Dawson v. Rafeal

[7] 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA [10] RICKY DAWSON, 11 Case No. 21-08877 BLF (PR) Plaintiff, 12 ORDER OF DISMISSAL v. [14] NURSE RAFEAL, et al., 15 Defendants. [17] 18 Plaintiff, a state prisoner currently housed at Folsom State Prison, filed the instant 19 pro se civil rights action pursuant to 42 U.S.C. § 1983 against a nurse at the Martinez 20 Detention Facility. Dkt. No. 7. Plaintiff’s motion for leave to proceed in forma pauperis 21 will be addressed in a separate order. Dkt. No. 4. [22] 23 DISCUSSION 24 A. Standard of Review 25 A federal court must conduct a preliminary screening in any case in which a 26 prisoner seeks redress from a governmental entity or officer or employee of a 27 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 1 upon which relief may be granted or seek monetary relief from a defendant who is immune 2 from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be liberally 3 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 4 To state a claim under 42 U.S.C. § 1983 , a plaintiff must allege two essential 5 elements: (1) that a right secured by the Constitution or laws of the United States was 6 violated, and (2) that the alleged violation was committed by a person acting under the 7 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 8 B. Plaintiff’s Claims 9 Plaintiff claims that on September 3, 2021, he was given the wrong medication by a 10 new nurse, Defendant Rafeal, during pill call. Dkt. No. 7 at 2-3. Plaintiff claims that 11 Nurse Rafeal told him that his medication had changed. Id. at 3. Plaintiff claims that 12 mental health medication cannot be changed without his consent or talking with a doctor. 13 Id. When Plaintiff told Nurse Rafeal that the pills he was given were not his normal pills, 14 Nurse Rafeal “made [him] take it.” Id. Plaintiff claims that he had negative reactions to 15 the drug that evening. Id. Plaintiff claims it was the nurse’s job “to make sure we get the 16 right meds and in a timely manner which was neglected by medical staff and regular staff.” 17 Id. Plaintiff seeks damages. Id. 18 Deliberate indifference to a prisoner’s serious medical needs violates the Eighth 19 Amendment’s proscription against cruel and unusual punishment. See Estelle v. Gamble, [20] 429 U.S. 97, 104 (1976); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), 21 overruled in part on other grounds by WMX Technologies, Inc. v. Miller, 104 F.3d 1133 , 22 1136 (9th Cir. 1997) (en banc). A determination of “deliberate indifference” involves an 23 examination of two elements: the seriousness of the prisoner’s medical need and the nature 24 of the defendant’s response to that need. See McGuckin, 974 F.2d at 1059 . A prison 25 official is deliberately indifferent if he knows that a prisoner faces a substantial risk of 26 serious harm and disregards that risk by failing to take reasonable steps to abate it. Farmer 1 from which the inference could be drawn that a substantial risk of serious harm exists,” but 2 he “must also draw the inference.” Id. If a prison official should have been aware of the 3 risk, but was not, then the official has not violated the Eighth Amendment, no matter how 4 severe the risk. Gibson, 290 F.3d at 1188. 5 The complaint fails to state a cognizable claim. Even if we assume Plaintiff 6 satisfies the first element for serious medical need, he fails to establish the second prong 7 regarding Defendant’s response to that need. This action is based on a single incident 8 when a new nurse, Defendant Rafeal, gave Plaintiff the wrong medication. As Plaintiff 9 alleges, Nurse Rafeal informed him that his medication had changed. Even if the change 10 in medication was not appropriate, there is no allegation the Nurse Rafeal was responsible 11 for that change; he was simply dispensing medication “as prescribed.” Dkt. No. 7 at 2. 12 Nor is there is any allegation that Nurse Rafeal gave Plaintiff the wrong medication 13 knowing that Plaintiff would face a substantial risk of serious harm and that he disregarded 14 that risk. Even if Nurse Rafeal should have been aware of the risk but was not, then he has 15 not violated the Eighth Amendment, no matter how severe the risk. Gibson, 290 F.3d at 16 1188. 17 Plaintiff also alleges that he received the wrong medication because of the neglect 18 of medical staff and regular staff. Dkt. No. 7 at 3. However, a claim of medical 19 malpractice or negligence is insufficient to make out a violation of the Eighth Amendment. 20 See Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004); Hallett v. Morgan, 296 F.3d 21 732, 744 (9th Cir. 2002); Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981); see, 22 e.g., McGuckin, 974 F.2d at 1059 (mere negligence in diagnosing or treating a medical 23 condition, without more, does not violate a prisoner’s 8th Amendment rights). Even if 24 Defendant Rafeal’s actions were negligent, this isolated incident is not sufficient to 25 establish an Eighth Amendment violation. See O'Loughlin v. Doe, 920 F.2d 614, 617 (9th 26 Cir. 1990) (repeatedly failing to satisfy requests for aspirins and antacids to alleviate 1 || may constitute grounds for medical malpractice but do not rise to level of unnecessary and 2 || wanton infliction of pain). Accordingly, this action must be dismissed for failure to state a 3 claim. [4] 5 CONCLUSION 6 For the foregoing reasons, the complaint is DISMISSED for failure to state a claim 7 || for which relief can be granted and as untimely. 8 The Clerk shall terminate any pending motions and close the file. 9 IT ISSO ORDERED. 10 || Dated: __March 18, 2022 Aah Liye harman ' BETH LABSON FREEMAN 1 United States District Judge g 2B [17] Oo Z 18 [24] 25 Order of Dismissal PRO-SE\BLF\CR.21\08877Dawson_dism(ftsac)