Johnson v. Ortiz

Filing 11

ORDER Directing the Clerk of the Court to Modify Dockey Entry 10 and Dismissing Certain Defendants' signed by District Judge David C. Bury on 10/8/2009. If Plaintiff fails to file a Response within 30 days, the Clerk of Court must, without further notice to Plaintiff, enter a judgment of dismissal of this action without prejudice. See Fed. R. Civ. P. 41(b). (Response Deadline: 11/9/2009)(Figueroa, O).

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

Arthur L. Johnson, Plaintiff, vs. D r. Ortiz, et al., Defendants.

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N o . CV 1-08-1183-DCB ORDER

P lain tiff Arthur L. Johnson, who is confined in the Pleasant Valley State Prison in C o a lin g a , California, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 and th e n filed a First Amended Complaint (Doc. #5). u n d e rs ig n e d judge on November 25, 2008. I. " S ec o n d Amended Complaint" On April 3, 2009, Plaintiff filed a Document (Doc. #10) which the Clerk of Court f ile d as a "Second Amended Complaint." Although the front page of the Document states that it is a "Complaint," Plaintiff also typed on the first page: "Request for Demand of Jury T ria l pur. Fed.R.Civ.P. 38(b)." On the second page of the Document, Plaintiff states that he is "forwarding this front page of my complaint to identify, and clarify to this Honorable C o u rt my exercise of the right to demand a Jury Trial pursuant to Federal Rules of Civil P r o c e d u re 38(b)." He further states that "[t]he contents of my complaint has not changed, th u s this is only my effort to come into compliance with Federal rules of court when This case was reassigned to the

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req u estin g for jury trial." The Court will direct the Clerk of Court to modify the docket entry f o r Document #10 to reflect that it is a "Demand for Jury Trial." II. 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 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). A pleading must contain a "short and plain statement of the claim showing that the p le a d er is entitled to relief." Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does not d e m a n d detailed factual allegations, "it demands more than an unadorned, the-defendantu n law fu lly-h a rm ed -m e accusation." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). "T h rea d b are recitals of the elements of a cause of action, supported by mere conclusory s ta te m e n ts , do not suffice." Id. "[A] complaint must contain sufficient factual matter, accepted as true, to `state a c la im to relief that is plausible on its face.'" Id. (quoting Bell Atlantic Corp. v. Twombly, 5 5 0 U.S. 544, 570 (2007)). A claim is plausible "when the plaintiff pleads factual content th a t allows the court to draw the reasonable inference that the defendant is liable for the m is c o n d u c t alleged." Id. "Determining whether a complaint states a plausible claim for re lie f [is] . . . a context-specific task that requires the reviewing court to draw on its judicial e x p e rie n c e and common sense." Id. at 1950. Thus, although a plaintiff's specific factual alleg atio n s may be consistent with a constitutional claim, a court must assess whether there a re other "more likely explanations" for a defendant's conduct. Id. at 1951. III. F ir s t Amended Complaint In his First Amended Complaint, Plaintiff sues the following Defendants: Doctors O rtiz , Salazar, Kushner, Elmer, Castillo, Vilaysane, Diep, and Doehring; and J. Does

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1 through 20. Plaintiff contends that Defendants were deliberately indifferent to his serious m e d ic a l needs because they delayed medical treatment for his hyperthyroidism. Plaintiff makes the following allegations: 1. O n January 13, 2005, Plaintiff, after complaining about rapid h e a rtb e a t and weight loss, was seen by Defendant Ortiz. D e f e n d a n t Ortiz ordered a blood test. O n February 1, 2005, Defendant Ortiz informed Plaintiff that the b lo o d test showed a positive result for hypothyroidism, p re sc r ib e d a thyroid medication, and scheduled a follow-up a p p o in tm e n t in a month. On February 25th, Defendant Ortiz e x a m in e d Plaintiff, who had twice complained about increased h e a rt palpitations and other symptoms, and informed Plaintiff th a t he would be scheduled to see an "expert" who would p e rf o rm a thyroid scan. O n April 26, 2005, Plaintiff was taken to a hospital to see an e n d o c rin o lo g is t, but the endocrinologist was unable to conduct th e thyroid scan because prison medical staff had not informed P la in tif f that he needed to stop his thyroid medication before the s c a n . The endocrinologist advised medical staff to stop P la in t if f ' s medication for six weeks. O n June 13, 2005, Plaintiff was told that he would be getting a th yro id scan. On June 15th, he was informed that the a p p o in tm e n t had been cancelled. On June 17th, Plaintiff re c eiv e d "lab work" and was informed that he would be started b a c k on this thyroid medication. On July 5th, Plaintiff was seen b y Defendant Ortiz, who informed Plaintiff that the results of th e June 17th lab work were not in Plaintiff's file. O n August 11, 2005, Plaintiff received a thyroid scan. On S e p tem b e r 8th, Plaintiff complained of severe heart palpitations, w a s evaluated by a nurse, was informed that he potentially had c a rd ia c arrhythmia, and was returned to his cell. On September 9 th , Defendant Ortiz saw Plaintiff, informed Plaintiff that he n e e d ed to have his thyroid medication restarted, and stated that h e would review the results of the thyroid scan and would see P la in tif f "soon." O n September 16, 2005, Defendant Salazar saw Plaintiff. P la in tif f informed Defendant Salazar of his health problems, but D e f en d a n t Salazar made no diagnosis and simply told Plaintiff to take care of himself. On October 12th, Plaintiff was su p p o se d to meet with Defendant Salazar to review the thyroid sca n report, but the report had been misplaced, and Plaintiff's a p p o in tm e n t was rescheduled. O n December 12, 2005, Defendant Kushner reviewed the th yro id scan report with Plaintiff and informed Plaintiff that he n ee d ed Ablation therapy (Ablation) and that his heart p alp itatio n s and arrhythmia were caused by Plaintiff's h yp e r t h yr o i d i s m . -3-

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O n February 16, 2006, Defendant Elmer informed Plaintiff that h is thyroid was abnormally large, his uptake was abnormal, and h is palpitations were due to cardiac problems. Defendant Elmer in f o rm e d Plaintiff that he would see an endocrinologist as soon a s possible and requested a thyroid uptake test for the following w eek. O n March 3, 2006, an endocrinologist saw Plaintiff, informed P la in tif f that he needed immediate Ablation, and told Plaintiff th a t prison staff would have to "schedule the correct process so th a t Plaintiff could obtain the medication and correct treatment a n d follow up." O n March 16, 2006, Defendant Castillo met with Plaintiff. P la in tif f informed Defendant Castillo of his symptoms and in f o rm e d Defendant Castillo that the endocrinologist had re c o m m e n d e d Ablation. Defendant Castillo discontinued P la in tif f 's thyroid medication and prescribed a different m e d ic a tio n . He did not start Ablation. O n April 12, 2006, Defendant Castillo informed Plaintiff that D e f en d a n t Castillo was requesting a blood test and that Plaintiff w o u ld soon be receiving Ablation. The blood test was p e rf o rm e d on May 2nd. O n June 1, 2006, Defendant Castillo saw Plaintiff, told him that h e would be given Ablation very soon based on the result of the b l o o d test, and advised Plaintiff to stop taking his medication so a n o th e r test could be performed. A blood test was performed on J u ly 5th, and a thyroid stimulation hormone test (TSH) was p e rf o rm e d on July 17th. O n August 16, 2006, Plaintiff saw Defendant Castillo, c o m p l a in e d about his symptoms, and pleaded to start receiving A b la tio n . O n August 24, 2006, Defendant Vilaysine saw Plaintiff, placed P lain tiff back on medication, and ordered another TSH test. O n September 20, 2006, the endocrinologist saw Plaintiff, e x p la in e d that Plaintiff need to be started on Ablation, and s t a te d that repeated consultations were unnecessary because h yp e rth yro id is m had already been diagnosed. O n September 26, 2006, Plaintiff saw Defendant Vilaysine to d is c u ss scheduling Plaintiff for Ablation. On October 25th, D e f en d a n t Vilaysine informed Plaintiff that he would be seen by a n endocrinologist soon for a followup. On November 15th, D e f en d a n t Vilaysine told Plaintiff that he needed another TSH te st and a cardiac exam. On December 6th, Defendant Vilaysine e x p la in e d that the TSH test results were high and that Plaintiff w as at risk for a heart attack. Defendant Vilaysine ordered more b lo o d tests. O n February 2, 2007, Defendant Vilaysine examined Plaintiff, to ld Plaintiff that he was scheduled to see an endocrinologist, -4-

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a n d that Plaintiff was suffering from anemia. V ila ys in e ordered more blood tests.

Defendant

O n February 14th, Plaintiff saw the endocrinologist, who stated th a t he was very disappointed that prison medical staff had not g iv e n Plaintiff Ablation and stressed that it was very important f o r Plaintiff to have the treatment. The endocrinologist re c o m m e n d e d that Plaintiff at least restart the thyroid m e d ic a ti o n . O n March 16th, Defendant Vilaysine saw Plaintiff and told P la in tif f that he would see the endocrinologist again soon. O n March 25, 2007, after complaining of constipation, c o n f u sio n , and pain, Plaintiff was seen by Defendant Diep, who o p in ed that the constipation was caused by Plaintiff's h yp e r t h yr o id is m and requested that Plaintiff see an e n d o c rin o lo g ist. O n April 12, 2007, Plaintiff saw Defendant Doehring, who re v ie w e d Plaintiff's medical file and determined that he needed A b la ti o n , ordered Plaintiff's test results, and prescribed a m e d ic a tio n for Plaintiff's heart palpitations. O n July 22, 2007, Plaintiff was having heart palpitations, was d ia g n o se d with coronary ischemic arrhythmia, and received n itro g l yc e r in e while en route to a medical center. At the m e d ic a l center, the doctor explained that Plaintiff was suffering f ro m Bradycardia "as a result of the hyperthyroid condition that h e had been left in for years." The doctor stated that Plaintiff sh o u ld receive Ablation as soon as possible, the thyroid m e d ic a tio n should be discontinued, and the heart palpitation m e d ica tio n probably caused damage to Plaintiff's heart. O n July 31, 2007, Plaintiff saw Defendant Doehring and e x p l a in e d that his symptoms were ongoing and that he had re p e ate d ly requested and been prescribed Ablation. Defendant D o e h rin g stated that she was doing all she could. O n September 27, 2007, Plaintiff was seen at a radiology m e d ic a l group and was given a thyroid uptake scan. It was a g a in concluded that Plaintiff should receive Ablation as soon a s possible. O n October 3, 2007, Defendant Doering stated that Plaintiff w o u ld be getting Ablation. O n November 8, 2007, twenty-three months after Defendant K u s h n e r first informed Plaintiff that he needed Ablation, P la in tif f received Ablation.

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p re sc rib e d medications and treatments. He also alleges that the California Department of -5-

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C o rre c tio n s and Rehabilitation (CDCR) "has a policy where a Doctor will personally d ia g n o se a patient, prescribe medication and treatment, and a CDCR committee will override th e diagnosis and recommendation for medication and do so without any input or c o m m u n ic a tio n with an inmate or the doctor that originally set forth a plan of treatment." P la in tif f states that he is unsure of the true names of the members of the medical review c o m m itte e who "arbitrarily den[y] prescribed treatments(s)," but he has named them as a Doe D e f e n d a n ts and will name them "once their names become known in this litigation." P la in tif f seeks monetary damages and injunctive relief. IV . In d iv id u a lly Named Defendants N o t every claim by a prisoner that he has received inadequate medical treatment states a violation of the Eighth Amendment. To state a § 1983 medical claim, a plaintiff must show th a t the defendants acted with "deliberate indifference to serious medical needs." Jett v. P e n n e r, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (19 7 6 )). 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 in f lic tio n of pain and (2) the defendant's response was deliberately indifferent. Jett, 439 F.3d a t 1096 (quotations omitted). To act with deliberate indifference, a prison official must both know of and disregard a n excessive risk to inmate health; the official must both be aware of facts from which the in f e re n c e could be drawn that a substantial risk of serious harm exists and he must also draw th e inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). Deliberate indifference in the m e d ica l context may be shown by a purposeful act or failure to respond to a prisoner's pain o r possible medical need and harm caused by the indifference. Jett, 439 F.3d at 1096. D e lib e r a te indifference may also be shown when a prison official intentionally denies, delays, o r interferes with medical treatment or by the way prison doctors respond to the prisoner's m e d ic a l needs. Estelle, 429 U.S. at 104-05; Jett, 439 F.3d at 1096. "Deliberate indifference is a high legal standard." Toguchi v. Chung, 391 F.3d 1051, 1 0 6 0 (9th Cir. 2004). Deliberate indifference is a higher standard than negligence or lack of -6-

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o rd in a ry due care for the prisoner's safety. Farmer, 511 U.S. at 835. Medical malpractice o r negligence is insufficient to establish an Eighth Amendment violation. Toguchi, 391 F.3d a t 1060. Thus, mere negligence in diagnosing or treating a condition does not violate the E ig h th Amendment. Id. at 1057. Also, an inadvertent failure to provide adequate medical c a r e alone does not rise to the Eighth Amendment level. Jett, 429 F.3d at 1096. A mere d e lay in medical care, without more, is insufficient to state a claim against prison officials f o r deliberate indifference. See Shapley v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 4 0 4 , 407 (9th Cir. 1985). The indifference must be substantial. The action must rise to a le v e l of "unnecessary and wanton infliction of pain." Estelle, 429 U.S. at 105-06. Plaintiff has failed to state a claim against the individual Defendants because their in d iv id u a l conduct does not rise to the level of deliberate indifference to Plaintiff's serious m e d ic a l needs. The Court, therefore, will dismiss without prejudice Defendants Ortiz, S a la z ar, Kushner, Elmer, Castillo,Vilaysane, Diep, and Doehring. V. D o e Defendants L ib e ra lly construed, Plaintiff has stated a claim against the members of the medical r e v ie w committee who Plaintiff contends "arbitrarily den[y] prescribed treatment(s) p r e s c r i b e d by doctors" or against the individual at the CDCR who allegedly created or im p l e m e n t e d a policy of permitting the committee to arbitrarily deny prescribed treatments. H o w e v e r, Plaintiff has only designated these Defendants as Does. Generally, the use of anonymous type appellations to identify defendants is not f a v o re d . Rule 10(a) of the Federal Rules of Civil Procedure requires the plaintiff to include th e names of the parties in the action. As a practical matter, it is impossible in most instances f o r the United States Marshal or his designee to serve a summons and complaint on an a n o n ym o u s defendant. However, the Court will not dismiss the First Amended Complaint at this time. See W a k e f i e ld v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999) (where identity of alleged d e f e n d a n ts is unknown prior to filing of complaint, plaintiff should be given an opportunity th ro u g h discovery to identify the unknown defendants, unless it is clear that discovery would -7-

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n o t uncover the identities or that the complaint would be dismissed on other grounds). The C o u rt will give Plaintiff 30 days to respond to this Order in a written pleading entitled " R e sp o n s e ." Plaintiff's Response must include either (1) the name of at least one member o f the medical review committee or the individual who implemented the CDCR policy or (2 ) an explanation of what Plaintiff has done to try to learn their names, a description of what d is c o v e ry he would undertake to learn their names, and the identity of at least one person w h o could be served with discovery. If Plaintiff fails to timely file his Response, this case w ill be dismissed without prejudice and without further notice. V I. 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) The Clerk of Court must modify the docket entry for Document #10 to reflect

th a t it is a "Demand for Jury Trial." (2) D e f en d a n ts Ortiz, Salazar, Kushner, Elmer, Castillo,Vilaysane, Diep, and

D o e h rin g are dismissed without prejudice. -8-

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(3 )

Within 30 days of the date of filing of this Order, Plaintiff must file a

R e s p o n s e to this Order that includes either (1) the name of at least one member of the m e d ic a l review committee or the individual who implemented the CDCR policy or (2) an e x p la n a tio n of what Plaintiff has done to try to learn their names, a description of what d is c o v e ry he would undertake to learn their names, and the identity of at least one person w h o could be served with discovery. (4) If Plaintiff fails to file a Response within 30 days, the Clerk of Court must,

w ith o u t further notice to Plaintiff, enter a judgment of dismissal of this action without p re ju d ice. See Fed. R. Civ. P. 41(b). D A T E D this 8 th day of October, 2009.

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