Holt v. Enenmoh et al

Filing 11

SECOND SCREENING ORDER DISMISSING ACTION With Prejudice for Failure to State a Claim Under Section 1983, and DENYING Amended In Forma Pauperis Motion as Moot; ORDER That Dismissal is Subject to 28 U.S.C. 1915(G), signed by Magistrate Judge Sheila K. Oberto on 10/16/2012. CASE CLOSED (Strike). (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CHARLES HOLT,

CASE NO. 1:10-cv-02385-SKO PC

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Plaintiff,

SECOND SCREENING ORDER DISMISSING
ACTION WITH PREJUDICE FOR FAILURE
TO STATE A CLAIM UNDER SECTION 1983,
AND DENYING AMENDED IN FORMA
PAUPERIS MOTION AS MOOT

Defendants.

(Docs. 9 and 10)

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v.
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A. ENENMOH, et al.,
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ORDER THAT DISMISSAL IS SUBJECT
TO 28 U.S.C. § 1915(G)

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Second Screening Order
I.

Screening Requirement and Standard

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Plaintiff Charles Holt, a state prisoner proceeding pro se, filed this civil rights action pursuant

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to 42 U.S.C. § 1983 on December 23, 2010. On January 4, 2012, the Court dismissed Plaintiff’s

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complaint, with leave to amend, for failure to state a claim under section 1983. On February 3, 2012,

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Plaintiff filed an amended complaint. Plaintiff alleges that prison officials at California Substance

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Abuse Treatment Facility and State Prison (CSATF) are violating his rights under the Eighth

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Amendment of the United States Constitution related to care for Hepatitis C. Plaintiff names Chief

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Medical Officer A. Enenmoh and Health Care Services Chief J. Walker as defendants.

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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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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, 556 U.S.

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at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of

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misconduct falls short of meeting this plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d

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at 969.

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II.

Eighth Amendment Medical Care Claim

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A.

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On September 20, 1996, the Hepatitis C virus was detected in Plaintiff’s blood, and in May

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1997, Plaintiff’s lab work was negative for the virus antibody. (Amend. Comp., court record p. 5.)

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On May 5, 1997, Plaintiff was placed in the Hepatitis C evaluation and treatment program

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while at Pelican Bay State Prison. (Id., Amend. Comp., court record p. 4 & Ex. C, court record p.

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34.) Plaintiff was told that his case had been reviewed by a panel of physicians and in consultation

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with a gastroenterologist. (Id.) Plaintiff was informed that not all cases of Hepatitis C respond to

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anti-viral treatment, the overall long-term response rate to Alpha-Interferon is 15-20%, and in many

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cases, there is either a contraindication or a very poor chance of a significant response. (Id.)

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Plaintiff was informed that hopefully, there would be a more satisfactory treatment for chronic viral

Allegations

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liver disease in the near future, but none was imminent. (Id.) The memo concluded that Plaintiff

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did not meet the criteria for Alpha-Interferon treatment. (Id.)

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In January 1998, Plaintiff was positive for the virus antibody. (Id., p. 5.) In October 2002,

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lab worked showed that Plaintiff’s viral load was extremely high, as did results from 2003 and 2004.

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(Id.) At some point, Plaintiff was placed on interferon treatment and he alleges that it was

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discontinued in November 2004 because he did not respond to it. (Id.)

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Plaintiff arrived at CSATF on May 11, 2006. (Id., p. 4.) Plaintiff had lab work done in

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December 2009 and he was informed that the results were essentially within normal limits or were

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unchanged and no physician follow-up was required. (Id.) Plaintiff was also seen in January 2010

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to discuss his test results and medical condition. (Id., p. 5.)

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B.

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To constitute cruel and unusual punishment in violation of the Eighth Amendment, prison

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conditions must involve “the wanton and unnecessary infliction of pain.” Rhodes v. Chapman, 452

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U.S. 337, 347, 101 S.Ct. 2392 (1981). A prisoner’s claim of inadequate medical care does not rise

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to the level of an Eighth Amendment violation unless (1) “the prison official deprived the prisoner

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

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

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(quoting Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) (citation omitted)). A prison official

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does not act in a deliberately indifferent manner unless the official “knows of and disregards an

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excessive risk to inmate health or safety. . . .” Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970

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(1994).

Legal Standard

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Deliberate indifference may be manifested “when prison officials deny, delay or intentionally

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interfere with medical treatment,” or in the manner “in which prison physicians provide medical

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

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Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). 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, 974 F.2d at 1060; Shapely v. Nevada Bd. of State

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Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985).

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“A difference of opinion between a prisoner-patient and prison medical authorities regarding

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treatment does not give rise to a [section] 1983 claim.” Franklin v. Oregon, 662 F.2d 1337, 1344

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(9th Cir. 1981) (internal citation omitted). To prevail, Plaintiff “must show that the course of

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

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they chose this course in conscious disregard of an excessive risk to plaintiff’s health.” Jackson v.

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McIntosh, 90 F.3d 330, 332 (9th Cir. 1986) (internal citations omitted).

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C.

Discussion

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Plaintiff’s allegations do not support a claim that Defendants Enenmoh and Walker, or any

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other prison official, acted with deliberate indifference toward his medical condition. Although

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Plaintiff alleges generally that his suffers from fatigue, weight fluctuation, and loss of appetite; that

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he has not been treated with any medication other than the interferon years before; and that he has

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had no treatment since arriving at CSATF, Plaintiff’s amended complaint sets forth no facts

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supporting a claim that officials are denying Plaintiff medically indicated treatment for Hepatitis C

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and that he is suffering further injury as a result. To the contrary, Plaintiff suffers from a chronic

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condition for which the treatment options are limited. Plaintiff did not respond to interferon

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treatment and it was discontinued, and there is no allegation that there exists any more satisfactory

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treatment.1

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Further, although Plaintiff alludes to treatment decisions based on budget, his amended

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complaint sets forth no factual allegations suggesting that he is being denied medically appropriate

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treatment for Hepatitis C due to cost concerns. Plaintiff also alleges that patients with moderate to

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severe fibrosis should be treated as soon as possible with pegylated interferon plus ribavirin therapy.

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However, Plaintiff’s allegations indicate that he is not a candidate for interferon, and there are no

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allegations suggesting that Plaintiff has been diagnosed with moderate to severe fibrosis but

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improperly denied appropriate care.

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Although the memo was issued in 1997, Plaintiff’s amended complaint is devoid of any suggestion that
circumstances have changed and there now exists a new or different treatment option for Hepatitis C.

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In sum, Plaintiff’s amended complaint sets forth no facts supporting a claim that prison

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officials are withholding necessary, medically-appropriate treatment from Plaintiff or somehow

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otherwise failing to adequately evaluate or monitor Plaintiff’s chronic medical condition, in knowing

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disregard of a substantial risk of harm to his health. Plaintiff was previously given leave to amend

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these deficiencies but was unable to do so, and further leave to amend is not warranted. Lopez v.

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Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir.

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1987).

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III.

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Order
Based on the foregoing, it is HEREBY ORDERED that:

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1.

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This action is dismissed, with prejudice, for failure to state a claim upon which relief
may be granted under section 1983;

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2.

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Plaintiff’s amended motion for leave to proceed in forma pauperis, filed on February
29, 2012, is denied as moot, without prejudice to renewal if necessary; and

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3.

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This dismissal is subject to the “three-strikes” provision set forth in 28 U.S.C. §
1915(g). Silva v. Vittorio, 658 F.3d 1090, 1098-99 (9th Cir. 2011).

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IT IS SO ORDERED.

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Dated:
ie14hj

October 16, 2012

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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