Bowell v. CSP Substance Abuse Treatment Facility At Corcoran, et al.

Filing 15

FINDINGS and RECOMMENDATIONS Recommending Dismissal of Plaintiff's Action for Failure to State a Claim 10 ; Objections, If Any, Due Within Twenty-One Days, signed by Magistrate Judge Dennis L. Beck on 11/16/11. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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JAMES BOWELL,

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Plaintiff,

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CASE NO. 1:10-CV-02336-AWI-DLB PC
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSAL OF
PLAINTIFF’S ACTION FOR FAILURE TO
STATE A CLAIM (DOC. 10)

v.
CALIFORNIA SUBSTANCE ABUSE
TREATMENT FACILITY AT CORCORAN,
et al.,

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OBJECTIONS, IF ANY, DUE WITHIN
TWENTY-ONE DAYS

Defendants.

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Findings and Recommendations
I.

Background

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Plaintiff James Bowell (“Plaintiff”) is a prisoner in the custody of the California

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Department of Corrections and Rehabilitation (“CDCR”). Plaintiff is proceeding pro se and in

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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this

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action by filing his complaint on December 15, 2010. Doc. 1. On June 7, 2011, the Court

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dismissed the complaint and granted Plaintiff leave to amend. Plaintiff failed to file a timely

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amended complaint. On August 12, 2011, the Court issued an Order to Show Cause why the

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action should not be dismissed for failure to obey a court order and for failure to state a claim.

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On August 23, 2011, Plaintiff filed a First Amended Complaint (“FAC”). Given Plaintiff’s

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filing, the Order to Show Cause is HEREBY DISCHARGED. Accordingly, the FAC is now

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before the Court for screening.

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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

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legally “frivolous 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). “Notwithstanding 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. §

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1915(e)(2)(B)(ii).

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

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

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required, but “[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, 129 S. Ct. 1937, 1949 (2009) (citing

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Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual

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matter, accepted as true, to ‘state a claim that is plausible on its face.’” Id. (quoting Twombly,

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550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id.

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II.

Summary Of Complaint

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Plaintiff was previously incarcerated at California Substance Treatment Facility

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(“SATF”) in Corcoran, California. Plaintiff names as Defendants: M. Ancheta, L. Metzler, R.

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Kifer, and M. J. Gaedke, dentists employed at SATF; and V. Fanous, chief dentist at SATF.

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As in his original complaint, Plaintiff alleges the following: On January 18, 2008,

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Defendant L. Metzler stated that Plaintiff’s molars #19 and #13 would be repaired by a dentist in

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the community, but the prison will only pull both under existing policy. FAC ¶ 1.

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On February 25, 2008, in response to Plaintiff’s 602 inmate grievance, Defendant Gaedke

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stated that CDCR does not provide root canal treatment for posterior teeth, including Plaintiff’s

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molar. FAC ¶ 2.

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On April 22, 2008, Defendant R. Kifer attempted to convince Plaintiff to extract two

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teeth, #19 and #13, stating they could be easily restored, and that SATF provides only a silver

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crown. FAC ¶ 3.
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On May 25, 2008, defendant M. Ancheta refused root canal treatment, forcing Plaintiff to

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have a tooth extraction of the #19 molar. The extraction took over thirty minutes. During the

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extraction, Defendant Ancheta knocked Plaintiff’s front tooth loose by bumping it. The

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unnecessary molar extraction caused a number of problems, including Plaintiff being unable to

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eat on the left side of his mouth, the bite of his teeth being off, loss of weight from 170 to 140

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pounds, left side of Plaintiff’s neck becoming loose from lack of biting and damage to Plaintiff’s

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jaw bone. FAC ¶¶ 4.

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On June 17, 2008, Defendant V. Fanous, during a grievance appeal, refused to provide
off-site dental care per the California Code of Regulations. FAC ¶ 5.

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Plaintiff alleges violation of the Eighth Amendment, as well as dental malpractice.

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Plaintiff requests declaratory judgment and monetary damages.

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III.

Analysis

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A.

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The Eighth Amendment prohibits cruel and unusual punishment. “The Constitution does

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not mandate comfortable prisons.” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quotation and

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citation omitted). A prisoner’s claim of inadequate medical care does not rise to the level of an

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Eighth Amendment violation unless (1) “the prison official deprived the prisoner of the ‘minimal

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civilized measure of life’s necessities,’” and (2) “the prison official ‘acted with deliberate

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indifference in doing so.’” Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (quoting

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Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) (citation omitted)). The deliberate

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indifference standard involves an objective and a subjective prong. First, the alleged deprivation

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must be, in objective terms, “sufficiently serious . . . .” Farmer, 511 U.S. at 834 (citing Wilson v.

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Seiter, 501 U.S. 294, 298 (1991)). Second, the prison official must “know[] of and disregard[]

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an excessive risk to inmate health or safety . . . .” Id. at 837.

Eighth Amendment

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“Deliberate indifference is a high legal standard.” Toguchi, 391 F.3d at 1060. “Under

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this standard, the prison official must not only ‘be aware of the facts from which the inference

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could be drawn that a substantial risk of serious harm exists,’ but that person ‘must also draw the

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inference.’” Id. at 1057 (quoting Farmer, 511 U.S. at 837). “‘If a prison official should have
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been aware of the risk, but was not, then the official has not violated the Eighth Amendment, no

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matter how severe the risk.’” Id. (quoting Gibson v. County of Washoe, Nevada, 290 F.3d 1175,

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1188 (9th Cir. 2002)).

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In his FAC, Plaintiff again fails to state a claim against Defendant Ancheta. As before,

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Plaintiff alleges insufficient facts to indicate that Defendant Ancheta knew of and disregarded an

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excessive risk to Plaintiff’s health. Plaintiff’s allegations amount at most to negligence, which

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fails to state an Eighth Amendment claim. Estelle v. Gamble, 429 U.S. 97, 106 (1976).

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Furthermore, any difference of opinion between Plaintiff and the dentist concerning the

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appropriate course of treatment does not rise to the level of deliberate indifference to a serious

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medical need. Toguchi, 391 F.3d at 1058; Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996)

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Plaintiff again fails to state a claim against Defendant Metzler. As with his original

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complaint, Plaintiff has not alleged any serious harm. Even if Plaintiff had sufficiently alleged a

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serious harm, Plaintiff’s allegations continue to amount to a difference of opinion between the

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Plaintiff and the dentist concerning the appropriate course of treatment, which, as stated, does not

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rise to the level of deliberate indifference to a serious medical need. Toguchi, 391 F.3d at 1058;

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Jackson, 90 F.3d at 332. Plaintiff also fails to state a claim against Defendants Gaeke and R.

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Kifer, for the same reason as Defendant Metzler.

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In his FAC, Plaintiff again fails to state a claim against Defendant Vanous. Prisoners

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have no right to outside medical care to supplement the medical care provided by the prison.

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Roberts v. Spalding, 783 F.2d 867, 870 (9th Cir. 1986).

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B.

Supervisory Liability

The Supreme Court recently emphasized that the term “supervisory liability,” loosely

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and commonly used by both courts and litigants alike, is a misnomer. Iqbal, 129 S. Ct. at 1949.

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“Government officials may not be held liable for the unconstitutional conduct of their

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subordinates under a theory of respondeat superior.” Id. at 1948. Rather, each government

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official, regardless of his or her title, is only liable for his or her own misconduct.

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When the named defendant holds a supervisorial position, the causal link between the
defendant and the claimed constitutional violation must be specifically alleged. See Fayle v.
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Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir.

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1978). To state a claim for relief under § 1983 for supervisory liability, plaintiff must allege

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some facts indicating that the defendant either: personally participated in the alleged deprivation

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of constitutional rights; knew of the violations and failed to act to prevent them; or promulgated

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or “implemented a policy so deficient that the policy ‘itself is a repudiation of constitutional

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rights’ and is ‘the moving force of the constitutional violation.’” Hansen v. Black, 885 F.2d 642,

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646 (9th Cir. 1989) (internal citations omitted); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.

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1989).

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Here, Plaintiff names Defendant Vanous, who holds a supervisory position. Plaintiff fails

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to demonstrate that Defendant Vanous personally participated in the deprivation of constitutional

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rights, knew of constitutional violations and failed to act to prevent them, or promulgated or

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implemented a policy that violated Plaintiff’s constitutional rights. Hansen, 885 F.2d at 646;

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Taylor, 880 F.2d at 1045.1

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C.

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Plaintiff alleges dental malpractice by Defendants. As Plaintiff has failed to allege any

State Law Claims and Supplemental Jurisdiction

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cognizable federal claims, the Court declines to exercise supplemental jurisdiction over any state

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law claims. 28 U.S.C. § 1367(c)(3).

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IV.

Leave to Amend

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Plaintiff previously was provided an opportunity to amend his complaint to allege

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additional facts to cure the deficiencies identified herein. He was unable to do so. Accordingly,

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further leave to amend will not be granted. See Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir.

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2000) (en banc).

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V.

Recommendation

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Based on the foregoing, it is HEREBY RECOMMENDED that:

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This action be dismissed for failure to state a claim upon which relief may be

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Plaintiff also seeks damages against the CDCR. The Eleventh Amendment bars suits against state
agencies, as well as those where the state itself is named as a defendant. Lucas v. Dep't Of Corr., 66 F.3d 245, 248
(9th Cir. 1995) (per curiam); Taylor, 880 F.2d at 1045. Plaintiff thus fails to state a claim against CDCR.

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granted under 42 U.S.C. § 1983; and

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The Clerk of the Court be directed to close this action.

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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 28 U.S.C. § 636(b)(1). Within twenty-

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one (21) days after being served with these Findings and Recommendations, the parties may file

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written objections with the Court. The document should be captioned “Objections to Magistrate

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Judge’s Findings and Recommendations.” The parties are advised that failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Martinez v.

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Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:
3b142a

November 16, 2011

/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE

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