Yearwood v. Biter et al

Filing 17

ORDER signed by Magistrate Judge Dennis L. Beck on 1/4/2012 DISMISSING CASE (Strike). CASE CLOSED.(Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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RICARDO YEARWOOD,

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Plaintiff,

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CASE NO. 1:11-CV-00132-DLB PC
ORDER DISMISSING ACTION FOR
FAILURE TO STATE A CLAIM WITHOUT
LEAVE TO AMEND

v.
M.D. BITER, et al.,

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DISMISSAL SUBJECT TO THREE STRIKES
PROVISION OF 28 U.S.C. § 1915(G)
Defendants.
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Screening Order
I.

Background
Plaintiff Ricardo Yearwood (“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 25, 2011. Doc. 1. On August 9, 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. 8. On September 21, 2011, Plaintiff filed his first amended complaint. Doc. 12.

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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).

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The 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 First Amended Complaint
Plaintiff is currently incarcerated at Kern Valley State Prison (“KVSP”), and was

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previously incarcerated at Pleasant Valley State Prison (“PVSP”) where the alleged events at

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issue in this action occurred. Plaintiff names as Defendants: James A. Yates, warden of PVSP;

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Chief Medical Officer Kushner of PVSP; M. D. Biter, acting warden of KVSP; Sherry Lopez,

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CMO of PVSP; G. Moonga, registered nurse at KVSP; S. Zamora, health care manager at

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KVSP; and Riesha Arnet, supervising registered nurse at KVSP.

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Plaintiff alleges the following. On August 28, 2005, Plaintiff was involved in a physical

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altercation with another inmate which resulted in Plaintiff suffering a broken right clavicle. First

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Am. Compl. 5. Plaintiff was housed at PVSP at the time of the incident. Id. Defendant Kushner

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saw Plaintiff, who diagnosed Plaintiff’s x-rays. Id. Defendant Kushner ordered the registered

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nurse to provide Plaintiff with pain medication. Id. Plaintiff was advised that he would be seen

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by a physician in August 30. Id. Plaintiff was not seen until September 15, after he had

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submitted a request for medical treatment. Id.

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On January 11, 2006, Plaintiff was in a tele-med conference with doctors at U.C. Davis,

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who informed Plaintiff that the bone should be reset, Plaintiff’s arm and shoulder placed in a

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cast, and possible surgery to repair it. Id. Plaintiff endured pain for four months. Id. Plaintiff

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had little use of his right arm, and a bone protruding from his right shoulder. Id. Plaintiff was

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seen by a physician only once during this time, and not given pain medication. Id.
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On May 19, 2006, Plaintiff was transferred to KVSP. Id. at 6. Plaintiff was seen by a

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registered nurse on his arrival. Id. On June 6, 2006, Plaintiff was examined by doctor Akanno,

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who stated that Plaintiff was scheduled for orthopedic review. Id. Plaintiff was not seen again

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until September 12, 2006, at an outpatient appointment in Corcoran hospital. Id. Plaintiff was

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informed that he was a candidate for A-C repair, and would be scheduled for the near future. Id.

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On November 2, 2006, was seen by a medical doctor, and x-rays were taken. Id.

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Plaintiff received surgery on March 21, 2007. Id. at 6-7. Plaintiff was scheduled for a follow-up

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interview with a doctor one month after the surgery, but prison officials at KVSP misplaced his

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medical documents. Id. at 7. Plaintiff removed his own surgical stitches with the help of his cell

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mate. Id. Plaintiff was finally seen by an orthopedic surgeon for follow-up four to six months

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after his surgery. Id. Plaintiff was also receiving physical therapy treatment, which was

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cancelled after KVSP no longer had a clinical therapist. Id. Plaintiff was not sent to an outside

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hospital for physical therapy. Id. Plaintiff complained about the medical department’s constant

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neglect. Id.

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Plaintiff alleges a violation of the Eighth Amendment. Plaintiff requests declaratory

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relief, compensatory damages, and punitive damages.

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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

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v. 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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PVSP Defendants

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As to Defendants Yates and Kushner, Plaintiff alleges no facts which demonstrate that

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they knew of and disregarded an excessive risk of serious harm to Plaintiff’s health or safety.

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Farmer, 511 U.S. at 837. If Plaintiff is alleging liability based on a theory of supervisory

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liability, Plaintiff also fails to state a claim. The term “supervisory liability,” loosely and

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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

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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 “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). Plaintiff alleges no facts that demonstrate Defendants Yates or Kushner personally

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deprived Plaintiff of his constitutional rights, knew of constitutional violations and failed to act,

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or promulgated a policy that violated Plaintiff’s constitutional rights. Plaintiff’s allegations that
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they were responsible for failure to supervise or train amounts at most to respondeat superior

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liability, which is not cognizable under § 1983.

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KVSP Defendants

Plaintiff fails to state a claim against Defendants M. D. Biter, G. Moonga, S. Zamora, and
Riesha Arnet. Plaintiff submits exhibits with his first amended complaint.

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As to Defendant M. D. Biter, Plaintiff alleges no facts that link Defendant Biter to any

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act that demonstrates a violation of the Eighth Amendment. “A person ‘subjects’ another to the

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deprivation of a constitutional right, within the meaning of section 1983, if he does an

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affirmative act, participates in another's affirmative acts, or omits to perform an act which he is

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legally required to do that causes the deprivation of which complaint is made.” Johnson v.

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Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Plaintiff also fails to state a claim under a theory of

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supervisory liability.

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As to Defendants G. Moonga, S. Zamora, and Arnet, Plaintiff appears to complain that

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they did not fully grant his inmate grievances. Plaintiff also fails to state a claim. Based on the

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submitted exhibits, Defendants found that Plaintiff was receiving adequate medical care,

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including increased pain medication, and scheduled appointments for physical therapy. It

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appears that Plaintiff’s complaints amount at most to a difference of opinion between a medical

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doctor and patient, which fails to state a claim for deliberate indifference to a serious medical

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need. Toguchi, 391 F.3d at 1058. Furthermore, isolated incidents of neglect do not amount to

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deliberate indifference to a serious medical need. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir.

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2006). Plaintiff alleges at most negligence, which is not deliberate indifference.

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IV.

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Conclusion And Order
Plaintiff fails to state any cognizable claims against any Defendants. Plaintiff was

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previously provided the opportunity to amend his complaint to cure the deficiencies identified,

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but he was unable to do so. Further leave to amend will not be granted.

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Accordingly, based on the foregoing, it is HEREBY ORDERED that:

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which relief may be granted under 42 U.S.C. § 1983; and
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This dismissal is subject to the three strikes provision of 28 U.S.C. § 1915(g).
Silva v. Di Vittorio, 658 F.3d 1090, 1098-99 (9th Cir. 2011).

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This action is dismissed without leave to amend for failure to state a claim upon

IT IS SO ORDERED.
Dated:
3b142a

January 4, 2012

/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE

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