Paul v. Allison et al

Filing 17

ORDER DISMISSING CASE (Strike), signed by Magistrate Judge Dennis L. Beck on 1/30/2013. CASE CLOSED (Martin-Gill, S)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

EASTERN DISTRICT OF CALIFORNIA

8
9
10
11

ROBERT PAUL,

12

Plaintiff,

13
14

vs.
KATHLEEN ALLISON, et al.,

15

Defendants.

)
)
)
)
)
)
)
)
)
)

1:11cv00769 DLB PC
ORDER DISMISSING
ACTION FOR FAILURE TO
STATE ANY CLAIMS

16

Plaintiff Robert Paul (“Plaintiff”) is a prisoner in the custody of the California

17
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 filed this action

20

on May 12, 2011. On October 6, 2011, the Court screened Plaintiff’s complaint and dismissed it

21
22
23

with leave to amend for failure to state a claim. On December 6, 2011, Plaintiff filed his First
Amended Complaint (“FAC”). He names Warden Kathleen Allison, Correctional Officers Mora
and Naverett and Dr. Onyeje as Defendants.1

24
25

A.

The Court is required to screen complaints brought by prisoners seeking relief against a

26
27
28

LEGAL STANDARD

governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a).
1

Plaintiff consented to the jurisdiction of the Magistrate Judge on May 20, 2011.
1

1

The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are

2

legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or

3
4

that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C.
§ 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion thereof, that may have been

5

paid, the court shall dismiss the case at any time if the court determines that . . . the action or
6
7
8
9

appeal . . . fails to state a claim upon which relief may be granted.” 28 U.S.C.
§ 1915(e)(2)(B)(ii).
A complaint must contain “a short and plain statement of the claim showing that the

10

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

11

required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

12

conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing

13

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

14

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

15

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

16
17
18

not. Id.
Section 1983 provides a cause of action for the violation of Plaintiff’s constitutional or
other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d

19

1087, 1092 (9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006);
20
21
22
23

Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). Plaintiff’s allegations must link the
actions or omissions of each named defendant to a violation of his rights; there is no respondeat
superior liability under section 1983. Iqbal, 556 U.S. at 676-77; Simmons v. Navajo County,

24

Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235

25

(9th Cir. 2009); Jones, 297 F.3d at 934. Plaintiff must present factual allegations sufficient to

26

state a plausible claim for relief. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572

27
28
2

1
2
3
4

F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this
plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.
B.

SUMMARY OF PLAINTIFF’S ALLEGATIONS
Plaintiff alleges that he is 61 years old and is mobility-impaired. He is incarcerated at

5

the California Substance Abuse Treatment Facility, where the events at issue in this action
6
7
8
9

occurred.
On August 16, 2010, at approximately 3:00 a.m., Plaintiff alleges that he sustained a
severe injury to his left shoulder/clavicle after slipping and falling on “broken and chipped out

10

tile flooring.” Complaint, at 6. Defendants Mora and Naverette were on duty at the time of the

11

incident. Plaintiff alleges that they knew, or should have known, of the problem and reported it

12

to Building Maintenance. According to Plaintiff, the broken tiles are in the path of the entry/exit

13

of the lower “C” section restroom.

14

Plaintiff was taken to the treatment center, where the nurse on duty diagnosed him with a

15

dislocated shoulder/clavicle and applied an ace bandage. Attending physician Dr. Metts ordered

16
17
18

an x-ray. Plaintiff received one pain pill while at the treatment center and another two days later.
He submitted a request for additional medication and received it on August 26, 2010.
On August 16, 2010, at about 12:00 p.m., Plaintiff was summoned to the treatment center

19

for an x-ray. The x-ray technician told Plaintiff that he would send the results to a doctor at the
20
21
22
23

Facility B medical clinic.
On August 26, 2010, Plaintiff was summoned to the Facility B medical clinic and seen by
Defendant Dr. Onyeje for another issue. Dr. Onyeje stated that he was unaware of Plaintiff’s

24

shoulder injury and denied seeing a report about the injury. Dr. Onyeje prescribed “light

25

medication that was inadequate” to relieve Plaintiff’s severe pain. FAC, at 7.

26
27

Plaintiff alleges that on October 8, 2010, Dr. Onyeje inadequately examined and
diagnosed Plaintiff’s injury. Plaintiff requested to be seen by a bone specialist “due to [his]

28
3

1

protruding shoulder/clavicle.” FAC, at 7. Plaintiff contends that the protruding bone was clear

2

and that Dr. Onyeje had his medical records in front of him. Plaintiff’s request was denied.

3
4

Plaintiff alleges that although he repeatedly informed medical staff about the pain, his
request to see a bone specialist was denied. Plaintiff contends that he did not receive serious

5

medical attention until Dr. Metts was placed at the Facility B medical clinic. Dr. Metts
6
7

scheduled Plaintiff for an appointment with a specialist in August 2011.
Based on these factual allegations, Plaintiff alleges that Defendants violated the Eighth

8
9
10

Amendment.
C.

ANALYSIS

11

1.

Failure to Train

12

Plaintiff first alleges that Defendant Allison failed to adequately train officers “to observe

13

and respond to any and all unsafe” hazards and dangers. He contends that as a “mobility

14

impaired or wheelchair person,” Defendant Allison knew, or should have known, that her failure

15

to train officers would create an unreasonable risk of harm to Plaintiff.

16
17
18

Under section 1983, Plaintiff must prove that the defendants holding supervisory
positions personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d
930, 934 (9th Cir. 2002). There is no respondeat superior liability, and each defendant is only

19

liable for his or her own misconduct. Iqbal at 1948-49. A supervisor may be held liable for the
20
21
22
23

constitutional violations of his or her subordinates only if he or she “participated in or directed
the violations, or knew of the violations and failed to act to prevent them.” Taylor v. List, 880
F.2d 1040, 1045 (9th Cir. 1989); also Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009);

24

Preschooler II v. Clark County School Board of Trustees, 479 F.3d 1175, 1182 (9th Cir. 2007);

25

Harris v. Roderick, 126 F.3d 1189, 1204 (9th Cir. 1997).

26
27

A supervisor’s failure to train subordinates may give rise to individual liability under
Section 1983 where the failure amounts to deliberate indifference to the rights of persons

28
4

1
2
3
4

whom the subordinates are likely to come into contact. See Canell v. Lightner, 143, F.3d
1210, 1213-14 (9th Cir. 1998). To impose liability under this theory, a plaintiff must
demonstrate that the subordinate’s training was inadequate, that the inadequate training was a
deliberate choice on the part of the supervisor, and that the inadequate training caused a

5

constitutional violation. Id. at 1214; see also City of Canton v. Harris, 489 U.S. 378, 391 (1989);
6
7
8
9

Lee v. City of Los Angeles, 250 F.3d 668, 681 (9th Cir. 2001).
Here, Plaintiff has not alleged that Defendant Allison knew of the alleged violation and
failed to prevent it, or that she made a knowing choice to inadequately train officers in

10

identifying potential hazards. In response to the Court’s order dismissing the complaint with

11

leave to amend, Plaintiff added conclusory legal statements to his allegations against her, but the

12

additions do not cure the deficiencies previously identified. For example, Plaintiff now states

13

that she “knew or should have known” that her conduct would create an unreasonable risk of

14

harm to Plaintiff, yet he presents no facts to support this. Plaintiff must do more than state a

15

legal conclusion to state a claim. Iqbal, 129 S. Ct. at 1949 (citations omitted).

16
17
18

Moreover, there can be no supervisory claims where there is no underlying
violation. Starr v. Baca, 652 F.3d 1202, 1205–1208 (9th Cir.2011)
2.

Defendants Mora and Naverette

19

Plaintiff alleges that Defendants Mora and Naverette, who were on duty at the time of his
20
21
22
23
24

fall, violated the Eighth Amendment by failing to act reasonably in response to the danger related
to the broken tiles. He further contends that they knew, or should have known, that their conduct
would create an unreasonable risk of harm to Plaintiff.
The Eighth Amendment’s prohibition against cruel and unusual punishment protects

25

prisoners not only from inhumane methods of punishment but also from inhumane conditions of

26

confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006) (citing Farmer v.

27

Brennan, 511 U.S. 825, 847 (1994) and Rhodes v. Chapman, 452 U.S. 337, 347 (1981))

28
5

1
2
3
4

(quotation marks omitted). While conditions of confinement may be, and often are, restrictive
and harsh, they must not involve the wanton and unnecessary infliction of pain. Morgan, 465
F.3d at 1045 (citing Rhodes, 452 U.S. at 347) (quotation marks omitted). Thus, conditions
which are devoid of legitimate penological purpose or contrary to evolving standards of decency

5

that mark the progress of a maturing society violate the Eighth Amendment. Morgan, 465 F.3d
6
7
8
9

at 1045 (quotation marks and citations omitted); Hope v. Pelzer, 536 U.S. 730, 737 (2002);
Rhodes, 452 U.S. at 346.
Prison officials have a duty to ensure that prisoners are provided adequate shelter, food,

10

clothing, sanitation, medical care, and personal safety, Johnson v. Lewis, 217 F.3d 726, 731 (9th

11

Cir. 2000) (quotation marks and citations omitted), but not every injury that a prisoner sustains

12

while in prison represents a constitutional violation, Morgan, 465 F.3d at 1045 (quotation marks

13

omitted). To succeed on an Eighth Amendment conditions of confinement claim, a prisoner

14

must show that (1) the defendant prison official’s conduct deprived him or her of the minimal

15

civilized measure of life’s necessities and (2) that the defendant acted with deliberate

16
17
18

indifference to the prisoner's health or safety. Farmer, 511 U.S. at 834. Extreme deprivations
are required to make out a conditions of confinement claim, and only those deprivations denying
the minimal civilized measure of life’s necessities are sufficiently grave to form the basis of an

19

Eighth Amendment violation. Hudson, 503 U.S.at 9.
20
21
22
23

Here, Plaintiff fails to demonstrate that Defendants Mora and Naverette were deliberately
indifferent to a substantial risk of harm to his health or safety. Although Plaintiff states that they
knew, or should have known, of the risk associated with the broken tiles, he failed to state

24

additional facts to support his claim. Again, legal conclusions are insufficient to state a claim.

25

Iqbal, 129 S. Ct. at 1949 (citations omitted). It is also unlikely that Defendants’ failure to fix

26

chipped or broken tiles would rise to the level necessary to demonstrate an extreme deprivation.

27
28
6

1
2
3
4

To the extent that Plaintiff suggests that Defendants Mora and Naverette failed to follow
a prison policy, a negligent failure to follow prison rules is not, by itself, a constitutional
violation. Estate of Ford v. Ramirez–Palmer, 301 F.3d 1043, 1051–52 (9th Cir.2002) (there is no
constitutional prohibition against double-celling and negligent failure to follow prison rules is

5

not a constitutional violation).
6
7
8
9

3.

Defendant Onyeje

Finally, Plaintiff argues that Defendant Onyeje failed to adequately treat Plaintiff by
denying his requests to see a bone specialist. He also alleges that Defendant Onyeje failed to

10

investigate the incident and that he knew, or should have known, that Plaintiff was not receiving

11

sufficient medical treatment.

12

To maintain an Eighth Amendment claim based on medical care in prison, a plaintiff

13

must show deliberate indifference to his serious medical needs. Jett v. Penner, 439 F.3d 1091,

14

1096 (9th Cir. 2006) (citing Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 295 (1976)) (quotation

15

marks omitted). The two-part test for deliberate indifference requires the plaintiff to show (1) a

16

serious medical need by demonstrating that failure to treat a prisoner’s condition could result in

17
18

further significant injury or the unnecessary and wanton infliction of pain, and (2) the
defendant’s response to the need was deliberately indifferent. Jett, 439 F.3d at 1096 (quotation

19

marks and citation omitted).
20
21
22
23

Deliberate indifference is shown by a purposeful act or failure to respond to a prisoner’s
pain or possible medical need, and harm caused by the indifference. Id. (citation and quotation
marks omitted). Deliberate indifference may be manifested when prison officials deny, delay or

24

intentionally interfere with medical treatment, or it may be shown by the way in which prison

25

physicians provide medical care. Id. (citation and quotations omitted). Where a prisoner is

26

alleging a delay in receiving medical treatment, the delay must have led to further harm in order

27

for the prisoner to make a claim of deliberate indifference to serious medical needs. Berry v.

28
7

1
2
3

Bunnell, 39 F.3d 1056, 1057 (9th Cir. 1994); McGuckin v. Smith, 974 F.2d 1050, 1060 (9th Cir.
1992), overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir.
1997) (en banc).

4
5

As the Court explained in its previous order, it appears that Plaintiff simply disagrees
with Dr. Onyeje’s refusal to send him to a bone specialist. A “difference of opinion between a

6
7
8
9

prisoner-patient and prison medical authorities regarding treatment does not give rise to a § 1983
claim.” Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981) (internal citation omitted). To
prevail, Plaintiff “must show that the course of treatment the doctors chose was medically

10

unacceptable under the circumstances . . . and . . . that they chose this course in conscious

11

disregard of an excessive risk to plaintiff’s health.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th

12

Cir. 1986) (internal citations omitted).
Although Plaintiff faults Dr. Onyeje’s refusal to send him to a bone specialist, no aspect

13
14

of his treatment rises to the level of deliberate indifference to a serious medical need. Plaintiff

15

first saw Dr. Onyeje on August 26, 2010, for an unrelated issue, but when Plaintiff complained

16
17
18

about his shoulder, he was given light pain medication. Plaintiff returned to Dr. Onyeje on
October 8, 2010. Dr. Onyeje examined Plaintiff’s shoulder and noted prominence at the left
sternoclavicular joint. He ordered a CT scan of Plaintiff’s left shoulder and ordered Plaintiff to

19

continue his current medications. Plaintiff was to return in 30 days. Exh. D, attached to FAC.
20
21

Plaintiff includes no additional facts related to his medical treatment.
Plaintiff was therefore receiving treatment from Dr. Onyeje for his left shoulder injury,

22
23

including medication and diagnostic testing. His refusal to grant Plaintiff’s request to see a bone

24

specialist does not establish deliberate indifference to a serious medical need.

25

D.

26
27

CONCLUSION AND ORDER
Plaintiff fails to state any cognizable claims against any Defendant. Plaintiff was

previously provided leave to amend his complaint to cure the deficiencies identified. Plaintiff

28
8

1
2

appears unable to state a claim and therefore further leave to amend should not be granted. See
Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000).

3

IT IS THEREFORE ORDERED that:

4

1.

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

5

granted under 42 U.S.C. § 1983; and
6

2.

7
8

This dismissal is subject to the “three-strikes” provision set forth in 28 U.S.C. §

1915(g).
This terminates this action in its entirety.

9
10

IT IS SO ORDERED.
11

Dated:

12

/s/ Dennis

January 30, 2013

L. Beck

UNITED STATES MAGISTRATE JUDGE

13

DEAC_Signature-END:

14

3b142a

15
16
17
18
19
20
21
22
23
24
25
26
27
28
9