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McDonough v. Smith

United States District Court, W.D. Washington, Seattle

September 3, 2019

SAMUEL K. MCDONOUGH, Plaintiff,
v.
ROBIN SMITH, et al., Defendant.

          REPORT AND RECOMMENDATION

          BRIAN A. TSUCHIDA UNITED STATES MAGISTRATE JUDGE

         Plaintiff, Sam McDonough, proceeding pro se, filed a complaint pursuant to 42 U.S.C. § 1983. Having reviewed and screened plaintiff's complaint under 28 U.S.C. § 1915A and §1915(e), the Court recommends that plaintiff's claims relating to his “federal appeal” to his criminal case be dismissed without prejudice and with leave to re-file a federal habeas petition pursuant to 28 U.S.C. § 2254. The Court further finds that plaintiff's § 1983 claims related to alleged inadequate medical care provided by Department of Corrections (DOC) staff fail to state a claim as pled. However, the Court recommends that plaintiff be given an opportunity with, respect to his § 1983 claims, to amend his complaint to cure the deficiencies described below. The Court further recommends that (1) if plaintiff fails to file an amended complaint, that the case be dismissed pursuant to 28 U.S.C. § 1915A and §1915(e) for failure to state a claim; and (2) if plaintiff does file an amended complaint, that the case be referred back to Hon. Brian A. Tsuchida for further proceedings.

         BACKGROUND

         Plaintiff states in his complaint that he intends “to file two different cases” a federal 1983 lawsuit about DOC “refusing to give me my antibiotics” and a “federal appeal to my criminal case[.]” Dkt. 6. With respect his § 1983 claims plaintiff alleges he has “multiple infections going on” in his shoulder, stomach, and teeth. Id. He alleges defendants have acted with deliberate indifference in refusing to continue to prescribe him antibiotics. Specifically, plaintiff contends about a month ago he experienced spontaneous swelling in his cheek like a tooth infection and went to the nurse. Id. He indicates he was prescribed 30 days of the antibiotic “metonidazole” and 7 days of the antibiotic “clindamyacin” and scheduled to see the dentist. Id. He contends the antibiotics worked well and the swelling was almost completely gone and that he also believed they were helping his shoulder and stomach problems which he also attributes to bacterial infections. Id. He indicates he returned and requested a re-fill of the antibiotics from a “substitute” dentist. Id. That dentist indicated he could not refill the prescription due to “risk of immunity from too much” and that he would have to see the regular dentist. Id. Plaintiff indicates when he saw the regular dentist, Laura Hale, and asked for more antibiotics she refused and told him that his tooth was the source of the infection and that it needed to be pulled. Id.

         Plaintiff indicates he asked a different provider, Robin Smith, for antibiotics and she also refused to prescribe them and stated something about plaintiff being “mentally ill.” Id. Plaintiff indicates he went to another dentist, Valerie Webb, who prescribed him another 7 days of antibiotics and that it was working great but now it is not possible for him to receive more. Id. Plaintiff contends defendants are not prescribing him antibiotics “because they are in on it with the ones tampering with my food/water/coffee.” Id. He indicates the “scheme is to tamper with my food/water/coffee, with some substance to make my teeth hurt …[then] get me to pull a tooth.” Id. Plaintiff also alleges he's had a shoulder problem since he was at Clallam Bay which was diagnosed as “arthritis” and that he has had stomach problems since 2014 but that “they don't want me to receive the cure because they are the ones who gave it to me.” Id. He contends “the nursing staff from King County Jail are the ones who are behind all of it.” Id. Plaintiff alleges the nursing staff from King County Jail in retaliation for filing a case against them “manufactured this residential burglary case on me …[and] are the source of my infectious diseases.” Id. Plaintiff also appears to allege the other inmates are tampering with the water supply and spreading infectious bacteria. Id. Plaintiff also states it is unjust he has to register as a sex offender because “indecent exposure is not the definition of my character it is something stupid I did high on methamphetamine.” Id.

         As relief, plaintiff requests an emergency injunction forcing the nursing staff to completely cure his infection with a full course of antibiotics or release him so he can go somewhere to get treatment; force the inmates so there is clean food and water; use evidence from this lawsuit as evidence of fraud for his federal appeal and reverse and dismiss; assign a federal investigator to review all of his cases so they can inform the court of the truth.

         With respect to his “federal appeal” plaintiff alleges various problems in his criminal trial including juror bias, insufficient evidence, and violation of his speedy trial rights, that he was falsely accused and maliciously prosecuted. Id. As relief he requests the Court reverse and dismiss his criminal conviction and release him back to community custody. Id.

         DISCUSSION

         The Court must dismiss the complaint of a prisoner proceeding in forma pauperis “at any time if the [C]ourt determines” that the action: (a) “is frivolous or malicious”; (b) “fails to state a claim on which relief may be granted”' or (c) “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2); 28 U.S.C. § 1915A(a), (b). A complaint is frivolous when it has no arguable basis in law or fact. Franklin v. Murphy, 745 F.3d 1221, 1228 (9th Cir. 1984).

         Before the Court may dismiss the complaint as frivolous or for failure to state a claim, though, it “must provide the [prisoner] with notice of the deficiencies of his or her complaint and an opportunity to amend the complaint prior to dismissal.” McGucken v. Smith, 974 F.2d 1050, 1055 (9th Cir. 1992); see also Sparling v. Hoffman Constr., Co., Inc., 864 F.2d 635, 638 (9th Cir. 1988); Noll v. Carlson, 809 F.2d 1446, 1449 (9th Cir. 1987). On the other hand, leave to amend need not be granted “where the amendment would be futile or where the amended complaint would be subject to dismissal.” Saul v. United States, 928 F.2d 829, 843 (9th Cir. 1991).

         To state a claim under 42 U.S.C. § 1983, a complaint must allege: (1) the conduct complained of was committed by a person acting under color of state law, and (2) the conduct deprived a person of a right, privilege, or immunity secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535 (1981). Section 1983 is the appropriate avenue to remedy an alleged wrong only if both of these elements are present. Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985).

         A. “Federal Appeal” of State Court Conviction

         Plaintiff states in his complaint that he intends “to file two different cases” a federal 1983 lawsuit about DOC medical staff “refusing to give me my antibiotics” and a “federal appeal to my criminal case[.]” Dkt. 6, at 1.

         An “action lying at the core of habeas corpus is one that goes directly to the constitutionality of the prisoner's physical confinement itself and seeks either immediate release from that confinement or the shortening of its duration. With regard to such actions, habeas corpus is now considered the prisoner's exclusive remedy.” Preiser v. Rodriguez, 411 U.S. 475, 503 (1973) (internal quotation omitted). “A civil rights action, in ...


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