Rivas v. Adonis et al

Filing 20

FINDINGS and RECOMMENDATIONS Recommending that this 19 Action Proceed against Defendant Adonis and Defendant Brown be Dismissed for Failure to State a Claim under Section 1983; Thirty Day Objection Deadline signed by Magistrate Judge Sheila K. Oberto on 9/26/2012. Referred to Judge Anthony W. Ishii. Objections to F&R due by 10/30/2012. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ELMER ANDRES RIVAS,

CASE NO. 1:10-cv-02302-AWI-SKO PC

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Plaintiff,

FINDINGS AND RECOMMENDATIONS
RECOMMENDING ACTION PROCEED
AGAINST DEFENDANT ADONIS AND
DEFENDANT BROWN BE DISMISSED FOR
FAILURE TO STATE A CLAIM UNDER
SECTION 1983

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v.
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M. ADONIS, et al.,
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Defendants.
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(Doc. 19)

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THIRTY-DAY OBJECTION DEADLINE
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Findings and Recommendations Following Screening of Amended Complaint
I.

Procedural History

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Plaintiff Elmer Andres Rivas, a state prisoner proceeding pro se and in forma pauperis, filed

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this civil rights action pursuant to 42 U.S.C. § 1983 on December 10, 2010. On January 5, 2011,

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Plaintiff filed an amended complaint as a matter of right, Fed. R. Civ. P. 15(a), and on December 13,

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2011, the Court screened Plaintiff’s amended complaint and dismissed it, with leave to amend, for

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failure to state a claim under section 1983, 28 U.S.C. § 1915A(a). Plaintiff filed a second amended

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complaint on January 3, 2012, in which he alleges that prison officials at Pleasant Valley State Prison

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were deliberately indifferent to his serious medical needs, in violation of the Eighth Amendment of

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the United States Constitution.

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II.

Screening Requirement and Standard

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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 an 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, 678, 129 S.Ct. 1937 (2009) (citing Bell Atlantic

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Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)), and courts “are not required to

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indulge 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). While factual allegations are accepted as true, legal

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conclusions are not. Iqbal, 556 U.S. at 678.

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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) (citations omitted), and to survive

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screening, Plaintiff’s claims must be facially plausible, which requires sufficient factual detail to

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allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged,

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Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret Service, 572 F.3d 962, 969

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(9th Cir. 2009). The sheer possibility that a defendant acted unlawfully is not sufficient, and mere

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consistency with liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678

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(quotation marks omitted); Moss, 572 F.3d at 969.

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III.

Plaintiff’s Eighth Amendment Medical Care Claim

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A.

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To maintain an Eighth Amendment claim based on medical care in prison, Plaintiff must

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show deliberate indifference to his serious medical needs. Jett v. Penner, 439 F.3d 1091, 1096 (9th

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Cir. 2006) (citing Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 295 (1976)) (quotation marks

Legal Standard

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omitted). The two-part test for deliberate indifference requires Plaintiff to show (1) a serious

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medical need by demonstrating that failure to treat a prisoner’s condition could result in further

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significant injury or the unnecessary and wanton infliction of pain, and (2) the defendant’s response

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to the need was deliberately indifferent. Jett, 439 F.3d at 1096 (quotation marks and citation

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omitted). 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. (citation and quotation

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marks omitted). 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. (citation and quotations omitted). Where a prisoner is alleging

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a 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. Berry v. Bunnell, 39

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F.3d 1056, 1057 (9th Cir. 1994); McGuckin v. Smith, 974 F.2d 1050, 1060 (9th Cir. 1992),

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

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banc).

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B.

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Discussion
1.

Allegations

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Plaintiff alleges that on January 12, 2010, he sought medical treatment for an infection and

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ringing in his left ear. Defendant Brown, a physician assistant clinician, noted that Plaintiff’s ear

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canal was impacted and he could not see Plaintiff’s tympanic membrane. Defendant Brown

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prescribed ear drops, which Plaintiff used as directed.

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Plaintiff had a reaction to the medication and on January 15, 2010, he sought emergency

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medical treatment for pain and hearing loss. Defendant Adonis, a licensed vocational nurse, refused

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to speak to Plaintiff directly and via the correctional officer present, Plaintiff informed Defendant

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Adonis that he had hearing loss and pain in his left ear. Plaintiff was directed to fill out a medical

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slip, which he did and handed to staff. Defendant Adonis refused to evaluate Plaintiff face to face

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or document the need for any special services and, despite being told Plaintiff was in pain and had

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lost some hearing, Defendant Adonis told the correctional officer that Plaintiff must have his floor

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officer contact the medical department and explain the problem. Plaintiff did so and he was told he

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would be seen later.

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After a few hours, Plaintiff went back to the medical department and asked to see Defendant

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Adonis. Defendant again refused to speak to him and she told him that the doctors and nurses were

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too busy to see him. Defendant Adonis told Plaintiff that he would be seen on January 18, 2010.

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By the time Plaintiff was seen on January 22, 2010, he had endured severe pain and hearing loss.

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Plaintiff alleges that he still suffers from ear infections, hearing loss, and ringing in his ears as a

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result.

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2.

Findings

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Plaintiff’s allegations do not state a claim against Defendant Brown. There is no support for

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a claim that Defendant Brown knowingly disregarded a substantial risk of harm to Plaintiff’s health.

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Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970 (1994). Neither Plaintiff’s disagreement with

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Defendant Brown’s course of treatment, Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981),

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nor the fact that Plaintiff later had an allergic reaction to the medication prescribed will support a

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claim for violation of Plaintiff’s constitutional rights, Jackson v. McIntosh, 90 F.3d 330, 332 (9th

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Cir. 1986).

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However, Plaintiff’s allegations are sufficient to support a claim against Defendant Adonis.

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Construed in the light most favorable to Plaintiff, Defendant Adonis was on notice that Plaintiff was

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suffering from pain and hearing loss, and as a result of the days-long delay in receiving medical care,

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Plaintiff suffered permanent hearing loss, as well as ear infections and ringing in his ears the failure.

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At the pleading stage, this is sufficient to state a claim under the Eighth Amendment. Lopez v.

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Smith, 203 F.3d 1122, 1131 (9th Cir. 2000).

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IV.

Conclusion and Recommendation

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The Court has screened Plaintiff’s second amended complaint and finds that it states a

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cognizable Eighth Amendment claim against Defendant Adonis, but it does not state a claim against

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Defendant Brown. Based on the nature of the deficiencies and the Court’s previous screening order,

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the Court finds that further leave to amend is not warranted. Lopez, 203 F.3d at 1130; Noll v.

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Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987).
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Accordingly, the Court HEREBY RECOMMENDS that this action proceed on Plaintiff’s

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second amended complaint, filed on January 3, 2012, against Defendant Adonis for violation of the

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Eighth Amendment, and Plaintiff’s Eighth Amendment claim against Defendant Brown be

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dismissed, with prejudice, for failure to state a claim under section 1983.

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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 Title 28 U.S.C. § 636(b)(l). Within thirty (30)

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

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

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Findings and Recommendations.” Plaintiff is advised that failure to file objections within the

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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d

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1153 (9th Cir. 1991).

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IT IS SO ORDERED.

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Dated:
ie14hj

September 26, 2012

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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