Butler v. Moon et al

Filing 15

ORDER FINDING Claim Against Dr. Moon Cognizable and DISMISSING Claims Against all other Defendants for Failure to State a Cognizable Claim signed by Magistrate Judge Michael J. Seng on 9/29/2011. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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MAURICE F. BUTLER,

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CASE NO.

Plaintiff,

ORDER FINDING CLAIM AGAINST DR.
MOON COGNIZABLE AND DISMISSING
CLAIMS AGAINST ALL OTHER
DEFENDANTS FOR FAILURE TO STATE A
COGNIZABLE CLAIM

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v.

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JONG YEOUNG MOON, et al.,
Defendants.

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1:09-cv-02074-MJS (PC)

(ECF No. 14)

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/

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SCREENING ORDER

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I.

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PROCEDURAL HISTORY
On November 18, 2009, Plaintiff Maurice F. Butler, a state prisoner proceeding pro

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. 9.)
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Plaintiff’s Complaint (ECF No. 1) was screened and dismissed, with leave to amend,

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on March 22, 2011. (ECF No. 11.) Plaintiff’s First Amended Complaint (ECF No. 14), filed

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May 19, 2011, 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

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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.

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SUMMARY OF COMPLAINT
The First Amended Complaint alleges the following officials at Corcoran State

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Prison (“Corcoran”) violated Plaintiff’s Eighth Amendment rights: (1) Dr. Jong Yeoung

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Moon; (2) Dr. William McGuiness, current or former Chief Medical Officer; (3) Dr. J. Wang,

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intermittent Acting Chief Medical Officer; and (4) Dr. Clark, current Chief Medical Officer.

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Plaintiff suffers from for eye, foot, and shoulder ailments. The treatment he received

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for these ailments was allegedly so deficient it violated Plaintiff’s Eighth Amendment rights.

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More specifically, Plaintiff alleges:

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A.

Shoulder

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In August 2008 Plaintiff was seen by Dr. Moon for shoulder pain. Dr. Moon ordered

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an MRI, prescribed pain medication, and referred Plaintiff to a specialist. (Compl. at 4.)

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On December 1, 2008, the specialist scheduled corrective surgery to be conducted within

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ninety days. Drs. McGuiness, Wang, and Clark, as Chief Medical Officers, were in charge

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of approving procedures and ensuring that patients were made available for follow-up

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appointments. Drs. McGuiness and Wang approved the surgery and Dr. Moon was

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notified. (Id. at 5.) As of April 10, 2009, the surgery still had not been conducted, and the

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specialist submitted a second request. After four months, Dr. Moon informed Plaintiff that

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approval for the procedure had been denied. (Id.) The Chief Medical Officers, Drs.

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McGuiness, Wang, and now Clark, all denied the surgery and failed to develop an

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alternative treatment. (Id. at 6, 10, 11, 15.) Dr. Clark denied the surgery in order to save

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money. (Id. at 10, 11, 15.)

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Dr. Moon ordered physical therapy in June 2009, but Plaintiff refused treatment,

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citing the specialist’s orders not to engage in physical activity before surgery. (Id. at 6.)

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At some point Plaintiff’s other shoulder began to hurt, and he repeatedly asked Dr. Moon

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for an examination. Dr. Moon refused to treat the other shoulder. He informed Plaintiff
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that the shoulder treatments were out of his hands, and threw Plaintiff out of his office

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whenever Plaintiff complained about his shoulders. (Id. at 5, 9.) As of May 9, 2011,

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Plaintiff had not undergone the recommended surgery; his only treatment has been a

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regimen of pain medication prescribed by Dr. Moon.

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B.

Foot

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Plaintiff saw Dr. Moon in June 2008 for pain in both feet. The Defendant allowed
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an x-ray of only one of Plaintiff’s feet. It showed a fracture, but Dr. Moon did not so inform
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Plaintiff; Plaintiff learned of the fracture only after he requested and reviewed his medical

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records. (Id. at 7, 8.)

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In August of 2008 a podiatrist prescribed shoe inserts and boots to be picked up

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from Dr. Moon. After months of delay Dr. Moon intentionally delivered the wrong inserts,

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telling Plaintiff “‘you cry too much.’” (Id. at 8, 10.) Plaintiff eventually received the inserts,

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but the delay left him with a slow walk and wobble. (Id. at 8.)

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C.

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Plaintiff suffered from glaucoma. An optometrist conducted a procedure to relieve

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Eye

pressure from one eye. Plaintiff was scheduled for another procedure several weeks later.

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Drs. McGuiness, Wang, and Clark failed to ensure that Plaintiff was given the opportunity
to make this second appointment. (Id. at 14.)

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Dr. Moon prescribed Plaintiff nose spray and a steroid inhaler that caused an

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adverse reaction with Plaintiff’s eye drops. Plaintiff informed Dr. Moon, who responded

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“‘you want to breath or see, take your pick.’” (Id. at 9, 13.)

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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,

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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’s Eighth Amendment allegations can be separated into two groups. First,
Plaintiff alleges that Drs. McGuiness, Wang, and Clark impermissibly denied his shoulder

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surgery and failed to ensure Plaintiff was able to keep his follow-up eye procedure.
Second, Plaintiff alleges that Dr. Moon provided inadequate medical care generally.

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

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

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

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

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need’ by demonstrating that ‘failure to treat a prisoner’s condition could result in further
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significant injury or the unnecessary and wanton infliction of pain,’” and (2) “the defendant’s

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

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

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

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

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prisoner’s pain or possible medical need, and harm caused by the indifference.” Jett, 439
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F.3d at 1096 (citing McGuckin, 974 F.2d at 1060). In order to state a claim for violation of
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the Eighth Amendment, a plaintiff must allege sufficient facts to support a claim that the

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

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. .” 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

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

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

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

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A.

Serious Medical Needs

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In order to establish an Eighth Amendment medical claim, Plaintiff must first

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sufficiently allege that he had a serious medical need. Jett, 439 F.3d at 1096. Plaintiff

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alleges that he experienced severe pain and limitations from his shoulder and eye

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ailments.

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The Court finds that these conditions present a serious medical need.

McGuckin, 974 F.2d at 1059-60 (“The existence of an injury that a reasonable doctor or

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patient would find important and worthy of comment or treatment; the presence of a
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medical condition that significantly affects an individual’s daily activities; or the existence
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of chronic and substantial pain are examples of indications that a prisoner has a ‘serious’

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need for medical treatment.”)

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Plaintiff makes two separate Eighth Amendment claims based on the treatment he

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received for his feet. First, he complained to Dr. Moon about pain in both feet. Then,

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Plaintiff claims his provision of prescribed foot inserts and boots were unnecessarily

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delayed. As to the former claim, Dr. Moon found the pain worthy of x-ray and the podiatrist

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recommended orthotics. As to the latter claim, a podiatrist found the condition worthy of

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treatment. It must be concluded that both problems represented a serious medical need.

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Mere pain, such as the foot pain of which Plaintiff complained can be a serious medical

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need if a reasonable doctor found it to be worthy of treatment. Id.; see also Canell v.

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Bradshaw, 840 F.Supp. 1382, 1393 (D. Or. 1993) (the Eighth Amendment duty to provide

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medical care applies “to medical conditions that may result in pain and suffering which

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serve no legitimate penological purpose.”) Thus, Plaintiff has satisfied the first element of

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his Eighth Amendment claim as to all Defendants. The only remaining issue is whether

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any of the Defendants treated Plaintiff’s serious medical needs with deliberate indifference.

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B.

Deliberate Indifference
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Drs. McGuiness, Wang and Clark

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The First Amended Complaint alleges that Drs. McGuiness, Wang, and Clark did

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not approve Plaintiff’s shoulder surgery. A specialist believed that surgery was necessary

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and the Defendants, all doctors, disagreed. Dr. Moon subsequently prescribed pain

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medication and physical therapy. Plaintiff alleges that the motivation for Dr. Clark’s

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decision was to cut the cost of prisoner health care.
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The fact that Plaintiff and the specialist disagreed with the Defendants’ decision, in
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and of itself, cannot support an Eighth Amendment claim. “[A] difference of opinion

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between a prisoner-patient and prison medical authorities regarding treatment does not

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give rise to a § 1983 claim.” Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir.1981)

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(internal citation omitted); see also Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989)

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(prison officials were not deliberately indifferent where one physician recommended

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surgery, but subsequent treating physicians concluded surgery was unnecessary). To

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prevail, Plaintiff “must show that the course of treatment the doctors chose was medically

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unacceptable under the circumstances . . . and . . . that they chose this course in

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conscious disregard of an excessive risk to plaintiff's health.” Jackson v. McIntosh, 90 F.3d

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330, 332 (9th Cir. 1986) (internal citations omitted).

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Plaintiff does not provide any factual allegations to support his conclusion that the

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Defendants’ decision to deny surgery was the product of deliberate indifference. The

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allegation that Dr. Clark’s decision was based on cost could suggest deliberate

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indifference, Jones v. Johnson, 781 F.2d 769, 771 (9th Cir. 1986); however, Plaintiff offers

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no facts or other support for his claim that Dr. Clark was so motivated. He simply puts forth

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the bare conclusion. Also, Plaintiff does not allege that pain medication and physical
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therapy, the prescribed alternative to surgery, was medically unacceptable under the

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circumstances. Thus, the allegation that the Defendants impermissibly denied Plaintiff’s

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shoulder surgery does not state a cognizable claim.

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Plaintiff also fails to state a claim against Drs. McGuiness, Wang, and Clark for their
alleged failure to ensure that Plaintiff attended follow up appointments on time. This claim

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appears based solely on the allegation that arrangements were not made for a follow-up
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eye appointment within the time period set by the optometrist. The Court’s previous
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screening order notified Plaintiff that such an allegation without further facts would not

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support a deliberate indifference claim. Plaintiff has again failed to correct this deficiency.

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The Court’s prior screening order advised Plaintiff of the applicable legal standards

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for these claims. The First Amended Complaint appears to contain all relevant facts known

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to the Plaintiff and still falls short of satisfying requisite standards. Therefore, further leave

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to amend would be fruitless. Plaintiff’s Eighth Amendment claims against Drs. McGuiness,

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Wang, and Clark are dismissed with prejudice.

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2.

Dr. Moon

Dr. Moon was Plaintiff’s primary care physician at Corcoran and treated his

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shoulder, feet, and eye complaints. As noted above, all three of Plaintiff’s ailments

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satisfied the “serious medical need” element of an Eight Amendment claim. Plaintiff

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alleges that Dr. Moon responded to these serious medical needs with deliberate

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indifference.

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Plaintiff alleges that he experienced pain in the shoulder opposite the one being
examined by the specialist and requested Dr. Moon examine it. Dr. Moon allegedly

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refused, cited the fact that shoulder treatment was out of his hands and removed Plaintiff
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from the office.

There is no indication that Dr. Moon was acting with deliberate

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indifference. Dr. Moon explained that another physician was in charge of treating Plaintiff’s

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shoulder. At this point Plaintiff had seen a specialist and was authorized to be treated by

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a physical therapist. It is not deliberate indifference to defer to a specialist. Plaintiff’s claim

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against Dr. Moon related to treatment of his shoulder is dismissed with prejudice.

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The First Amended Complaint alleges that Dr. Moon performed x-rays on one foot
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in spite of the fact that Plaintiff complained of pain in both feet. The single x-ray showed
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a fracture. Dr. Moon never informed Plaintiff of the fracture and failed to treat the other

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foot. Plaintiff discovered the fracture through a request of his medical records.

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Individuals display a deliberate indifference to a prisoner's well-being when they

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consciously disregard an excessive risk of harm to that detainee's health or safety.

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Farmer, 511 U.S. at 837-38. Plaintiff alleges a constitutional violation based on Dr. Moon

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forcing Plaintiff to chose which of his feet would receive treatment. As discussed , the pain

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in Plaintiff’s feet was a serious medical need. Dr. Moon was allegedly aware of the

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complaint with regard to both feet; he forced Plaintiff to choose between them. Dr. Moon

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exhibited deliberate indifference by consciously ignoring Plaintiff’s serious medical need

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in his untreated foot. Plaintiff states a cognizable Eighth Amendment claim against Dr.
Moon for the failure to treat both of his feet.

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Plaintiff further alleges that Dr. Moon intentionally ordered incorrect foot inserts and

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delayed his care for months. The “intentional” allegation is merely that and nothing more,

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i.e., an empty allegation without any factual basis. Plaintiff was notified in the Court’s

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previous screening order that mere conclusion cannot be used to develop a cognizable

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claim. Plaintiff’s claim based on Dr. Moon’s alleged conduct with regard to Plaintiff’s shoe
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inserts is dismissed with prejudice.

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Lastly, Plaintiff alleges that Dr. Moon knowingly prescribed nose spray and a steroid

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inhaler that negatively interacted with Plaintiff’s glaucoma eye drops. Prison personnel risk

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Eighth Amendment liability if they knowingly prescribe specifically contraindicated

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medications, fail to treat a known, serious medical condition, or ignore a physician's

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prescribed treatment. Ortiz v. City of Imperial, 884 F.2d 1312, 1314 (9th Cir. 1989); Hunt
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v. Dental Dep't, 865 F.2d 198, 201 (9th Cir. 1989); Wakefield v. Thompson, 177 F.3d 1160
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(9th Cir. 2003). Again, Plaintiff merely concludes that Dr. Moon’ prescription of medically

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contraindicated medications was intentional, but provides no facts in support of the claim.

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However, Plaintiff also alleges that when Plainitff advised Dr. Moon of the adverse reaction

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from using the two drugs simultaneously, Dr. Moon responded: “‘you want to breath or see,

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take your pick.’” Once Dr. Moon became aware of the problems resulting from allegedly

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conflicting medications, he again forced Plaintiff to chose which of Plaintiff’s ailments were

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to be treated. Forcing that choice on Plaintiff exhibits deliberate indifference on the part

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of Dr. Moon. Plaintiff states a cognizable Eighth Amendment claim against Dr. Moon for

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forcing Plaintiff to chose between breathing or sight.

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V.

CONCLUSION AND ORDER

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Plaintiff’s First Amended Complaint sets forth a cognizable claim against Defendant

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Moon for violating his Eighth Amendment right to be free from cruel and unusual

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punishment. There are no other cognizable claims in the Complaint.

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Accordingly, it is HEREBY RECOMMENDED that:

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1.

This action proceed on Plaintiff’s First Amended Complaint, filed May 19,

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2011, against Defendant Moon for violations of the Eighth Amendment;
2.

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All other claims be dismissed with prejudice for failure to state a claim under

Section 1983.

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IT IS SO ORDERED.

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Dated:
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September 29, 2011

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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