Acero v. Thomatos, et al.

Filing 15

ORDER DISMISSING Plaintiff's Complaint, WITH LEAVE TO AMEND For Failure to State a Cognizable Claim 1 ; ORDER DENYING Plaintiff's Motion for Temporary Restraining Order, Request for Entry of Default, and Motion for Default Judgment 12 , 13 , 14 THIRTY DAY DEADLINE, signed by Magistrate Judge Sandra M. Snyder on 10/3/11. (Attachments: # 1 Amended Complaint - blank form)(Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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STEVEN CHARLES ACERO,

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Plaintiff,

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v.
GEORGIA THOMATOS, et al.,

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Defendants.

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CASE NO. 1:10-cv-01308-SMS PC
O R D E R D IS M IS S IN G P LA IN T IF F ’ S
COMPLAINT, WITH LEAVE TO AMEND, FOR
FAILURE TO STATE A COGNIZABLE CLAIM
(ECF No. 1)
ORDER DENYING PLAINTIFF’S MOTION FOR
TEMPORARY RESTRAINING ORDER,
REQUEST FOR ENTRY OF DEFAULT, AND
MOTION FOR DEFAULT JUDGMENT

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(ECF Nos. 12, 13, 14)
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/ THIRTY DAY DEADLINE
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I.

Screening Requirement

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Plaintiff Steven Charles Acero (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. The complaint in this action was

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filed on July 22, 2010. (ECF No. 1.) On March 18, 2011, Plaintiff filed a motion for a temporary

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restraining order. (ECF No. 12.) Plaintiff filed a request for entry of default on April 27, 2011, and

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a motion for default judgment on June 16, 2011. (ECF Nos. 13, 14.)

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The Court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that “fails to state a claim on which relief may be granted,” or that “seeks

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monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).
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In determining whether a complaint states a claim, the Court looks to the pleading standard

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under Federal Rule of Civil Procedure 8(a). Under Rule 8(a), a complaint must contain “a short and

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plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

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“[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it

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demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v.

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Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555

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(2007)).

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Under section 1983, Plaintiff must demonstrate that each defendant personally participated

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in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires

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the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 129 S. Ct.

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at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). “[A] complaint [that]

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pleads facts that are ‘merely consistent with’ a defendant’s liability . . . ‘stops short of the line

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between possibility and plausibility of entitlement to relief.’” Iqbal, 129 S. Ct. at 1949 (quoting

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Twombly, 550 U.S. at 557). Further, although a court must accept as true all factual allegations

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contained in a complaint, a court need not accept a plaintiff’s legal conclusions as true. Iqbal, 129

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S. Ct. at 1949. “Threadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Id. (quoting Twombly, 550 U.S. at 555).

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II.

Complaint Allegations

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Plaintiff is in the custody of the California Department of Corrections and Rehabilitation and

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is incarcerated at the Sierra Conservation Center (“SCC”). Plaintiff brings this action against

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Defendants Georgia Thomatos, Edwin Banji, Jack St. Clair, Robert Folsom, and Curtis Allen

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alleging deliberate indifference to a serious medical need. (Compl. 2-3, ECF No. 1.)1 Plaintiff was

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diagnosed with spinal injuries and suffers from severe neck and back pain. (Id. at 3, 8.)

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Plaintiff was seen by Defendant Thomatos and requested a referral to a neurologist and an

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MRI. Defendant Thomatos told Plaintiff that his request for a referral was not going to happen. (Id.

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at 8.) Plaintiff requested pain medication and Defendant Thomatos refused, instead prescribing a

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All references to pagination of specific documents pertain to those as indicated on the upper right corners
via the CM/ECF electronic court docketing system.

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“psyc./sezuire” medication which was not effective in treating his pain. (Id. at 8.) Plaintiff appealed

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the decision and received a response from Defendant St. Clair stating, “At your current weight you

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are a poor candidate for surgery.”

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neurological consult. (Id. at 9.)

Defendant Banji ordered physical therapy instead of a

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Plaintiff attended physical therapy, and Defendant Folsom manipulated Plaintiff’s spine. The

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manipulation of Plaintiff’s spine hurt so he told Defendant Folsom to stop and did not allow him to

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manipulate him again. Plaintiff is being treated with a TENS unit and was placed on Indomethacin

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which is not effective as he is still experiencing extreme pain. Since completing physical therapy,

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which Defendant Allen, approved Plaintiff’s condition is worse. (Id.)

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Plaintiff fell as he was coming down from an upper bunk and alleges that Defendant

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Thomatos was negligent because she should have initiated a lower bunk chrono. Afer Plaintiff was

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injured during the fall, Defendant Thomatos told Plaintiff that a lower bunk chrono for sixty days

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would be sufficient for him to recover from the injuries he sustained. (Id. at 10.) Plaintiff was

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offered to change his medication to one to which Plaintiff alleges he is allergic. (Id. at 11.)

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Plaintiff is seeking compensatory damages and injunctive relief. For the reasons set forth

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below Plaintiff fails to state a cognizable claim for a violation of his constitutional rights.

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III.

Deliberate Indifference

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

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must show “deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091, 1096

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(9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two part test for

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deliberate indifference requires the plaintiff to show (1) “a ‘serious medical need’ by demonstrating

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that failure to treat a prisoner’s condition could result in further significant injury or the ‘unnecessary

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and wanton infliction of pain,’” and (2) “the defendant’s response to the need was deliberately

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indifferent.” Jett, 439 F.3d at 1096.

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Deliberate indifference is shown where the official is aware of a serious medical need and

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fails to adequately respond. Simmons v. Navajo County, Arizona, 609 F.3d 1011, 1018 (9th Cir.

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2010). “Deliberate indifference is a high legal standard.” Simmons, 609 F.3d at; Toguchi v. Chung,

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391 F.3d 1051, 1060 (9th Cir. 2004). The prison official must be aware of facts from which he could
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make an inference that “a substantial risk of serious harm exists” and he must make the inference.

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Farmer v. Brennan, 511 U.S. 825, 837 (1994).

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A.

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Plaintiff alleges that Defendant Thomatos was deliberately indifferent to his medical needs

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by stating he would not receive his referral for a neurological consultation and prescribing a nerve

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medication rather than a pain medication. In general the Court must accept the material allegations

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in the complaint as true and construe them in the light most favorable to plaintiff. However where

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exhibits are attached to the complaint, Court is not limited to the allegations contained in the

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complaint, and can consider the exhibits. Roth v. Garcia Marquez, 942 F.2d 617, 625 n.1 (9th Cir.

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1991). Where the allegations in the complaint are refuted by the exhibits, the Court need not accept

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the allegations as true. Sprewell v. Golden State Warriors, 266 F3d 979, 987 (9th Cir. 2001); Roth,

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942 F.2d at 625 n.1.

Defendant Thomatos

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While Plaintiff alleges that Defendant Thomas refused to proscribe pain medication, the

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exhibits attached to Plaintiff’s complaint demonstrate that Defendant Thomatos was not deliberately

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indifferent to Plaintiff’s medical condition. Plaintiff was first seen by Defendant Thomatos on

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December 23, 2009, approximately one month after transferring to SCC. She prescribed valproic

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acid (Depakote) and advised Plaintiff that it would take approximately six weeks to determine if any

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type of seizure medication used to treat nerve pain would be effective. Additionally, Defendant

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Thomatos advised Plaintiff that her goal was to decrease the amount of pain he was experiencing and

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that she did not believe that all pain could be eliminated. (Comp. at 20.) The fact that Defendant

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Thomatos attempted to treat Plaintiff’s medical condition with a seizure medication, rather than a

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pain medication does not demonstrate deliberate indifference.

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Additionally, when Plaintiff saw Defendant Thomatos for a follow-up appointment on

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January 28, 2010, Defendant Thomatos examined Plaintiff and changed his medication to

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Indomethacin. Plaintiff was informed that he was being referred for physical therapy, and advised

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his weight was high and he needed to lose weight. Plaintiff was authorized for physical therapy on

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February 2, 2010, and was to be scheduled for a followup appointment at the end of March or

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beginning of April. (Id. at 25.) In Plaintiff’s appeal he stated that the Indomethacin was effective
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for treating his pain for two weeks and then stopped working. (Id. at 15.)

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Additionally, Plaintiff claim that Defendant Thomatos was negligent because she should have

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issued a medical chrono due to his back pain fails to state a cognizable claim. An allegation by a

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prisoner that a physician has been negligent or has committed medical malpractice in diagnosing or

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treating a medical condition does not state a constitutional claim. Broughton v. Cutter Laboratories,

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622 F.2d 458, 460 (9th Cir. 1980); Toguchi, 391 F.3d at 1057.

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Nor does the fact that Defendant Thomatos issued a medical chrono for only sixty days after

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Plaintiff fell state a claim. Defendant Thomatos told Plaintiff that sixty days should be sufficient

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time for his injury from the fall to heal.

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Plaintiff has failed to state a plausible claim that Defendant Thomatos was deliberately

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indifferent to his serious medical needs. Iqbal, 129 S. Ct. at 1949. Plaintiff was prescribed

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medication and referred to physical therapy. Plaintiff was not referred to a specialist because it was

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determined by his physician that it was not medically necessary. After Plaintiff fell and injured his

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back, Defendant Thomatos issued him a medical chrono for a lower bunk for sixty days. The fact

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that Plaintiff had a difference of opinion with prison medical authorities as to proper treatment does

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not give rise to a claim. Franklin v. Oregon, 662 F.2d 1337, 1355 (9th Cir. 1981); Mayfield v.

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Craven, 433 F.2d 873, 874 (9th Cir. 1970).

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B.

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Defendant Bangi evaluated Plaintiff in regards to his medical appeal. Defendant Bangi

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determined that an MRI and referral to neurologist were not medically necessary and referred

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Plaintiff to physical therapy. Defendant Bangi offered to change Plaintiff’s medication to Naproxen,

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to which Plaintiff alleges he is allergic. (Compl. 20-21.)

Defendant Banji

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Although Plaintiff’s alleges that Defendant Bangi was deliberately indifferent because he

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referred Plaintiff to physical therapy rather than sending him for a neurological consult, the facts

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demonstrate a difference of opinion between Plaintiff and his medical providers as to the treatment

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he should receive for his medical condition. This difference of opinion is insufficient to state a

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cognizable claim. Franklin, 662 F.2d at 1355; Mayfield 433 F.2d at 874.

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C.

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Plaintiff’s allegations against Defendant St. Clair also fail to state a cognizable claim.

Defendant St. Clair

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Defendant St. Clair reviewed Plaintiff’s appeal at the second level. Following a review of the

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medical documentation, Defendant St. Clair determined that there was no medical reason to obtain

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an MRI and that Plaintiff’s condition would be more effectively treated by physical therapy and

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weight loss. Additionally, Defendant St. Clair found that a neurological consultation was not

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necessary prior to weight loss and physical therapy, and that Plaintiff was a poor candidate for

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surgery at his current weight. (Compl. 24.) Plaintiff’s complaint merely states a difference of

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opinion between him and his medical providers regarding treatment. Franklin, 662 F.2d at 1355;

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Mayfield 433 F.2d at 874.

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D.

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Plaintiff alleges that Defendant Allen was deliberately indifferent by approving the request

Defendant Allen

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for physical therapy.

The factual allegation that Defendant Allen approved the treatment

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recommended by Defendant Bangi is insufficient to state a plausible claim for deliberate

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indifference. Iqbal, 129 S. Ct. at 1949.

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E.

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Finally, Plaintiff claims that Defendant Folsom manipulated his spine during physical therapy

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causing Plaintiff pain and Plaintiff told him to stop. Plaintiff alleges that Defendant Folsom caused

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his condition to worsen. At the most, Plaintiff’s allegations would amount to medical malpractice,

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which “does not become a constitutional violation merely because the victim is a prisoner.” Estelle,

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429 U.S. at 106; see Broughton, 622 F.2d at 460; Toguchi, 391 F.3d at 1057.

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IV.

Defendant Folsom

Motion for Temporary Restraining Order

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For each form of relief sought in federal court, Plaintiff must establish standing. Summers

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v. Earth Island Institute, 129 S.Ct. 1142, 1149 (2009) (citation omitted); Mayfield v. United States,

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599 F.3d 964, 969 (9th Cir. 2010) (citation omitted). This requires Plaintiff to show that he is under

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threat of suffering an injury in fact that is concrete and particularized; the threat must be actual and

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imminent, not conjectural or hypothetical; it must be fairly traceable to challenged conduct of the

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defendant; and it must be likely that a favorable judicial decision will prevent or redress the injury.
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Summers, 129 S.Ct. at 1149 (quotation marks and citation omitted); Mayfield, 599 F.3d at 969.

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Further, any award of equitable relief is governed by the Prison Litigation Reform Act, which

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provides in relevant part, “Prospective relief in any civil action with respect to prison conditions

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shall extend no further than necessary to correct the violation of the Federal right of a particular

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plaintiff or plaintiffs. The court shall not grant or approve any prospective relief unless the court

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finds that such relief is narrowly drawn, extends no further than necessary to correct the violation

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of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal

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right.” 18 U.S.C. § 3626(a)(1)(A).

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Plaintiff’s complaint is being dismissed with leave to amend. Until Plaintiff files an amended

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complaint and the Court is able to determine which claims are cognizable and appropriately raised

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in this action, the Court lacks jurisdiction to issue any injunctive relief. 18 U.S.C. § 3626(a)(1)(A);

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Summers, 129 S.Ct. at 1149; Mayfield, 599 F.3d at 969. Plaintiff’s motion for a temporary

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restraining order is denied.

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V.

Entry of Default and Default Judgment

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In this case, the United States Marshal will be directed to initiate service of process on

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Plaintiff’s behalf when the Court has determined that Plaintiff’s complaint states cognizable claims

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for relief and service is appropriate. 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(2). The Court is

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dismissing Plaintiff’s complaint for failure to state any cognizable claims. Plaintiff’s request for

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entry of default and motion for default judgment are denied as premature.

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VI.

Conclusion and Order

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For the reasons stated, Plaintiff’s complaint does not state a cognizable claim for relief for

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a violation of his constitutional rights. Plaintiff is granted leave to file an amended complaint within

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thirty days. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff may not change the

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nature of this suit by adding new, unrelated claims in his amended complaint. George v. Smith, 507

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F.3d 605, 607 (7th Cir. 2007) (no “buckshot” complaints).

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Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but must state what each

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named defendant did that led to the deprivation of Plaintiff’s constitutional or other federal rights,

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Iqbal, 129 S. Ct. at 1948-49. “The inquiry into causation must be individualized and focus on the
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duties and responsibilities of each individual defendant whose acts or omissions are alleged to have

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caused a constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988). Although

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accepted as true, the “[f]actual allegations must be [sufficient] to raise a right to relief above the

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speculative level . . . .” Twombly, 550 U.S. at 555 (citations omitted).

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Finally, an amended complaint supercedes the original complaint, Forsyth v. Humana, Inc.,

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114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), and must

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be “complete in itself without reference to the prior or superceded pleading,” Local Rule 220. “All

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causes of action alleged in an original complaint which are not alleged in an amended complaint are

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waived.” King, 814 F.2d at 567 (citing to London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th

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Cir. 1981)); accord Forsyth, 114 F.3d at 1474.

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Based on the foregoing, it is HEREBY ORDERED that:

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The Clerk’s Office shall send Plaintiff a civil rights complaint form;

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2.

Plaintiff’s complaint, filed July 22, 2010, is dismissed for failure to state a claim

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upon which relief may be granted under section 1983;

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3.

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Plaintiff’s motion for a temporary restraining order, filed March 18, 2011, is
DENIED for lack of jurisdiction;

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4.

Plaintiff’s request for entry of default, filed April 27, 2011, is DENIED as premature;

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5.

Plaintiff’s motion for default judgment, filed June 16, 2011, is DENIED as

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premature;

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6.

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Within thirty (30) days from the date of service of this order, Plaintiff shall file an
amended complaint; and

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7.

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If Plaintiff fails to file an amended complaint in compliance with this order, this
action will be dismissed, with prejudice, for failure to state a claim.

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IT IS SO ORDERED.

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Dated:
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October 3, 2011

/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE

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