Gilbert Solis v. California Dept of Corrections et al

Filing 13

MEMORANDUM AND ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND by Magistrate Judge Douglas F. McCormick. (twdb)

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FILED

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CLERK, U.S. DISTRICT COURT

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May 15, 2015
DV

CENTRAL DISTRICT OF CALIFORNIA
BY: ___________________ DEPUTY

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Plaintiff w/ form on May 15, 2015 by DV

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

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GILBERT SOLIS,

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Plaintiff,

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v.

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STATE OF CALIFORNIA et al.,
Defendants.

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No. EDCV 14-01879-FMO (DFM)
MEMORANDUM AND ORDER
DISMISSING FIRST AMENDED
COMPLAINT WITH LEAVE TO
AMEND

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I.

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INTRODUCTION

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On December 5, 2014, Plaintiff Gilbert Solis, who is a state prisoner at

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the California Institution for Men (“CIM”) in Chino, California, filed a pro se

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complaint alleging violations of 42 U.S.C. § 1983. After the Court dismissed

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the complaint with leave to amend, Plaintiff filed a first amended complaint on

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March 23, 2015. Dkt. 12 (“FAC”).

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The FAC names the following Defendants: (1) J. Lewis, the Director of

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Policy and Risk Management Services, California Correctional Health Care

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Services; (2) Dr. T. Le, the Chief Physician and Surgeon at CIM; (3) Dr. M.

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Farooq, a physician at CIM; (4) Dr. Pollick, Plaintiff’s primary care physician

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at CIM; (5) Dr. Oh, Plaintiff’s primary care physician at CIM; (6) Doe

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Defendants 1 through 100; and (7) the California Department of Corrections

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(“CDCR”). FAC at 3-4.1 Plaintiff names all of the individual Defendants in

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both their individual and official capacities. Id.

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In accordance with 28 U.S.C. § 1915A, the Court must screen the FAC

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for purposes of determining whether the action is frivolous or malicious; or

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fails to state a claim on which relief might be granted; or seeks monetary relief

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against a defendant who is immune from such relief.

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II.

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SUMMARY OF PLAINTIFF’S ALLEGATIONS

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The gravamen of Plaintiff’s complaint is that Defendants acted with

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deliberate indifference to his serious medical needs by failing to properly treat a

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rash and failing to provide proper treatment and follow up care for a hernia

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condition.

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Plaintiff alleges that he has suffered from a chronic skin condition since

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2009, which Defendants failed to properly diagnose and treat. When Plaintiff

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was seen by Dr. Pollick on December 17, 2013, he was given a small tube of

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hydrocortisone cream and a prescription to treat scabies. FAC at 8. Plaintiff

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alleges that this treatment actually worsened his skin condition, causing him

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great pain. Id. Plaintiff requested to see a dermatologist, but his request was

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denied by Drs. Pollick, Le, and Farooq. Id. at 8-9. Plaintiff’s medical appeal

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regarding his skin condition was ultimately denied by Lewis. Id. at 10.

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Plaintiff further alleges that he made multiple complaints regarding a

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chronic hernia condition, which were generally ignored by Defendants. Id. at

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10-11. On October 13, 2013, Plaintiff was given a CT scan to evaluate the

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hernia in preparation for surgery. Id. at 11. The hernia repair surgery was

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All page citations are to the CM/ECF pagination.
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apparently postponed because a tumor was detected on Plaintiff’s kidney. Id.

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However, a second CT scan did not detect any tumor. Id. Plaintiff alleges that,

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during this time, he had developed a large open sore in his abdomen due to a

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failure to repair his hernia. Id. at 12.

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On April 17, 2014, Plaintiff “received hospital surgical services related to

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historical hernia repair complications including excision of infected mesh,

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tissue debridement, lysis of adhesions (scar tissue), and the repair of infected

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ventral and incisional hernias.” Id. at 13. After surgery, CDCR officers

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immediately transported Plaintiff back to CIM, where he failed to receive any

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post-operative treatment. Id.
Plaintiff alleges that Defendants deliberately ignored his complaints of

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pain, infection, and fever. Id. at 13-15. Subsequently, Plaintiff developed a

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post-operative wound infection, which required him to be hospitalized for ten

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days, from April 30 through May 9, 2014. Id. at 13. After being released from

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the hospital, Plaintiff was placed in out-patient housing for 24 hour intensive

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care, where he remained until at least June 18, 2014. Id. at 14.

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III.

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STANDARD OF REVIEW

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The Court’s screening of the FAC is governed by the following

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standards. A complaint may be dismissed as a matter of law for failure to state

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a claim for two reasons: (1) lack of a cognizable legal theory; or (2) insufficient

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facts under a cognizable legal theory. See Balistreri v. Pacifica Police Dep’t,

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901 F.2d 696, 699 (9th Cir. 1990). In determining whether the complaint states

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a claim on which relief may be granted, its allegations of material fact must be

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taken as true and construed in the light most favorable to Plaintiff. See Love v.

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United States, 915 F.2d 1242, 1245 (9th Cir. 1989). Further, since Plaintiff is

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appearing pro se, the Court must construe the allegations of the complaint

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liberally and must afford Plaintiff the benefit of any doubt. See Karim-Panahi
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v. Los Angeles Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988). However, “the

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liberal pleading standard . . . applies only to a plaintiff’s factual allegations.”

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Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989). “[A] liberal interpretation of

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a civil rights complaint may not supply essential elements of the claim that

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were not initially pled.” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251,

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1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th

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Cir. 1982)). Moreover, with respect to Plaintiff’s pleading burden, the

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Supreme Court has held that “a plaintiff’s obligation to provide the ‘grounds’

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of his ‘entitlement to relief’ requires more than labels and conclusions, and a

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formulaic recitation of the elements of a cause of action will not do. . . .

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Factual allegations must be enough to raise a right to relief above the

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speculative level . . . on the assumption that all the allegations in the complaint

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are true (even if doubtful in fact).” Bell Atlantic Corp. v. Twombly, 550 U.S.

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544, 555 (2007) (internal citations omitted, alteration in original); see also

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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (holding that to avoid dismissal for

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failure to state a claim, “a complaint must contain sufficient factual matter,

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accepted as true, to ‘state a claim to relief that is plausible on its face.’ A claim

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has facial plausibility when the plaintiff pleads factual content that allows the

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court to draw the reasonable inference that the defendant is liable for the

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misconduct alleged.” (internal citation omitted)).

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If the Court finds that a complaint should be dismissed for failure to state

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a claim, the Court has discretion to dismiss with or without leave to amend.

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Lopez v. Smith, 203 F.3d 1122, 1126-30 (9th Cir. 2000) (en banc). Leave to

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amend should be granted if it appears possible that the defects in the complaint

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could be corrected, especially if a plaintiff is pro se. Id. at 1130-31; see also

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Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (noting that “[a] pro

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se litigant must be given leave to amend his or her complaint, and some notice

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of its deficiencies, unless it is absolutely clear that the deficiencies of the
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complaint could not be cured by amendment”) (citing Noll v. Carlson, 809

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F.2d 1446, 1448 (9th Cir. 1987)). However, if, after careful consideration, it is

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clear that a complaint cannot be cured by amendment, the Court may dismiss

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without leave to amend. Cato, 70 F.3d at 1105-06; see, e.g., Chaset v.

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Fleer/Skybox Int’l, 300 F.3d 1083, 1088 (9th Cir. 2002) (holding that “there is

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no need to prolong the litigation by permitting further amendment” where the

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“basic flaw” in the pleading cannot be cured by amendment); Lipton v.

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Pathogenesis Corp., 284 F.3d 1027, 1039 (9th Cir. 2002) (holding that

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“[b]ecause any amendment would be futile, there was no need to prolong the

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litigation by permitting further amendment”).

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IV.

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DISCUSSION

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A.

Official Capacity Claims
Despite the Court’s admonition when it dismissed the original

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complaint, Plaintiff has again named each of the individual Defendants in his

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official capacity. The Supreme Court has held that an “official-capacity suit is,

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in all respects other than name, to be treated as a suit against the entity.”

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Kentucky v. Graham, 473 U.S. 159, 166 (1985); see also Brandon v. Holt, 469

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U.S. 464, 471-72 (1985); Larez v. City of L.A., 946 F.2d 630, 646 (9th Cir.

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1991). Such a suit “is not a suit against the official personally, for the real party

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in interest is the entity.” Graham, 473 U.S. at 166. Here, all of the Defendants

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are officers or agents of the CDCR. Therefore, all of Plaintiff’s claims against

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Defendants in their official capacities are tantamount to claims against the

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CDCR.

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However, states, state agencies, and state officials sued in their official

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capacities are not persons subject to civil rights claims for damages under 42

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U.S.C. § 1983. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 64–66

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(1989); see also Hafer v. Melo, 502 U.S. 21, 30 (1991) (clarifying that the
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Eleventh Amendment does not bar suits against state officials sued in their

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individual capacities nor for prospective injunctive relief against state officials

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sued in their official capacities). The CDCR is an agency of the State of

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California and, therefore, entitled to Eleventh Amendment immunity. See

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Brown v. Cal. Dep’t of Corrections, 554 F.3d 747, 752 (9th Cir. 2009).
To overcome the Eleventh Amendment bar on federal jurisdiction over

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suits by individuals against a State and its instrumentalities, either the State

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must have “unequivocally expressed” its consent to waive its sovereign

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immunity or Congress must have abrogated it. See Pennhurst State School &

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Hosp. v. Halderman, 465 U.S. 89, 99–100 (1984). California has consented to

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be sued in its own courts pursuant to the California Tort Claims Act, but such

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consent does not constitute consent to suit in federal court. See BV

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Engineering v. Univ. of Cal., Los Angeles, 858 F.2d 1394, 1396 (9th Cir.

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1988); see also Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241, 105

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S.Ct. 3142, 87 L.Ed.2d 171 (1985) (holding that Art. III, § 5 of the California

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Constitution did not constitute a waiver of the state’s Eleventh Amendment

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immunity). Furthermore, Congress has not abrogated State sovereign

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immunity against suits under 42 U.S.C. § 1983.
Accordingly, Plaintiff’s claims for damages against the Defendants in

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their official capacities and against the CDCR are barred by the Eleventh

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Amendment.

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B.

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Eighth Amendment Deliberate Indifference
Plaintiff has failed to state a cognizable Eighth Amendment deliberate

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indifference claim against Dr. Pollick. The Eighth Amendment imposes duties

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on prison officials to provide humane conditions of confinement by ensuring

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that inmates receive adequate food, clothing, shelter, and medical care, and

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“tak[ing] reasonable measures to guarantee the safety of the inmates.” Farmer,

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511 U.S. at 832 (citing Hudson, 468 U.S. at 526-27).
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To establish an Eighth Amendment claim that prison authorities

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provided inadequate medical care, a plaintiff must show that a defendant was

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deliberately indifferent to his serious medical needs. Helling v. McKinney, 509

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U.S. 25, 32 (1993); Estelle v. Gamble, 429 U.S. 97, 106 (1976); McGuckin v.

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Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds by

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WMX Technologies, Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997). Deliberate

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indifference may be manifested by the intentional denial, delay, or interference

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with a plaintiff’s medical care, or by the manner in which the medical care was

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provided. See Gamble, 429 U.S. at 104-05; McGuckin, 974 F.2d at 1059.

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Furthermore, the defendant must purposefully ignore or fail to respond

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to a plaintiff’s pain or medical needs. McGuckin, 974 F.2d at 1060. A plaintiff

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must allege that, subjectively, the defendant had a “sufficiently culpable state

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of mind” when medical care was refused or delayed. Clement v. Gomez, 298

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F.3d 898, 904 (9th Cir. 2002) (citing Wallis v. Baldwin, 70 F.3d 1074, 1076

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(9th Cir. 1995)). A defendant must “both be aware of the facts from which the

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inference could be drawn that a substantial risk of serious harm exists, and he

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must also draw the inference.” Farmer, 511 U.S. at 837. An inadvertent failure

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to provide adequate medical care, mere negligence or medical malpractice, a

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mere delay in medical care (without more), or a difference of opinion over

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proper medical treatment, are all insufficient to constitute an Eighth

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Amendment violation. See Gamble, 429 U.S. at 105-07; Sanchez v. Vild, 891

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F.2d 240, 242 (9th Cir. 1989); Shapley v. Nev. Bd. of State Prison Comm’rs,

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766 F.2d 404, 407 (9th Cir. 1985). Moreover, the Eighth Amendment does not

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require optimal medical care or even medical care that comports with the

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community standard of medical care. “[A] complaint that a physician has been

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negligent in diagnosing or treating a medical condition does not state a valid

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claim of medical mistreatment under the Eighth Amendment. Medical

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malpractice does not become a constitutional violation merely because the
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victim is a prisoner.” See Gamble, 429 U.S. at 106; see, e.g., Anderson v.

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County of Kern, 45 F.3d 1310, 1316 (9th Cir. 1995); McGuckin, 974 F.2d at

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1050; Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980).

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Even gross negligence is insufficient to establish deliberate indifference to

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serious medical needs. See Wood v. Housewright, 900 F.2d 1332, 1334 (9th

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Cir. 1990).

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First, with respect to Plaintiff’s claim of deliberate indifference regarding

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his rash, the exhibits attached to the FAC demonstrate that Dr. Pollick and the

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medical staff at CIM were aware of the condition and were trying to treat it

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with medicated steroid cream. See FAC at 23, 26-27. Plaintiff was seen by

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medical staff at CIM multiple times regarding his rash, and it was noted that

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the condition was improving. Id. Plaintiff’s contention that the steroid cream

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was not alleviating the rash and that Dr. Pollick should have prescribed some

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other form of treatment does not demonstrate deliberate indifference. Plaintiff

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has not alleged that prison officials deliberately gave him an ineffective

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treatment specifically for the purpose of causing pain. The Ninth Circuit has

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repeatedly stated that if an inmate’s allegation of deliberate indifference is

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based on prison officials’ choices among alternative courses of medical

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treatment for a serious condition, when the inmate believes another course of

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treatment is warranted, then the inmate has not stated a claim for violation of

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the Eighth Amendment. See, e.g., Jackson v. McIntosh, 90 F.3d 330, 332 (9th

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Cir.1996); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir.1989); see also Jones v.

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Johnson, 781 F.2d 769, 771 (9th Cir.1986) (noting that “state prison authorities

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have wide discretion regarding the nature and extent of medical treatment”)

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(citation omitted).

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Second, with respect to Plaintiff’s claim of deliberate indifference

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regarding his hernia condition, the exhibits also demonstrate that prison

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officials were aware of the problem and were attempting, albeit at times
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unsuccessfully, to treat Plaintiff’s hernia. The medical records show that

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Plaintiff had surgery to correct an earlier hernia repair. After Plaintiff was

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released from the hospital and returned to CIM, he complained of pain, fever,

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and infection at the surgery site. Plaintiff was subsequently readmitted to the

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hospital for surgical consultation, antibiotic treatment, wound care, and blood

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tests. See FAC at 26-27. Plaintiff contends that he received inadequate post-

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operative treatment, which caused his wound to become infected. He also

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claims that medical staff delayed in returning him to the hospital after the

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wound became infected. However, Plaintiff has not alleged that prison officials

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deliberately delayed returning him to the hospital for the express purpose of

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causing pain.
Even if Dr. Pollick should have immediately scheduled Plaintiff’s hernia

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surgery, provided more thorough post-operative care, and immediately

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readmitted Plaintiff to the hospital when his wound became infected, Plaintiff

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has, at most, pleaded negligence or medical malpractice. However, “[m]ere

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indifference, negligence, or medical malpractice will not support” an Eighth

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Amendment deliberate indifference claim. Broughton v. Cutter Labs., 622

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F.2d 458, 460 (9th Cir. 1980). Plaintiff’s deliberate indifference claim against

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Dr. Pollick is therefore subject to dismissal.

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C.

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The Administrative Grievance Process
Plaintiff alleges claims against Lewis, Le, Farooq, and Oh based solely

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upon their review and denial of his administrative grievances regarding his

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medical care at CIM. See FAC at 9-10, 13-14, 16. Plaintiff generally alleges

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that these Defendants are responsible for the alleged deliberate indifference

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shown by Plaintiff’s primary care physician, Dr. Pollick, based upon their

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denial of his administrative grievances. These allegations are insufficient to

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state a viable § 1983 claim against these Defendants.

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As an initial matter, the Court notes that Plaintiff has no constitutional
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right to an effective grievance or appeal procedure. See Ramirez v. Galaza, 334

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F.3d 850, 860 (9th Cir. 2003) (holding that a prisoner has no constitutional

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right to an effective grievance or appeal procedure); Mann v. Adams, 855 F.2d

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639, 640 (9th Cir. 1988); see also George v. Smith, 507 F.3d 605, 609–10 (7th

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Cir. 2007) (holding that only persons who cause or participate in civil rights

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violations can be held responsible and that “[r]uling against a prisoner on an

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administrative complaint does not cause or contribute to the violation”);

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Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999) (holding that prison

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officials whose only roles involved the denial of the prisoner’s administrative

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grievances cannot be held liable under § 1983); Buckley v. Barlow, 997 F.2d

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494, 495 (8th Cir. 1993) (“[A prison] grievance procedure is a procedural right

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only, it does not confer any substantive right upon the inmates.”).

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A prison official’s denial of an inmate’s grievance or appeal from a

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misconduct finding generally does not constitute significant participation in an

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alleged constitutional violation sufficient to give rise to personal liability. See,

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e.g., Wilson v. Woodford, 2009 WL 839921, *6 (E.D. Cal. 2009) (ruling

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against a prisoner on an administrative complaint does not cause or contribute

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to the violation); Foreman v. Goord, 2004 WL 1886928 (S.D.N.Y. 2004)

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(holding prison superintendent’s affirmation of the plaintiff’s grievance denial

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insufficient to establish personal involvement necessary for section 1983

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liability); Piggie v. Parke, 1997 WL 284796, *3 (N.D. Ind. 1997) (“The mere

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act of denying a grievance following a transitory incident, however, does not

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provide a basis for liability under § 1983. Prisoners have no constitutional right

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to a grievance procedure...”) (citation omitted).

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Here, the FAC does not allege any facts that establish either personal

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involvement by Lewis, Le, Farooq, or Oh in the alleged constitutional

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violations or any direct causal connection between any action or inaction on

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the part of these Defendants and the alleged constitutional violation.
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Accordingly, Plaintiff has failed to state a claim with respect to any of his

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claims regarding the processing and review of his prison grievances.

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D.

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Supervisory Liability
Plaintiff’s allegations also implicate Lewis, Le, Farooq, and Oh on the

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basis of supervisory liability. Supervisory personnel are generally not liable

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under 42 U.S.C. § 1983 on any theory of respondeat superior or vicarious

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liability in the absence of a state law imposing such liability. See, e.g., Redman

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v. Cnty. of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991). In Iqbal, 556 U.S.

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at 676, the Supreme Court reaffirmed that “[g]overnment officials may not be

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held liable for the unconstitutional conduct of their subordinates under a

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theory of respondeat superior liability.” However, the Ninth Circuit has

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concluded that, at least in cases where the applicable standard is deliberate

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indifference (such as for an Eighth Amendment claim), Iqbal does not

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foreclose a plaintiff from stating a claim for supervisory liability based upon the

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“supervisor’s knowledge of and acquiescence in unconstitutional conduct by

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his or her subordinates.” Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011).

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The Ninth Circuit thus held:

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A defendant may be held liable as a supervisor under § 1983

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‘if there exists either (1) his or her personal involvement in the

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constitutional deprivation, or (2) a sufficient causal connection

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between the supervisor’s wrongful conduct and the constitutional

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violation.’ ‘[A] plaintiff must show the supervisor breached a duty

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to plaintiff which was the proximate cause of the injury. The law

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clearly allows actions against supervisors under section 1983 as

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long as a sufficient causal connection is present and the plaintiff

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was deprived under color of law of a federally secured right.’

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‘The requisite causal connection can be established . . . by

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setting in motion a series of acts by others,’ or by ‘knowingly
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refus[ing] to terminate a series of acts by others, which [the

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supervisor] knew or reasonably should have known would cause

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others to inflict a constitutional injury.’ ‘A supervisor can be liable

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in his individual capacity for his own culpable action or inaction in

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the training, supervision, or control of his subordinates; for his

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acquiescence in the constitutional deprivation; or for conduct that

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showed a reckless or callous indifference to the rights of others.’

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Id. at 1207-08 (internal citations omitted, alterations in original). In addition,

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to premise a supervisor’s alleged liability on a policy promulgated by the

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supervisor, plaintiff must identify a specific policy and establish a “direct

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causal link” between that policy and the alleged constitutional deprivation.

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See, e.g., City of Canton v. Harris, 489 U.S. 378, 385 (1989); Oviatt v. Pearce,

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954 F.2d 1470, 1474 (9th Cir. 1992).

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Here, Plaintiff names Lewis, Le, Farooq, and Oh as Defendants on the

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basis that they have supervisory authority, but fails to set forth any specific

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allegations that they personally participated in Plaintiff’s alleged mistreatment.

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Nor does Plaintiff set forth any factual allegations that these Defendants either

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personally promulgated any policy that had a direct causal connection with the

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constitutional injuries of which Plaintiff complains or knowingly acquiesced to

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any alleged misconduct. Accordingly, Plaintiff has again failed to state a viable

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§ 1983 claim against these Defendants.

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V.

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CONCLUSION

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Because Plaintiff’s official-capacity claims against Defendants, his

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deliberate indifference claims, his claims regarding denial of his administrative

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grievances, and his supervisory claims all fail to state a claim upon which relief

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may be granted, the FAC is subject to dismissal. Because it is not absolutely

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clear that Plaintiff’s pleading deficiencies cannot be cured by amendment, such
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dismissal will be with leave to amend. Accordingly, if Plaintiff still desires to

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pursue his claims, he shall file a Second Amended Complaint within thirty-five

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(35) days of the date of this Order remedying the deficiencies discussed above.

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Plaintiff’s Second Amended Complaint should bear the docket number

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assigned in this case; be labeled “Second Amended Complaint”; and be

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complete in and of itself without reference to the prior complaints or any other

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pleading, attachment or document. The Clerk is directed to send Plaintiff a

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blank Central District civil rights complaint form, which Plaintiff is

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encouraged to utilize.

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Plaintiff is admonished that, if he fails to timely file a Second

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Amended Complaint, the Court will recommend that this action be

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dismissed with prejudice for failure to diligently prosecute.

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Dated: May 15, 2015

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______________________________
DOUGLAS F. McCORMICK
United States Magistrate Judge

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