Garcia v. Bondoc et al

Filing 17

ORDER DISMISSING Plaintiff's First Amended Complaint for Failure to State a Cognizable Claim 16 Clerk Shall Close the Case, signed by Magistrate Judge Michael J. Seng on 2/29/12: Plaintiff's First Amended Complaint is DISMISSED WITH PREJUDICE for failure to state a claim. The Clerk shall close the case. (CASE CLOSED)(Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GILBERTO GARCIA,

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CASE NO.

Plaintiff,

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1:09-cv-01674-MJS (PC)

ORDER DISMISSING PLAINTIFF’S FIRST
AMENDED COMPLAINT FOR FAILURE TO
STATE A COGNIZABLE CLAIM

v.

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BONDOC, et al.,

(ECF No. 16)

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Defendants.

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CLERK SHALL CLOSE THE CASE
/

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SCREENING ORDER

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I.

PROCEDURAL HISTORY

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On September 22, 2009, Plaintiff Gilberto Garcia, a state prisoner proceeding pro

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se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. (ECF

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No. 1.) Plaintiff consented to Magistrate Judge jurisdiction. (ECF No. 6.) On June 8,

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2011, Plaintiff’s Complaint was screened and dismissed, with leave to amend, for failure

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to state a cognizable claim. (ECF No. 11.) Plaintiff’s First Amended Complaint (ECF No.
16) is now before the Court for screening.

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II.

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

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

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

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

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

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

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

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

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

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Section 1983 “provides a cause of action for the ‘deprivation of any rights, privileges,

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or immunities secured by the Constitution and laws’ of the United States.” Wilder v.

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

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

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federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989).

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III.

SUMMARY OF FIRST AMENDED COMPLAINT

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The First Amended Complaint identifies the following individuals as Defendants in

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this action: (1) Bondoc, Nurse Practitioner, Corcoran State Prison (Corcoran); (2) Wong,

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Nurse Practitioner, Corcoran; (3) McGuinness, Chief Medical Officer (CMO), Corcoran; (4)

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Wrigley, Nurse Practitioner, High Desert State Prison (High Desert); and (5) Swingle, CMO,

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High Desert. Plaintiff alleges the following:

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In early August of 2007, Plaintiff arrived at Corcoran and underwent an initial

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medical screening. He complained of “abdominal and testicular pain.” (Compl. at 10.) A

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nurse told Plaintiff that he would be referred to the “Dr. line for a check up.” (Id.) Plaintiff

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was not immediately seen by a doctor, so he began filing medical requests. (Id. at 11.)

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Of the numerous medical care requests submitted by Plaintiff up until this time, Corcoran
processed only two: on October 29, 2007, and January 1, 2008. (Id.)

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On January 25, 2008 Plaintiff was called to see Defendant Bondoc. His pain had

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become intermittent but had spread beyond the testicles and into the hip, lower back, back

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of his legs, and feet. (Id.) Defendant Bondoc “asked questions regarding the pain” and

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examined Plaintiff’s “abdomen by pressing her palm.” (Id. at 13.) Bondoc diagnosed

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Plaintiff with a hernia and determined that it was not treatable until it ruptured. Bondoc did

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not perform the standard hernia exam or examine Plaintiff’s testicles. (Id.) Plaintiff stated

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that he had other symptoms that he felt may be related; Bondoc told Plaintiff that new

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medical forms would be required for each symptom. (Id.) Plaintiff believed the symptoms

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were related to the underlying issue addressed in his health care request, while Bondoc

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believed that Plaintiff was trying to have unrelated symptoms treated under at one visit

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covered by a single co-payment. (Id. at 14.) Bondoc dismissed Plaintiff with his additional
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symptoms untreated. (Id.)

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Plaintiff appealed the treatment provided and requested pain medication on

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February 4, 2008. Plaintiff then filed additional medical care requests. On April 9, 2008,

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Defendant Wong saw Plaintiff with regard to his medical appeal. (Id. at 16.) Plaintiff stated

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that his pain was worsening and affecting his ability to function on a daily basis. Wong

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prescribed ibuprofen and aspirin despite the fact that these medications had failed to treat
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his symptoms in the past. Wong also ordered x-rays of Plaintiff’s hip. (Id.)
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At a follow up appointment with Wong, Plaintiff stated that his symptoms continued

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to worsen, spread, and affect his daily activities. Plaintiff also advised that the medication

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was ineffective. In response, “Wong prescribed Naproxen, Mapap, and a cane.” (Id. at

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17.) Plaintiff thought the cane was unnecessary and thought that “Wong seemed to be

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prescribing unnecessary and inefective [sic] treatment thus delaying treatment to the

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[P]laintiff[’s] serious medical need.” (Id. at 18.)

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On May 28, 2008, Plaintiff received a second level response to his medical appeal

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from Defendant McGuinness. Plaintiff was informed that the x-ray revealed “a benign lytic

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lesion in the right femoral neck1, that a follow-up was scheduled,” and that Plaintiff must

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file a medical request if he was unsatisfied with his prescription. (Id.) Plaintiff was
transferred to High Desert on June 18, 2008. (Id. at 20.)

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At High Desert Plaintiff was given aspirin and naproxen, both of which were

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ineffective. (Id. at 21.) On July 1, 2008, Plaintiff met with a nurse who discussed with

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Plaintiff the treatment he had received thus far and referred him to a doctor. In August of

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2008, Plaintiff reviewed his medical records and discovered that Defendant Wong failed

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to prescribe or renew certain prescriptions around the time Plaintiff was transferred from
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Corcoran to High Desert. (Id. at 23.)

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After filing additional medical requests, Plaintiff was seen by Defendant Wrigley on

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September 12, 2008, who informed Plaintiff that he would be treated in two days at a

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regular appointment. (Id. at 24, 25.) The scheduled appointment was delayed five days.

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Plaintiff sought clarification of a “benign lesion” at least twice. One nurse described it as a sm all
hip fracture (id. at 20) and a second nurse stated that it was either a sm all fracture or a cartilage growth
(id. at 24).

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At the appointment Wrigley “heard the [P]laintiff out” and prescribed new medication,

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further examination, physical therapy, and further explained the results of the x-rays

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conducted in May. (Id. at 27, 28.)

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At an October follow up appointment with Wrigley, Plaintiff requested more effective

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medication. Wrigley initially denied his request pending MRI and x-ray results and then,

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at an appointment two weeks later, ordered new medication and increased existing

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dosages. (Id. at 29, 30.) On December 10, 2008, Defendant Swingle responded to one

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of Plaintiff’s medical appeals by stating that any modification in pain medication would have

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to wait until tests were completed. (Id. at 31.)

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Plaintiff asserts that the aforementioned medical care provided by the Defendants

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violated his Eighth Amendment rights.

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IV.

ANALYSIS

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To state a claim under Section 1983, a plaintiff must allege two essential elements:

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(1) that a right secured by the Constitution or laws of the United States was violated and

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(2) that the alleged violation was committed by a person acting under the color of state law.

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See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243,
1245 (9th Cir. 1987).

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

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

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

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mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949

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(2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set
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forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its
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face.’” Id. Facial plausibility demands more than the mere possibility that a defendant

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committed misconduct and, while factual allegations are accepted as true, legal

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conclusions are not. Id. at 1949-50.

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Plaintiff alleges that the Defendants denied him adequate medical care in violation

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of the Eighth Amendment. “[T]o maintain an Eighth Amendment claim based on prison

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medical treatment, an inmate must show ‘deliberate indifference to serious medical

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needs.’” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble,

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429 U.S. 97, 106 (1976)). The two part test for deliberate indifference requires the plaintiff

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to show (1) “‘a serious medical need’ by demonstrating that ‘failure to treat a prisoner's

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condition could result in further significant injury or the unnecessary and wanton infliction

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of pain,’” and (2) “the defendant's response to the need was deliberately indifferent.” Jett,

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439 F.3d at 1096 (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992),

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overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en

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banc) (internal quotations omitted)). Deliberate indifference is shown by “a purposeful act

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or failure to respond to a prisoner's pain or possible medical need, and harm caused by the

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indifference.” Jett, 439 F.3d at 1096 (citing McGuckin, 974 F.2d at 1060). In order to state
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a claim for violation of the Eighth Amendment, a plaintiff must allege sufficient facts to

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support a claim that the named defendants “[knew] of and disregard[ed] an excessive risk

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to [Plaintiff's] health . . . .” Farmer v. Brennan, 511 U.S. 825, 837 (1994).

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In applying this standard, the Ninth Circuit has held that before it can be said that
a prisoner's civil rights have been abridged, “the indifference to his medical needs must be

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substantial. Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this
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cause of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980)
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(citing Estelle, 429 U.S. at 105-06). “[A] complaint that a physician has been negligent in

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diagnosing or treating a medical condition does not state a valid claim of medical

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mistreatment under the Eighth Amendment. Medical malpractice does not become a

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

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

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F.2d at 1050. 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 Cir. 1990).

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

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

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

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show that the course of treatment the doctors chose was medically unacceptable under
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the circumstances . . . and . . . that they chose this course in conscious disregard of an

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

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

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

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(9th Cir.1989).

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A.

Serious Medical Need

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Plaintiff complained of recurring pain that limited his ability to carry out daily

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activities. He was diagnosed with a hernia and x-rays revealed either a small hip fracture

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or cartilage growth.

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condition worthy of treatment. The pain, diagnoses, and treatment were reflected on the

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Defendants Bondoc, Wong, and Wrigley each found Plaintiff’s

responses to inmate appeals signed by Defendants McGuinness and Swingle. The Court

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finds Plaintiff has made allegations of a serious medical condition satisfying the first
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element of Plaintiff’s Eighth Amendment claim. See McGuckin, 974 F.2d at 1059-60 (“The

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existence of an injury that a reasonable doctor or patient would find important and worthy

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of comment or treatment; the presence of a medical condition that significantly affects an

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individual’s daily activities; or the existence of chronic and substantial pain are examples

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of indications that a prisoner has a ‘serious’ need for medical treatment.”)

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B.

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Plaintiff alleges that each of the Defendants exhibited deliberate indifference by

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denying or delaying his medical care. However, the factual allegations contained in the

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First Amended Complaint are substantially identical to those put forth by Plaintiff in his

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Deliberate Indifference

original complaint which the Court previously found insufficient to satisfy the deliberate

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indifference requirement.

Plaintiff has alleged nothing new to warrant a different

conclusion.

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Defendant Bondoc saw Plaintiff on January 25, 2008, in response to Plaintiff’s

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medical request. She concluded that Plaintiff had a hernia that would not be treatable until

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it ruptured. (Compl. at 13.) Plaintiff appealed this treatment and was seen by Defendant

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Wong on April 9, 2008. Defendant Wong prescribed medication and ordered an x-ray. At

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a follow-up appointment Wong changed Plaintiff’s medication and provided Plaintiff with
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a cane. (Id. at 16, 17.) X-rays were taken in May of 2008 and Defendant McGuinness

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informed Plaintiff of the results, that Plaintiff was scheduled for a follow-up appointment,

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and instructed Plaintiff to file a medical request if his medication was unsatisfactory. (Id.

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at 18.) Plaintiff was then transferred to High Desert where a cocktail of medication

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continued for some time. (Id. at 20, 21.) In September of 2008, Defendant Wrigley

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prescribed a new combination of medication, further examination, and ordered physical
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therapy. (Id. at 27, 28.) Defendant Wrigley saw Plaintiff twice more in October of 2008.

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At the first appointment, Plaintiff’s request for additional medication was denied and

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Wrigley ordered additional tests. At the second appointment, after the testing was

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complete, Plaintiff’s medication was increased. (Id. at 29, 30.) On December 10, 2008,

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Defendant Swingle responded to Plaintiff’s medical request by informing him that any
modification in medication would have to occur after tests were completed. (Id. at 31.)

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The facts alleged indicate that the Defendants provided Plaintiff with significant

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medical attention, albeit slowly and over a period of many months. Plaintiff has renewed

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his original claims that the treatment was inadequate and Plaintiff was forced to continually

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request follow-up appointments. It is the delay between appointments that Plaintiff feels

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violated his Eighth Amendment right to medical care.
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As the Court stated in its previous screening order, Plaintiff has not adequately

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alleged that Defendants’ course of treatment was medically unacceptable under the

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circumstances. Instead, Plaintiff simply disagrees with the care he was provided. “[A]

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difference of opinion between a prisoner-patient and prison medical authorities regarding

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treatment does not give rise to a § 1983 claim.” Franklin, 662 F.2d at 1344. Even if there

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were instances where Plaintiff was correct and the Defendants made a mistake, the
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conduct described does not rise above malpractice, which can not state a cognizable

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claim. Estelle, 429 U.S. at 106. There are no facts to indicate that the period of delay

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Plaintiff experienced between appointments was the product of deliberate indifference on

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the part of any of the Defendants.

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V.

CONCLUSION AND ORDER

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For the reasons stated above, the Court finds that Plaintiff’s First Amended
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Complaint fails to state a claim upon which relief may be granted and that leave to amend

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would be futile. See Noll v. Carson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Accordingly,

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Plaintiff’s First Amended Complaint is DISMISSED WITH PREJUDICE for failure to state

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a claim. The Clerk shall close the case.

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IT IS SO ORDERED.
Dated:
ci4d6

February 29, 2012

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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