintiff, who is a prisoner in the custody of the California Department of Corrections and Rehabilitation, has submitted an application to proceed in forma pauperis, a civil rights complaint pursuant to 42 U.S.C. § 1983, and a motion for appointment of counsel. (Dkt. no. 1, 2, 5.) The Court now screens Plaintiff's civil rights complaint pursuant to 28 U.S.C. § 1915A.

I. SCREENING STANDARD

Federal courts must conduct a preliminary screening in any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Pro se pleadings, however, must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) the violation of a right secured by the Constitution or laws of the United States, and (2) that the alleged violation was committed by a person acting under color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).

In addition to the screening requirements under § 1915A, pursuant to the Prison Litigation Reform Act (PLRA), a federal court must dismiss a prisoner's claim, if "the 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 such relief." 28 U.S.C. § 1915(e)(2). Dismissal of a complaint for failure to state a claim upon which relief can be granted is provided for in Federal Rule of Civil Procedure 12(b)(6), and the court applies the same standard under § 1915 when reviewing the adequacy of a complaint or an amended complaint. When a court dismisses a complaint under § 1915(e), the plaintiff should be given leave to amend the complaint with directions as to curing its deficiencies, unless it is clear from the face of the complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).

Review under Rule 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Lab. Corp. of America, 232 F.3d 719, 723 (9th Cir. 2000). Dismissal for failure to state a claim is proper only if it is clear that the plaintiff cannot prove any set of facts in support of the claim that would entitle him or her to relief. See Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 1999). In making this determination, the court takes as true all allegations of material fact stated in the complaint, and the court construes them in the light most favorable to the plaintiff. See Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th Cir. 1996). Allegations of a pro se complainant are held to less stringent standards than formal pleadings drafted by lawyers. See Hughes v. Rowe, 449 U.S. 5, 9 (1980). While the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must provide more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A formulaic recitation of the elements of a cause of action is insufficient. Id.

Additionally, a reviewing court should "begin by identifying pleadings [allegations] that, because they are no more than mere conclusions, are not entitled to the assumption of truth." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). "While legal conclusions can provide the framework of a complaint, they must be supported with factual allegations." Id. "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." Id. "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.

Finally, all or part of a complaint filed by a prisoner may therefore be dismissed sua sponte if the prisoner's claims lack an arguable basis either in law or in fact. This includes claims based on legal conclusions that are untenable (e.g., claims against defendants who are immune from suit or claims of infringement of a legal interest which clearly does not exist), as well as claims based on fanciful factual allegations (e.g., fantastic or delusional scenarios). See Neitzke v. Williams, 490 U.S. 319, 327-28 (1989); see also McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991).

II. SCREENING OF COMPLAINT

In the complaint, Plaintiff sues Defendant Merle Bruce, M.D., for events that took place while Plaintiff was incarcerated at High Desert State Prison in Susanville, California. (Dkt. no. 1 at 1.) Plaintiff alleges that Dr. Bruce is a resident of Reno, Nevada, who performed surgery on Plaintiff at the prison in Susanville, California. ( Id. at 2.) Plaintiff alleges three counts and seeks monetary damages. ( Id. at 6, 9.)

In the complaint, Plaintiff alleges the following: On March 1, 2013, Bruce performed a surgical procedure to repair and wire Plaintiff's jaw. ( Id. at 4.) "The procedure was irresponsible, unethical with no regard for [Plaintiff's] health or safety." ( Id. ) Before the surgery, Bruce did not remove Plaintiff's tooth or the root of the tooth. ( Id. at 5.) Bruce failed to conduct reconstructive surgery and now Plaintiff's gums are in pain. ( Id. ) Plaintiff has a pinched nerve in his jaw and chin area, numbness, difficulty speaking, pain, and suffering. ( Id. at 6.) The lodged tooth aches daily and causes excruciating pain. ( Id. ) Plaintiff alleges malpractice (Count I), irreparable harm (Count II), and cruel and unusual punishment (Count III). ( Id. at 4-6.)

The Eighth Amendment prohibits the imposition of cruel and unusual punishment and "embodies broad and idealistic concepts of dignity, civilized standards, humanity, and decency.'" Estelle v. Gamble, 429 U.S. 97, 102 (1976). A prison official violates the Eighth Amendment when he acts with "deliberate indifference" to the serious medical needs of an inmate. Farmer v. Brennan, 511 U.S. 825, 828 (1994). "To establish an Eighth Amendment violation, a plaintiff must satisfy both an objective standard - that the deprivation was serious enough to constitute cruel and unusual punishment - and a subjective standard - deliberate indifference." Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012).

However, "a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner." Estelle v. Gamble, 429 U.S. 97, 106 (1976). Even gross negligence is insufficient to establish deliberate indifference to serious medical needs. See Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004).

The Court finds that Plaintiff fails to state a colorable claim. Based on the allegations, Plaintiff is alleging that Dr. Bruce committed malpractice which has left Plaintiff in a lot of pain. Because Plaintiff cannot state a § 1983 claim based on medical malpractice, the Court dismisses Counts I, II, and III with prejudice, as amendment would be futile.

III. MOTION FOR APPOINTMENT OF COUNSEL

Plaintiff has filed a motion for appointment of counsel. (Dkt. no. 2.) A litigant does not have a constitutional right to appointed counsel in 42 U.S.C. § 1983 civil rights claims. Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). Pursuant to 28 U.S.C. § 1915(e)(1), "[t]he court may request an attorney to represent any person unable to afford counsel." However, the court will appoint counsel for indigent civil litigants only in "exceptional circumstances." Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) § 1983 action). "When determining whether exceptional circumstances' exist, a court must consider the likelihood of success on the merits as well as the ability of the petitioner to articulate his claims pro se in light of the complexity of the legal issues involved." Id. "Neither of these considerations is dispositive and instead must be viewed together." Id. In the instant case, the Court does not find exceptional circumstances that warrant the appointment of counsel. The Court denies the motion for appointment of counsel.

IV. CONCLUSION

For the foregoing reasons, it is ordered that the application to proceed in forma pauperis (dkt. no. 5) is denied as moot.

It is further ordered that the Clerk of the Court shall file the complaint (dkt. no. 1).

It is further ordered that the complaint is dismissed in its entirety, with prejudice, for failure to state a claim, as amendment would be futile.

It is further ordered that the motion for appointment of counsel (dkt. no. 2) is denied.

It is further ordered that this Court certifies that any in forma pauperis appeal from this order would be taken "in good faith" pursuant to 28 U.S.C. § 1915(a)(3).


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