Pickering v. Clark et al

Filing 18

FINDINGS and RECOMMENDATIONS Recommending Dismissal of Ation for Failure to State a Claim re 17 , signed by Magistrate Judge Dennis L. Beck on 4/20/13. Referred to Judge O'Neill. Fourteen-Day Deadline. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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WAYNE PICKERING,

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

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Plaintiff,
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v.
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FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSAL OF
ACTION FOR FAILURE TO STATE A
CLAIM

KEN CLARK, et al.,
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ECF No. 17
Defendants.

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OBJECTIONS, IF ANY, DUE WITHIN
FOURTEEN DAYS

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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. On October 15, 2012, Plaintiff was granted leave to file a second amended complaint.

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On November 13, 2012, Plaintiff filed his second amended complaint. ECF No. 17. The second

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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 Second 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:

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warden Ken Clark; A. Enenmoh, chief medical officer; P. Brightwell, correctional counselor; Tim

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Byers, physician assistant; John Doe 1, medical employee; Jane Doe 2, medical employee; Denise

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Greene, doctor; E. Jean Pierre, doctor; Brian Lee, official; Kevin Lee, doctor; Lewis, doctor; Liu,

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doctor; J. Metts, doctor; G. Miller, official; R. Mounce, official; Aron Rotman, doctor; S. Salmi,

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official; G. Wright, official; and L. Zinani, official.

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Plaintiff alleges the following. The cartilage in Plaintiff’s left knee was disintegrated, with

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shards floating in Plaintiff’s left knee, causing excruciating pain. Plaintiff suffered substantial

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impairment to walking, sitting, sleeping, and other activities. CDCR doctors had provided

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accommodations regarding his left knee, including knee braces, pain medication, lower-bunk and

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lower-tier housing restrictions. Second Am. Compl. (“SAC”) ¶¶ 10-11.

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On April 19, 2006, Defendant Greene evaluated Plaintiff’s left knee, documenting Plaintiff’s

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pain. Defendant Greene wrote a request for Plaintiff to receive an MRI. However, the request was

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labeled as routine. SAC ¶ 14.

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On July 7, 2006, Defendant Salmi personally evaluated Plaintiff and documented that
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Plaintiff was suffering severe and debilitating pain in his left knee. Defendant Salmi noted that

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Plaintiff had not yet received an MRI. Defendant Salmi ordered an X-ray, and submitted a request

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for Plaintiff to be seen by an orthopedic specialist. The request for orthopedic specialist was listed

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as routine. SAC ¶ 15. An x-ray was taken on July 13, 2006. SAC ¶ 16.

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On July 21, 2006, Defendant Salmi again evaluated Plaintiff and documented his condition.

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SAC ¶ 17. On August 14, 2006, an MRI was finally conducted, revealing substantial damage in

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Plaintiff’s left knee. SAC ¶ 18. On October 4, 2006, Defendant Salmi evaluated Plaintiff, noted

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Plaintiff’s condition, and that Plaintiff had yet to see an orthopedic specialist. SAC ¶ 19. On

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October 18, 2006, an orthopedic specialist examined Plaintiff and determined that Plaintiff needed

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arthroscopic surgery on his left knee. SAC ¶ 20. On November 9, 2006, Defendant Salmi evaluated

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Plaintiff and submitted a request to the chief medical officer for Plaintiff to receive the arthroscopic

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surgery. The request was not marked urgent. SAC ¶ 21.

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On May 5, 2007, Plaintiff finally received the arthroscopic surgery. The surgery revealed

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internal derangement throughout Plaintiff’s left knee. On March 21, 2007 and June 6, 2007 the

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orthoscopic surgeon evaluated Plaintiff’s knee and informed him that he may ultimately need total

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knee replacement. SAC ¶¶ 25, 26. On June 21, 2007, Defendant Salmi evaluated Plaintiff and

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documented that Plaintiff still suffered from severe and debilitating pain. SAC ¶ 27.

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On December 16, 2007, Defendant Lee evaluated Plaintiff, and referred a request to the chief

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medical officer for further evaluation by the orthoscopic surgeon. The request was listed as routine.

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SAC ¶ 29. On January 31, 2008, Defendant Lee injected a substance into Plaintiff’s left knee to help

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relieve Plaintiff’s pain. SAC ¶ 31. On March 12, 2008, the orthoscopic surgeon again evaluated

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Plaintiff and documented his left knee pain. SAC ¶ 32.

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On May 22, 2008, Plaintiff was immediately transported to an outside hospital by ambulance

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because of the severe and debilitating pain and swelling. The surgeon prescribed that Plaintiff be

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scheduled for a consultation for total knee replacement. SAC ¶ 33.

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On June 6, 2008, Defendant Rotman submitted an urgent request for Plaintiff to be evaluated

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by the orthopedic surgeon. SAC ¶ 35. On June 10, 2008, Defendant Enenmoh altered the request to

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routine, without personally evaluating Plaintiff. SAC ¶ 36. On July 9, 2008, Defendant Rotman
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evaluated Plaintiff and documented that Plaintiff’s status had become worse, and his need for total

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knee replacement was urgent/high priority. SAC ¶ 37. On August 2, 2008, Defendant Rotman

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evaluated Plaintiff and documented his status as stable, and changed the priority from urgent to be

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seen within thirty days. SAC ¶ 38. On August 5, 2008, Defendant Enenmoh altered the request to

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reflect that Plaintiff was to be taken for consultation with an orthopedic surgeon rather than to

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receive a total knee replacement surgery. SAC ¶ 39.

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On August 27, 2008, Defendant Enenmoh found that Plaintiff’s condition constituted a

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disability and warranted reasonable and necessary accommodations. SAC ¶ 40. On September 9,

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2008, October 7, 2008, and December 30, 2008, Defendant Rotman evaluated Plaintiff and

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documented that he still suffered from severe and debilitating pain because of the left knee and was

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still awaiting a total knee replacement surgery. SAC ¶¶ 42, 44, 46. On January 21, 2009, Defendant

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Rotman ordered that Plaintiff be given a wheelchair. SAC ¶ 47.

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On January 27, 2009, Defendant Byers submitted a written request for Plaintiff to be seen by

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an orthopedic surgeon. SAC ¶ 48. Defendant Lewis evaluated Plaintiff on February 5, 2009. SAC

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¶ 49. On February 19, 2009, Defendant Rotman prescribed medical services within thirty days.

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SAC ¶ 50. CDCR nursing staff on March 17, 2009 evaluated Plaintiff. SAC ¶ 51. On April 27,

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2009, Plaintiff filed a grievance complaining of his lack of total knee replacement. SAC ¶ 52.

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Defendant Miller rejected the appeal, under the supervision, influence, and control of Defendant

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Enenmoh. SAC ¶¶ 53, 54.

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On May 7 and May 8 of 2009, Defendant Rotman evaluated Plaintiff. Defendant Rotman

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prescribed that Plaintiff be seen by the orthopedic surgeon within thirty days. SAC ¶¶ 55, 56. On

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May 19, 2009, Defendant Byers submitted a request to Defendant Enenmoh for Plaintiff to receive

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knee replacement surgery. SAC ¶ 57.

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On May 30, 2009, Plaintiff was rushed by CDCR officers to the medical clinic on a gurney

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due to excruciating pain for emergency treatment. SAC ¶ 58. A nurse evaluated Plaintiff and called

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the prison’s infirmary to send an ambulance to pick Plaintiff up and take him to the emergency

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room. Defendant Doe 1 denied the request, and an officer transported Plaintiff to the emergency

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room in a golf cart. SAC ¶ 61. Plaintiff’s ankles are shackled, hands cuffed at sides and secured at
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the waist, and seated upright without a seatbelt. SAC ¶ 62.
In front of the infirmary, Defendants Doe 1 and Doe 2 injected Plaintiff with two different

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painkillers into his arms, and told the officer to drive Plaintiff back to his housing. SAC ¶ 63.

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Plaintiff lost consciousness and fell out of the golf cart, while it was traveling 30 to 35 miles per

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hour. SAC ¶ 64. Defendant Metts evaluated Plaintiff’s injuries, but did not order an x-ray. SAC ¶

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64. Defendant Metts believed that Plaintiff likely lost consciousness due to being seated in an

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upright position with no physical restraints, and double-dosed with painkillers. SAC ¶ 64. Plaintiff

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suffered injuries to his left leg and knee, and his head, neck, shoulder, arm, and back. SAC ¶ 66.

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On June 2, 2009, Defendant Rotman evaluated Plaintiff’s injuries and ordered x-rays. SAC ¶

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67. On June 8, 2009, Plaintiff filed an inmate grievance concerning this incident. SAC ¶ 68.

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Defendant Miller rejected Plaintiff’s inmate appeals, under the supervision of Defendant Enenmoh.

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SAC ¶¶ 69, 70. On June 9, 2009, Plaintiff was x-rayed. SAC ¶ 71. On June 23, 2009, Defendant

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Liu evaluated Plaintiff regarding the fall, but reduced Plaintiff’s pain medication. SAC ¶ 72.

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On June 29, 2009, Defendant Rotman noted that Plaintiff was still awaiting his total knee

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replacement surgery. The delay in the surgery was due to the written request being erroneously

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listed for Plaintiff’s right knee rather than the left. SAC ¶ 73. On July 6, 2009, Plaintiff was taken

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for another consultation. SAC ¶ 74. On July 14, 2009, Defendant Enenmoh responded to Plaintiff’s

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April 27 grievance, but did not acknowledge the delay in receiving the knee surgery. SAC ¶ 75. On

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July 29, 2009, Plaintiff received the knee surgery. SAC ¶ 76.

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On August 7, 2009, Defendant Brightwell notified Plaintiff that he was being brought before

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a classification committee for transfer to another prison. SAC ¶ 77. Plaintiff contends a conspiracy

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by Defendants Clark, Enenmoh, and Brightwell to transfer Plaintiff because he had filed inmate

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grievances. SAC ¶ 79.

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On August 10, 2009, Defendant Jean Pierre evaluated Plaintiff but failed to renew Plaintiff’s

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pain medication. SAC ¶ 80. On August 13, 2009, Defendants Brightwell, Mounce, and Wright, the

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classification committee, informed Plaintiff that he was being put up for transfer to another prison.

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SAC ¶ 82. On August 20, 2009, Defendant Lee approved Plaintiff’s transfer. SAC ¶ 86. Plaintiff

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submitted an inmate appeal on August 25, 2009, requesting not to be transferred because he was in
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the midst of recovering from total knee replacement surgery. SAC ¶ 92. Defendant Zinani did not

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act on the appeal for three weeks. SAC ¶ 93. On September 4, 2009, Plaintiff was transferred.

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Plaintiff contends a violation of the First Amendment and the Eighth Amendment. Plaintiff

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requests as relief an injunction enjoining transportation of CDCR inmates in vehicles not equipped

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with seat belts, compensatory and punitive damages, and costs of suit.

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III.

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Analysis
A.

First Amendment
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Inmate Appeals

Plaintiff complains that Defendants Miller, Zinani, and Enenmoh delayed and obstructed

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Plaintiff’s inmate grievance. Plaintiff fails to state a claim. Inmates have a First Amendment right to

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file inmate grievances. Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009). However, inmates

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do not have a substantive constitutional right as to a specific inmate procedure regarding the

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processing of their inmate grievances. Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (citing

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Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988)). Defendants’ actions in rejecting or delaying

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responses to Plaintiff’s inmate appeals, without more, does not state a § 1983 claim.

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Plaintiff fails to state a claim against Defendants Enenmoh and Clark for failure to train

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Defendants Miller and Zinani. The term “supervisory liability,” loosely and commonly used by both

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courts and litigants alike, is a misnomer. Iqbal, 556 U.S. at 678. “Government officials may not be

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held liable for the unconstitutional conduct of their subordinates under a theory of respondeat

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

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her own misconduct. Id. When the named defendant holds a supervisory position, the causal link

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between the defendant and the claimed constitutional violation must be specifically alleged. See

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Fayle v. 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 some

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facts indicating that the defendant either: personally participated in the alleged deprivation of

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constitutional rights or knew of the violations and failed to act to prevent them. Taylor v. List, 880

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F.2d 1040, 1045 (9th Cir. 1989).

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Plaintiff fails to allege any facts against Defendants Clark and Enenmoh which would
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indicate that they either personally participated in the alleged deprivation of constitutional rights or

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knew of such violations and failed to act to prevent them.

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Involuntary Prison Transfer

Plaintiff contends that Defendants, Brightwell, Mounce, Write, Lee, Zinani, Miller,

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Enenmoh, and Clark violated Plaintiff’s rights by transferring Plaintiff to another prison. For a

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viable claim of First Amendment retaliation, the following elements must be met: “(1) An assertion

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that a state actor took some adverse action against an inmate (2) because of (3) that prisoner’s

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protected conduct, and that such action (4) chilled the inmate’s exercise of his First Amendment

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rights, and (5) the action did not reasonably advance a legitimate correctional goal.” Brodheim, 584

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F.3d at 1269 (quoting Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005)).
Plaintiff fails to state a claim for retaliation in violation of the First Amendment. Plaintiff

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has not alleged sufficient facts to demonstrate that Defendants took adverse action against Plaintiff.

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Plaintiff contends that involuntary transfer is sufficient to state an adverse action. However, Plaintiff

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has not alleged any other facts which indicate that an involuntary transfer, without more, is sufficient

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to state an adverse action. Plaintiff also fails to allege facts which demonstrate that the classification

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committee Defendants, Brightwell, Mounce, and Wright, or Defendant Lee, who approved the

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transfer, were acting because Plaintiff had filed inmate grievances. Plaintiff fails to allege facts

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which indicate any of these Defendants were aware that Plaintiff had filed inmate grievances.

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Plaintiff also alleges that the transfer was part of a conspiracy between Defendants Clark,

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Enenmoh, Brightwell, and other Defendants. However, Plaintiff fails to allege facts which

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demonstrate a conspiracy by any Defendants. Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2002) (to

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prove conspiracy, a plaintiff must show an agreement or meeting of the minds to violate

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constitutional rights).
Eighth Amendment – Medical Care

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B.

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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 fails to state an Eighth Amendment claim against all Defendants.
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Defendants Greene and Salmi

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Plaintiff fails to state a claim against Defendants Greene and Salmi. Plaintiff fails to allege

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facts which indicate that Defendants knew of and disregarded an excessive risk of serious harm to

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Plaintiff’s health. Defendants in examining Plaintiff designated their requests for service as routine,

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which does not demonstrate deliberate indifference. Plaintiff at most raises a dispute of treatment

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between the prisoner and a treating doctor, which fails to state a claim. Toguchi, 391 F.3d at 1058.

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Additionally, isolated incidents of neglect do not constitute deliberate indifference to serious medical

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needs. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006).

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Plaintiff also fails to state a claim against Defendant Salmi for deliberate indifference

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regarding the lack of knee replacement surgery. Plaintiff contends that the orthopedic surgeon had

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indicated a need for total replacement surgery, which Defendant Salmi knew, but Defendant Salmi

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failed to provide medical care. However, Plaintiff has not alleged facts which indicate that

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Defendant Salmi acted with deliberate indifference. It appears that based on the allegations,

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Defendant Salmi did not arrange for Plaintiff to receive total knee replacement surgery. However,
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Plaintiff has not alleged facts which indicate that Defendants Salmi could have made such

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arrangements. Leer v. Murphy, 844 F.2d 628, 633-34 (9th Cir. 1988) (causation of constitutional

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violation requires court to “take a very individualized approach which accounts for the duties,

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discretion, and means of each defendant”). Plaintiff also appears to raise at most a difference of

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opinion between health professionals with regards to the course of treatment, which does not

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generally amount to deliberate indifference. Toguchi, 391 F.3d at 1059-60. To state a claim for

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deliberate indifference for a difference of opinion between health professionals, Plaintiff must allege

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facts which indicate that “the course of treatment the doctors chose was medically unacceptable

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under the circumstances” and “that they chose this course in conscious disregard of an excessive risk

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to [the prisoner’s] health.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996).
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Defendant Lee

Defendant Lee in examining Plaintiff designated the requests for service as routine, which

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fails to state a claim. Defendant Lee injected a substance into Plaintiff’s left knee to relieve the pain.

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Thus, Plaintiff has not alleged facts which indicate that Defendant Lee disregarded an excessive risk

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of serious harm to Plaintiff’s health.

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Defendant Rotman

Defendant Rotman examined Plaintiff on a regular basis but allegedly failed to provide

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Plaintiff with a knee replacement surgery in a timelier manner. Plaintiff has not alleged facts which

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indicate that Defendants Rotman could have made such arrangements. Leer, 844 F.2d at 633-34.

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Plaintiff also appears to raise at most a difference of opinion between health professionals with

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regards to the course of treatment, which does not generally amount to deliberate indifference.

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Toguchi, 391 F.3d at 1059-60. Based on Plaintiff’s allegations, Defendant Rotman examined

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Plaintiff frequently and referred Plaintiff on several occasions to see an orthopedic surgeon for

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consultation. Thus, Plaintiff’s allegations amount at most to a difference of opinion between

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medical professionals, and Plaintiff has not alleged sufficient facts to state a claim for deliberate

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indifference. See Toguchi, 391 F.3d at 1059-60.

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4.

Defendant Enenmoh

Plaintiff fails to state a claim against Defendant Enenmoh. Based on the allegations,
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Defendant Enenmoh changed some urgent requests for medical service to routine. Plaintiff’s other

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allegations undermine his claim that Defendant Enenmoh acted with deliberate indifference.

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Plaintiff alleges that the appointment with the orthopedic surgeon on May 28, 2008 was for

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consultation for knee replacement surgery. Thus, Plaintiff has not alleged facts which demonstrate

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that Defendant Enenmoh acted with deliberate indifference by changing the priority level and

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referring Plaintiff for consultation on surgery rather than actual surgery. Defendant Enenmoh also

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noted that Plaintiff’s condition merited his designation as an inmate with a disability. Plaintiff has

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not alleged sufficient facts to indicate that Defendant Enenmoh disregarded an excessive risk of

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serious harm to Plaintiff’s health.

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5.

Defendant Byers

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Plaintiff fails to allege facts which indicate that Defendant Byers acted with deliberate

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indifference to Plaintiff’s serious medical needs. Based on the allegations, Defendant Byers referred

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Plaintiff to be seen by an orthopedic surgeon and submitted a request for Plaintiff to receive knee

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replacement surgery in May 2009. Plaintiff has not alleged facts which indicate that Defendant

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

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Defendant Lewis

Plaintiff fails to allege facts which indicate that Defendant Lewis acted with deliberate

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indifference to Plaintiff’s serious medical needs. Defendant Lewis evaluated Plaintiff once.

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Plaintiff alleges at most a difference of opinion between health professionals regarding a course of

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treatment, and fails to allege facts which indicate that Defendant Lewis acted with conscious

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disregard to his health.

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7.

Defendant Does 1 and 2

Plaintiff fails to allege facts which indicate that Defendants Does 1 and 2 acted with

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deliberate indifference to Plaintiff’s serious medical needs. Plaintiff’s allegations indicate that

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Defendants Does 1 and 2 injected Plaintiff with painkillers and then sent him back to his cell.

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Plaintiff’s allegations amount, at most, to negligence, which fails to state an Eighth Amendment

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claim. See Toguchi, 391 F.3d at 1060 (holding that even gross negligence is insufficient to establish

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deliberate indifference).
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Defendant Clark

Plaintiff fails to allege facts which indicate that Defendant Clark acted with deliberate

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indifference to Plaintiff’s serious medical needs. Plaintiff complains that Defendant Clark allowed

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transportation of inmates at SATF in vehicles without seat belts installed to prevent inmates from

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falling out. Plaintiff has not alleged facts which indicate that Defendant Clark knew of and

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disregarded an excessive risk of serious harm to Plaintiff’s health. There are no allegations which

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indicate that Defendant Clark was aware of any risks to Plaintiff with regards to transportation.

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9.

Defendant Metts

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Plaintiff fails to allege facts which indicate that Defendant Metts acted with deliberate

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indifference to Plaintiff’s serious medical needs. Plaintiff complains that Defendant Metts failed to

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safely transport Plaintiff back to his cell, resulting in Plaintiff falling out and injuring himself when

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he lost consciousness. Plaintiff’s allegations amount at most to negligence, which fails to state an

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Eighth Amendment claim. Estelle v. Gamble, 429 U.S. 97, 106 (1976).

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Defendant Liu

Plaintiff fails to allege facts which indicate that Defendant Liu acted with deliberate

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indifference to Plaintiff’s serious medical needs. Plaintiff alleges that Defendant Liu reduced

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Plaintiff’s pain medication. Plaintiff alleges at most a difference of opinion between health

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professionals regarding a course of treatment, and fails to allege facts which indicate that Defendant

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Liu acted with conscious disregard to his health.

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Defendant Jean Pierre

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Plaintiff fails to allege facts which indicate that Defendant Jean Pierre acted with deliberate

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indifference to Plaintiff’s serious medical needs. Plaintiff alleges that Defendant Jean Pierre failed

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to renew Plaintiff’s pain medication. Plaintiff has not alleged sufficient facts to state an Eighth

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Amendment claim. Isolated occurrences of neglect do not constitute deliberate indifference to

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serious medical needs. Jett, 439 F.3d at 1096.

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IV.

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Conclusion and Recommendation
Plaintiff fails to state a claim against any Defendants. The undersigned does not find that

Plaintiff can amend his pleadings to cure the deficiencies identified. Leave to amend will thus not be
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granted. See Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc).

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Based on the foregoing, it is HEREBY RECOMMENDED that this action be dismissed with
prejudice for failure to state a claim.

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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, Plaintiff may file written objections

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

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Recommendations.” Plaintiff is advised that failure to file objections within the specified time may

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waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir.

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1991).

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IT IS SO ORDERED.

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Dated:

/s/ Dennis

April 20, 2013

L. Beck

UNITED STATES MAGISTRATE JUDGE

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DEAC_Signature-END:

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