Harrison v. Adams, et al

Filing 154

FINDINGS and RECOMMENDATIONS for Action to Proceed on Cognizable Eighth Amendment Claim Against Defendants Jones, Moore, Burns, Kim, Dava, Urbano, Campos, Parsons, M. Gonzalez, C. Gonzales, Cisneros, and Zakari; and for Other Claims and Defendants to be Dismissed for Failure to State a Claim re 145 , signed by Magistrate Judge Michael J. Seng on 5/3/13. Referred to Judge Ishii. Fourteen-Day Deadline. (Gonzalez, R)

1
2
3
4
5

UNITED STATES DISTRICT COURT

6

EASTERN DISTRICT OF CALIFORNIA

7
8

MICHAEL D. HARRISON,

CASE NO. 1:08-cv-01065-AWI-MJS (PC)

9
10

FINDINGS AND RECOMMENDATIONS FOR
ACTION TO PROCEED ON COGNIZABLE
EIGHTH AMENDMENT CLAIM AGAINST
DEFENDANTS JONES, MOORE, BURNS,
KIM, DAVA, URBANO, CAMPOS, PARSONS,
M. GONZALEZ, C. GONZALES, CISNEROS,
AND ZAKARI; AND FOR OTHER CLAIMS
AND DEFENDANTS TO BE DISMISSED
FOR FAILURE TO STATE A CLAIM

Plaintiff,

11

v.

12
13

WARDEN D. ADAMS, et al.,

14
Defendants.

15

(ECF No. 145)

16

FOURTEEN-DAY OBJECTION DEADLINE
/

17
18

SCREENING ORDER

19
20

I.

PROCEDURAL HISTORY

21

Plaintiff Michael D. Harrison (“Plaintiff”), a state prisoner in the custody of the

22

California Department of Corrections and Rehabilitation (“CDCR”), brings this civil rights

23

action pursuant to 42 U.S.C. § 1983.

24
25
26

This action is proceeding on Plaintiff’s Fifth Amendment Complaint filed May 3,
2011, alleging that Defendants violated Plaintiff’s Eighth Amendment right to adequate

27
1

1

medical care. (ECF No. 70.) Plaintiff’s action is proceeding against Defendants Moore,

2

Jones, Burns, Kim, and Dava. (ECF Nos. 65 & 75.)

3
4

Plaintiff has made numerous requests to file an amended complaint adding
additional defendants identified in discovery. (ECF Nos. 108, 117, 119, 124, 126, 132.)

5
6

The Court granted Plaintiff’s requests. (ECF No. 136.) Plaintiff has since filed an Eighth

7

Amendment Complaint which is now before the Court for screening. (ECF No. 145.)

8

II.

SCREENING REQUIREMENTS

9

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

10

against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

11

§ 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has

12
13

raised claims that are legally “frivolous or malicious,” that fail to state a claim upon which

14

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

15

such relief. 28 U.S.C. § 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion

16

thereof, that may have been paid, the court shall dismiss the case at any time if the court

17

determines that . . . the action or appeal . . . fails to state a claim upon which relief may be

18

granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

19
A complaint must contain “a short and plain statement of the claim showing that the
20
21

pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are

22

not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by

23

mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

24

(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth

25

“sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.’”

26
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). Facial plausibility demands
27
2

1

more than the mere possibility that a defendant committed misconduct and, while factual

2

allegations are accepted as true, legal conclusions are not. Iqbal, 556 U.S. at 678.

3

III.

4

SUMMARY OF EIGHTH AMENDED COMPLAINT
Plaintiff brings this action for violations of his Eighth Amendment right to adequate

5
6

medical care. He sues the following individuals as Defendants in their individual and

7

official capacities: 1) T. Moore, correctional sergeant for the CDCR, 2) T. Davis Jones,

8

member of the medical staff for the CDCR, 3) C. Rabaino-Burns, member of the medical

9

staff for the CDCR, 4) J. Kim, member of the medical staff for the CDCR, 5) E. Dava,

10

member of the medical staff for the CDCR, 6) E. Urbano, member of the medical staff for

11

the CDCR, 7) E.V. Roth, member of the medical staff for the CDCR, 8) F. Campos,

12
13

member of the medical staff for the CDCR, 9) T. Cisneros, member of the medical staff for

14

the CDCR, 10) M. Parsons, member of the medical staff for the CDCR, 11) C. Gonzales,

15

member of the medical staff for the CDCR, 12) M. O’Neal, member of the medical staff for

16

the CDCR, 13) M. Galvan, member of the medical staff for the CDCR, 14) C. Bastianon,

17

member of the medical staff for the CDCR, 15) B. Johnson, member of the medical staff

18

for the CDCR, 16) M. Gonzalez, member of the medical staff for the CDCR, 17) C.

19
Raygoza, member of the medical staff for the CDCR, 18) J.G. Coronado, member of the
20
21

medical staff for the CDCR, 19) R. Casio, member of the medical staff for the CDCR, 20)

22

G. Vincente, member of the medical staff for the CDCR, 21) Tumayo, member of the

23

medical staff for the CDCR, 22) Zakari, member of the medical staff for the CDCR, and 23)

24

B. Edmonds.1

25
26
27

1

Plaintiff fails to name Defendant Edmonds in the area where he lists the new Defendants. Since
it appears he wishes to make claims against this individual, the Court will evaluate these claims for
potential ccognizability.

3

1
2
3
4

Plaintiff makes the following allegations (which are the same as he made in his Fifth
Amended Complaint):
On April 20, 2007, Plaintiff’s arm was broken. (Am. Compl. at 11.) Defendants
Jones, Moore, and Jones declined his request to see a doctor or be taken to the hospital.

5
6

(Id. at 11-12.) On May 8, 2007, Defendant Rabaino-Burns refused Plaintiff’s request to

7

send him to the hospital. (Id. at 12.) Plaintiff saw Defendant Kim several times in 2007

8

regarding an infection in his arm but he refused to admit Plaintiff to the hospital for

9

treatment. (Id. at 12-13.) Defendant Dava saw Plaintiff in March of 2008 and refused to

10

have Plaintiff admitted to the hospital, provide Plaintiff with antibiotics, or refer Plaintiff to

11

another doctor. (Id. at 15-16.)

12
Plaintiff’s Eighth Amended Complaint adds the following parties allegedly having
13
14

liability and the following new allegations against each: (Am. Comp. at 17.)

15

From April 22-28, 2007, Plaintiff informed various prison officials about his broken

16

arm. (Id.) Plaintiff showed his arm to Defendants Urbano, Roth, Campos, Parsons, M.

17

Gonzalez, C. Gonzalez, T. Cisneros, and Zakari. (Id.) Defendant Roth requested medical

18

help for Plaintiff, but his request was refused. (Id.)2 Plaintiff tried to get help for the

19
infection in his arm, but Defendants Urbano, M. Gonzalez, M. Galvan, C. Bastianon, R.
20
21

Casio, M. Parson, G. Vicente, B. Johnson. C. Raygoza, T. Cisneros, M. O’Neal, C.

22

Gonzalez, J.G. Coronado, F. Campos, B. Edmonds, Zakari, and Tumayo refused to

23

provide treatment. (Id. at 18.)

24

Plaintiff asks for a preliminary and permanent injunction, $1 million in compensatory

25
26
27

2

Plaintiff refers the Court to various exhibits in support of his allegations. The exhibits discuss his
mental health status but do not appear to offer support for his claims here. (Am. Compl. at Ex. A-B.)

4

1

damages from each Defendant, $1 million in punitive damages from each Defendant, $1

2

million for emotional damages, $1 million for mental anguish damages, $1 million for

3

psychological damages, $1 million for pain and suffering, and an injunction ordering

4

Corcoran State Prison to follow the treatment plan found in J. Clerk Kelso’s report.3 (Am.

5
6

Compl. at 21-22.) Plaintiff also asks for medications and additional costs and fees. (Id.

7

at 23.)

8

IV.

9
10
11

ANALYSIS
A.

42 U.S.C. § 1983 Claims

42 U.S.C. § 1983 “provides a cause of action for the ‘deprivation of any rights,
privileges, or immunities secured by the Constitution and laws’ of the United States.”

12
13

Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). §

14

1983 is not itself a source of substantive rights, but merely provides a method for

15

vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94

16

(1989).

17
18

To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that
a right secured by the Constitution or laws of the United States was violated, and (2) that

19
20

the alleged violation was committed by a person acting under the color of state law. See

21

West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245

22

(9th Cir. 1987).

23

B.

24

Plaintiff alleges various Eighth Amendment inadequate medical care claims against

Eighth Amendment

25
26
27

3

Plaintiff also requests that criminal charges be brought against Defendant Dava. Such relief is
beyond the Court’s authority.

5

1

the Defendants.

2

“[T]o maintain an Eighth Amendment claim based on prison medical treatment, an

3

inmate must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439

4

F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). The

5
6

two part test for deliberate indifference requires the plaintiff to show (1) “‘a serious medical

7

need’ by demonstrating that ‘failure to treat a prisoner’s condition could result in further

8

significant injury or the unnecessary and wanton infliction of pain,’” and (2) “the defendant’s

9

response to the need was deliberately indifferent.” Jett, 439 F.3d at 1096 (quoting

10

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

11

WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc) (internal quotations

12
omitted)). Deliberate indifference is shown by “a purposeful act or failure to respond to a
13
14

prisoner’s pain or possible medical need, and harm caused by the indifference.” Jett, 439

15

F.3d at 1096 (citing McGuckin, 974 F.2d at 1060). In order to state a claim for violation of

16

the Eighth Amendment, a plaintiff must allege sufficient facts to support a claim that the

17

named defendants “[knew] of and disregard[ed] an excessive risk to [Plaintiff’s] health . .

18

. .” Farmer v. Brennan, 511 U.S. 825, 837 (1994).

19
In applying this standard, the Ninth Circuit has held that before it can be said that
20
21

a prisoner’s civil rights have been abridged, “the indifference to his medical needs must be

22

substantial. Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this

23

cause of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980)

24

(citing Estelle, 429 U.S. at 105-06). “[A] complaint that a physician has been negligent in

25
26

diagnosing or treating a medical condition does not state a valid claim of medical
mistreatment under the Eighth Amendment. Medical malpractice does not become a

27
6

1

constitutional violation merely because the victim is a prisoner.” Estelle, 429 U.S. at 106;

2

see also Anderson v. County of Kern, 45 F.3d 1310, 1316 (9th Cir. 1995); McGuckin, 974

3

F.2d at 1050, overruled on other grounds, WMX, 104 F.3d at 1136. Even gross negligence

4

is insufficient to establish deliberate indifference to serious medical needs. See Wood v.

5
6

Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990).

7

Also, “a difference of opinion between a prisoner-patient and prison medical

8

authorities regarding treatment does not give rise to a § 1983 claim.” Franklin v. Oregon,

9

662 F.2d 1337, 1344 (9th Cir. 1981) (internal citation omitted). To prevail, Plaintiff “must

10

show that the course of treatment the doctors chose was medically unacceptable under

11

the circumstances . . . and . . . that they chose this course in conscious disregard of an

12
excessive risk to plaintiff’s health.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1986)
13
14

(internal citations omitted). A prisoner’s mere disagreement with diagnosis or treatment

15

does not support a claim of deliberate indifference. Sanchez v. Vild, 891 F.2d 240, 242

16

(9th Cir. 1989).

17
18

Because Plaintiff has brought allegations against multiple Defendants, the Court will
address the claims, as applicable, by Defendant or group of Defendants.

19
1.

Defendants Jones, Moore, Burns

20
21

The Court has already determined that Plaintiff states a cognizable claim for

22

violation of his Eighth Amendment right to adequate medical care against Defendants

23

Jones, Moore, and Burns for allegedly denying Plaintiff medical care even though they

24

knew he had a broken arm.

25
26

2.

Defendants Kim and Dava

Similarly, Plaintiff also previously stated a claim against Defendants Kim and Dava

27
7

1

for refusing to treat Plaintiff’s infection. Defendant Kim refused initially. Defendant Dava

2

refused to renew Plaintiff’s prescription for antibiotics. Both refused to send Plaintiff back

3

to the hospital.

4

Plaintiff has stated a cognizable claim for violation of his Eighth

Amendment right to adequate medical care.

5
6

3.

Defendant Roth

7

Plaintiff alleges Defendant Roth saw his broken arm and tried to provide him with

8

medical help. Such an attempt to help Plaintiff is the antitheses of deliberate indifference.

9

Plaintiff has failed to state an Eighth Amendment claim against Defendant Roth.

10
11

Defendants Urbano, Campos, Parsons, M. Gonzalez, C. Gonzalez,
Cisneros, and Zakari

12

Plaintiff alleges that these Defendants failed to treat his broken arm and the

13
14
15

4.

infection in his arm.
Plaintiff alleges he showed these Defendants his broken arm and they refused to
seek medical treatment for him even though they were in a position to do so. Plaintiff has

16
17
18

alleged an Eighth Amendment claim for their failure to act in response to notice of
Plaintiff’s broken arm.

19

In the case of the infection, Plaintiff fails to allege any facts suggesting that these

20

Defendants were aware of or should have been aware of the alleged infection. He alleges

21

that he filed reports regarding his arm, but not that any of these Defendants saw the

22

reports. Plaintiff has failed to state an Eighth Amendment claim against these Defendants

23
24
25

in connection with the infection in his arm.
5.

Defendants Galvan, Bastianon, Casio, Vicente, Johnson, Raygoza,
O’Neal, Coronado, Edmonds, and Tumayo

26
Plaintiff alleges these Defendants failed to properly treat the infection in his arm.
27
8

1

He does not however attribute to them any specific knowledge regarding the infection or

2

any action or inaction on their part. He simply lists their names as people to whom he

3

complained about his arm. To the extent he filed reports regarding his arm, he does not

4

allege that any of these Defendants saw the reports. Plaintiff has failed to state an Eighth

5
6

Amendment claim against these Defendants.

7

B.

8

As is obvious, Plaintiff has had, and availed himself of, several opportunities to

9

amend. The latest amendment was allowed only because Plaintiff averred that he had

10

identified additional Defendants through discovery. Plaintiff having been indulged every

11

Amendment

reasonable opportunity to identify potential Decedents and perfect his claims against them,

12
13

no useful purpose would be served in extending yet another such opportunity. Leave to

14

amend will not here be granted. Plaintiff shall proceed, if at all, on the Eight Amended

15

Complaint against the Defendants designated below and no others.

16

IV.

17
18

CONCLUSION AND RECOMMENDATION
The Court finds that Plaintiff’s Eighth Amended Complaint has stated a cognizable

Eighth Amendment medical care claim against Defendants Jones, Moore, Burns, Kim,

19
20

Dava, Urbano, Campos, Parsons, M. Gonzalez, C. Gonzalez, Cisneros, and Zakari.

21

Plaintiff has failed to state any other claims against any other Defendants.

22

Based on the foregoing, it is HEREBY RECOMMENDS that:

23

1.

24
25

This action proceed as one for damages on Plaintiff’s Eighth Amendment
medical care claim for failure to treat his broken arm against Defendants
Jones, Moore, Burns, Urbano, Campos, Parsons, M. Gonzalez, C. Gonzalez,

26
Cisneros, and Zakari;
27
9

2.

1

This action proceed as one for damages on Plaintiff’s Eighth Amendment

2

medical claim for failure to treat his infection against Defendants Kim and

3

Dava;

4

3.

Plaintiff’s Eighth Amendment medical care claim against Defendant Roth for

5
failure to treat his broken arm be DISMISSED;

6
4.

7

Plaintiff’s Eighth Amendment medical care claim against Defendants Urbano,

8

Campos, Parsons, M. Gonzalez, C. Gonzalez, Cisneros, Zakari, Galvan,

9

Bastianon, Casio, Vicente, Johnson, Raygoza, O’Neal, Coronado, Edmonds,

10

and Tumayo for failing to treat his infection be DISMISSED; and

11

5.

Defendants Galvan, Bastianon, Casio, Vicente, Johnson, Raygoza, O’Neal,

12
Coronado, Edmonds, Roth, and Tumayo be DISMISSED from this action.
13
These Findings and Recommendations will be submitted to the United States

14
15

District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. §

16

636(b)(l).

17

Recommendations, Plaintiff may file written objections with the Court. The document

18

Within fourteen (14) days after being served with these Findings and

should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.”

19
Plaintiff is advised that failure to file objections within the specified time may waive the right
20
21

to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

22
23

IT IS SO ORDERED.

24
25

Dated:
ci4d6

May 3, 2013

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

26
27
10