Pearson v. Yates et al

Filing 8

ORDER DISMISSING Action For Failure to State a Claim, signed by Magistrate Judge Dennis L. Beck on 12/5/2011. 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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KENNETH PEARSON,

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CASE NO. 1:11-CV-00072-DLB PC

Plaintiff,

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ORDER DISMISSING ACTION FOR
FAILURE TO STATE A CLAIM

v.
(DOC. 6)

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JAMES A. YATES, et al.,

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Defendants.

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Screening Order
I.

Background
Plaintiff Kenneth Pearson (“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 January 13, 2011. Doc. 1. On August 3, 2011, the Court

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screened Plaintiff’s complaint and dismissed it for failure to state a claim with leave to amend.

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Doc. 4. On September 2, 2011, Plaintiff filed his first amended complaint. Doc. 6.

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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 to relief that is plausible on its face.’” Id. (quoting

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Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are

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not. Id.

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II.

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Summary of First Amended Complaint
Plaintiff is currently incarcerated at the Correctional Training Facility in Soledad,

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California. The events giving rise to this action occurred while Plaintiff was incarcerated at

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Pleasant Valley State Prison (“PVSP”) in Coalinga, California. Plaintiff names the following as

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Defendants: warden James A. Yates; chief medical officer Felix Igbinosa; physician’s assistant

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Randolph Wilson; registered nurse M. Griffith; health care appeals coordinators Nesbitt and

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Martinez; John Doe 1, a medical doctor; and John Does 2 through 5, primary care office

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assistants.

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Plaintiff alleges the following: In August 2008, Plaintiff was diagnosed with a cocci

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infection (valley fever). Between November 2009 and March 2010, Plaintiff suffered numerous

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complications from the cocci infection, including pneumonia and bronchitis. Plaintiff claims that

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more than 900 prisoners and 30 staff members have contracted valley fever at PVSP and that

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over a dozen prisoners and one staff member have died from the disease.

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On March 5, 2010, Plaintiff began suffering pain and swelling in his lower back. Plaintiff

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met with Defendant Wilson on March 15, 2010, for a regularly scheduled follow-up visit

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regarding his cocci infection. Plaintiff complained of his back pain, which had become severe

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and disabling. He also complained of the swelling. Defendant Wilson did not diagnose the
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pain or swelling. Defendant Wilson noted occasional back pain and promised to refer Plaintiff to

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Correctional Treatment Center (CTC), and prescribe pain medication. Defendant Wilson did not

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refer Plaintiff or prescribe medication.

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On March 26, 2010, Plaintiff submitted a Health Care Services Request Form CDC 7362,

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complaining of back pain. On March 29, 2010, Plaintiff submitted a second CDC 7362,

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complaining of extreme pain that inhibited his ability to sleep, eat or walk. Plaintiff had been

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referred to CTC for x-rays by Defendant Wilson, but Plaintiff had not been seen by anyone.

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On March 29, 2010, Defendant Griffith received the first CDC 7362. On March 30,

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2010, Defendant Griffith responded to the second CDC 7362 by scheduling Plaintiff for the MD

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line that same day. That evening, Plaintiff was seen by Defendants Wilson and Doe 1, who

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ordered an x-ray, prescribed capsaicin, a topical cream for arthritis, and methcarbamol, a sedative

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for musculoskeletal pain. They also referred Plaintiff to the MD line in 30 days. Plaintiff

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received no pain relief from the cream or medication.

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Plaintiff filed a CDC 602 inmate appeal on April 5, 2010, and a third CDC 7362 on April

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8, 2010. On April 12, 2010, Defendant Griffith saw Plaintiff, noted a 15 by 10 centimeter

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growth over Plaintiff’s spinal column, and scheduled an urgent MD line appointment within 24

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hours. Plaintiff never received the appointment.

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On April 18, 2010, Plaintiff filed a second CDC 602, complaining of never receiving his

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MD line appointment. He also filed another CDC 7362, complaining that the swelling had

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grown larger and that he had not seen the doctor. On April 19, 2010, Plaintiff was seen by

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Defendant Griffith who noted a 4 by 5 inch swollen area on his back, and sharp pain. Defendant

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Griffith scheduled Plaintiff for a MD line appointment within 24 hours. Plaintiff did not receive

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it.

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On April 21, 2010, Plaintiff filed a third CDC 602 inmate appeal and another CDC 7362

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form. Plaintiff also wrote letters to the Prison Law Office and to Clark Kelso asking for

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assistance.

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On April 23, 2010, Defendant Griffith saw Plaintiff and scheduled an urgent MD line
appointment. Plaintiff did not receive the appointment. Plaintiff filed another CDC 602 inmate
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appeal complaining that he had not received the appointment.

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On April 26, 2010, the Prison Law Office contacted a deputy attorney general asking that

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Plaintiff’s condition be reviewed. Plaintiff was seen on April 29, 2010, by Defendant Wilson,

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who examined Plaintiff, prescribed Tylenol 3 for the pain, and transferred Plaintiff to Mercy

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Medical Center. Plaintiff was treated at Mercy Medical Center for two and a half months for

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disseminated cocci and related abscess.

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Plaintiff contends a violation of the Eighth Amendment. Plaintiff seeks compensatory

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and punitive damages, full medical coverage for life, injunctive relief and fees and costs of suit.

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III.

Analysis

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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.

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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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As with his original complaint, Plaintiff contends that Defendants Wilson and Doe 1
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showed deliberate indifference by failing to adequately examine him and conduct tests. Amend.

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Compl. 11.1 Plaintiff fails to state a § 1983 claim. Plaintiff’s claims of an inadequate

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examination amount to negligence and do not rise to the level of deliberate indifference. “[A]

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complaint that a physician has been negligent in diagnosing or treating a medical condition does

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not state a valid claim of medical mistreatment under the Eighth Amendment.” Estelle v.

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Gamble, 429 U.S. 97, 106 (1976) (“Medical malpractice does not become a constitutional

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violation merely because the victim is a prisoner.”); Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir.

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2006) (holding that isolated occurrences of neglect do not constitute deliberate indifference to

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serious medical needs).

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Plaintiff again contends that Defendants Wilson and Doe 1 were deliberately indifferent

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for failing to provide any pain medication between March 15 to March 30, and April 10 to April

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29, 2010, and for failing to provide adequate pain medication between March 30 and April 9,

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2010. Amend. Compl. 12. Plaintiff fails to state a § 1983 claim. Based on Plaintiff’s allegations,

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Plaintiff was referred for an x-ray and prescribed medications. Although the medications were

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allegedly inadequate for his pain, Plaintiff’s allegations do not demonstrate that Defendants

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Wilson and Doe 1 were deliberately indifferent. Again, Plaintiff’s claims amount to negligence,

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not deliberate indifference.

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Plaintiff next contends that Defendants Griffith and Does 2 through 5 demonstrated

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deliberate indifference by failing to schedule him for the MD line on four occasions. Amend.

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Compl. 12. As with his original complaint, Plaintiff fails to state a § 1983 claim. According to

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Plaintiff’s amended claims, Defendant Griffith scheduled Plaintiff to be seen by a medical doctor

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on four separate occasions. On one of those occasions, Plaintiff was seen by a medical doctor the

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same day as the referral by Defendant Griffith. Defendant Griffith’s actions were reasonable

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under the circumstances. Accordingly, Plaintiff fails to demonstrate that Defendant Griffith

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disregarded an excessive risk of serious harm to Plaintiff. Farmer, 511 U.S. at 844-45.

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Plaintiff’s amended pleading does not include any allegations against Defendants Does 2 through

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The Court uses the page numbering from the court docket.

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5. As such, Plaintiff does not state a § 1983 claim against them.
Plaintiff further contends that Defendants Nesbitt and Martinez were deliberately

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indifferent because they failed to implement and enforce an inmate medical appeals procedure

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that would have made it possible to review Plaintiff’s appeals in a timely manner. Amend.

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Compl. 12. As with his original complaint, Plaintiff fails to state a § 1983 claim. “[A prison]

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grievance procedure is a procedural right only, it does not confer any substantive right upon the

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

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F. Supp. 8, 10 (N.D. Ill. 1982)); see also Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003)

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(no 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). “Hence, 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). Actions in reviewing a prisoner’s administrative

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appeal cannot serve as the basis for liability under a section 1983 action. Plaintiff’s only

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allegations against Defendants Nesbitt and Martinez relate to the administrative grievance

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process and do not state a § 1983 claim. There are no other allegations that demonstrate these

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Defendants knew of and disregarded an excessive risk of serious harm to Plaintiff.

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Plaintiff claims that Defendants Igbinosa and Yates were deliberately indifferent by

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failing to provide adequate health care, failing to hire and supervise adequate medical staff,

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failing to implement adequate procedures for health care and failing to correct systemic

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deficiencies in the medical care at PVSP. Amend. Compl. P. 13-14. Plaintiff again fails to state

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a § 1983 complaint against Defendants Igbinosa and Yates based on their supervisory roles. The

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term “supervisory liability,” loosely and commonly used by both courts and litigants alike, is a

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misnomer. Iqbal, 129 S. Ct. at 1949. “Government officials may not be held liable for the

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unconstitutional conduct of their subordinates under a theory of respondeat superior.” Id. at

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1948. Rather, each government official, regardless of his or her title, is only liable for his or her

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own misconduct.
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When the named defendant holds a supervisor position, the causal link between the

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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 “implement[ed] 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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Plaintiff fails to state a claim against Defendants Igbinosa or Yates. Plaintiff fails to

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allege facts indicating that Defendants personally participated in an alleged constitutional

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deprivation, knew of constitutional violations and failed to act, or promulgated or implemented a

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policy that was so deficient as to be the moving force of a constitutional violation.

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IV.

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Conclusion And Order
Plaintiff fails to state a cognizable § 1983 claim against any Defendants. Plaintiff was

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previously provided leave to amend to cure the deficiencies identified herein, but was unable to

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do so. Therefore, further leave to amend will not be granted. See Lopez v. Smith, 203 F.3d 1122,

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1127 (9th Cir. 2000) (en banc).

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Accordingly, pursuant to 28 U.S.C. § 1915A and 28 U.S.C. § 1915(e), this action is

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HEREBY DISMISSED, with prejudice, based on Plaintiff’s failure to state a claim upon which

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relief may be granted under § 1983. This dismissal is subject to the “three-strikes” provision set

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forth in 28 U.S.C. § 1915(g). Silva v. Di Vittorio, 658 F.3d 1090, 1098-99 (9th Cir. 2011).

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IT IS SO ORDERED.
Dated:
3b142a

December 5, 2011

/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE

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