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)

Download PDF
1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 KENNETH PEARSON, 9 CASE NO. 1:11-CV-00072-DLB PC Plaintiff, 10 ORDER DISMISSING ACTION FOR FAILURE TO STATE A CLAIM v. (DOC. 6) 11 JAMES A. YATES, et al., 12 Defendants. 13 / 14 15 16 17 Screening Order I. Background Plaintiff Kenneth Pearson (“Plaintiff”) is a prisoner in the custody of the California 18 Department of Corrections and Rehabilitation (“CDCR”). Plaintiff is proceeding pro se and in 19 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this 20 action by filing his complaint on January 13, 2011. Doc. 1. On August 3, 2011, the Court 21 screened Plaintiff’s complaint and dismissed it for failure to state a claim with leave to amend. 22 Doc. 4. On September 2, 2011, Plaintiff filed his first amended complaint. Doc. 6. 23 The Court is required to screen complaints brought by prisoners seeking relief against a 24 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 25 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 26 legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or 27 that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 28 § 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion thereof, that may have been 1 1 paid, the court shall dismiss the case at any time if the court determines that . . . the action or 2 appeal . . . fails to state a claim upon which relief may be granted.” 28 U.S.C. § 3 1915(e)(2)(B)(ii). 4 A complaint must contain “a short and plain statement of the claim showing that the 5 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 6 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 7 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing 8 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual 9 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting 10 Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are 11 not. Id. 12 II. 13 Summary of First Amended Complaint Plaintiff is currently incarcerated at the Correctional Training Facility in Soledad, 14 California. The events giving rise to this action occurred while Plaintiff was incarcerated at 15 Pleasant Valley State Prison (“PVSP”) in Coalinga, California. Plaintiff names the following as 16 Defendants: warden James A. Yates; chief medical officer Felix Igbinosa; physician’s assistant 17 Randolph Wilson; registered nurse M. Griffith; health care appeals coordinators Nesbitt and 18 Martinez; John Doe 1, a medical doctor; and John Does 2 through 5, primary care office 19 assistants. 20 Plaintiff alleges the following: In August 2008, Plaintiff was diagnosed with a cocci 21 infection (valley fever). Between November 2009 and March 2010, Plaintiff suffered numerous 22 complications from the cocci infection, including pneumonia and bronchitis. Plaintiff claims that 23 more than 900 prisoners and 30 staff members have contracted valley fever at PVSP and that 24 over a dozen prisoners and one staff member have died from the disease. 25 On March 5, 2010, Plaintiff began suffering pain and swelling in his lower back. Plaintiff 26 met with Defendant Wilson on March 15, 2010, for a regularly scheduled follow-up visit 27 regarding his cocci infection. Plaintiff complained of his back pain, which had become severe 28 and disabling. He also complained of the swelling. Defendant Wilson did not diagnose the 2 1 pain or swelling. Defendant Wilson noted occasional back pain and promised to refer Plaintiff to 2 Correctional Treatment Center (CTC), and prescribe pain medication. Defendant Wilson did not 3 refer Plaintiff or prescribe medication. 4 On March 26, 2010, Plaintiff submitted a Health Care Services Request Form CDC 7362, 5 complaining of back pain. On March 29, 2010, Plaintiff submitted a second CDC 7362, 6 complaining of extreme pain that inhibited his ability to sleep, eat or walk. Plaintiff had been 7 referred to CTC for x-rays by Defendant Wilson, but Plaintiff had not been seen by anyone. 8 On March 29, 2010, Defendant Griffith received the first CDC 7362. On March 30, 9 2010, Defendant Griffith responded to the second CDC 7362 by scheduling Plaintiff for the MD 10 line that same day. That evening, Plaintiff was seen by Defendants Wilson and Doe 1, who 11 ordered an x-ray, prescribed capsaicin, a topical cream for arthritis, and methcarbamol, a sedative 12 for musculoskeletal pain. They also referred Plaintiff to the MD line in 30 days. Plaintiff 13 received no pain relief from the cream or medication. 14 Plaintiff filed a CDC 602 inmate appeal on April 5, 2010, and a third CDC 7362 on April 15 8, 2010. On April 12, 2010, Defendant Griffith saw Plaintiff, noted a 15 by 10 centimeter 16 growth over Plaintiff’s spinal column, and scheduled an urgent MD line appointment within 24 17 hours. Plaintiff never received the appointment. 18 On April 18, 2010, Plaintiff filed a second CDC 602, complaining of never receiving his 19 MD line appointment. He also filed another CDC 7362, complaining that the swelling had 20 grown larger and that he had not seen the doctor. On April 19, 2010, Plaintiff was seen by 21 Defendant Griffith who noted a 4 by 5 inch swollen area on his back, and sharp pain. Defendant 22 Griffith scheduled Plaintiff for a MD line appointment within 24 hours. Plaintiff did not receive 23 it. 24 On April 21, 2010, Plaintiff filed a third CDC 602 inmate appeal and another CDC 7362 25 form. Plaintiff also wrote letters to the Prison Law Office and to Clark Kelso asking for 26 assistance. 27 28 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 3 1 appeal complaining that he had not received the appointment. 2 On April 26, 2010, the Prison Law Office contacted a deputy attorney general asking that 3 Plaintiff’s condition be reviewed. Plaintiff was seen on April 29, 2010, by Defendant Wilson, 4 who examined Plaintiff, prescribed Tylenol 3 for the pain, and transferred Plaintiff to Mercy 5 Medical Center. Plaintiff was treated at Mercy Medical Center for two and a half months for 6 disseminated cocci and related abscess. 7 Plaintiff contends a violation of the Eighth Amendment. Plaintiff seeks compensatory 8 and punitive damages, full medical coverage for life, injunctive relief and fees and costs of suit. 9 III. Analysis 10 The Eighth Amendment prohibits cruel and unusual punishment. “The Constitution does 11 not mandate comfortable prisons.” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quotation and 12 citation omitted). A prisoner’s claim of inadequate medical care does not rise to the level of an 13 Eighth Amendment violation unless (1) “the prison official deprived the prisoner of the ‘minimal 14 civilized measure of life’s necessities,’” and (2) “the prison official ‘acted with deliberate 15 indifference in doing so.’” Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (quoting 16 Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) (citation omitted)). The deliberate 17 indifference standard involves an objective and a subjective prong. First, the alleged deprivation 18 must be, in objective terms, “sufficiently serious . . . .” Farmer, 511 U.S. at 834 (citing Wilson v. 19 Seiter, 501 U.S. 294, 298 (1991)). Second, the prison official must “know[] of and disregard[] 20 an excessive risk to inmate health or safety . . . .” Id. at 837. 21 “Deliberate indifference is a high legal standard.” Toguchi, 391 F.3d at 1060. “Under 22 this standard, the prison official must not only ‘be aware of the facts from which the inference 23 could be drawn that a substantial risk of serious harm exists,’ but that person ‘must also draw the 24 inference.’” Id. at 1057 (quoting Farmer, 511 U.S. at 837). “‘If a prison official should have 25 been aware of the risk, but was not, then the official has not violated the Eighth Amendment, no 26 matter how severe the risk.’” Id. (quoting Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 27 1188 (9th Cir. 2002)). 28 As with his original complaint, Plaintiff contends that Defendants Wilson and Doe 1 4 1 showed deliberate indifference by failing to adequately examine him and conduct tests. Amend. 2 Compl. 11.1 Plaintiff fails to state a § 1983 claim. Plaintiff’s claims of an inadequate 3 examination amount to negligence and do not rise to the level of deliberate indifference. “[A] 4 complaint that a physician has been negligent in diagnosing or treating a medical condition does 5 not state a valid claim of medical mistreatment under the Eighth Amendment.” Estelle v. 6 Gamble, 429 U.S. 97, 106 (1976) (“Medical malpractice does not become a constitutional 7 violation merely because the victim is a prisoner.”); Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 8 2006) (holding that isolated occurrences of neglect do not constitute deliberate indifference to 9 serious medical needs). 10 Plaintiff again contends that Defendants Wilson and Doe 1 were deliberately indifferent 11 for failing to provide any pain medication between March 15 to March 30, and April 10 to April 12 29, 2010, and for failing to provide adequate pain medication between March 30 and April 9, 13 2010. Amend. Compl. 12. Plaintiff fails to state a § 1983 claim. Based on Plaintiff’s allegations, 14 Plaintiff was referred for an x-ray and prescribed medications. Although the medications were 15 allegedly inadequate for his pain, Plaintiff’s allegations do not demonstrate that Defendants 16 Wilson and Doe 1 were deliberately indifferent. Again, Plaintiff’s claims amount to negligence, 17 not deliberate indifference. 18 Plaintiff next contends that Defendants Griffith and Does 2 through 5 demonstrated 19 deliberate indifference by failing to schedule him for the MD line on four occasions. Amend. 20 Compl. 12. As with his original complaint, Plaintiff fails to state a § 1983 claim. According to 21 Plaintiff’s amended claims, Defendant Griffith scheduled Plaintiff to be seen by a medical doctor 22 on four separate occasions. On one of those occasions, Plaintiff was seen by a medical doctor the 23 same day as the referral by Defendant Griffith. Defendant Griffith’s actions were reasonable 24 under the circumstances. Accordingly, Plaintiff fails to demonstrate that Defendant Griffith 25 disregarded an excessive risk of serious harm to Plaintiff. Farmer, 511 U.S. at 844-45. 26 Plaintiff’s amended pleading does not include any allegations against Defendants Does 2 through 27 28 1 The Court uses the page numbering from the court docket. 5 1 2 5. As such, Plaintiff does not state a § 1983 claim against them. Plaintiff further contends that Defendants Nesbitt and Martinez were deliberately 3 indifferent because they failed to implement and enforce an inmate medical appeals procedure 4 that would have made it possible to review Plaintiff’s appeals in a timely manner. Amend. 5 Compl. 12. As with his original complaint, Plaintiff fails to state a § 1983 claim. “[A prison] 6 grievance procedure is a procedural right only, it does not confer any substantive right upon the 7 inmates.” Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (citing Azeez v. DeRobertis, 568 8 F. Supp. 8, 10 (N.D. Ill. 1982)); see also Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) 9 (no liberty interest in processing of appeals because no entitlement to a specific grievance 10 procedure); Massey v. Helman, 259 F.3d 641, 647 (7th Cir. 2001) (existence of grievance 11 procedure confers no liberty interest on prisoner); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 12 1988). “Hence, it does not give rise to a protected liberty interest requiring the procedural 13 protections envisioned by the fourteenth amendment.” Azeez, 568 F. Supp. at 10; Spencer v. 14 Moore, 638 F. Supp. 315, 316 (E.D. Mo. 1986). Actions in reviewing a prisoner’s administrative 15 appeal cannot serve as the basis for liability under a section 1983 action. Plaintiff’s only 16 allegations against Defendants Nesbitt and Martinez relate to the administrative grievance 17 process and do not state a § 1983 claim. There are no other allegations that demonstrate these 18 Defendants knew of and disregarded an excessive risk of serious harm to Plaintiff. 19 Plaintiff claims that Defendants Igbinosa and Yates were deliberately indifferent by 20 failing to provide adequate health care, failing to hire and supervise adequate medical staff, 21 failing to implement adequate procedures for health care and failing to correct systemic 22 deficiencies in the medical care at PVSP. Amend. Compl. P. 13-14. Plaintiff again fails to state 23 a § 1983 complaint against Defendants Igbinosa and Yates based on their supervisory roles. The 24 term “supervisory liability,” loosely and commonly used by both courts and litigants alike, is a 25 misnomer. Iqbal, 129 S. Ct. at 1949. “Government officials may not be held liable for the 26 unconstitutional conduct of their subordinates under a theory of respondeat superior.” Id. at 27 1948. Rather, each government official, regardless of his or her title, is only liable for his or her 28 own misconduct. 6 1 When the named defendant holds a supervisor position, the causal link between the 2 defendant and the claimed constitutional violation must be specifically alleged. See Fayle v. 3 Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 4 1978). To state a claim for relief under § 1983 for supervisory liability, plaintiff must allege 5 some facts indicating that the defendant either: personally participated in the alleged deprivation 6 of constitutional rights; knew of the violations and failed to act to prevent them; or promulgated 7 or “implement[ed] a policy so deficient that the policy ‘itself is a repudiation of constitutional 8 rights’ and is ‘the moving force of the constitutional violation.’” Hansen v. Black, 885 F.2d 642, 9 646 (9th Cir. 1989) (internal citations omitted); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 10 1989). 11 Plaintiff fails to state a claim against Defendants Igbinosa or Yates. Plaintiff fails to 12 allege facts indicating that Defendants personally participated in an alleged constitutional 13 deprivation, knew of constitutional violations and failed to act, or promulgated or implemented a 14 policy that was so deficient as to be the moving force of a constitutional violation. 15 IV. 16 Conclusion And Order Plaintiff fails to state a cognizable § 1983 claim against any Defendants. Plaintiff was 17 previously provided leave to amend to cure the deficiencies identified herein, but was unable to 18 do so. Therefore, further leave to amend will not be granted. See Lopez v. Smith, 203 F.3d 1122, 19 1127 (9th Cir. 2000) (en banc). 20 Accordingly, pursuant to 28 U.S.C. § 1915A and 28 U.S.C. § 1915(e), this action is 21 HEREBY DISMISSED, with prejudice, based on Plaintiff’s failure to state a claim upon which 22 relief may be granted under § 1983. This dismissal is subject to the “three-strikes” provision set 23 forth in 28 U.S.C. § 1915(g). Silva v. Di Vittorio, 658 F.3d 1090, 1098-99 (9th Cir. 2011). 24 25 26 IT IS SO ORDERED. Dated: 3b142a December 5, 2011 /s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE 27 28 7

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?