1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

KM 

WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Gary Jerome Harper, 

Plaintiff, 

v. 

Correct Care Solutions, et al., 

Defendants. 

No. CV 15-08256-PCT-DGC (DKD) 

ORDER 

On November 4, 2015, Plaintiff Jerome Harper, who is confined in the Mohave 

County Jail, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 and an 

Application to Proceed In Forma Pauperis. In a December 21, 2015 Order, the Court 

granted the Application to Proceed and dismissed the Complaint because Plaintiff had 

failed to state a claim. The Court gave Plaintiff 30 days to file an amended complaint 

that cured the deficiencies identified in the Order. 

 On January 11, 2016, Plaintiff filed a First Amended Complaint (Doc. 7). The 

Court will dismiss the First Amended Complaint and this action. 

I. Statutory Screening of Prisoner Complaints

 The Court is required to screen complaints brought by prisoners seeking relief 

against a governmental entity or an officer or an employee of a governmental entity. 28 

U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 

has raised claims that are legally frivolous or malicious, that fail to state a claim upon 

Case 3:15-cv-08256-DGC--DKD Document 8 Filed 02/17/16 Page 1 of 6
- 2 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

which relief may be granted, or that seek monetary relief from a defendant who is 

immune from such relief. 28 U.S.C. § 1915A(b)(1)–(2). 

 A pleading must contain a “short and plain statement of the claim showing that the 

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 

does not demand detailed factual allegations, “it demands more than an unadorned, thedefendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 

(2009). “Threadbare recitals of the elements of a cause of action, supported by mere 

conclusory statements, do not suffice.” Id. 

 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 

claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 

550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual 

content that allows the court to draw the reasonable inference that the defendant is liable 

for the misconduct alleged.” 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. at 679. Thus, although a plaintiff’s 

specific factual allegations may be consistent with a constitutional claim, a court must 

assess whether there are other “more likely explanations” for a defendant’s conduct. Id.

at 681. 

 But as the United States Court of Appeals for the Ninth Circuit has instructed, 

courts must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 

342 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less 

stringent standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. 

Pardus, 551 U.S. 89, 94 (2007) (per curiam)). 

II. First Amended Complaint 

 Plaintiff names Medical Doctor Klinemach as Defendant in the First Amended 

Complaint and raises one claim for relief, alleging a violation of his Eighth and 

Fourteenth Amendment rights to adequate medical care. Plaintiff alleges that although he 

suffers multiple bladder infections and is in constant pain, Defendant Klinemach is 

Case 3:15-cv-08256-DGC--DKD Document 8 Filed 02/17/16 Page 2 of 6
- 3 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

denying him pain medication. Plaintiff claims Defendant Klinemach is aware of the 

bladder infections and his need to be treated, but refuses to treat Plaintiff or send him to 

an outside care provider. Plaintiff believes the infection is spreading to his kidneys. 

Plaintiff seeks monetary damages. 

III. Failure to State a Claim

 Not every claim by a prisoner relating to inadequate medical treatment states a 

violation of the Eighth or Fourteenth Amendment. To state a § 1983 medical claim, a 

plaintiff must show (1) a “serious medical need” by demonstrating that failure to treat the 

condition could result in further significant injury or the unnecessary and wanton 

infliction of pain and (2) the defendant’s response was deliberately indifferent. Jett v. 

Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). 

 “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 

1051, 1060 (9th Cir. 2004). To act with deliberate indifference, a prison official must 

both know of and disregard an excessive risk to inmate health; “the official must both be 

aware of facts from which the inference could be drawn that a substantial risk of serious 

harm exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 

837 (1994). Deliberate indifference in the medical context may be shown by a 

purposeful act or failure to respond to a prisoner’s pain or possible medical need and 

harm caused by the indifference. Jett, 439 F.3d at 1096. Deliberate indifference may 

also be shown when a prison official intentionally denies, delays, or interferes with 

medical treatment or by the way prison doctors respond to the prisoner’s medical needs. 

Estelle, 429 U.S. at 104-05; Jett, 439 F.3d at 1096. 

 Deliberate indifference is a higher standard than negligence or lack of ordinary 

due care for the prisoner’s safety. Farmer, 511 U.S. at 835. “Neither negligence nor 

gross negligence will constitute deliberate indifference.” Clement v. California Dep’t of 

Corr., 220 F. Supp. 2d 1098, 1105 (N.D. Cal. 2002); see also Broughton v. Cutter Labs., 

622 F.2d 458, 460 (9th Cir. 1980) (mere claims of “indifference,” “negligence,” or 

“medical malpractice” do not support a claim under § 1983). “A difference of opinion 

Case 3:15-cv-08256-DGC--DKD Document 8 Filed 02/17/16 Page 3 of 6
- 4 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

does not amount to deliberate indifference to [a plaintiff’s] serious medical needs.” 

Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). A mere delay in medical care, 

without more, is insufficient to state a claim against prison officials for deliberate 

indifference. See Shapley v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 

(9th Cir. 1985). The indifference must be substantial. The action must rise to a level of 

“unnecessary and wanton infliction of pain.” Estelle, 429 U.S. at 105.

 Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 

520-21 (1972), conclusory and vague allegations will not support a cause of action. Ivey 

v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Further, a 

liberal interpretation of a civil rights complaint may not supply essential elements of the 

claim that were not initially pled. Id. 

 Plaintiff has not alleged sufficient facts to state a claim. Plaintiff claims 

Defendant Klinemach “was aware” of his bladder infections, but does not state when he 

was diagnosed with a bladder infection or when he presented his symptoms to Defendant 

Klinemach. Accordingly, the Court cannot evaluate whether Plaintiff’s claim that 

Defendant “refuses” to treat him is a delay in medical treatment or an outright refusal to 

provide treatment. 

 Moreover, the Court notes that Plaintiff’s claims appear to be generally duplicative 

of his previous filed cases.1

 Plaintiff has alleged in other cases that Defendant Klinemach 

denied him medication for treatment of a bladder infection resulting from a delay in 

providing catheter supplies, and denied surgery that would allow Plaintiff to discontinue 

use of a catheter. Plaintiff also alleges in these lawsuits that Defendant Klinemach has 

denied him pain medication. An in forma pauperis complaint that merely repeats pending 

or previously litigated claims may be considered abusive and dismissed under the 

authority of 28 U.S.C. § 1915(e). Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th Cir. 

1995); Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir. 1988). An in forma pauperis 

 

1

 Some of Plaintiff’s other cases include: 15-cv-08213-DGC-DKD, 15-cv-08218-

DGC-DKD, 15-cv-08219-DGC-DKD, 15-cv-08220-DGC-DKD, 15-cv-08231-DGCDKD, 16-cv-08013-DGC-DKD, 15-cv-08278-DGC-DKD, 15-cv-08258-DGC-DKD. 

Case 3:15-cv-08256-DGC--DKD Document 8 Filed 02/17/16 Page 4 of 6
- 5 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

complaint repeating the same factual allegations asserted in an earlier case, even if now 

filed against a new defendant, is subject to dismissal as duplicative and frivolous. See

Bailey, 846 F.2d at 1021; see also Van Meter v. Morgan, 518 F.2d 366, 368 (8th Cir. 

1975). 

IV. Dismissal without Leave to Amend

 Because Plaintiff has failed to state a claim in his First Amended Complaint, the 

Court will dismiss his First Amended Complaint. “Leave to amend need not be given if a 

complaint, as amended, is subject to dismissal.” Moore v. Kayport Package Express, 

Inc., 885 F.2d 531, 538 (9th Cir. 1989). The Court’s discretion to deny leave to amend is 

particularly broad where Plaintiff has previously been permitted to amend his complaint. 

Sisseton-Wahpeton Sioux Tribe v. United States, 90 F.3d 351, 355 (9th Cir. 1996). 

Repeated failure to cure deficiencies is one of the factors to be considered in deciding 

whether justice requires granting leave to amend. Moore, 885 F.2d at 538. The Court 

has already provided Plaintiff with an opportunity to amend his Complaint, and Plaintiff 

failed to state a claim. Moreover, in light of Plaintiff’s previously filed, and more 

detailed, lawsuits regarding medical treatment for his bladder-related illnesses, the Court 

finds that further opportunities to amend this action would be futile or would result in 

claims that are duplicative of his other lawsuits. Therefore, the Court, in its discretion, 

will dismiss Plaintiff’s First Amended Complaint without leave to amend. 

IT IS ORDERED: 

 (1) Plaintiff’s First Amended Complaint (Doc. 7) and this action are dismissed

for failure to state a claim, and the Clerk of Court must enter judgment accordingly. 

 (2) The Clerk of Court must make an entry on the docket stating that the 

dismissal for failure to state a claim may count as a “strike” under 28 U.S.C. § 1915(g). 

. . . . 

. . . . 

. . . . 

. . . . 

Case 3:15-cv-08256-DGC--DKD Document 8 Filed 02/17/16 Page 5 of 6
- 6 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

 (3) The docket shall reflect that the Court certifies, pursuant to 28 U.S.C. 

§ 1915(a)(3) and Federal Rules of Appellate Procedure 24(a)(3)(A), that any appeal of 

this decision would not be taken in good faith. 

 Dated this 17th day of February, 2016. 

Case 3:15-cv-08256-DGC--DKD Document 8 Filed 02/17/16 Page 6 of 6