Pierce v. Lopez et al

Filing 19

FINDINGS and RECOMMENDATIONS Recommending 18 Dismissal with Prejudice signed by Magistrate Judge Michael J. Seng on 04/23/2012. Referred to Judge Ishii; Objections to F&R due by 5/29/2012. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SEBREN A. PIERCE,

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CASE NO.

Plaintiff,

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1:10-cv-00486-AWI-MJS (PC)

ORDER RECOMMENDING
WITH PREJUDICE

DISMISSAL

v.
(ECF No. 18)

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LOPEZ, et al.,
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PLAINTIFF’S OBJECTIONS, IF ANY, DUE
IN THIRTY (30) DAYS

Defendants.

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/

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SCREENING ORDER

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I.

PROCEDURAL HISTORY

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On March 18, 2010, Plaintiff Sebren A. Pierce, a state prisoner proceeding pro se

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and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. (ECF No.

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1.) On June 4, 2010, Plaintiff voluntarily filed an amended complaint. (ECF No. 12.) Fed.

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R. Civ. P. 15(a). On March 29, 2012, Plaintiff’s First Amended Complaint was screened

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and dismissed, with leave to amend, for failure to state a cognizable claim. (ECF No. 17.)
Plaintiff’s Second Amended Complaint (ECF No. 18) 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 SECOND AMENDED COMPLAINT

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The Second Amended Complaint identifies the following Corcoran State Prison

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(Corcoran) officials as Defendants in this action: (1) Raul Lopez, Warden; (2) Dr. Edgar

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Clark, Chief Medical Officer; and (3) Dr. Julian Kim.

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Plaintiff alleges the following:
On January 13, 2010, yard medical staff prescribed Plaintiff the antibiotic

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Salfamethoxazole for an ear ache. (Compl. at 3, 4.) “The antibiotic was prescribed and

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given to Plaintiff without a verbal or written warning of the side effects, that should prompt

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Plaintiff to discontinue use and seek medical attention . . . .” (Id. at 4.) On January 17,

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2010, Plaintiff was sent to the emergency room with a 102.8 degree temperature and the

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following symptoms: “headache, insomnia, depression, vertigo, fatique [sic], anxi[e]ty,

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fever, chills, drowsiness, nausea, and abdominal pain.”

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prescribed a new antibiotic, Cipro, “without understanding the side effects of that particular

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antibiotic . . . .” (Id. at 5.)

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(Id.)

Defendant Kim then

On January 18, 2010, Plaintiff’s condition worsened: his temperature rose to 103.2
degrees, a rash developed throughout his body, and his original symptoms persisted. (Id.

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at 4.) Plaintiff ran a temperature above one hundred degrees for ten days. (Id. at 5.) Kim

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failed to warn Plaintiff of Cipro’s potential side effects and failed to recognize that Cipro

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was not alleviating Plaintiff’s pain, but exacerbating it. Plaintiff repeatedly informed Kim

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of his symptoms. (Id. at 4.) Before his hospitalization, Plaintiff had observed Defendant

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Kim use a computer to retrieve information from the pharmacy regarding certain drugs and

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their respective side effects. “The information was readily and reasonably available for

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Defendant.” (Id. at 6.)
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Defendant Kim and the medical staff did not recognize the adverse impact of the

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antibiotics because the medication was packaged without warning labels. Warden Lopez

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and Chief Medical Officer Clark have instituted a policy or custom whereby medication

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delivered to the prison is taken out of the manufacturer’s packaging and placed in prison

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packaging. As a result, manufacturer information regarding side effects is not provided

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with the medication in prison packaging. (Id. at 4, 5.)
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As a result of the Defendant’s conduct, “Plaintiff still suffers from the following: (A)
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constant, severe reoccurring headaches; (B) loss of concentration; (C) loss of memory; (D)

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virtigo [sic]; (E) blurred vision; [and] (F) loss of vitality.” (Id. at 6.)

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IV.

ANALYSIS

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A.

Section 1983 and Eighth Amendment Standards

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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 alleges that the Defendants provided inadequate medical care in violation

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of his Eighth Amendment rights. “[T]o maintain an Eighth Amendment claim based on

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prison 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

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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. 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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B.

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Serious Medical Need

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Plaintiff alleges that he was admitted to the hospital with a 102.8 degree

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temperature and the following symptoms: headache, insomnia, depression, vertigo, fatigue,

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anxiety, fever, chills, drowsiness, nausea, and abdominal pain. (Compl. at 4.) Plaintiff

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developed a rash and high temperature which persisted for ten days. (Id. at 4, 5.) Medical

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staff, including Defendant Kim, found his condition worthy of treatment. This adequately

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alleges a serious medical need and thus satisfies the first element of Plaintiff’s Eighth

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Amendment claim. See Doty v. County of Lassen, 37 F.3d 540, 546 (9th Cir. 1994)

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(“serious” medical conditions are those a reasonable doctor would think worthy of

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comment, those which significantly affect the prisoner's daily activities, and those which are

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chronic and accompanied by substantial pain).

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C.

Deliberate Indifference
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Warden Lopez & Chief Medical Officer Clark

Plaintiff alleges that Defendant Lopez and Clark are responsible for a policy or
practice at the prison whereby medication is removed from its original packaging and

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placed in a prison package. The manufacturer’s warnings are not moved with the

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medication. Because of this practice, Defendant Kim and other medical staff are unaware

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of potential side effects such as those Plaintiff suffered as a result.

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Plaintiff has failed to plead facts sufficient to state a cognizable Eighth Amendment
claim against either Defendant Lopez or Defendant Clark.

The Second Amended

Complaint asserts that Lopez and Clark were supervisors and therefore liable. As the

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Court instructed Plaintiff in its previous screening order, under § 1983, Plaintiff must

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demonstrate that each defendant personally participated in the deprivation of his rights.

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Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). Government officials may not be

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held liable for the actions of their subordinates under a theory of respondeat superior.

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Iqbal, 129 S.Ct. at 1948. Since a government official cannot be held liable under a theory

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of vicarious liability in § 1983 actions, Plaintiff must plead facts showing that the official has

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violated the Constitution through his own individual actions. Id. at 1948.
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“A showing that a supervisor acted, or failed to act, in a manner that was

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deliberately indifferent to an inmate's Eighth Amendment rights is sufficient to demonstrate

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the involvement - and the liability - of that supervisor. Thus, when a supervisor is found

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liable based on deliberate indifference, the supervisor is being held liable for his or her own

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culpable action or inaction, not held vicariously liable for the culpable action or inaction of

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his or her subordinates.” Starr v. Baca, 652 F.3d 1202, 1206-07 (9th Cir. 2011).
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The allegations in the Second Amended Complaint do not meet the deliberate

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indifference standard with respect to either Lopez or Clark. Plaintiff does not allege that

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either Defendant created the policy or practice at issue in knowing disregard of a serious

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risk to Plaintiff’s health. Farmer, 511 U.S. at 837. “Deliberate indifference is a high legal

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standard.” Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). “Under this standard,

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the prison official must not only ‘be aware of the facts from which the inference could be

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drawn that a substantial risk of serious harm exists,’ but that person ‘must also draw the

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inference.’” Id. at 1057 (quoting Farmer, 511 U.S. at 837). “‘If a prison official should have

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been aware of the risk, but was not, then the official has not violated the Eighth

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Amendment, no matter how severe the risk.’” Id. (quoting Gibson v. County of Washoe,

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Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)).
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There is no indication that either Defendant was aware of any particular risk

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associated with removal of warning information on medication. Plaintiff acknowledges that

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the prison had an alternative method of informing medical personnel of medication side

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effects: Defendant Kim used a computer to access side effect information. Plaintiff

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characterized this alternative means as “readily and reasonably available . . . .” (Compl.

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at 6.)
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The Court’s previous screening order instructed Plaintiff on the applicable law and

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gave him an opportunity to amend. Plaintiff has again been unable to allege facts

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demonstrating that Defendants Lopez or Clark implemented a policy or practice in

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deliberate indifference to Plaintiff’s serious medical need. Indeed, as noted, the facts pled

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belie such a claim. Given those facts and Plaintiff’s failure to amend to meet applicable
legal standards, no useful purpose would be served by granting leave to amend. The

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Court recommends Plaintiff’s claims against Defendants Lopez and Clark be dismissed

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with prejudice.

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Attending Physician Kim

Plaintiff alleges that Defendant Kim prescribed the new antibiotic without warning

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Plaintiff of the potential side effects. (Compl. at 5.) Kim is also alleged to have failed to

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recognize that Plaintiff’s persistent side effects were caused by the new antibiotic and to

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discontinue it even though Plaintiff told Kim of the side effects “on numerous occasions.”

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(Id.)

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Plaintiff has not alleged deliberate indifference on the part of Defendant Kim. The
Second Amended Complaint renews Plaintiff’s allegations from his previous amended

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complaint that Kim failed to recognize the side effects of the antibiotic Cipro. This may well
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have constitute error, negligence, on his part.

However, “[a] showing of medical

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malpractice or negligence is insufficient to establish a constitutional deprivation under the

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Eighth Amendment.” Toguchi, 391 F.3d at 1060. There are no factual allegations

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suggesting that Defendant Kim knowingly disregarded a risk to Plaintiff.

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Plaintiff was specifically instructed that speculative allegations asserting that

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Defendant Kim knew or should have known of the risk would not be sufficient; he was told
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that he would have to allege facts that would support such a claim. He has not done so.

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The fact that he has not, despite being advised of precisely what is required, is grounds for

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concluding he can not. There is thus no need for further leave to amend. The Court

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recommends that Plaintiff’s claim against Defendant Kim be dismissed with prejudice.

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V.

CONCLUSION AND RECOMMENDATION

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Plaintiff’s Second Amended Complaint does not state a cognizable claim against
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the named Defendants. Accordingly, it is HEREBY RECOMMENDED that this action be

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dismissed with prejudice for failure to state a claim.

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These Findings and Recommendations will be submitted to the United States
District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. §

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636(b)(l).

Within thirty (30) days after being served with these Findings and

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

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

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

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

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IT IS SO ORDERED.
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Dated:

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ci4d6

April 23, 2012

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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