Howard v. Wang, et al.

Filing 30

FINDINGS and RECOMMENDATIONS recommending that this Action Be Dismmissed, With Prejudice, for Failure to State a Claim Upon Which Relief May Be Granted re 28 Second Amended Prisoner Civil Rights Complaint, signed by Magistrate Judge Gerald B. Cohn on 3/30/2012. Referred to Judge Ishii. Objections to F&R due within thirty (30) days. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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TIMOTHY HOWARD,

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Plaintiff,

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v.

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J. WANG, et al.,

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Defendants.

CASE NO. 1:10-cv-01783-AWI-GBC (PC)
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSAL OF ACTION,
WITH PREJUDICE, FOR FAILURE TO
STATE A CLAIM UPON WHICH RELIEF
MAY BE GRANTED
Doc. 28
/ OBJECTIONS DUE WITHIN THIRTY DAYS

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Findings and Recommendations

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I. Procedural History, Screening Requirement, and Standard

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On September 28, 2010, Plaintiff Timothy Howard (“Plaintiff”), a state prisoner proceeding

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pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. Doc. 1. On

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January 13, 2011, Plaintiff filed a first amended complaint. Doc. 16. On September 16, 2011, the

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Court issued a screening order, dismissing Plaintiff’s first amended complaint, with leave to amend.

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Doc. 26. On October 14, 2011, Plaintiff filed his second amended complaint. Doc. 28.

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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 fail to state a claim upon which relief may be granted, or that seek

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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).

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“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall

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dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a

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claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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

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is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,

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do not suffice,” Ashcroft v. Iqbal, 556 U.S. 662, __, 129 S. Ct. 1937, 1949 (2009) (citing Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)), and courts “are not required to indulge

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unwarranted inferences,” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009). While

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factual allegations are accepted as true, legal conclusions are not. Iqbal, 129 S. Ct. at 1949.

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While prisoners proceeding pro se in civil rights actions are still entitled to have their

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pleadings liberally construed and to have any doubt resolved in their favor, the pleading standard is

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now higher, Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). Under § 1983, plaintiff must

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

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Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the presentation of factual allegations

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sufficient to state a plausible claim for relief. Iqbal, 129 S. Ct. at 1949-50; Moss v. U.S. Secret

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Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting

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this plausibility standard. Iqbal, 129 S. Ct. at 1949-50; Moss, 572 F.3d at 969.

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Section 1983 provides a cause of action for the violation of constitutional or other federal

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rights by those acting under color of state law. E.g., Patel v. Kent School Dist., 648 F.3d 965, 971

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(9th Cir. 2011); Jones, 297 F.3d at 934. For each defendant named, plaintiff must show a causal link

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between the violation of his rights and an action or omission of the defendant. Iqbal,129 S. Ct. at

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1949-50; Starr v. Baca, 652 F.3d 1202, 1205-06 (9th Cir. 2011); Corales v. Bennett, 567 F.3d 554,

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570 (9th Cir. 2009). There is no respondeat superior liability under § 1983, and each defendant may

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only be held liable for misconduct directly attributed to him or her. Iqbal, 129 S. Ct. at 1949-50;

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Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009).

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//
Page 2 of 10

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II. Allegations in Plaintiff’s Second Amended Complaint

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In Plaintiff’s second amended complaint, he names Defendants J. Wang and Edgar Clark,

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Medical Doctors who were employed at Corcoran State Prison (“Corcoran”). 2d Am. Compl. at 1-3,

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Doc. 28. On August 21, 2009, Plaintiff sustained injuries to his left foot from a cell extraction that

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required examination. Id. at 3, 5-6. He was taken to the hospital at Corcoran, and Defendant Dr.

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Wang informed Plaintiff that his left foot was sprained with possible fracture but noted that Plaintiff

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cannot walk because he is paralyzed. Id. at 6-7. Dr. Wang ordered Plaintiff returned to his cell with

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D.P.W. status (full-time wheelchair user) with pain / seizure medication and no weight on the left

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foot. Id. Defendant Dr. Clark then arrived after Dr. Wang left the room. Id. Dr. Clark was hostile,

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unprofessional, and verbally abusive. Id. Dr. Clark said he spoke with the investigative services unit,

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and they wanted Plaintiff removed from the disability program and left inside his cell with no

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medical appliances and no pain medication. Id. Plaintiff said that their version of the events was false

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and that he never stood, ran, kicked, or broke any appliance. Id. Defendant Clark then approved his

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transfer to Folsom. Id. at 8. Plaintiff was transferred without any orders for medication or chronos

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for appliances such as a wheelchair. Id. Later that day, Nurse C. Espinoza completed a form for

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appliances and pain / seizure medication. Id. at 8-9.

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Plaintiff could not walk and was forced to crawl on his stomach for food and bathroom and

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when he did not crawl fast enough, custody would refuse to feed Plaintiff. Id. at 9. On August 25,

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2009, medical staff at CSATF reviewed Plaintiff’s medical chart, ordered pain / seizure medication,

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and had his left foot x-rayed. Id. On March 30, 2010, an neurologist examined Plaintiff and

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diagnosed him as paralyzed. Id. Plaintiff had to wait seven months to see a neurologist. Id. at 10.

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Defendant Clark denied medication and appliances in retaliation. Id. The neurologist denied Plaintiff

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a wheelchair. Id. Plaintiff alleges cruel and unusual punishment. Id. at 14.

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For relief, Plaintiff seeks declaratory relief and nominal, compensatory, and punitive

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damages. Id. at 3.

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//

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//

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//
Page 3 of 10

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III. Legal Standard and Analysis for Plaintiff’s Claims

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A. Eighth Amendment Deliberate Indifference to Serious Medical Need

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1. Legal Standard

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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, 106 (1976)). The two part test for deliberate

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

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

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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 (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir.

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1992), overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997)

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(en banc)).

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Deliberate indifference is shown by “a purposeful act or failure to respond to a prisoner’s

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pain or possible medical need, and harm caused by the indifference.” Id. (citing McGuckin, 974 F.2d

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at 1060). Deliberate indifference may be manifested “when prison officials deny, delay or

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intentionally interfere with medical treatment, or it may be shown by the way in which prison

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physicians provide medical care.” Id. (citing McGuckin at 1060). Where a prisoner is alleging a delay

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in receiving medical treatment, the delay must have led to further harm in order for the prisoner to

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make a claim of deliberate indifference to serious medical needs. McGuckin at 1060 (citing Shapely

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v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985)).

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Under § 1983, Plaintiff must link the named defendants to the participation in the violation

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at issue. Iqbal, 129 S. Ct. at 1948-49; Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1020-21 (9th

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Cir. 2010); Ewing, 588 F.3d at 1235; Jones v. Williams, 297 F.3d at 934. Liability may not be

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imposed on supervisory personnel under the theory of respondeat superior, Iqbal, 129 S. Ct. at 1948-

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49; Ewing, 588 F.3d at 1235, and administrators may only be held liable if they “participated in or

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directed the violations, or knew of the violations and failed to act to prevent them,” Taylor v. List,

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880 F.2d 1040, 1045 (9th Cir. 1989); accord Starr, 652 F.3d 1202, 1205-08 (9th Cir. 2011); Corales,

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567 F.3d at 570; Preschooler II v. Clark County School Board of Trustees, 479 F.3d 1175, 1182 (9th
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Cir. 2007); Harris v. Roderick, 126 F.3d 1189, 1204 (9th Cir. 1997). Some culpable action or

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inaction must be attributable to defendants and while the creation or enforcement of, or acquiescence

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in, an unconstitutional policy may support a claim, the policy must have been the moving force

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behind the violation. Starr, 652 F.3d at 1205; Jeffers v. Gomez, 267 F.3d 895, 914-15 (9th Cir.

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2001); Redman v. County of San Diego, 942 F.2d 1435, 1446-47 (9th Cir. 1991); Hansen v. Black,

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885 F.2d 642, 646 (9th Cir. 1989).

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Plaintiff may not seek to impose liability on defendants merely upon position of authority,

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based on vague or other conclusory allegations. Plaintiff fails to allege sufficient facts to support a

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plausible claim based on the knowing disregard of a substantial risk of harm to Plaintiff’s health.

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Medical malpractice does not become a constitutional violation merely because the victim is a

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prisoner, and Estelle, 429 U.S. at 106; McGuckin, 974 F.2d at 1059, and isolated occurrences of

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neglect do not rise to the level of an Eighth Amendment violation, O’Loughlin v. Doe, 920 F.2d 614,

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617 (9th Cir. 1990); Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990).

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2. Analysis

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Plaintiff fails to state a cognizable Eighth Amendment claim. Plaintiff alleges Defendants

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were indifferent to his medical needs. Plaintiff seems to allege that Dr. Clark was bound by the

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diagnosis of Dr. Wang. Plaintiff’s allegations may, at most, amount to negligence, which is

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insufficient to hold a defendant liable for deliberate indifference to a serious medical need, under the

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Eighth Amendment.

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Neither an inadvertent failure to provide adequate medical care, nor mere negligence or

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medical malpractice, nor a mere delay in medical care, nor a difference of opinion over proper

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treatment, constitutes an Eighth Amendment violation. See Estelle, 429 U.S. at 105-06; Sanchez v.

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Vild, 891 F.2d 240, 242 (9th Cir. 1989); Shapley v. Nev. Bd. of State Prison Comm’r, 766 F.2d 404,

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407 (9th Cir. 1984). Moreover, the Constitution does not require that prison doctors give inmates

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every medical treatment they desire. Bowring v. Godwin, 551 F.2d 44, 47-48 (4th Cir. 1977). To

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establish a constitutional right to treatment under the Eighth Amendment, an inmate must show that

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a physician or other health care provider exercising ordinary skill and care at the time of observation

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would conclude with reasonable medical certainty that: (1) the prisoner’s symptoms evidenced a
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serious disease or injury; (2) the disease or injury was curable or could be substantially alleviated;

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and (3) the potential for harm to the prisoner by reason of delay or denial of care would be

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substantial. Id. “The courts will not intervene upon allegations of mere negligence, mistake or

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difference of opinion.” Id. at 48 (emphasis added); see also Sanchez, 891 F.2d at 242. In addition,

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gross negligence is insufficient to establish deliberate indifference. See Wood v. Housewright, 900

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

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Neither negligence nor gross negligence is actionable under § 1983 in the prison context. See

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Farmer v. Brennan, 511 U.S. 825, 835-36 & n.4 (1994); Wood, 900 F.2d at 1334 (gross negligence

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insufficient to state claim for denial of medical needs to prisoner). Nor is negligence actionable under

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§ 1983 outside of the prison context. The Constitution does not guarantee due care on the part of

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state officials; liability for negligently inflicted harm is categorically beneath the threshold of

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constitutional due process. See County of Sacramento v. Lewis, 523 U.S. 833, 849 (1998). The

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Eighth Amendment’s prohibition of cruel and unusual punishment applies to prison medical care

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(and the Fourteenth Amendment’s right to due process applies to jail medical care); however, an

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Eighth Amendment or Fourteenth Amendment violation only occurs if there is deliberate

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indifference to a known risk to an inmate’s serious medical condition.

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Plaintiff alleges that Defendant Dr. Clark failed to provide medical appliances and pain /

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seizure medication. However, Plaintiff is not permitted to dictate his medical treatment. Bowring,

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551 F.2d at 47-48. As a matter of law, differences of opinion between prisoner and prison doctors

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fails to show deliberate indifference to serious medical needs. Jackson v. McIntosh, 90 F.3d 330, 332

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(9th Cir. 1996) (emphasis added). Even when Plaintiff was finally seen by a neurologist, the

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neurologist also found that Plaintiff was not entitled to a wheelchair.

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Although Plaintiff alleges he was required to crawl along the floor of his cell to obtain food,

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he does not allege that Defendants were actually aware of this circumstance. Thus, even with liberal

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construction, Plaintiff’s second amended complaint does not allege deliberate indifference to a

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medical need because that high standard requires that the defendant actually knew of and acted in

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conscious disregard of a known serious risk. Moreover, mere verbal harassment or abuse alone is

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not sufficient to state a claim under § 1983, Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir.
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1987), and threats do not rise to the level of a constitutional violation, Gaut v. Sunn, 810 F.2d 923,

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925 (9th Cir. 1987). The second amended complaint will be dismissed for failure to state a claim

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upon which relief may be granted.

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B. First Amendment Retaliation

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Allegations of retaliation against a prisoner’s First Amendment rights to speech or to petition

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the government may support a section 1983 claim. Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir.

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1985); see also Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989); Pratt v. Rowland, 65

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F.3d 802, 807 (9th Cir. 1995). “Within the prison context, a viable claim of First Amendment

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retaliation entails five basic elements: (1) An assertion that a state actor took some adverse action

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against an inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled

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the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably advance

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a legitimate correctional goal. Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005); accord

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Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009).

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Under § 1983, Plaintiff must link the named defendants to the participation in the violation

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at issue. Iqbal, 129 S. Ct. at 1948-49; Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1020-21 (9th

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Cir. 2010); Ewing, 588 F.3d at 1235; Jones v. Williams, 297 F.3d at 934. Liability may not be

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imposed on supervisory personnel under the theory of respondeat superior, Iqbal, 129 S. Ct. at 1948-

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49; Ewing, 588 F.3d at 1235, and administrators may only be held liable if they “participated in or

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directed the violations, or knew of the violations and failed to act to prevent them,” Taylor v. List,

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880 F.2d 1040, 1045 (9th Cir. 1989); accord Starr, 652 F.3d 1202, 1205-08 (9th Cir. 2011); Corales,

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567 F.3d at 570; Preschooler II v. Clark County School Board of Trustees, 479 F.3d 1175, 1182 (9th

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Cir. 2007); Harris v. Roderick, 126 F.3d 1189, 1204 (9th Cir. 1997). Some culpable action or

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inaction must be attributable to defendants and while the creation or enforcement of, or acquiescence

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in, an unconstitutional policy may support a claim, the policy must have been the moving force

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behind the violation. Starr, 652 F.3d at 1205; Jeffers v. Gomez, 267 F.3d 895, 914-15 (9th Cir.

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2001); Redman v. County of San Diego, 942 F.2d 1435, 1446-47 (9th Cir. 1991); Hansen v. Black,

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885 F.2d 642, 646 (9th Cir. 1989).

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Plaintiff alleges Dr. Clark retaliated against him, but Plaintiff fails to allege he was engaged
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in protected conduct; that such action chilled the exercise of his First Amendment rights; and that

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the action did not reasonably advance a legitimate correctional goal. Plaintiff’s conclusory

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allegations of retaliation fail to state a claim.

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C. Eighth Amendment Cruel and Unusual Punishment

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The Eighth Amendment protects prisoners from inhumane methods of punishment and from

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inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006).

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But this is not a mandate for comfortable prisons. Farmer v. Brennan, 511 U.S. 825, 832 (1994).

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Indeed, prison conditions may be both restrictive and harsh without violating the Constitution.

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Rhodes v. Chapman, 452 U.S. 337, 347 (1981). Within this construct, however, prison officials must

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provide food, clothing, shelter, sanitation, medical care, and personal safety. Toussaint v. McCarthy,

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801 F.2d 1080, 1107 (9th Cir. 1986). A prison official violates the Eighth Amendment when these

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two components are met: (1) the deprivation alleged must be objectively sufficiently serious; and (2)

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the prison official possesses a sufficiently culpable state of mind. Farmer, 511 U.S. at 834 (citing

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Wilson v. Seiter, 501 U.S. 294, 297-98 (1991)). In determining whether a deprivation of a basic

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necessity is sufficiently serious to satisfy the objective component of an Eighth Amendment claim,

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courts consider the circumstances, nature, and duration of the deprivation. The more basic the need,

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the shorter the time it can be withheld. See Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000).

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Substantial deprivations of shelter, food, drinking water or sanitation over an extended time are

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sufficiently serious to satisfy the objective component of an Eighth Amendment claim. Id. at 732-33.

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Courts have found that temporarily depriving prisoners of a mattress does not violate the

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Eighth Amendment. See, e.g., Hernandez v. Denton, 861 F.2d 1421, 1424 (9th Cir.1988) (holding

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that allegation that inmate slept without a mattress for one night is insufficient to state an Eighth

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Amendment violation), vacated on other grounds, 493 U.S. 801 (1989); see also O’Leary v. Iowa

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State Men’s Reformatory, 79 F.3d 82, 84 (8th Cir. 1996) (no Eighth Amendment violation where

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inmate forced to sleep on cement slab for four (4) days); Williams v. Delo, 49 F.3d 442, 445-46 (8th

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Cir. 1995) (no Eighth Amendment violation where inmate failed to allege any evidence that his

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health was impaired as a result of four (4) day confinement in a cell without clothes or bedding). In

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the majority of decisions where the court considered whether failure to provide a mattress to an
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inmate violated the Eighth Amendment, the failure was accompanied by other factors such as

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extreme cold, lack of sanitary conditions, solitary confinement, inadequate clothing, or improper diet.

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See, e.g., Sellars v. Beto, 409 U.S. 968, 969 (1972) (solitary confinement, in cell twenty-four hours

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a day, only fed bread and water, no mattress); Rodgers v. Thomas, 879 F.2d 380, 385 (8th Cir. 1989)

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(no toilet or sink, clothing confiscated, only allowed to shower once every five days, no mattress);

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French v. Owens, 777 F.2d 1250, 1253 (7th Cir.1985) (shackled to bed, sometimes stripped, denied

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right to use toilet, had to lie in own excrement, no mattress), cert. denied, 479 U.S. 817 (1986).

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Similarly, being temporarily deprived of toothpaste does not violate the Eighth Amendment.

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See Harris v. Fleming, 839 F.2d 1232, 1235 (7th Cir. 1988) (depriving prisoner of toilet paper, soap,

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toothpaste and toothbrush while keeping him in filthy, roach-infested cell for a period of several days

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was not a constitutional violation); see also Williams, 49 F.3d at 444-46 (placement in strip cell

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without water, mattress, a toothbrush, toothpaste, deodorant, soap, sheets, blankets, pillow cases,

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pillows, his legal mail and/or clothing, for four days did not violate Eighth Amendment).

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Plaintiff does not state a cognizable claim for Eighth Amendment cruel and unusual

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punishment against any Defendants. Plaintiff alleges he was forced to crawl on his stomach for food

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and bathroom and when he did not crawl fast enough, custody would refuse to feed Plaintiff.

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However, Plaintiff does not allege that the named Defendants were actually aware of Plaintiff’s

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condition. Thus, there are no allegations that Defendants had knowledge of Plaintiff’s specific

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complaints of cruel and unusual punishment.

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Accordingly, the Court finds that Plaintiff fails to state a cognizable claim for relief under
§ 1983 based upon Eighth Amendment cruel and unusual punishment.

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IV. Conclusion and Recommendation

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Plaintiff’s amended complaint fails to state any claims upon which relief may be granted.

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Plaintiff was previously notified of the deficiencies in the claims and granted leave to amend but was

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unable to cure the deficiencies. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); Noll v. Carlson,

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809 F.2d 1446, 1448-49 (9th Cir. 1987). Based on the record in this case, the undersigned

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recommends that further leave to amend is not warranted.

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Page 9 of 10

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Accordingly, IT IS HEREBY RECOMMENDED that:

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1.

Pursuant to 28 U.S.C. §§ 1915A and 1915(e), this action should be DISMISSED,

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with prejudice, based on Plaintiff’s failure to state any claims upon which relief may

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be granted under § 1983; and

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2.

The Clerk of the Court should be directed to close the case.

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These Findings and Recommendations will be submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within thirty (30) days

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after being served with these Findings and Recommendations, Plaintiff may file written objections

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with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendations.” Plaintiff is advised that failure to file objections within the specified time may

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waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th

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Cir. 1991).

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IT IS SO ORDERED.

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Dated:
7j8cce

March 30, 2012
UNITED STATES MAGISTRATE JUDGE

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