Holt v. Scribner, et al.

Filing 28

ORDER, signed by District Judge David C. Bury on 3/31/2009. It is ORDERED: Defendants Hadsadsri, Kim, Abromowitz, Dange and Thirakomen must answer Counts Four, Six, Nine, Ten, Eleven, and Fourteen of the Second Amended Complaint. The Clerk of Court m ust send Plaintiff a service packet including the Second Amended Complaint (Doc. #27), this Order, a Notice of Submission of Documents form, an instruction sheet, and copies of summons and USM-285 forms for Defendant Hadsadsri, Kim, Abromowitz, Dang and Thirakomen. Within 30 days of the date of filing of this Order, Plaintiff must complete and return to the Clerk of Court the Notice of Submission of Documents. (Enclosed: (1) USM Instructions and Notice of Submission of Documents, (1) Copy of the Second Amended Complaint, (5) Summons and (5) USM-285 Forms) ( Filing deadline: 5/6/2009) (Scrivner, E)

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KM

I N THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF CALIFORNIA

Virgil E. Holt, Plaintiff, vs. A .K . Scribner, et al., Defendants.

) ) ) ) ) ) ) ) ) )

N o . CV 1-06-1719-DCB ORDER

P lain tiff Virgil E. Holt, who is confined in the California Correctional Institution in T e h a ch a p i, California, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983. O n October 30, 2008, the Court dismissed the Complaint with leave to amend. Plaintiff filed a First Amended Complaint, which the Court also dismissed with leave to amend. On F e b ru a ry 20, 2009, Plaintiff filed a Second Amended Complaint (Doc. #27). The Court will o rd e r Defendants Hadsadsri, Kim, Abromowitz, Dang, and Thirakomen to answer Counts F o u r, Six, Nine, Ten, Eleven, and Fourteen of the Second Amended Complaint and will d is m is s the remaining claims and Defendants without prejudice. I. Statutory Screening of Prisoner Complaints T h e 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 c la im s that are legally frivolous or malicious, that fail to state a claim upon which relief may

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b e granted, or that seek monetary relief from a defendant who is immune from such relief. 2 8 U.S.C. § 1915A(b)(1), (2). II. S e c o n d Amended Complaint P lain tiff names the following Defendants, who were employed at the California State P r is o n -C o rc o ra n , in the Second Amended Complaint: Warden A.K. Scribner; Dr. J. Dang; D r. Clive Greaves; Dr. Hadsadsri; Dr. J. Kim; Chief Medical Officer Dr. John D. Klarich; D r. Mies; Dr. J. Abromowitz; Dr. K. Thirakomen; and Does 1­5. P la in tif f raises 15 claims for relief:1 (1 ) D e f en d a n t Mies was deliberately indifferent to Plaintiff's serious medical n e e d s when he failed to ensure that Plaintiff received prescribed treatment and D e f e n d a n t Nurse Doe 1 was deliberately indifferent when he or she failed to d e liv e r the prescribed treatment order to the prison pharmacy and, instead, th re w it in the trash; (2 ) Defendant Dang was deliberately indifferent when he ordered lab tests for P lain tiff but refused to provide immediate treatment for Plaintiff's previously d ia g n o se d pneumonia and informed Plaintiff that he had forgotten to write a lab order for tests to determine appropriate treatment; (3 ) Defendant Dang was deliberately indifferent when he diagnosed Plaintiff with b ro n c h itis but refused to prescribe treatment and stated "it will go away on its ow n"; (4 ) D e f en d a n t Hadsadsri was deliberately indifferent when, after Plaintiff in f o rm e d him of Plaintiff's previously diagnosed medical conditions including p n e u m o n i a , bronchitis and hepatitis A, Defendant Hadsadsri taunted Plaintiff a n d refused to provide treatment for any of the conditions;

P la in tif f has not numbered his claims. The Court will therefore refer to the claims b a se d on the order that they appear in the Second Amended Complaint. For those claims to w h ic h the Court will require an answer, the Court will also identify the claims by the page n u m b e r on which they begin. -2-

1

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(5 )

D e f en d a n t Greaves was deliberately indifferent when he failed to ensure that P la in tif f received the lab test and prescription medications that Defendant G r e a v e s ordered and Defendant Doe 3 failed to deliver Defendant Greaves' m e d ic a l orders to the prison pharmacy;

(6 )

D e f e n d a n t Kim was deliberately indifferent when he refused to investigate P l a i n t if f ' s illnesses or provide treatment even though he was aware that P lain tiff was experiencing symptoms of an autoimmune disorder;

(7 )

D e f e n d a n ts Mies, Dang, Hadsadsri, Greaves, and Kim refused to provide tr e a tm e n t for Plaintiff's multiple medical conditions;

(8 )

D e f e n d a n t Klarich failed to respond to Plaintiff's letter complaining about his m e d ica l treatment;

(9 )

D e f en d a n t Abromowitz was deliberately indifferent when he diagnosed P lain tiff with herpes, but failed to provide treatment;

(1 0 )

D e f en d a n t Abromowitz was deliberately indifferent when, although he was a w a r e of Plaintiff's diagnosed auto-immune disorder, he refused to provide tre a tm e n t;

(1 1 )

D e f e n d a n t Dang was deliberately indifferent when, after Plaintiff was d ia g n o se d with mild lupis by a rheumatology specialist, he refused to provide P la in t if f with treatment for lupis;

(1 2 )

D e f e n d a n t Scribner was deliberately indifferent when he failed to respond to P lain tiff 's complaints about medical treatment;

(1 3 )

D e f e n d a n t Klarich was deliberately indifferent when he failed to respond to P la in tif f 's September 2004 complaints concerning Plaintiff's medical care;

(1 4 )

D e f en d a n t Thirakomen was deliberately indifferent when, with knowledge of P lain tiff 's medical history and previously diagnosed conditions, he refused to c o n d u c t further investigation or prescribe treatment; and

(15)

D e f e n d a n t Scribner was deliberately indifferent when, in 2005, he failed to re sp o n d to Plaintiff's complaints regarding medical care. -3-

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P la in t if f seeks declaratory and injunctive relief and money damages. II I. F a ilu r e to State a Claim A. M e d ic a l Claims

To maintain a claim under the Eighth Amendment based on prison medical treatment, a prisoner must show deliberate indifference to serious medical needs. Estelle v. Gamble, 4 2 9 U.S. 97, 104 (1976). To act with deliberate indifference, a prison official must both k n o w of and disregard an excessive risk to inmate health. Farmer v. Brennan, 511 U.S. 825, 8 3 7 (1994). The official must both be aware of facts from which the inference could be d ra w n that a substantial risk of serious harm exists and he must also draw the inference. Id. T h is subjective approach focuses upon the mental attitude of the defendant. Id. at 839. "Deliberate indifference is a high legal standard." Toguchi v. Chung, 391 F.3d 1051, 1 0 6 0 (9th Cir. 2004). In the medical context, deliberate indifference may be shown by (1) a p u rp o s e f u l act or failure to respond to a prisoner's pain or possible medical need and (2 ) harm caused by the indifference. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (c itin g Estelle, 429 U.S. at 104). Medical malpractice or negligence is insufficient to establish a violation. Toguchi, 3 9 1 F.3d at 1060. Thus, mere negligence in diagnosing or treating a condition does not v io late the Eighth Amendment. Toguchi, 391 F.3d at 1057. Also, an inadvertent failure to p ro v id e adequate medical care alone does not rise to the Eighth Amendment level. Jett, 429 F .3 d at 1096. A difference in medical opinion also does not amount to deliberate

in d if f ere n c e. Toguchi, 391 F.3d at 1058. To prevail on a claim involving choices between a ltern a tiv e courses of treatment, a prisoner must show that the chosen course was medically u n a c ce p ta b le under the circumstances and was chosen in conscious disregard of an excessive ris k to the prisoner's health. Id. 1. Count One

In Count One, Plaintiff claims that Defendant Mies diagnosed Plaintiff with p n e u m o n i a , prescribed an antibiotic as treatment, and then gave the prescription to Defendant N u r s e Doe 1 to give to the prison pharmacy. Plaintiff alleges that Defendant Mies never -4-

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v e rif ie d that Nurse Doe 1 delivered the prescription or ensured that Plaintiff received the p re sc rip tio n . Plaintiff claims he never received the prescribed treatment and his condition w o rse n e d . P la in t if f ' s allegations are insufficient to state a claim against Defendant Mies because they do not demonstrate that Defendant Mies was deliberately indifferent to Plaintiff's m e d ic a l needs. Plaintiff's facts may demonstrate, at most, that Defendant Mies was

n e g lig e n t in providing treatment. Negligence is not sufficient to state an Eighth Amendment c la im and Count One will be dismissed with respect to Defendant Mies. 2. Count Two

In Count Two, Plaintiff claims that Defendant Dang examined Plaintiff, informed P lain tif f that he would order lab tests, but refused to provide treatment for Plaintiff's p re v io u s ly diagnosed pneumonia. Plaintiff also states that "Dr. Dang informed Plaintiff that h e had forgotten to write the lab order to have a culture and gram strain test performed on the in f e ctio u s green mass, that plaintiff had been coughing up, so that a treatment could be p ro v id e d . He then wrote a lab order and handed it to Defendant Nurse Does 2 . . . ." Finally, P lain tiff claims that Defendant Nurse Doe 2 failed to deliver the lab test order. A s with Count One, Plaintiff's allegations do not demonstrate deliberate indifference. P lain tiff alleges that he was examined by Dr. Dang and that Dr. Dang ordered lab tests before p ro v id in g treatment. That Dr. Dang initially failed to order a specific lab test, or that he n e g le c te d to ensure Plaintiff received the test after it was ordered, suggests mere negligence a n d not deliberate indifference. Similarly, Defendant Nurse Doe 2's failure to deliver the lab tes t order only rises to the level of negligence. Plaintiff's allegations in Count Two fail to s ta te an Eighth Amendment claim and Count Two will be dismissed. 3. Count Three

In Count Three, Plaintiff alleges that Defendant Dang diagnosed Plaintiff with b ro n c h itis , but refused to provide Plaintiff with medication, telling Plaintiff that "it will go a w a y on it[]s own." Plaintiff has alleged only a difference of opinion in treatment. A d if f e re n c e in medical opinion does not amount to deliberate indifference. Toguchi, 391 F.3d -5-

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a t 1058. To prevail on a claim involving choices between alternative courses of treatment, a prisoner must show that the chosen course was medically unacceptable under the circu m stan ce s and was chosen in conscious disregard of an excessive risk to the prisoner's h e a lth . Id. Plaintiff has not shown that Defendant Dang's chosen course of treatment was m ed ically unacceptable under the circumstances. Count Three will be dismissed for failure to state a claim. 4. Count Five

In Count Five, Plaintiff claims that he informed Defendant Greaves of his medical c o n d itio n s and that Defendant Greaves examined Plaintiff and wrote an order for lab tests a n d a prescription for medication for Plaintiff. Plaintiff claims that Defendant Greaves gave th e order to Defendant Nurse Doe 3 who failed to deliver the order. Plaintiff claims that D e f en d a n t Greaves failed to ensure that the lab tests were performed or that Plaintiff received th e prescription medication. Again, these allegations are demonstrate only negligence and a re insufficient to state an Eighth Amendment claim. Count Five will be dismissed for f a ilu re to state a claim. 5. Count Seven

I n Count Seven, Plaintiff alleges that Defendants Mies, Dang, Hadsadsri, Greaves, K im , and Nurse Does 1-3 failed to provide treatment for Plaintiff's serious medical needs. C o u n t Seven simply repeats claims made by Plaintiff in Counts One through Six and will th e re f o re be dismissed as duplicative. 6. Counts Eight, Twelve, Thirteen, and Fifteen

I n Counts Eight, Twelve, Thirteen, and Fifteen, Plaintiff claims that Defendants K la ric h and Scribner failed to respond to Plaintiff's various inmate letters and grievances re g a rd in g his medical conditions and treatment. W h e re a defendant's only involvement in the allegedly unconstitutional conduct is the d e n ia l of administrative grievances, the failure to intervene on a prisoner's behalf to remedy a lle g e d unconstitutional behavior does not amount to active unconstitutional behavior for p u rp o s e s of § 1983. Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999). Accordingly, the -6-

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C o u rt will dismiss Counts Eight, Twelve, Thirteen, and Fifteen for failure to state a claim. IV . C la im s for Which an Answer Will be Required L ib e ra lly construed, Plaintiff has adequately stated a claim in Counts One (with re sp e c t to Defendant Nurse Doe 1) (Second Amend. Compl. at 8), Four (id. at 14), Six (id. at 18), Nine (id. at 22), Ten (id. at 23), Eleven (id. at 26), and Fourteen (id. at 30). The Court w ill require Defendants Hadsadsri, Kim, Abromowitz, Dang, and Thirakomen to answer th o s e claims. A lth o u g h Plaintiff has alleged his claim with enough specificity to require an answer a g a in s t Defendant Nurse Doe 1, the Court will not direct that service be made on the Doe D e f e n d a n t at this time. Generally, the use of anonymous appellations to identify defendants is not favored, and as a practical matter, it is in most instances impossible for the United S tates Marshal to serve a summons and complaint upon an unidentified defendant. However, th e Court will not dismiss the claim against the Defendant Nurse Doe 1 at this time. See W a k e f ield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999) (citing Gillespie v. Civiletti, 6 2 9 F.2d 637, 642 (9th Cir. 1980)) (where identity of alleged defendants will not be known p rio r to filing of complaint, plaintiff should be given an opportunity through discovery to id e n tif y the unknown defendants, unless it is clear that discovery would not uncover the iden tities, or that the complaint would be dismissed on other grounds). If Plaintiff later discovers the identity of this Defendant, Plaintiff should amend his C o m p la in t to name him or her. Plaintiff may amend his Complaint "once as a matter of c o u rs e at any time before a responsive pleading is served." Fed. R. Civ. P. 15(a). After any D e f en d a n t has filed an answer or other responsive pleading, however, Plaintiff must file a m o tio n requesting leave to amend and submit a proposed amended complaint.2 P la in ti f f should note that the Court will only allow amendment of the Complaint to n a m e Defendant Nurse Doe 1. Because Plaintiff has had two opportunities to amend his

P la in tif f should note that all causes of action alleged in an original complaint which a re not alleged in an amended complaint are waived. Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990) ("an amended pleading supersedes the original"). -7-

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c la im s and because of the age of this case, the Court will not allow any further amendment o f Plaintiff's claims. V. W a r n in g s A. A d d r e s s Changes

P lain tiff must file and serve a notice of a change of address in accordance with Rule 8 3 -1 8 2 (f ) and 83-183(b) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other relief with a notice of change of address. Failure to comply may result in d is m is s a l of this action. B. Copies

P la in tif f must submit an additional copy of every filing for use by the Court. See L R C iv 5-133(d)(2). Failure to comply may result in the filing being stricken without further n o tic e to Plaintiff. C. Possible Dismissal

I f Plaintiff fails to timely comply with every provision of this Order, including these w a rn in g s, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet, 9 6 3 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure to co m p ly with any order of the Court). IT IS ORDERED: (1) Count One with respect to Defendant Mies, and Counts Two, Three, Five,

S e v e n , Eight, Twelve, Thirteen, and Fifteen and Defendants Mies, Greaves, Klarich, S c rib n e r, and Does 2-5 are dismissed without prejudice. (2 ) Defendants Hadsadsri, Kim, Abromowitz, Dang, and Thirakomen must answer

C o u n ts Four, Six, Nine, Ten, Eleven, and Fourteen of the Second Amended Complaint. (3) The Clerk of Court must send Plaintiff a service packet including the Second

A m e n d e d Complaint (Doc. #27), this Order, a Notice of Submission of Documents form, an in stru c tio n sheet, and copies of summons and USM-285 forms for Defendant Hadsadsri, K im , Abromowitz, Dang, and Thirakomen. (4 ) W ith in 30 days of the date of filing of this Order, Plaintiff must complete and -8-

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re tu rn to the Clerk of Court the Notice of Submission of Documents. Plaintiff must submit w ith the Notice of Submission of Documents: a copy of the Second Amended Complaint for e a ch Defendant, a copy of this Order for each Defendant, a completed summons for each D e f e n d a n t, and a completed USM-285 for each Defendant. (5) P la in tif f must not attempt service on Defendants and must not request waiver

o f service. Once the Clerk of Court has received the Notice of Submission of Documents a n d the required documents, the Court will direct the United States Marshal to seek waiver o f service from each Defendant or serve each Defendant. (6 ) I f Plaintiff fails to return the Notice of Submission of Documents and the

r e q u ir e d documents within 30 days of the date of filing of this Order, the Clerk of C o u r t must, without further notice, enter a judgment of dismissal of this action without p r e ju d ic e . See Fed. R. Civ. P. 41(b). D A T E D this 31 st day of March, 2009.

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