Pickering v. Clark et al

Filing 10

FINDINGS and RECOMMENDATIONS Recommending Dismissal of Certain Claims and Defendants re 9 , signed by Magistrate Judge Dennis L. Beck on 9/10/12. Referred to Judge O'Neill. Objections, If Any, Due Within Fourteen Days. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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WAYNE L. PICKERING,

Case No. 1:11-cv-00937-LJO-DLB PC

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Plaintiff,
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v.

FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSAL OF
CERTAIN CLAIMS AND DEFENDANTS

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KEN CLARK, et al.,

ECF No. 9

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Defendants.
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OBJECTIONS, IF ANY, DUE WITHIN
FOURTEEN DAYS

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Findings and Recommendations

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I.

Background
Plaintiff Wayne L. Pickering (“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 action pursuant to 42 U.S.C. § 1983. On June 9, 2011, Plaintiff initiated

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this action by filing his complaint. On January 11, 2012, the Court dismissed the complaint for

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failure to state a claim with leave to amend. On February 1, 2012, Plaintiff filed his first amended

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complaint. ECF No. 9. The amended complaint is before the Court for screening.

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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 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).
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 (2009) (citing Bell Atl. Corp. v. Twombly, 550

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U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a

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claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570). While factual

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allegations are accepted as true, legal conclusions are not. Id.

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II.

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Summary of First Amended Complaint
Plaintiff was incarcerated at California Substance Treatment Facility (“SATF”) in Corcoran,

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California, where the events giving rise to this action occurred. Plaintiff names as Defendants: A.

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Rotman, physician; Ken Clark, warden; A. Enenmoh, chief medical officer; John Doe 1, attending

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nurse; and Jane Doe 1, attending nurse.

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Plaintiff alleges the following. Plaintiff received arthroscopic surgery on March 5, 2007,

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from Dr. Smith. Pl.’s Am. Compl. ¶ 9. On June 6, 2007, during the second post-operation follow-

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up, Dr. Smith informed Plaintiff that he needed a full left knee replacement, and informed Defendant

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A. Rotman, Plaintiff’s primary care physician. Id. ¶ 10. On August 31, 2007, Plaintiff submitted a

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medical request for pain management because of unbearable, constant left knee pain. Id. ¶ 12.

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Defendant Rotman prescribed morphine and gabapentin. Id.

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On May 22, 2008, Plaintiff was sent to Community Medical Center for an ultrasound. Id. ¶

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13. An orthopedic surgeon examined Plaintiff and recommended total knee replacement. Id. ¶ 15.

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On September 22, 2008, Plaintiff was examined by another orthopedic specialist, who also

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recommended total knee replacement. Id. ¶ 16. Plaintiff believes that Defendant Rotman should

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have scheduled Plaintiff for knee replacement surgery. Id. ¶ 17.
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On April 27, 2009, Plaintiff filed an inmate 602 appeal, complaining of extreme knee pain

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and inquiring about knee surgery. Id. ¶ 18. On May 19, 2009, a physician assistant, P.A. Byers,

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held an appeal interview with Plaintiff. Id. ¶ 19. Byers told Plaintiff that there was no indication

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that Defendant Rotman submitted a referral for surgery for Plaintiff’s left knee. Id. ¶ 20. On May

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19, 2009, Byers submitted a referral for Plaintiff’s total knee replacement. Id. ¶ 21.

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On May 30, 2009, Plaintiff told LVN Komar, the pill-line nurse, during morning pill-call that

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he was experiencing excruciating pain in his left leg, and severe pain in his back and hips. Id. ¶ 22.

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LVN Komar told Plaintiff to inform Komar if the pain did not lessen. Id. ¶ 23. Plaintiff was unable

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to walk to retrieve his noontime medication because of the pain. Id. ¶ 24. At 1:30 p.m. that day,

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Plaintiff begged a passing inmate to summon a correctional officer to his cell. Id. ¶ 25. Officers

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Long and Bauer appeared at the cell, and Plaintiff begged them for immediate medical attention. Id.

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¶ 26. Bauer activated the emergency response alarm. Id. ¶ 27. Medical personnel arrived at

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Plaintiff’s cell and order that he be put on a gurney and taken to the yard clinic for E yard. Id. ¶ 28.

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LVN Komar assessed Plaintiff at the E yard clinic and determined that he needed emergency

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medical treatment at the Treatment Triage and Assessment (“TTA”), and called the TTA. Id. ¶¶ 29,

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30. LVN Komar requested an emergency response vehicle (“ERV”) while on the phone with

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Defendant Jane or John Doe No. 1. Id. ¶ 32. LVN Komar told the unknown Defendant that Plaintiff

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could not walk because of extreme knee pain. Id. ¶ 33. LVN Komar told Plaintiff that the TTA

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Defendant nurse refused to bring the ERV, and that the nurse told Komar that Plaintiff would have to

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walk. Id. ¶ 35.

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Lieutenant Smith placed a call to correctional officer Ibanez to take Plaintiff to the TTA by

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golf cart. Id. ¶ 36. Inmate caregivers switched Plaintiff from a gurney to a wheelchair to take

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Plaintiff to the golf cart for transport to the TTA. Id. ¶ 38. At the TTA center, Defendants Jane Doe

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No. 1 and John Doe No. 1 came outside of the TTA. Id. ¶ 39. Defendant Jane Doe told Plaintiff to

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get out of the golf car and walk in if he wanted to be treated. Id. ¶ 40. Officer Ibanez responded,

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“Are you serious, you do realize this inmate can’t walk, don’t you?” Id. ¶ 41. Officer Ibanez then

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asked if one of the nurses could bring a wheelchair for Plaintiff. Id. ¶ 43. Defendant Jane Doe

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indicated that there were no wheelchairs available. Id. ¶ 44. Officer Ibanez then asked if a gurney
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was available. Id. ¶ 45. Defendant Jane Doe then spun around and began walking towards the TTA

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building. Id. ¶ 46. Defendant John Doe walked to catch up with Jane Doe, and said, “You know

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what, just bring the shots out to him.” Id. ¶ 47.

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Jane Doe walked into the TTA building. Id. ¶ 48. Defendant Jane Doe returned from the

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TTA building and with John Doe approached Plaintiff at the golf cart. Id. ¶ 50. Defendant Jane Doe

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proceeded to administer a shot into each of Plaintiff’s arms. Id. ¶ 51. Afterwards, Defendant Jane

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Doe stated that he can go back to the yard. Id. Officer Ibanez drove off. Approximately halfway

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back, a bolt of pain shot into Plaintiff’s leg, rendering him unconscious, and he fell out of the

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moving cart, striking his head, arm, and leg on the pavement. Id. ¶¶ 57, 58. When Plaintiff regained

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consciousness, the ERV was present and Plaintiff was being placed on a gurney and loaded into the

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ERV. Id. ¶ 60. After arriving at the TTA emergency room, Dr. Metts was called to assess Plaintiff’s

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condition. Id. ¶ 61. Dr. Metts asked Plaintiff about the incident, and after being told, verified with

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officer Ibanez. Id. ¶¶ 62-64. Dr. Metts had a heated conversation with Defendants Jane and John

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Doe regarding the incident. Id. ¶ 65.

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Approximately 45 minutes later, Dr. Metts came back and explained to Plaintiff that he

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would be in pain for some time. Id. ¶ 69. Plaintiff was sent back to his housing by golf cart at 4:25

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p.m. Id. ¶ 70. On May 31, 2009, Plaintiff submitted a 602 appeal regarding the events that took

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place, and a medical request to see a medical doctor. Id. ¶ 71. Plaintiff submitted medical requests

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on June 2 and June 7. Id. ¶¶ 72, 73.

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Plaintiff informed Defendant Rotman on three occasions, from May 22, 2008 to May 19,

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2009, that the pain medication provided was not relieving his knee pain. Id. ¶ 74. Defendant

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Rotman refused to schedule Plaintiff for knee surgery, and prescribed pain medication instead,

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despite the pain medication not alleviating Plaintiff’s pain. Id. ¶ 85. On July 6, 2009, Doctor Polk

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examined Plaintiff, and explained that he needed a full knee replacement. Id. ¶ 75. Plaintiff

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expressed to Dr. Polk his efforts to have Defendant Rotman schedule a knee replacement surgery.

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Id. ¶ 76. Dr. Polk told Plaintiff that he would submit a full knee replacement recommendation to the

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medical staff at SATF. Id. ¶ 77.

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On July 14, 2009, Plaintiff received an answer to his appeal, in which Defendant Enenmoh
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answered that the plan of care was ultimately left to the primary provider, Defendant Rotman. Id. ¶¶

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79, 80.

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Lieutenant E. Smith authored a report to Defendant Ken Clark, warden, on May 31, 2009,

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regarding the transport incident. Id. ¶¶ 81, 82. Lieutenant Smith verbally reprimanded both

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Defendants Jane and John Doe. Id. ¶ 83. On July 29, 2009, Plaintiff received knee replacement

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surgery, and his knee pain has abated. Id. ¶ 84.

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Plaintiff alleges deliberate indifference to a serious medical need in violation of the Eighth

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Amendment, violation of the Due Process Clause of the Fourteenth Amendment, and state law claim

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of negligence, against Defendants A. Rotman, John Doe, Jane Doe, Enenmoh, and Clark.

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Defendants are all sued in their individual capacity, and Defendant Clark is also sued in his official

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capacity. Plaintiff requests compensatory and punitive damages, declaratory relief, a permanent

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injunction that all vehicles used to transport inmates have safety belts, and costs of suit.

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III.

Analysis

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A.

Eighth Amendment

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The Eighth Amendment prohibits cruel and unusual punishment. “The Constitution does not

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mandate comfortable prisons.” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quotation and citation

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omitted). A prisoner’s claim of inadequate medical care does not rise to the level of an Eighth

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Amendment violation unless (1) “the prison official deprived the prisoner of the ‘minimal civilized

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measure of life’s necessities,’” and (2) “the prison official ‘acted with deliberate indifference in

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doing so.’” Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (quoting Hallett v. Morgan, 296

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F.3d 732, 744 (9th Cir. 2002) (citation omitted)). The deliberate indifference standard involves an

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objective and a subjective prong. First, the alleged deprivation must be, in objective terms,

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“sufficiently serious . . . .” Farmer, 511 U.S. at 834 (citing Wilson v. Seiter, 501 U.S. 294, 298

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(1991)). Second, the prison official must “know[] of and disregard[] an excessive risk to inmate

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health or safety . . . .” Id. at 837.

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“Deliberate indifference is a high legal standard.” Toguchi, 391 F.3d at 1060. “Under this

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standard, the prison official must not only ‘be aware of the facts from which the inference could be

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drawn that a substantial risk of serious harm exists,’ but that person ‘must also draw the inference.’”
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Id. at 1057 (quoting Farmer, 511 U.S. at 837). “‘If a prison official should have been aware of the

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risk, but was not, then the official has not violated the Eighth Amendment, no matter how severe the

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risk.’” Id. (quoting Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)).

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Plaintiff alleges a serious medical need regarding his knee pain. As to Defendant Rotman,

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Plaintiff alleges sufficient facts which indicate that Defendant Rotman acted with deliberate

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indifference to a serious medical need. Plaintiff alleges that he informed Defendant Rotman on three

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occasions that the medication provided was not effective for treating his chronic knee pain.

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As to Defendants Jane and John Doe, Plaintiff alleges sufficient facts to demonstrate that

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

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their actions on May 30, 2009.
As to Defendant Enenmoh, Plaintiff fails to allege sufficient facts to indicate that Defendant

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Enenmoh knew of and disregarded an excessive risk of serious harm to Plaintiff’s health. Plaintiff

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alleges only that Defendant Enenmoh denied Plaintiff’s appeal, finding that the plan of care was left

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to Plaintiff’s primary care provider, Defendant Rotman. This is not sufficient to demonstrate that

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Defendant Enenmoh knew of and disregarded a substantial risk of serious harm to Plaintiff’s health.

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As to Defendant Clark, Plaintiff fails to allege sufficient facts to indicate that Defendant

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Clark knew of and disregarded an excessive risk of serious harm to Plaintiff’s health. Plaintiff

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alleges only that Lieutenant Smith authored an Unusual Occurrence Report to Defendant Clark

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regarding the events on May 30, 2009. This allegation fails to demonstrate that Defendant Clark

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knew of and disregarded an excessive risk of serious harm to Plaintiff’s health. Based on the

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allegations, Defendant Clark was unaware of what transpired on May 30, 2009 until after it had

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occurred.

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To the extent that Plaintiff alleges liability based on Defendants Enenmoh and Clark’s roles

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as supervisory officials, Plaintiff 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, 556 U.S. at 678.

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“Government officials may not be held liable for the unconstitutional conduct of their subordinates

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under a theory of respondeat superior.” Id. Rather, each government official, regardless of his or

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her title, is only liable for his or her own misconduct. Id. When the named defendant holds a
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supervisory position, the causal link between the defendant and the claimed constitutional violation

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must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v.

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Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). To state a claim for relief under § 1983 for supervisory

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liability, plaintiff must allege some facts indicating that the defendant either: personally participated

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in the alleged deprivation of constitutional rights or knew of the violations and failed to act to

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prevent them. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Plaintiff fails to allege facts

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which demonstrate that Defendants Enenmoh and Clark participated in actions that caused a

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constitutional violation or knew of the violation and failed to act.

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B.

Due Process

Plaintiff does not allege any procedural due process claims. Thus, the Court concludes that
Plaintiff contends a substantive due process violation.
“[W]here a particular amendment provides an explicit textual source of constitutional

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protection against a particular sort of government behavior, that Amendment, not the more

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generalized notion of substantive due process, must be guide for analyzing a plaintiff’s claims.”

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Patel v. Penman, 103 F.3d 868, 874 (9th Cir. 1996) (citations and quotations omitted). Here, the

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Eighth Amendment governs Plaintiff’s claims. Thus, there is no due process claim.

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C.

Negligence

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Plaintiff alleges a claim for negligence. In order to state a cognizable state law claim against

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state actors, plaintiffs must plead compliance with California's Torts Claims Act. California v.

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Super. Ct. (Bodde), 32 Cal. 4th 1234, 1245, 13 Cal. Rptr. 3d 534, 90 P.3d 116 (2004); Karim-Panahi

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v. L.A. Police Dep't, 839 F.2d 621, 627 (9th Cir. 1988). Plaintiff fails to allege such compliance.

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Plaintiff thus fails to state a claim for negligence.

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D.

Doe Defendants

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“As a general rule, the use of ‘John Doe’ to identify a defendant is not favored.” Gillespie v.

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Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). The Court finds cognizable claims against Defendants

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Jane and John Doe. Plaintiff is proceeding in forma pauperis and would be entitled to service of

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process by the United States Marshal. However, the United States Marshal cannot serve process on

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unknown Defendants. Thus, the Court will not forward Plaintiff any documents for service on Doe
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Defendants until such time that Plaintiff is able to identify the Doe Defendants.

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IV.

Conclusion and Recommendation

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Plaintiff states a cognizable Eighth Amendment claim against Defendants Jane Doe and John

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Doe for deliberate indifference to a serious medical need. Plaintiff fails to state any other claims

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against any other Defendants. Plaintiff was previously provided an opportunity to amend his

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complaint. The Court finds further leave to amend should not be granted.

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Based on the foregoing, it is HEREBY RECOMMENDED that:

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This action proceed against Defendants A. Rotman, Jane Doe, and John Doe for deliberate

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indifference to a serious medical need in violation of the Eighth Amendment as stated herein;
Plaintiff’s claims against Defendants Enenmoh and Clark, and Plaintiff’s negligence claim,

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2.

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be dismissed with prejudiced for failure to state a claim; and

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Defendants Enenmoh and Clark be dismissed from this action.

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These Findings and Recommendations will be submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) days

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after being served with these Findings and Recommendations, the Plaintiff may file written

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objections with the Court. The document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendations.” The Plaintiff is advised that failure to file objections within the

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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d

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1153, 1157 (9th Cir. 1991).

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IT IS SO ORDERED.

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Dated:

/s/ Dennis

September 10, 2012

L. Beck

UNITED STATES MAGISTRATE JUDGE

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DEAC_Signature-END:

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3b142a

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