Madrid v. Cates et al

Filing 24

FINDINGS and RECOMMENDATIONS Recommending that this 23 Case be Dismissed, with Prejudice, for Failure to State a Claim signed by Magistrate Judge Gary S. Austin on 02/12/2014. Referred to Judge Ishii; Objections to F&R due by 3/17/2014. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ESROM MADRID,

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Plaintiff,

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vs.
MATTHEW CATES, et al.,

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Defendants.

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I.

1:10-cv-02136-AWI-GSA-PC
FINDINGS AND RECOMMENDATIONS
RECOMMENDING THAT THIS CASE BE
DISMISSED, WITH PREJUDICE, FOR
FAILURE TO STATE A CLAIM
(Doc. 23.)
OBJECTIONS, IF ANY, DUE WITHIN
THIRTY DAYS

BACKGROUND

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Esrom Madrid ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis

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with this civil rights action pursuant to 42 U.S.C. ' 1983. Plaintiff filed the Complaint

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commencing this action on November 16, 2010. (Doc. 1.) On February 10, 2012, the Court

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dismissed the Complaint for failure to state a claim, with leave to amend. (Doc. 13.) On May

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18, 2012, Plaintiff filed the First Amended Complaint. (Doc. 18.) On March 25, 2013, the

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Court dismissed the First Amended Complaint for failure to state a claim, with leave to amend.

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(Doc. 20.) On June 5, 2013, Plaintiff filed the Second Amended Complaint, which is now

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before the Court for screening. (Doc. 23.)

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II.

SCREENING REQUIREMENT

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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).
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The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are

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legally Afrivolous or malicious,@ that fail to state a claim upon which relief may be granted, or

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that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C.

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' 1915A(b)(1),(2). ANotwithstanding any filing fee, or any portion thereof, that may have been

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paid, the court shall dismiss the case at any time if the court determines that the action or

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appeal fails to state a claim upon which relief may be granted.@ 28 U.S.C. ' 1915(e)(2)(B)(ii).

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A complaint is required to contain Aa short and plain statement of the claim showing

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that the pleader is entitled to relief.@ Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are

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not required, but A[t]hreadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.@ Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937,

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1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955

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(2007)). While a plaintiff=s allegations are taken as true, courts Aare 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)

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(internal quotation marks and citation omitted). Plaintiff must set forth Asufficient factual

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matter, accepted as true, to >state a claim to relief that is plausible on its face.=@ Iqbal 556 U.S.

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at 678. While factual allegations are accepted as true, legal conclusions are not. Id.

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To state a viable claim for relief, Plaintiff must set forth sufficient factual allegations to

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state a plausible claim for relief. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572

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

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plausibility standard. Id.

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III.

SUMMARY OF SECOND AMENDED COMPLAINT

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Plaintiff is presently incarcerated at the California Substance Abuse Treatment Facility

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in Corcoran, California. The events at issue in the Second Amended Complaint allegedly

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occurred at Corcoran State Prison in Corcoran, California, when Plaintiff was incarcerated

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there. Plaintiff names as defendants Matthew Cates (CDCR Director), Raul Lopez (Warden),

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Dr. L. Karan, Dr. J. Newbarth, N. Bondoc (Nurse), Edgar M. Clark, (Chief Medical Officer),

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Clark Kelso (Federal Receiver), Dr. Kim, Nurse Dhah, Dr. Brar, Doe 1 (General Practitioner),

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Doe 2 (Nurse), and Doe 3 (General Practitioner) (collectively “Defendants”). Plaintiff's factual

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allegations follow.

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On March 17, 2007, Plaintiff suffered a gunshot wound to the upper chest and the

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bullet lodged in his spine. As a result of the shooting Plaintiff is mobility impaired and suffers

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chronic nerve damage, pain, muscle spasms, and temporary paralysis. Plaintiff has struggled to

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recover physically and it has been difficult for him to obtain adequate medical care, and he has

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suffered unnecessary pain due to the deliberate indifference of the Defendants. Plaintiff has

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experienced long delays in seeing facility yard doctors and certain specialists, denial of

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treatment, delays in refilling prescribed medications, and failure by yard doctors to follow

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recommendations by specialists.

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On or about September 9, 2007 and August 19, 2009, Plaintiff was seen by Dr. Kim.

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Plaintiff addressed the severe pain he was suffering and stated that his medications were not

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effective enough. Plaintiff explained that he was unable to function properly or perform

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normal daily activities because of the pain. Plaintiff requested to be sent to a specialist, but Dr.

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Kim denied his request. Plaintiff pleaded for treatment for his pain, but Dr. Kim refused to

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provide any treatment. Plaintiff suffered mental and emotional stress. There were incidents

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when Plaintiff was being examined by Dr. Kim, and Dr. Kim would promptly terminate the

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appointment without allowing Plaintiff to state his health concerns. Plaintiff filed a grievance

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against Dr. Kim, but no relief was granted.

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On October 8, 2009 and April 12, 2010, Plaintiff was seen by Family Nurse Practitioner

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(FNP) Dhah because of his chronic nerve damage and severe back pain. Plaintiff requested to

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be referred to a specialist, but FNP Dhah refused to refer Plaintiff. Plaintiff suggested raising

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the dosage of his current pain medications or changing medications, but FNP Dhah denied

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Plaintiff’s requests and stated that, in his professional opinion, nothing more needed to be done.

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On December 23, 2009 and January 26, 2010, Plaintiff was seen by Dr. Brar concerning

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Plaintiff’s chronic nerve damage and severe back pain. Plaintiff told Dr. Brar that he was in

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severe pain which substantially limited his normal daily activities. Plaintiff requested to be

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referred to a neurologist or for pain management. Dr. Brar denied Plaintiff’s request and
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refused to provide him with treatment. On another occasion, Dr. Brar was appointed to respond

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to Plaintiff’s ADA Special Accommodation form (CDCR 1824) requesting a cane. The walker

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Plaintiff was using was not allowing him enough independence, causing him shame and

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embarrassment. This was explained to Dr. Brar, and he still denied Plaintiff a cane.

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On April 5, 2010, May 4, 2010, and May 25, 2010, Plaintiff was seen by Dr. L. Karan.

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Plaintiff pleaded with Dr. Karan to address his severe back and leg pain. Plaintiff requested to

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be referred to a neurologist and for pain management, but Dr. Karan denied Plaintiff any

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referral to a specialist. Plaintiff suggested that his medications be adjusted or changed to

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alleviate his severe pain, but Dr. Karan denied Plaintiff any changes to his medication. Plaintiff

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clearly stated that his pain was debilitating, but Dr. Karan made it clear that she would do

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nothing for Plaintiff, so he filed a grievance but no relief was granted.

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On or about May 12, 2010, Dr. J. Newbarth received a grievance form (CDCR 602) that

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Plaintiff filed against Dr. Karan for deliberate indifference to Plaintiff’s serious medical

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condition. Dr. Newbarth responded at the second level of review by supporting Dr. Karan who

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claimed that due to a new policy implemented by CDCR, no treatment would be possible.

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Thus, Dr. Newbarth also denied Plaintiff medical care.

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On or about October 1, 2010, Plaintiff was seen by FNP Bondoc for his severe pain.

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FNP Bondoc stated that she would do nothing for Plaintiff. When Plaintiff asked to be referred

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to a specialist, FNP Bondoc denied the request.

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adjusted to alleviate his pain, but FNP Bondoc denied the request and terminated the

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appointment.

Plaintiff asked to have his medications

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On various occasions, Dr. Edgar M. Clark, Chief Medical Officer, had the authority to

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grant or deny medical care to patients. Dr. Clark responded to many of Plaintiff’s inmate

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grievances, which makes him a direct participant in the denial of adequate medical care for

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Plaintiff.

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Plaintiff requests declaratory and injunctive relief, monetary damages, and costs of suit.

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IV.

PLAINTIFF=S CLAIMS
The Civil Rights Act under which this action was filed provides:

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Every person who, under color of [state law] . . . subjects, or
causes to be subjected, any citizen of the United States . . . to the
deprivation of any rights, privileges, or immunities secured by
the Constitution . . . shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for
redress.

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42 U.S.C. ' 1983. ASection 1983 . . . creates a cause of action for violations of the federal

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Constitution and laws.@ Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997)
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(internal quotations omitted). ATo the extent that the violation of a state law amounts to the

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deprivation of a state-created interest that reaches beyond that guaranteed by the federal
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Constitution, Section 1983 offers no redress.@ Id.
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A.

Supervisory Liability and Personal Participation – Defendants Cates,
Lopez, and Doe Defendants

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To state a claim under section 1983, a plaintiff must allege that (1) the defendant acted

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under color of state law and (2) the defendant deprived him of rights secured by the

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Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir.

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2006). AA person >subjects= another to the deprivation of a constitutional right, within the

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meaning of section 1983, if he does an affirmative act, participates in another=s affirmative acts,

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or omits to perform an act which he is legally required to do that causes the deprivation of

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which complaint is made.@ Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Section 1983

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plainly requires that there be an actual connection or link between the actions of the defendants

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and the deprivation alleged to have been suffered by plaintiff. See Monell v. Department of

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Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). AThe requisite

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causal connection can be established not only by some kind of direct, personal participation in

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the deprivation, but also by setting in motion a series of acts by others which the actors knows

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or reasonably should know would cause others to inflict the constitutional injury.@ Johnson at

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743-44).

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Plaintiff has named defendants, such as the CDCR Director, Warden, and Federal

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Receiver, who hold supervisory positions. Under section 1983, Plaintiff must demonstrate that
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each defendant personally participated in the deprivation of his rights. Jones v. Williams, 297

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F.3d 930, 934 (9th Cir. 2002) (emphasis added).

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defendant, through his or her own individual actions, violated Plaintiff=s constitutional rights.

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Iqbal, 556 U.S. at 676.

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supervisory personnel under section 1983 on the theory of respondeat superior, as each

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defendant is only liable for his or her own misconduct. Id.; Ewing v. City of Stockton, 588

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F.3d 1218, 1235 (9th Cir. 2009). A supervisor may be held liable only if he or she Aparticipated

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in or directed the violations, or knew of the violations and failed to act to prevent them.@

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Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); accord Starr v. Baca, 652 F.3d 1202, 1205-

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06 (9th Cir. 2011); Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009); Preschooler II v.

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Clark County School Board of Trustees, 479 F.3d 1175, 1182 (9th Cir. 2007); Harris v.

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Roderick, 126 F.3d 1189, 1204 (9th Cir. 1997). Therefore, to the extent that Plaintiff seeks to

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impose liability upon defendants in their supervisory capacity, Plaintiff fails to state a claim.

Plaintiff must demonstrate that each

Plaintiff is also advised that liability may not be imposed on

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In the Second Amended Complaint, Plaintiff does not link any affirmative act or

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omission to act by defendants Matthew Cates (CDCR Director), Raul Lopez (Warden), Clark

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Kelso (Federal Receiver), or the three Doe Defendants, to the deprivation he alleges to have

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suffered.

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In short, Plaintiff has not alleged any facts giving rise to any cognizable claim for relief

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under section 1983 against defendants Matthew Cates (CDCR Director), Raul Lopez (Warden),

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Clark Kelso (Federal Receiver), or the three Doe Defendants. Therefore, these defendants

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should be dismissed from this action.

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B.

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

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inmate must show >deliberate indifference to serious medical needs.=@ Jett v. Penner, 439 F.3d

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1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285 (1976)).

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The two-part test for deliberate indifference requires the plaintiff to show (1) A>a serious

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medical need= by demonstrating that >failure to treat a prisoner=s condition could result in

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further significant injury or the unnecessary and wanton infliction of pain,=@ and (2) Athe

Eighth Amendment Medical Claim

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defendant=s response to the need was deliberately indifferent.@ Jett, 439 F.3d at 1096 (quoting

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

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Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc) (internal quotations

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

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prisoner=s pain or possible medical need, and harm caused by the indifference.@ Id. (citing

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McGuckin, 974 F.2d at 1060).

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officials deny, delay or intentionally interfere with medical treatment, or it may be shown by

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the way in which prison physicians provide medical care.@ Id. Where a prisoner is alleging a

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

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prisoner to make a claim of deliberate indifference to serious medical needs. McGuckin at

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1060 (citing Shapely v. Nevada Bd. of State Prison Comm=rs, 766 F.2d 404, 407 (9th Cir.

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1985)).

Deliberate indifference may be manifested Awhen prison

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ADeliberate indifference is a high legal standard.@ Toguchi v. Chung, 391 F.3d 1051,

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1060 (9th Cir. 2004). AUnder this standard, the prison official must not only >be aware of the

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facts from which the inference could be drawn that a substantial risk of serious harm exists,= but

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that person >must also draw the inference.=@ Id. at 1057 (quoting Farmer v. Brennan, 511 U.S.

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825, 837, 114 S.Ct. 1970 (1994)). A>If a prison official should have been aware of the risk, but

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was not, then the official has not violated the Eighth Amendment, no matter how severe the

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risk.=@ Id. (quoting Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir.

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2002)).

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constitutional deprivation under the Eighth Amendment. Id. at 1060. A[E]ven gross negligence

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is insufficient to establish a constitutional violation.@ Id. (citing Wood v. Housewright, 900

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

AA showing of medical malpractice or negligence is insufficient to establish a

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AA difference of opinion between a prisoner-patient and prison medical authorities

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regarding treatment does not give rise to a ' 1983 claim.@ Franklin v. Oregon, 662 F.2d 1337,

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1344 (9th Cir. 1981) (internal citation omitted). To prevail, plaintiff Amust show that the course

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of treatment the doctors chose was medically unacceptable under the circumstances . . . and . . .

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that they chose this course in conscious disregard of an excessive risk to plaintiff=s health.@

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Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (internal citations omitted).

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Plaintiff has demonstrated that he had serious medical needs because of a medical

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condition that caused him severe pain. However, Plaintiff fails to allege facts showing that any

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of the defendants were deliberately indifferent to those needs. Plaintiff fails to show that any of

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the defendants acted or failed to act while deliberately disregarding a substantial risk of harm to

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Plaintiff. Plaintiff alleges, at most, a difference of opinion between Plaintiff and medical

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officials about his treatment, which does not state an Eighth Amendment medical claim.

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Therefore, Plaintiff fails to state a cognizable claim for inadequate medical care under the

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Eighth Amendment, and this claim should be dismissed.

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C.

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Plaintiff alleges that some of the defendants failed to respond properly to his inmate

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appeals. Defendants= actions in responding to Plaintiff=s appeals, alone, cannot give rise to any

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claims for relief under section 1983 for violation of due process.

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procedure is a procedural right only, it does not confer any substantive right upon the inmates.@

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Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (citing Azeez v. DeRobertis, 568 F.

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Supp. 8, 10 (N.D. Ill. 1982)); see also Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (no

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liberty interest in processing of appeals because no entitlement to a specific grievance

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procedure); Massey v. Helman, 259 F.3d 641, 647 (7th Cir. 2001) (existence of grievance

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procedure confers no liberty interest on prisoner); Mann v. Adams, 855 F.2d 639, 640 (9th Cir.

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1988). AHence, it does not give rise to a protected liberty interest requiring the procedural

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protections envisioned by the Fourteenth Amendment.@ Azeez, 568 F. Supp. at 10; Spencer v.

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Moore, 638 F. Supp. 315, 316 (E.D. Mo. 1986).

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administrative appeals, without more, are not actionable under section 1983. Buckley, 997

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F.2d at 495. Thus, since he has neither a liberty interest, nor a substantive right in inmate

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appeals, Plaintiff fails to state a cognizable claim for the processing and/or reviewing of his 602

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inmate appeals.

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Inmate Appeals Process

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A[A prison] grievance

Actions in reviewing a prisoner=s

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V.

CONCLUSION AND RECOMMENDATIONS

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The Court finds that Plaintiff=s Second Amended Complaint fails to state any cognizable

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claims upon which relief may be granted under ' 1983. In this action, the Court previously

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granted Plaintiff two opportunities to amend the complaint, with ample guidance by the Court.

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Plaintiff has now filed three complaints without alleging facts against any of the defendants

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which state a claim under ' 1983. The Court finds that the deficiencies outlined above are not

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capable of being cured by amendment, and therefore further leave to amend should not be

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granted. 28 U.S.C. ' 1915(e)(2)(B)(ii); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000).

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Therefore, IT IS HEREBY RECOMMENDED that pursuant to 28 U.S.C. ' 1915A

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and 28 U.S.C. ' 1915(e), this action be dismissed with prejudice for failure to state a claim

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upon which relief may be granted under ' 1983, and that this dismissal be subject to the Athree-

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strikes@ provision set forth in 28 U.S.C. ' 1915(g). Silva v. Vittorio, 658 F.3d 1090, 1098 (9th

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Cir. 2011).

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

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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within

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thirty (30) days after being served with these Findings and Recommendations, Plaintiff may

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file written objections with the court. The document should be captioned AObjections to

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Magistrate Judge=s Findings and Recommendations.@ Plaintiff is advised that failure to file

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objections within the specified time may waive the right to appeal the District Court=s order.

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Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:

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February 12, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

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