Montanez v. Gonzalez et al

Filing 25

ORDER DISMISSING Certain Claims and Defendants and Denying Motion for Appointment of Counsel signed by Magistrate Judge Barbara A. McAuliffe on 1/9/2012. F. A. Gonzalez, Clark Kelso, Jae Lee, Ross Marvin, J. Nickolic, Velasco, Vicki, Bobby and Campbell terminated. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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PAUL MONTANEZ,

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Plaintiff,

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CASE NO. 1:10-cv-01931-BAM PC
ORDER DISMISSING CERTAIN CLAIMS AND
DEFENDANTS AND DENYING MOTION FOR
APPOINTMENT OF COUNSEL

v.
F. GONZALEZ, et al.,

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(ECF No. 19)

Defendants.
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I.

Screening Requirement

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Plaintiff Paul Montanez (“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. On August 16, 2011, an order

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issued dismissing Plaintiff’s complaint for failure to comply with Federal Rule of Civil Procedure

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8 and 18. (ECF No. 14.) On October 17, 2011, Plaintiff filed a first amended complaint. (ECF No.

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19.)

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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, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S.

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544, 555, 127 S. Ct. 1955 (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.

First Amended Complaint

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Plaintiff brings this action against Defendants Gonzalez, Kelso, Campbell, Velasco, Ross,

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Nickolic, Grimm, Oblonsky, Ledford, Stroller, Wilson, Marvin, Jae Lee, Vicki and Bobbi seeking

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declaratory and injunctive relief and monetary damages. Plaintiff also requests appointment of

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counsel.

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Plaintiff underwent surgery for a broken wrist on November 13, 2008 and although the

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specialist who performed the operation ordered that x-rays be taken for a follow up appointment, no

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x-rays were taken. When Plaintiff returned for his followup appointment, the x-rays provided to the

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specialist were pre operative x-rays. Plaintiff alleges that due to the failure to provide post operative

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x-rays, the specialist was unable to assess his injuries following surgeries on November 20, 2008.

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On December 2, 2008, x-rays were taken of Plaintiff’s wrist. On December 12, 2008, Plaintiff’s

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wrist swelled to the point that circulation was cut off and Defendant Jae Lee had to cut off Plaintiff’s

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cast. An x-ray was taken on January 26, 2009, however Defendant Nickolic and medical staff

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deliberately failed to provide it for the follow-up appointment with Dr. Christopher Lee on January
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29, 2009. Plaintiff states that due to the failure to provide the post operative x-rays, the pin was not

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able to be removed from Plaintiff’s wrist which caused severe pain for twenty months,1 and

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Defendant Nickolic failed to correct the errors of his subordinates that resulted in Plaintiff’s injury.

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On February 19, 2009, Plaintiff was seen by Defendant Grimm for pain management due to

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the pain in his wrist. Plaintiff informed Defendant Grimm that the medication he was receiving,

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Acetaminophen, was not sufficient to control the intense pain he was experiencing.2 Defendant

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Grimm ordered Acetaminophen anyway, telling Plaintiff he was man enough to endure a little pain.

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Plaintiff filed an appeal seeking the job descriptions of the employees responsible for

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preparing x-rays and transport files and the named of medical personnel responsible for processing

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and transporting medical records, which was screened out by Defendant Ledford because Plaintiff

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failed to demonstrate that he was appealing an issue that adversely affected his welfare.

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Plaintiff filed an appeal on March 25, 2009, for the failure of Defendant Martin, Grimm, and

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Oblonsky to provide and transfer his post operative x-rays to the specialist for followup

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appointments. Defendant Ledford retaliated against Plaintiff by screening out the appeal. On April

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2, 2009, Plaintiff filed an appeal for Defendant Grimm’s failure to provide adequate medical care.

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Defendant Ledford retaliated against Plaintiff by screening out his appeal. Plaintiff’s medical

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records were removed and destroyed by Defendant Stoller to obstruct investigations into the

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whereabouts of his medical files.

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On September 29, 2009, Defendant Wilson partially granted an appeal and documents were

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faxed from Defendant Lee’s office and placed in Plaintiff’s medical file. On November 23, 2009,

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Plaintiff submitted an appeal because Defendants Oblansky failed to properly file medical documents

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regarding physical therapy on his wrist and Defendants Vicki and Bobbi were negligent in failing

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to file the appropriate papers to schedule his physical therapy sessions. Because of Defendants

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Vicki, Bobbi, and Oblansky’s negligence Plaintiff was not able to receive physical therapy.

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Although Plaintiff alleges that the pin was not removed, according to his inmate appeal, Plaintiff was seen
on April 16, 2009, and the pin was removed and a thumb spica cast was provided. (First Am. Compl. 30, ECF No.
19.)
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Plaintiff’s medical records indicate that he was taking Tylenol #3.

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On December 14, 2009, Defendants Velasco and Campbell were part of the transportation

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team transporting Plaintiff for physical therapy. Defendant Velasco and Campbell retaliated against

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Plaintiff by failing to transport him to physical therapy because Plaintiff had filed a staff complaint

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against Defendant Velsaso. Plaintiff wrote letters to Defendant Gonzalez informing him that his

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medical staff refused to follow the orthopedic specialists recommendations to provide x-rays.

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Plaintiff filed multiple inmate appeals which resulted in a denial because no one from the Director’s

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Level would come to the institution to investigate Plaintiff’s complaints. Defendant Kelso was

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deliberately indifferent to Plaintiff’s serious medical needs.

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II.

Discussion

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A.

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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, 97 S. Ct. 285, 291 (1976)). The two

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

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

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

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deliberately indifferent.” Jett, 439 F.3d at 1096.

Deliberate Indifference

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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 1019; Toguchi v.

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Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). The prison official must be aware of facts from which

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he could make an inference that “a substantial risk of serious harm exists” and he must make the

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inference. Farmer v. Brennan, 511 U.S. 825, 837, 114 S. Ct. 1970, 1979 (1994).

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Defendants Grimm, Lee, Marvin, and Jae Lee

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Plaintiff alleges that on December 12, 2008, Defendant Jae Lee had to cut off his cast after

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Plaintiff’s wrist swelled to the point that circulation was cut off. As alleged the facts indicate that

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Defendant Jae Lee became aware that Plaintiff was suffering from swelling that was interfering with

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the circulation in his wrist and acted to resolve the situation by removing the cause of the problem,
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the splint. There are no facts alleged to indicate that Defendant Jae Lee was deliberately indifferent

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to Plaintiff’s serious medical need.

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Plaintiff claims that Defendant Ross proscribed acetaminophen, which was ineffective for

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treating his pain. There is no allegation that Defendant Ross was aware that acetaminophen was not

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sufficient to treat Plaintiff’s pain. The Court notes that, although Plaintiff states he was prescribed

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acetaminophen, according to the medical documentation, Plaintiff was prescribed Tylenol #3.

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Plaintiff has failed to show that Defendant Ross failed to act in knowing disregard to his serious

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medical need.

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Plaintiff states that the failure to provide current x-rays for the appointments on November

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20, 2008 and January 29, 2009, resulted in the pin being left in his arm for twenty months and that

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he filed an inmate appeal against Defendants Marvin and Grimm for failing to provide his medical

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records to the specialist. Plaintiff fails to state factual allegations to show that either Defendant

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Marvin or Grimm were responsible for the failure to transfer the records. A person deprives another

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“of a constitutional right, within the meaning of section 1983, if he does an affirmative act,

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participates in another’s affirmative acts, or omits to perform an act which he is legally required to

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do that causes the deprivation of which [the plaintiff complains].” Johnson v. Duffy, 588 F.2d 740,

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743 (9th Cir.1978). “Causation is, of course, a required element of a § 1983 claim.” Estate of

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Brooks v. United States, 197 F.3d 1245, 1248 (9th Cir.1999). Even if Plaintiff was able to state a

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plausible claim that the failure to provide x-rays caused the swelling in his arm on December 13,

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2008, or was the cause of the pins not being removed on January 29, 2009, he has failed to link any

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defendant to the failure to provide x-rays or alleged facts to state a plausible claim that the x-rays

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were not provided in knowing disregard to an excessive risk to Plaintiff’s health. Farmer, 511 U.S.

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at 834.

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While Plaintiff states that medical staff deliberately sent outdated x-rays to his post operative

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appointment, this fails to state more than negligence which in insufficient to state a cognizable claim

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for deliberate indifference. Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980);

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Toguchi, 391 F.3d at 1057. Nor would the delay in providing x-rays rise to the level of deliberate

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indifference unless the delay causes substantial harm. Hallett v. Morgan, 296 F.3d 732, 746 (9th Cir.
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2002); Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir. 1990); Shapley v. Nevada Board of

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State Prison Commissioners, 766 F.2d 404, 407 (9th Cir. 1984). While Plaintiff alleges that the

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failure to provide x-rays resulted in his pins not being removed for twenty months, his medical

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records indicate that the pins were removed on April 16, 2009, just less than five months after

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surgery. To the extent that Plaintiff is dissatisfied with the results of his surgery he has failed to

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allege more than medical malpractice. “Medical malpractice does not become a constitutional

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violation merely because the victim is a prisoner.” Estelle, 429 U.S. at 106, 97 S. Ct. at 292.

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At the pleading stage Plaintiff’s allegations are sufficient to state a cognizable claim against

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Defendant Grimm for deliberate indifference to Plaintiff’s pain. However, Plaintiff fails to state a

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claim of deliberate indifference against any other named defendant.
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Defendants Nickloic, Gonzalez, and Kelso

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Plaintiff’s allegations that Defendant Nickolic and his staff failed to provide x-rays and

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Defendant Nickolic failed to correct the errors of his staff is an attempt to allege claims based upon

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his position as Chief Medical Officer. Government officials may not be held liable for the actions

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of their subordinates under a theory of respondeat superior. Iqbal, 129 S. Ct. at 1948. Since a

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government official cannot be held liable under a theory of vicarious liability for section 1983

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actions, Plaintiff must plead that the official has violated the Constitution through his own individual

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actions. Id. at 1948. Plaintiff has failed to show that Defendant Nickolic personally participated in

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any act or failure to act that resulted in the deprivation of his rights.

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Similarly Plaintiff’s allegation against Defendants Gonzalez and Kelso fail to show that they

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were aware of a substantial risk of harm to Plaintiff and failed to act in response. While Plaintiff

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alleges that he sent several letters to Defendant Gonzalez regarding the failure to provide x-rays for

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Plaintiff’s appointments, there are no allegations that the letters were sent prior to either of the

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incidents. In the documentation provided with the complaint a letter dated March 25, 2009, is

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referred to. There are no allegations that Defendant Gonzalez was aware of the issue regarding x-

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rays until after they had occurred. Nor is the fact that Plaintiff filed inmate appeals at the Director’s

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Level sufficient to allege any personal knowledge by Defendant Kelso that Plaintiff was deprived

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of appropriate medical care. Plaintiff has failed to state a cognizable claim against Defendants
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Nickloic, Gonzalez, and Kelso.

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Defendants Oblonsky,Vicki and Bobbi

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Plaintiff alleges that Defendants Oblonsky, Vicki, and Bobbi negligently failed to file

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paperwork in his medical files which resulted in their failing to schedule him for physical therapy.

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In order to violate the Eighth Amendment defendants must act in knowing disregard to an inmates

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health or safety. Simmons, 609 F.3d at 1018. Assuming that the medical records from Dr. Lee’s

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office were received by the prison, Plaintiff’s allegations that Defendants were negligent by not filing

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them in his medical file fails to state a cognizable claim. Broughton, 622 F.2d at 460. Additionally,

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based upon the allegations in the complaint, the failure to schedule physical therapy was due to lack

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of documentation which resulted in Defendants Oblonsky, Vicki, and Bobbi being unaware of

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Plaintiff’s need to be scheduled for physical therapy. Since Defendants Oblonsky, Vicki, and Bobbi

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were unaware of Plaintiff’s need for physical therapy the failure to schedule his appointments was

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not done with deliberate indifference. Simmons, 609 F.3d at 1018.

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Although Plaintiff alleges that he submitted an inmate appeal against Defendant Oblonsky

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for failing to transport his x-rays to the specialist, as discussed above, there are no facts to indicate

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that Defendant Oblonsky was aware that Plaintiff was at a serious risk of harm from the failure to

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transport his x-rays. Plaintiff has failed to state a cognizable claim against Defendants Oblonsky,

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Vicki, and Bobbi.

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4.

Defendants Ledford, Stoller, and Wilson

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Plaintiff complains that Defendants Ledford, Stoller, and Wilson were deliberately indifferent

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by denying his inmate appeals fails to state a cognizable claim. The prison grievance procedure does

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not confer any substantive rights upon inmates and actions in reviewing appeals cannot serve as a

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basis for liability under section 1983. Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993). The

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incidents complained of in the inmate appeals had already occurred and by reviewing the appeals

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Defendants Ledford, Stoller, and Wilson did not personally participate in the deprivation of

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Plaintiff’s rights. Plaintiff has failed to state a cognizable claim for deliberate indifference based

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upon the grievance process.

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Defendants Velasco and Campbell

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While Plaintiff alleges that Defendants Velasco and Campbell refused to transport him for

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physical therapy on December 14, 2009, the complaint is devoid of any facts showing that either

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defendant was aware of a risk of harm to Plaintiff and failed to take him to physical therapy in

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disregard to the risk. Plaintiff has failed to state a cognizable claim for deliberate indifference based

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upon the failure to transport him to physical therapy.

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B.

First Amendment
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Access to the Court

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Plaintiff alleges that his right to file grievances was violated by the failure to process his

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inmate appeals. Inmates have a fundamental constitutional right of access to the courts. Lewis v.

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Casey, 518 U.S. 343, 346 (1996); Hebbe v. Pliler, 611 F.3d 1202, 1206 (9th Cir. 2010). The right

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is merely the right to bring to court a grievance the inmate wishes to present, and is limited to direct

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criminal appeals, habeas petitions, and civil rights actions. Lewis, 518 U.S. at 354. To bring a

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claim, the plaintiff must have suffered an actual injury by being shut out of court. Christopher v.

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Harbury, 536 U.S. 403, 415 (2002); Lewis, 518 U.S. at 351.

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Plaintiff may not pursue a claim for denial of access to the courts based on the failure of staff

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to respond to his appeals or based on the rejection of his appeals by staff. Plaintiff does not have a

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constitutionally protected right to have his appeals accepted or processed, Ramirez v. Galaza, 334

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F.3d 850, 860 (9th Cir. 2003); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988), and because

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Plaintiff has not alleged any facts demonstrating that he suffered an actual injury to qualifying

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litigation, his claim fails as a matter of law, Christopher, 536 U.S. at 415; Lewis, 518 U.S. at 351.

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2.

Retaliation

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A plaintiff may state a claim for a violation of his First Amendment rights due to retaliation

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under section 1983. Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995). A viable claim of

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retaliation in violation of the First Amendment consists of five elements: “(1) An assertion that a

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state actor took some adverse action against an inmate (2) because of (3) that prisoner’s protected

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conduct, and that such action (4) chilled the inmate’s exercise of his First Amendment rights, and

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(5) the action did not reasonable advance a legitimate correctional goal.” Rhodes v. Robinson, 408
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F.3d 559, 567 (9th Cir. 2005); accord Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009).

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While Plaintiff alleges that his inmate appeals were denied as retaliation, he fails to assert

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that the rejection was because of his protected conduct. Additionally, a review of the denials shows

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that Plaintiff’s appeals were denied or rejected based upon failing to comply with prison procedure.

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Even assuming that Plaintiff could allege protected conduct that caused Defendants to reject his

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appeals, it is equally plausible that Plaintiff’s appeals were rejected because he failed to comply with

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the grievance regulations. The mere possibility of misconduct is insufficient to state to state a

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retaliation claim based upon the denial of his inmate appeals. Iqbal, 129 S. Ct. at 1949-50.

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Finally, Plaintiff alleges that Defendants Velasco and Campbell refused to transport him for

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physical therapy because Plaintiff filed a staff complaint against Defendant Velasco. While it

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appears that Plaintiff’s allegations may be sufficient to state a cognizable claim, this incident is

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unrelated to Plaintiff’s claim against Defendant Grimm for failing to adequately treat his pain.

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Plaintiff was informed in the order issued August 16, 2011, that if his amended complaint failed to

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comply with Rule 18 the Court would decide which claims would proceed in this action. (Order

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Dismissing Complaint 4:6-8ECF No. 14.) Accordingly, Plaintiff’s retaliation claims against

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Defendants Velasco and Campbell shall be dismissed, without prejudice. If Plaintiff wishes to

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pursue his retaliation claims against Defendants Velasco and Campbell he will need to file a separate

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action.

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C.

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Plaintiff seeks injunctive relief ordering Defendant Kelso to provide physical therapy to

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rehabilitate his right wrist. For each form of relief sought in federal court, Plaintiff must establish

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standing. Mayfield v. United States, 599 F.3d 964, 969 (9th Cir. 2010), cert.denied, 131 S. Ct. 503

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(2010). This requires Plaintiff to “show that he is under threat of suffering ‘injury in fact’ that is

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concrete and particularized; the threat must be actual and imminent, not conjectural or hypothetical;

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it must be fairly traceable to challenged conduct of the defendant; and it must be likely that a

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favorable judicial decision will prevent or redress the injury.” Summers v. Earth Island Institute, 129

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S. Ct. 1142, 1149 (2009) (citation omitted); Mayfield, 599 F.3d at 969 (citation omitted).

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Prospective Relief

Also, 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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Since Plaintiff has failed to state a cognizable claim against Defendant Kelso, the Court does

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not have jurisdiction to grant the relief requested and Plaintiff’s request for injunctive relief is not

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cognizable.

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In addition to money damages, Plaintiff seeks a declaration that his rights were violated. “A

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declaratory judgment, like other forms of equitable relief, should be granted only as a matter of

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judicial discretion, exercised in the public interest.” Eccles v. Peoples Bank of Lakewood Village,

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333 U.S. 426, 431 (1948). “Declaratory relief should be denied when it will neither serve a useful

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purpose in clarifying and settling the legal relations in issue nor terminate the proceedings and afford

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relief from the uncertainty and controversy faced by the parties.” United States v. Washington, 759

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F.2d 1353, 1357 (9th Cir. 1985). In the event that this action reaches trial and the jury returns a

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verdict in favor of Plaintiff, that verdict will be a finding that Plaintiff’s constitutional rights were

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violated. Accordingly, a declaration that Defendant Grimm violated Plaintiff’s rights is unnecessary,

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and this action shall proceed as one for money damages only.

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IV.

Motion for Appointment of Counsel

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Plaintiff has requested the appointment of counsel. The United States Supreme Court has

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ruled that district courts lack authority to require counsel to represent indigent prisoners in § 1983

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cases. Mallard v. United States District Court for the Southern District of Iowa, 490 U.S. 296, 298,

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109 S.Ct. 1814, 1816 (1989). In certain exceptional circumstances, the court may request the

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voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Rand v. Rowland, 113 F.3d

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1520, 1525 (9th Cir. 1997). Without a reasonable method of securing and compensating counsel,

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this court will seek volunteer counsel only in the most serious and exceptional cases.

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In the present case, the court does not find the required exceptional circumstances. See Rand,
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113 F.3d at 1525. Even if it is assumed that Plaintiff is not well versed in the law and that he has

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made serious allegations which, if proved, would entitle him to relief, his case is not exceptional.

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This court is faced with similar cases almost daily. Therefore, Plaintiff's request for the appointment

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of counsel shall be denied.

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V.

Conclusion and Order

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Plaintiff’s first amended complaint states a cognizable claim against Defendant Grimm for

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failure to respond to Plaintiff’s complaints of pain in violation of the Eighth Amendment, however,

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Plaintiff allegations fail to state any additional related claims under section 1983. Plaintiff was

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previously notified of the deficiencies in his claims and provided with the opportunity to amend, but

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was unable to cure the deficiencies. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987).

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Accordingly, it is HEREBY ORDERED that:

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1.

This action shall proceed on Plaintiff’s first amended complaint, filed October 17,

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2011, against Defendant Grimm for deliberate indifference to serious medical needs

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in violation of the Eighth Amendment for damages;

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2.

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dismissed, with prejudice, based upon Plaintiff’s failure to state a cognizable claim;
3.

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4.

Plaintiff’s retaliation claim against Defendants Velasco and Campbell is dismissed,
without prejudice, for failing to comply with Rule 18;

5.

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Plaintiff’s retaliation claim against Ledford is dismissed, with prejudice, for failure
to state a cognizable claim;

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Plaintiff’s remaining Eighth Amendment claims and access to the court claims are

Plaintiff’s requests for declaratory and injunctive relief are dismissed, without leave
to amend; and

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Defendants Gonzalez, Kelso, Campbell, Velasco, Ross, Nickolic, Oblonsky, Ledford,

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Stroller, Wilson, Marvin, Jae Lee, Vicki, and Bobbi are dismissed from this action

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for Plaintiff’s failure to state a cognizable claim against them under section 1983.

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IT IS SO ORDERED.
Dated:
10c20k

January 9, 2012

/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE

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