Petosyan v. Hedgpeth et al
Filing
32
FINDINGS and RECOMMENDATIONS Recommending Granting in Part and Denying in Part Defendants' 27 Motion to Dismiss signed by Magistrate Judge Gerald B. Cohn on 8/11/2011. Referred to Judge Anthony W. Ishii. Objections to F&R due by 9/14/2011. (Sant Agata, S)
1
2
3
4
5
6
7
UNITED STATES DISTRICT COURT
8
EASTERN DISTRICT OF CALIFORNIA
9
10
ARTHUR PETROSYAN,
11
1:09-cv-00593-AWI-GBC (PC)
Plaintiff,
FINDINGS AND RECOMMENDATION
RECOMMENDING GRANTING IN PART AND
DENYING IN PART DEFENDANTS’ MOTION
TO DISMISS
Defendants.
(ECF No. 27)
v.
12
13
CASE NO.
HEDGPATH, et al.,
14
/
15
16
FINDINGS AND RECOMMENDATION
17
18
I.
PROCEDURAL HISTORY
19
Plaintiff Arthur Petrosyan (“Plaintiff”) is a state prisoner proceeding pro se in this civil
20
rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on April 2, 2009. (ECF
21
No. 1.) This action proceeds on Plaintiff’s First Amended Complaint filed on June 15,
22
2009. (ECF No. 10.)
23
On May 16, 2011, Defendants Zamora, Ali, Grannis, and Youssef filed a Motion to
24
25
26
Dismiss for failure to state a claim. (ECF No. 27.) Plaintiff filed an opposition on June 27,
2011 and Defendants replied on July 5, 2011. (ECF Nos. 29 & 31.)
27
1
1
2
3
II.
PLAINTIFF’S ALLEGATIONS
Plaintiff’s complaint alleges deliberate indifference to his serious medical injury in
violation of the Eighth Amendment by all Defendants. Plaintiff alleges that on December
4
5
22, 2006, his left hand was injured. Four days later, on December 26, 2006, a doctor
6
submitted an urgent request for Plaintiff to be seen by an orthopedic surgeon because
7
Plaintiff’s hand was fractured. Plaintiff was also prescribed pain medication. X-rays were
8
performed on December 27, 2006.
9
10
Plaintiff was seen by the specialist on January 8, 2007. The specialist concluded
that Plaintiff needed surgery. On January 10, 2007, Plaintiff asked to be seen by a doctor
11
12
because the cast was hurting his hand, but no response was received. Defendant Youssef
13
denied a request for surgery on January 16, 2007. On January 22, 2007, an appointment
14
was made for Plaintiff to see the specialist again on January 29. Prison officials failed to
15
take Plaintiff to that appointment.
16
17
On February 2, 2007, Plaintiff was examined by a doctor who submitted a request
for Plaintiff to have surgery. On February 9, 2007, another doctor submitted a request for
18
19
Plaintiff to receive an orthopedic consultation.
20
On March 21, 2007, Plaintiff was examined by an outside doctor who noted that the
21
specialist had recommended surgery. The doctor ordered tests and nerve studies, and
22
ordered a follow-up appointment. Plaintiff did not have any of the tests nor did he have a
23
follow-up appointment.
24
On August 30, 2007, Plaintiff filed an administrative appeal requesting to be seen
25
by a specialist about his wrist. Defendant Ali partially granted the appeal, but found that
26
27
further treatment was not necessary.
2
1
On December 20, 2007, Defendant Zamora granted Plaintiff’s second level appeal
2
because Plaintiff had received a consultation with a specialist in January 2007. On March
3
6, 2008, Defendant Grannis denied Plaintiff’s appeal at the third level finding that there
4
5
6
were no unresolved issues.
III.
LEGAL STANDARD
7
“The focus of any Rule 12(b)(6) dismissal . . . is the complaint,” Schneider v.
8
California Dept. of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998), which must contain “a
9
short and plain statement of the claim showing that the pleader is entitled to relief. . . ,”
10
Fed. R. Civ. P. 8(a)(2). “To survive a motion to dismiss, a complaint must contain sufficient
11
12
factual matter, accepted as true, to ‘state a claim that is plausible on its face.’” Ashcroft
13
v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
14
544, 555 (2007)); Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The
15
mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 129
16
S.Ct. at 1949-50; Moss, 572 F.3d at 969.
17
Detailed factual allegations are not required, but “[t]hreadbare recitals of the
18
19
elements of a cause of action, supported by mere conclusory statements, do not suffice,”
20
Iqbal at 1949 (citing Twombly at 555), and courts “are not required to indulge unwarranted
21
inferences,” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal
22
quotation marks and citation omitted).
23
III.
24
ARGUMENTS
Defendants argue that Plaintiff failed to state a claim for a violation of the Eighth
25
26
Amendment. Defendants contend that Plaintiff has not alleged deliberate indifference to
27
3
1
a serious medical need, but appears to be alleging a difference of medical judgment or
2
negligence which is insufficient to rise to a constitutional level. Defendants also argue that
3
Plaintiff’s allegations are insufficient to state a due process claim under the Fourteenth
4
5
6
Amendment. Defendants state that Plaintiff does not have a constitutional right to a
favorable ruling on prison grievances.
7
Plaintiff argues that he is not merely alleging a difference of medical opinion. He
8
states initially deliberate indifference was shown when he was refused treatment for four
9
days after his injury, which caused him to suffer pain needlessly. As to Defendant
10
Youssef, Plaintiff states that deliberate indifference is proved by the fact that other doctors
11
12
also recommended the surgery that was originally recommended by the specialist, and that
13
another doctor recommended further testing including nerve damage testing and a follow-
14
up appointment all of which were denied by Youssef. Plaintiff further argues, as to
15
Defendants Zamora, Ali, and Grannis, that they were aware of his serious medical need
16
and each denied him the necessary medical treatment.
17
In their reply, Defendants argue that none of the Defendants were involved in the
18
decision to give or not give Plaintiff pain medication between the injury and when pain
19
20
medication was prescribed. As to receiving the surgery, Defendants claim that Plaintiff is
21
merely alleging that he did not receive the surgery. However, Defendants point out that
22
he did receive treatment: an ice pack, pain medication, x-rays, a cast, physical therapy,
23
and multiple consultations with prison and nonprison doctors.
24
As to Defendants Ali, Zamora, and Grannis, Defendants urge the Court to find that
25
Plaintiff is merely alleging that he did not receive the relief he requested in his appeals,
26
27
which is not sufficient to state a constitutional claim.
4
1
2
3
IV.
ANALYSIS
Defendants argue that Plaintiff has failed to make sufficient allegations to state any
claims either under the Eighth or Fourteenth Amendments. The Court notes that though
4
5
Defendants argue against a Fourteenth Amendment due process claim, this is not a claim
6
that was allowed to go forward by the Court. In its Screening Order, the Court only allowed
7
Plaintiff to pursue his Eighth Amendment deliberate indifference claims against Defendants
8
Youssef, Ali, Zamora, and Grannis. (ECF No. 16.) Thus, the due process arguments will
9
not be addressed here.
10
“[T]o maintain an Eighth Amendment claim based on prison medical treatment, an
11
12
inmate must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439
13
F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). The
14
two part test for deliberate indifference requires the plaintiff to show (1) “‘a serious medical
15
need’ by demonstrating that ‘failure to treat a prisoner’s condition could result in further
16
significant injury or the unnecessary and wanton infliction of pain,’” and (2) “the defendant’s
17
response to the need was deliberately indifferent.” Jett, 439 F.3d at 1096 (quoting
18
19
McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds,
20
WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc) (internal quotations
21
omitted)). Deliberate indifference is shown by “a purposeful act or failure to respond to a
22
prisoner’s pain or possible medical need, and harm caused by the indifference.” Jett, 439
23
F.3d at 1096 (citing McGuckin, 974 F.2d at 1060). In order to state a claim for violation of
24
the Eighth Amendment, a plaintiff must allege sufficient facts to support a claim that the
25
named defendants “[knew] of and disregard[ed] an excessive risk to [Plaintiff’s] health . .
26
27
. .” Farmer v. Brennan, 511 U.S. 825, 837 (1994).
5
1
The objective component of deliberate indifference requires the showing of a
2
serious medical need. “A ‘serious’ medical need exists if the failure to treat a prisoner’s
3
condition could result in further significant injury or the ‘unnecessary and wanton infliction
4
5
of pain’.” McGuckin, 974 F.2d at 1059 (9th Cir. 1992) (quoting Estelle, 429 U.S. at 104);
6
see also Jett, 439 F.3d at 1096. “This is true whether the indifference is manifested by
7
prison doctors in their response to the prisoner’s needs or by prison guards in intentionally
8
denying or delaying access to medical care or intentionally interfering with treatment once
9
prescribed.” Estelle, 429 U.S. at 104-105. The objective element requires proof that the
10
prisoner’s serious medical needs were not timely and properly treated.
11
12
The subjective component of deliberate indifference considers the nature of the
13
defendant’s response to the serious medical need and whether the defendant had a
14
culpable mental state, which is “‘deliberate indifference’ to a substantial risk of serious
15
harm.” Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998) (quoting Farmer, 511 U.S. at
16
835). “[T]he official must both be aware of the facts from which the inference could be
17
drawn that a substantial risk of serious harm exists, and he must also draw the inference.”
18
Farmer, 511 U.S. at 837. “[T]he official’s conduct must have been ‘wanton,’ which turns
19
20
not upon its effect on the prisoner, but rather, upon the constraints facing the official.”
21
Frost, 152 F.3d at 1128 (quoting Wilson v. Seiter, 501 U.S. 294, 302-303 (1991)). “This
22
second prong--defendant’s response to the need was deliberately indifferent--is satisfied
23
by showing (a) a purposeful act or failure to respond to a prisoner’s pain or possible
24
medical need and (b) harm caused by the indifference.” Jett, 439 F.3d at 1096 (citing
25
McGuckin, 974 F.2d at 1060). “A prisoner need not show his harm was substantial;
26
27
however, such would provide additional support for the inmate’s claim that the defendant
6
1
was deliberately indifferent to his needs.” Id. Indications of a serious medical need include
2
“[t]he existence of an injury that a reasonable doctor or patient would find important and
3
worthy of comment or treatment; the presence of a medical condition that significantly
4
5
affects an individual’s daily activities; or the existence of chronic and substantial pain.”
6
McGuckin, 974 F.2d at 1059-60 (citing Wood v. Housewright, 900 F.2d 1332, 1337-41 (9th
7
Cir. 1990)).
8
If the claim alleges mere delay of treatment, the inmate must establish that the delay
9
resulted in some harm. McGuckin, 974 F .2d at 1060 (citing Shapley v. Nevada Board of
10
State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir.1985) (per curiam)). The delay need not
11
12
cause permanent injury. McGuckin, 974 F.2d at 1060; see also Hudson v. McMillian, 503
13
U.S. 1, 10 (1992). Unnecessary infliction of pain is sufficient to satisfy this requirement.
14
Id.
15
In applying this standard, the Ninth Circuit has held that before it can be said that
16
a prisoner’s civil rights have been abridged, “the indifference to his medical needs must be
17
substantial. Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this
18
cause of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980)
19
20
(citing Estelle, 429 U.S. at 105-06). “[A] complaint that a physician has been negligent in
21
diagnosing or treating a medical condition does not state a valid claim of medical
22
mistreatment under the Eighth Amendment. Medical malpractice does not become a
23
constitutional violation merely because the victim is a prisoner.” Estelle, 429 U.S. at 106;
24
see also Anderson v. County of Kern, 45 F.3d 1310, 1316 (9th Cir. 1995); McGuckin, 974
25
F.2d at 1050, overruled on other grounds, WMX, 104 F.3d at 1136. Even gross negligence
26
27
is insufficient to establish deliberate indifference to serious medical needs. See Wood v.
7
1
2
3
Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990).
Also, “a difference of opinion between a prisoner-patient and prison medical
authorities regarding treatment does not give rise to a § 1983 claim.” Franklin v. Oregon,
4
5
662 F.2d 1337, 1344 (9th Cir. 1981) (internal citation omitted). To prevail, Plaintiff “must
6
show that the course of treatment the doctors chose was medically unacceptable under
7
the circumstances . . . and . . . that they chose this course in conscious disregard of an
8
excessive risk to plaintiff’s health.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1986)
9
(internal citations omitted). A prisoner’s mere disagreement with diagnosis or treatment
10
does not support a claim of deliberate indifference. Sanchez v. Vild, 891 F.2d 240, 242
11
12
(9th Cir. 1989).
13
A.
14
Plaintiff states that his injury occurred, that he told an MTA, but that he did not
15
receive pain medication for four days. The MTA is not a named Defendant. As it appears
16
that Defendants were not aware of Plaintiff’s injury, they can not be held to be deliberately
17
Four days without pain medication
indifferent to it. Also the Court notes that slight delays in administering pain medication,
18
19
without more, do not constitute deliberate indifference. Frost v. Agnos, 152 F.3d 1124,
20
1130 (9th Cir. 1998). Therefore, this part of the claim should be dismissed as to all
21
Defendants.
22
B.
23
Plaintiff states that Defendant Youssef denied all requests for surgery and
24
Failure to Treat
treatment, and that Defendants Grannis, Ali, and Zamora denied Plaintiff’s grievance and
25
26
appeal of that grievance. It appears that Plaintiff saw multiple doctors who ordered
27
8
1
multiple things including surgery, MRIs, follow-up appointments, and nerve conduction
2
studies. Plaintiff states that he did not receive any of the recommendations.
3
“[A] finding that the defendant repeatedly failed to treat an inmate properly . . .
4
5
strongly suggests that the defendant’s actions were motivated by ‘deliberate indifference;
6
to the prisoner’s medical needs.” McGuckin, 974 F.2d 1060-61. At this stage in the
7
proceedings, it appears that Defendant Youssef was aware of Plaintiff’s injury as of the
8
initial surgery request. It also appears that numerous doctors’ recommendations were not
9
followed. As a result, Plaintiff continues to suffer.
10
Plaintiff states that Defendant Youssef was not only aware of the surgery
11
12
recommendation, but was aware of all other recommendations made by the doctors who
13
examined Plaintiff’s hand. Taking this into account, it appears that, through his denials,
14
Defendant Youssef was deliberately indifferent to Plaintiff’s needs. Instead of giving
15
Plaintiff the recommended treatments, Plaintiff was passed around and examined by
16
different doctors. Therefore, the Court finds that Defendant Youssef’s request to dismiss
17
this claim should be DENIED.
18
19
C.
Denial of Grievance
20
Plaintiff states that Defendants Grannis, Ali, and Zamora were deliberately
21
indifferent to his serious medical need when they denied his grievance. Plaintiff states that
22
his grievance complained that he had not received adequate medical attention for his
23
injured hand which resulted in the fracture healing incorrectly and the need for corrective
24
surgery.
25
Plaintiff states that Defendant Ali responded at the first level, stating that he
26
27
reviewed Plaintiff’s health records and spoke with medical staff, and partially granted the
9
1
appeal because Plaintiff had been seen by two doctors about his hand. Defendant Ali
2
further stated that no further treatment was needed.
3
Plaintiff states that Defendant Zamora also decided that because Plaintiff had been
4
5
6
seen by the initial doctor that his appeal had been granted. Plaintiff states that Defendant
Grannis stated that there was no unresolved issue for Director’s Level Review.
7
Plaintiff alleges that Defendants Grannis, Ali, and Zamora were aware of his medical
8
need through the grievance and then were deliberately indifferent to it. Defendants argue
9
that there is no liability for denial of a grievance.
10
While Defendants’ argument is generally true, a supervisor “can be held liable in his
11
12
individual capacity for his own culpable action or inaction in the training, supervision, or
13
control of his subordinates; for his acquiescence in the constitutional deprivation; or for
14
conduct that showed a reckless or callous indifference to the rights of others.”
15
Blankenhorn v. City of Orange, 485 F.3d 463, 485 (9th Cir. 2007) (internal citation and
16
punctuation omitted); Jett, 439 F.3d at 1098 (prison administrators are liable if they
17
knowingly fail to respond to a request for help); see also Verser v. Elyea, 113 F.Supp.2d
18
1211, 1215-16 (N.D.Ill. 2000) (citing circumstances in which denial of grievances can
19
20
trigger liability).
21
At this stage in the proceedings, it appears that Defendants were made aware of
22
Plaintiff’s medical need through the grievance process and that they denied his requested
23
relief demonstrating deliberate indifference. Therefore, the Court finds that Defendants
24
Grannis, Ali, and Zamora’s request for dismissal of this claim should be DENIED.
25
V.
CONCLUSION AND ORDER
26
27
The Court finds that Defendants are not entitled to dismissal of the action for failure
10
1
to state a claim.
2
3
Accordingly, this Court HEREBY RECOMMENDS that Defendants’ Motion to
Dismiss, filed May 16, 2011, be GRANTED IN PART and DENIED IN PART as follows:
4
1.
5
Defendants’ Motion to Dismiss the claims against them based on Plaintiff not
6
receiving pain medication for four days between December 22 and 26, 2006
7
is GRANTED; and
8
2.
9
Defendants’ Motion to Dismiss the Eighth Amendment deliberate indifference
claims as to not receiving the recommended treatment for his injury be
10
DENIED.
11
These Findings and Recommendations will be submitted to the United States
12
13
District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l).
14
Within thirty (30) days after being served with these Findings and Recommendations, the
15
parties may file written objections with the Court. The document should be captioned
16
“Objections to Magistrate Judge’s Findings and Recommendations.” The parties are
17
advised that failure to file objections within the specified time may waive the right to appeal
18
the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
19
20
21
22
IT IS SO ORDERED.
Dated:
1j0bbc
August 11, 2011
UNITED STATES MAGISTRATE JUDGE
23
24
25
26
27
11
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?