Calloway v. Adams et al

Filing 32

ORDER DISMISSING Complaint Without Leave To Amend, signed by Chief Judge Ralph R. Beistline on 10/27/2014. The Clerk of the Court is directed to enter final judgment dismissing this action in its entirety as against all defendants, which states that the dismissal counts as a strikeunder 42 U.S.C. § 1915(g). CASE CLOSED.(Fahrney, E)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
JAMISI JERMAINE CALLOWAY,
Case No. 1:11-cv-01281-RRB
Plaintiff,
ORDER DISMISSING COMPLAINT
WITHOUT LEAVE TO AMEND

vs.
D. G. ADAMS, Warden, Corcoran State
Prison, et al.,
Defendants.

I.

BACKGROUND/HISTORY
Pending before this Court at Docket 31 is the Amended Complaint filed by Plaintiff

Jamisi Jermaine Calloway under the Civil Rights Act, 42 U.S.C. § 1983. In his original
complaint Calloway, who suffers from renal failure, alleged inter alia that, despite medical
orders, he was denied a renal diet on occasion and, because he was denied ice chips, he
was forced to drink large quantities of water, as well as being denied various sundry items.
Calloway contended this exhibited deliberate indifference to serious medical needs. On
February 13, 2014, the Court dismissed his complaint with leave to amend.1 Calloway

1

Docket 13. In that Order this Court, although expressing doubt that Calloway
could adequately truthfully plead an Eighth Amendment claim based upon his alleged
denial of an adequate renal diet, ice chips, hypoallergenic soap, shampoo, and
moisturizing lotion, nonetheless granted Calloway leave to amend. All other claims, i.e.,
his request for a transfer, denial of a renal transplant, and forced medical treatment, were
dismissed without leave to amend.
ORDER DISMISSING COMPLAINT WITHOUT LEAVE TO AMEND
Calloway v. Adams, 1:11-cv-01281-RRB – 1

appealed that dismissal to the Court of Appeals for the Ninth Circuit, which dismissed his
appeal.2 Calloway then filed a status report in which, in addition to seeking additional time
within which to file his amended complaint in compliance with the Court’s earlier order, it
appeared that Calloway sought to expand his complaint to include claims of violations of
his First, Eighth, and Fourteenth Amendment rights for acts that occurred between 2007
and 2014. This Court declined to grant Calloway leave to file an open-ended amended
complaint that, in addition to arising after his transfer from California State Prison–Cochran,
more likely than not included unrelated claims against multiple parties, some of which may
have been either barred by the applicable limitations period or more properly part of one
of the five § 1983 cases Calloway had pending in this Court at the time he filed the
complaint in this matter. The Court nonetheless granted Calloway leave to file an amended
complaint and explicitly advised Calloway that his amended complaint must be limited to
his Eighth Amendment claim as permitted by this Court’s February 13, 2014, order, no
other.3 The Court further advised Calloway that any other claims he might wish to bring
should be brought in the appropriate court in the appropriate m anner.

2

Docket 25.

3

The Court explicitly instructed: “[i]n amending his Complaint, Calloway must
specifically allege: (1) a medical order that he be provided a special renal diet and the other
sundry items necessary to his medical condition that Calloway claims were denied; (2) the
dates upon which he was denied a special renal diet or other sundry items necessary to
his medical condition; (3) the specific physical injury he suffered as a result of each denial;
and (4) identify the person(s) responsible for each denial.” Docket 29. In his Amended
Complaint Calloway completely disregarded this instruction.
ORDER DISMISSING COMPLAINT WITHOUT LEAVE TO AMEND
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The explicit instructions notwithstanding, in his Amended Complaint which, including
exhibits, consists of some 453 pages, Calloway asserts 16 separate claims for relief
naming as defendants the California Department of Corrections and Rehabilitation, ten (10)
or twelve (12) Does, and some forty-seven (47) named individuals. Calloway’s claims arise
out of incidents allegedly occurring from prior to August 12, 2009, extending through
August 25, 2013.
II.

SCREENING REQUIREMENT
This Court is required to screen complaints brought by prisoners seeking relief

against a governmental entity or officer or employee of a governmental entity.4 This Court
must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally
“frivolous or malicious,” that “fails to state a claim on which relief may be granted,” or that
“seeks monetary relief against a defendant who is immune from such relief.”5 Likewise, a
prisoner must exhaust all administrative remedies as may be available,6 irrespective of
whether those administrative remedies provide for monetary relief.7

4

28 U.S.C. § 1915A(a).

5

28 U.S.C. § 1915(e)(2)(B); 42 U.S.C. § 1997e(c); see Lopez v. Smith, 203 F.3d
1122, 1126 & n.7 (9th Cir. 2000) (en banc).
6

42 U.S.C. § 1997e(a); see Woodford v. Ngo, 548 U.S. 81, 93–95 (2006) (“proper
exhaustion” under § 1997e(a) is mandatory and requires proper adherence to
administrative procedural rules); Booth v. Churner, 532 U.S. 731, 741 (2001) (exhaustion
of administrative remedies must be completed before filing suit).
7

See Booth, 532 U.S. at 734.

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In determining whether a complaint states a claim, the Court looks to the pleading
standard under Federal Rule of Civil Procedure 8(a). Under Rule 8(a), a complaint must
contain “a short and plain statement of the claim showing that the pleader is entitled to
relief.”8 “[T]he pleading standard Rule 8 announces does not require ‘detailed factual
allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.”9 Failure to state a claim under § 1915A incorporates the familiar standard
applied in Federal Rule of Civil Procedure 12(b)(6), including the rule that complaints filed
by pro se prisoners are to be liberally construed, affording the prisoner the benefit of any
doubt, and dismissal should be granted only where it appears beyond doubt that the
plaintiff can plead no facts in support of his claim that would entitle him or her to relief.10
This requires the presentation of factual allegations sufficient to state a plausible
claim for relief.11 “[A] complaint [that] pleads facts that are ‘merely consistent with’ a
defendant’s liability . . . ‘stops short of the line between possibility and plausibility of
entitlement to relief.’”12 Further, although a court must accept as true all factual allegations

8

Fed. R. Civ. P. 8(a)(2).

9

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 554, 555 (2007)).
10

Wilhelm v. Rotham, 680 F.3d 1113, 1121 (9th Cir. 2012).

11

Iqbal, 556 U.S. at 678–69; see Moss v. U.S. Secret Service, 572 F.3d 962, 969
(9th Cir. 2009) (quoting and applying Iqbal and Twombly).
12

Iqbal 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557).

ORDER DISMISSING COMPLAINT WITHOUT LEAVE TO AMEND
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contained in a complaint, a court need not accept a plaintiff’s legal conclusions as true.13
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.”14
In addition to its powers in screening complaints under 28 U.S.C. § 1915A(a), a trial
court may dismiss a complaint for failure to state a claim sua sponte where it is obvious
that the plaintiff cannot state a claim for relief.15
III.

APPLICABLE LAW
The Supreme Court, holding that the infliction of unnecessary suffering on prisoners

violated the Eighth Amendment, stated:
[D]eliberate indifference to serious medical needs of prisoners constitutes
the unnecessary and wanton infliction of pain proscribed by the Eighth
Amendment. This is true whether the indifference is manifested by prison
doctors in their response to the prisoner’s needs or by prison guards in
intentionally denying or delaying access to medical care or intentionally
interfering with the treatment once prescribed. Regardless of how evidenced,
deliberate indifference to a prisoner’s serious illness or injury states a cause
of action under § 1983. 16
In Estelle the Supreme Court distinguished “deliberate indifference to serious medical
needs of prisoners,” from “negligen[ce] in diagnosing or treating a medical condition,”

13

Id.

14

Id. (quoting Twombly, 550 U.S. at 555).

15

See Sparling v. Hoffman Const. Co., 864 F.2d 635, 638 (9th Cir. 1988); see
generally 5B Charles Alan Wright, Arthur R. Miller, Mary Kay Kane, Richard L. Marcus,
Adam N. Steinman Federal Prac. & Proc. Civ. § 1357 (3d ed.).
16

Estelle v. Gamble, 429 U.S. 97, 104–105 (1976) (footnotes, internal quotation
marks and citations omitted).
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holding that only the former violates the Constitution.17 In short, Eighth Amendment liability
requires “more than ordinary lack of due care for the prisoner's interests or safety.”18
To make a claim, Plaintiff must show that Defendants exhibited “deliberate
indifference to serious medical needs.”19 Such a showing is sufficient to demonstrate the
“unnecessary and wanton infliction of pain proscribed by the Eighth Amendment.”20 The
Constitution “does not necessitate comfortable prisons,”21 nor is the Eighth Amendment a
mandate for “broad prison reform” or excessive federal judicial involvement.22 However, the
Eighth Amendment does not permit inhumane conditions, and prison conditions are subject
to scrutiny under its provisions.23 “Deliberate indifference is a high legal standard. A
showing of medical malpractice or negligence is insufficient to establish a constitutional
deprivation under the Eighth Amendment.”24 A mere difference of medical opinion

17

Id. at 106.

18

Whitley v. Albers, 475 U.S. 312, 319 (1986).

19

Estelle, 429 U.S. at 105.

20

Id. at 104 (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976) (internal quotation
marks and citation omitted)).
21

Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Rhodes v. Chapman, 452
U.S. 337, 349 (1981))
22

Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982) (abrogated on other
grounds by Sandlin v. O’Connor, 515 U.S. 472 (1995)).
23

Farmer, 511 U.S. at 832.

24

Toguchi v. Chung, 391 F. 3d 1051, 1060 (9th Cir. 2004); see Hallett v. Morgan,
296 F.3d 732, 744 (9th Cir. 2002); see also Wood v. Housewright, 900 F.2d 1332, 1334
(9th Cir. 1990) (stating that even gross negligence is insufficient to establish a
constitutional violation).
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regarding the course of medical treatment is “insufficient as a matter of law, to establish
deliberate indifference.”25
IV.

DISCUSSION
Screening Calloway’s Amended Complaint involves three issues. First, the extent

to which the claims asserted in the Amended Complaint may be barred by the applicable
limitation period. Second, the addition of new claims that arose after the original Complaint
was filed. Third, to the extent that the Amended Complaint complies with the Order
granting Calloway leave to amend, whether or not it survives screening. The Court will
address these three issues in order.
A.

Limitations Period

Calloway’s original complaint is dated August 26, 2011, the deemed filing date
under the prison “mailbox rule.” Calloway’s Amended Complaint is dated October 14, 2014.
“For actions under 42 U.S.C. § 1983, courts apply the forum state’s statute of limitations
for personal injury actions, along with the forum state’s law regarding tolling, including
equitable tolling, except to the extent any of these laws is inconsistent with federal law.”26
The applicable limitation period under California law is four years.27 An amendment to a
25

Toguchi, 391 F.3d 1059–60 (citing Jackson v. McIntosh, 90 F.3d 330, 332 (9th
Cir. 1996)); Franklin v. State of Oregon, State Welfare Div., 662 F.2d 1337, 1344 (9th Cir.
1981) (noting, also, that a disagreement between a prisoner and a medical professional
over the most appropriate course of treatment cannot give rise to a viable claim of
deliberate indifference).
26

Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004).

27

See Cal. Civ. Proc. Code §§ 335.1, 352.1(a) (providing a two-year statute of
(continued...)

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pleading relates back to the date of the original pleading if: (1) permitted by the applicable
statute of limitations; (2) arises out of the same conduct, transaction, or occurrence set
forth in the original pleading; or (3) changes the party or naming of a party if (2) is satisfied
and the party to be named had notice of the action within the time permitted for service of
a complaint under Federal Rule Civil Procedure 4(m) and knew or should have known that,
but for the mistake in identity, he would have been named originally.28 Thus, unless it
relates back, any claim raised in Calloway’s Amended Complaint that arose prior to
October 14, 2010, is time barred.
Review of the Amended Complaint shows that the new claims Calloway now seeks
to assert in his Amended Complaint arise out of different conduct at a different time
involving persons who did not have timely notice of the action. Thus, none of the new
claims that arose out of conduct occurring prior to October 14, 2010, are timely.
B.

Post-filing Events

Calloway also includes a number of claims based upon events that occurred after
August 26, 2011. “On motion and reasonable notice, the Court may, on just terms, permit
a party to serve and file a supplemental pleading setting out any transaction, occurrence,
or event that happened after the date of the pleading to be supplemented.”29 While leave

27

(...continued)
limitations for personal injury claims, which may be tolled for an additional two years for
prisoners).
28

Fed. R. Civ. P. 15(c).

29

Fed. R. Civ. P. 15(d).

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to file a supplemental pleading is “favored,”30 “it cannot be used to introduce a separate,
distinct, and new cause of action.”31 In this case, Calloway was explicitly warned by this
Court to limit his Amended Complaint to the claims for which leave to amend was granted.
Even if the Court were to overlook the disregard of this Court’s Order and Calloway’s failure
to follow the proper procedure, Calloway’s Amended Complaint seeks to add new parties
and new claims arising out of events unrelated to the claims upon which he was granted
leave to proceed. Therefore, this Court declines to permit Calloway to proceed on those
claims.
C.

Issues as to Which Leave was Granted

The Court’s review of the voluminous record attached to the Amended Complaint
reveals four administrative appeals in which Calloway raised the issues upon which this
Court permitted him to proceed, i.e., his alleged denial of an adequate renal diet, ice chips,
hypoallergenic soap, shampoo, and moisturizing lotion. The Director’s Level decisions in
Calloway’s administrative appeals addressing those matters are, in chronological order, as
follows.32

30

See Keith v. Volpe, 858 F.2d 467, 473 (9th Cir. 1988).

31

Planned Parenthood of S. Ariz. v. Neely, 130 F.3d 400, 402 (9the Cir. 1997).

32

These four administrative appeals exhausted Calloway’s administrative remedies
as to the matters raised therein. Cal. Code Regs. tit. 15, § 3084.1(b) (“Unless otherwise
stated in these regulations, all appeals are subject to a third level of review, as described
in section 3084.7, before administrative remedies are deemed exhausted. All lower level
reviews are subject to modification at the third level of review.”). Section 3084.7 provides
for three levels of review, the third level conducted by the Secretary of the California
Department of Corrections and Rehabilitation, or by a designated representative.
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First CDC 602 (Corcoran)
I.
II.

III.

IV.

DIRECTOR’S LEVEL DECISION: Appeal is denied.
ISSUE:
Your CDC 602 indicated your appeal was "being under-minded [sic]
by the Appeals Coordinator to process and return to inmate on a
timely matter"; and your nephrology medical orders were denied.
You requested your nephrologists' medical orders fully granted;
receive your medical supplies as soon as possible; daily showers;
transferred to a medical facility; and no reprisal:
PRIOR APPEAL HISTORY:
A. Informal Level: The informal level was bypassed and the appeal
was elevated from the informal level to the first level of review.
B. First Level: At the first level, submitted on May 19, 2009, you
stated The First Level Response (FLR) stated the appeal was partially
granted and indicated:
•
you were examined by the primary care provider (PCP) on
July 15, 2009;
•
you were receiving proper care and treatment for your medical
condition.
C. Second Level: At the second level, submitted on July 27, 2009,
you stated you medications were being denied; you were denied
Aquamarine body lotion, hypoallergenic deodorant soap and Head &
Shoulder shampoo.
The Second Level Response (SLR) stated the appeal was [Outcome]
and indicated:
•
the requested lotions were non-formulary and approval must
be received for those items;
•
there was no medical justification for hypoallergenic deodorant
soap, Head & Shoulders shampoo and daily showers;
•
medical staff was under no obligation to provide treatment
ordered by another institution or outside facility;
•
your request for a medical transfer was addressed in previous
appeal log number COR-9-09-10913;
•
your additional requested actions would not be addressed as
it was not appropriate to expand the appeal beyond the initial
issues and requests; and
•
no reprisal would be taken against an inmate for filing an
appeal.
BASIS FOR DIRECTOR'S LEVEL DECISION:
At the Director's Level of Review (DLR); submitted on October 15,
2009, you stated you were denied proper hygiene items to remain

ORDER DISMISSING COMPLAINT WITHOUT LEAVE TO AMEND
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clear from serious infections; your serious medical needs were
deliberately under-minded [sic] by the institutions at Corcoran; and
your nephrologists' orders failed to be honored.
At the DLR, your appeal file and documents were reviewed and it was
determined your care related to your appeal issues was adequate as
previously stated in the FLR and SLR, as you ·received evaluation
and treatment as deemed appropriate.
The Department shall provide only medical services for patientinmates that are based on medical necessity and supported by
outcome data as effective medical care. In the absence of available
outcome data for a specific case, treatment will be based on the
judgment of the physician that the treatment is considered effective
for the purpose and is supported by diagnostic information and
consultations with appropriate specialists. Your contention that you
have not received adequate medical care is refuted by professional
health care staff familiar with your medical history, as well as a review
of your medical records.
Inmates may not demand particular medication, diagnostic evaluation,
or course of treatment. The California code of Regulations (CCR),
Title 15, Section 3354, Health Care Responsibilities and Limitations,
(a) Authorized Staff, states, "Only facility-employed health care staff,
contractors paid to perform health services for the facility, or persons
employed as health care consultants shall be permitted within the
scope of their licensure, to diagnose illness or, prescribe medication
and health care treatment for inmates. No other personnel or inmate
may do so."
You are considered an active partner and participant in the health
care delivery system. You are encouraged to cooperate with your
clinicians in order to receive the proper care and management of your
condition. You will continue to be evaluated and treatment will be
provided based on your clinician's evaluation, diagnosis, and
recommended treatment plan, in accordance with appropriate policies
and procedures.
Although you have the right to submit an appeal as a staff complaint,
any request for administrative action concerning staff is beyond the
scope of the appeals process. It should be noted the appeal was
reviewed and evaluated by the hiring authority and the issue was
deemed not to meet staff complaint criteria.
* * * *
It is noted you added additional issues at the Director's Level of
Review. These issues will not be addressed, as you have not
provided evidence that you attempted to address them at the informal
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level, per the California Code of Regulations (CCR), Title 15, Section
3084.3 (c)(4).
After review, there is no compelling evidence that warrants
intervention at the Director's Level of Review as your medical
condition has been evaluated by licensed clinical staff and you are
receiving treatment deemed medically necessary.33
Second CDC 602 (SATF)
I.
II.

III.

33

DIRECTOR’S LEVEL DECISION: Appeal is denied.
ISSUE:
Your CDC 602 indicated you filed this complaint against the
administration who were in charge of the Divita 6 chair hemodialysis
clinic in which was in contract with CDCR to dialysis inmates from
CSP #1 for cruel punishment in which they had conspired together to
deny dialysis inmates that were receiving hemodialysis by the
company to deliberately indifference or serious medical needs by
denying us equal treatment in which were not being treated equally by
Divita hemodialysis doctors in which we were receiving medical care
from, but not receiving the same care as the same hemodialysis
patients that were being treated by Divita on the streets. Divita had
deliberately indifference you because you were a prisoner.
Dr. Macauley had deliberately allowed the prisoners to be mistreated
by CDCR administration in which he allowed your orders to be
undermined by CDCR custody in which he allowed prisoners to feel
uncomfortable during your hemodialysis treatment and care knowing
you spent the majority of your care chained to a chair. You had made
a number of complaints to the dietician Louis Ann in concerning your
renal diet and orders for ice chips, but she had deliberately conspired
with CSP #I dietician Ms: Schultz and Dr. Macauley to deny you your
renal diet as cruel and unusual punishment.
You requested to receive the same renal diet as the other
hemodialysis inmates housed at California Substance Abuse.
Treatment (SATF) and ice chips twice a day with breakfast and
dinner, and you get TV's put in your six chair dialysis unit, and if not
provided a reason for discrimination.
PRIOR APPEAL HISTORY:
A. Informal Level: The informal level was bypassed and the appeal
was elevated from the informal level to the second level of review.

Docket 31, pp. 177-79, COR-09-09-12324, dtd February 1, 2010

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IV.

B. Second Level: At the second level, submitted on March 9, 2009,
you stated your issues and requests as rioted above.
The Second Level Response (SLR) stated your appeal was partially
granted and indicated:
•
You were transferred from California State Prison, Corcoran
(COR) to the SATF, Corcoran Hemodialysis Unit on a regular
basis as ordered by your Primary Care Provider (PCP);
•
with the assistance of Sergeant Morrison at COR, you were
interviewed regarding the health care complaints raised in this
appeal on April 29, 2009;
•
this appeal was reviewed by the Health Care Services Hiring
Authority in March 2009;
•
based on this review, the appeal was determined not to meet
the criteria as a Staff Complaint;
•
the issues concerning "chained in chairs" were not considered
medical in nature and would not be addressed in this appeal;
•
as stated in the memos dated August 15 and 19, 2008, if
special prescription medications related to your hemodialysis
treatment were deemed medically necessary, the dialysis
medical staff would order;
•
all other prescription medication requests must be addressed
by the PCP at COR;
•
if ice and/or renal diet was considered medically necessary,
the PCPC at COR was responsible for ordering these
accommodations for dialysis patient-inmates;
•
adding to or modifying the PCP or dialysis medical staffs plan
for treatment was beyond the scope of the medical appeals
process; and
•
you were not allow to self-diagnose your own medical
condition.
BASIS FOR DIRECTOR'S LEVEL DECISION:
At the Director's Level of Review, submitted on May 7, 2009, you were
dissatisfied with SLR because you were still being denied a renal diet,
ice chips and your patients rights had continued undermined by SATF
and Divita in which they had conspired together to obstruct the appeal
process.
At the DLR, your appeal file and documents obtained from your Unit
Health Record (UHR) were reviewed by licensed clinical staff who
determined your care related to your appeal issues was adequate as
you received medical treatment to address your concerns.

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Your request to receive renal diet, ice chips and TV's put in the six
dialysis chairs, and a reason for the discrimination was appropriately
addressed at the SLR.
* * * *
The Department shall provide only medical services for patientinmates that are based on medical necessity and supported by
outcome data as effective medical care. In the absence of available
outcome data for a specific case, treatment will be based on the
judgment of the physician that the treatment is considered effective
for the purpose and is supported by diagnostic information and
consultations with appropriate specialists. Your contention that you
have not received adequate medical care is refuted by professional
health care staff familiar with your medical history, as well as a review
of your medical records.
After review, there is no compelling evidence that warrants
intervention at the Director's Level of Review as your medical
condition has been evaluated by licensed clinical staff and you are
receiving treatment deemed medically necessary.34
Third CDC 602 (Corcoran)
I.
II.

III.

34

DIRECTOR’S LEVEL DECISION: Appeal is denied.
ISSUE:
Your CDC 602 indicated you were not being provided a Renal Diet,
nor were you being provided ice chips as ordered by the doctor and
you and other inmates who received dialysis treatment from Divita in
the six chair unit at California Substance Abuse Treatment (SATF)
were being treated differently than those on the outside who received
treatment from Divita; and you were chained to a chair during your
treatment and there were no TV's in the six chair unit.
You requested to be given a Renal Diet;' ice chips and have TV's
installed in the six unit dialysis unit at SATF.
PRIOR APPEAL HISTORY:
A. Informal Level: The informal level appeal, submitted on March 9,
2009, stated your issues and requests as noted above.
The informal level response stated your appeal was denied and
indicated:
•
you had refused the diet at California State Prison (CSP) Corcoran (COR);

Docket 31, pp. 139–40, SATF-33-09-11586, dtd February 26, 2010

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Calloway v. Adams, 1:11-cv-01281-RRB – 14

•

the Dietitian was called at dialysis and she confirmed they
could not offer you trays at California Substance Abuse
Treatment (SATF) when you were housed at COR;
•
you were welcome to have Doctor order a renal diet for you
here at COR; and
•
you would be offered it again.
B. First Level: At the first level, submitted on March 26, 2009, you
stated you were dissatisfied because all your .issues were not
responded to; and you stated your medical needs had been
deliberately indifferent by SATF.
The First Level Response (FLR) stated your appeal was partially
granted and indicated:
•
you were interviewed by J. Obaiza, Health Care Manager A
(HCM) on May 7, 2009;
•
your Unit Health Record (UHR) was reviewed and noted that
Dr. McCoula placed you on a regular diet as of September 2,
2008;
•
you could discuss this issue with him at your next appointment;
•
your institution would make sure you were provided ice chips;
and
•
TV's at SATF's dialysis unit was not a COR issue.
C. Second Level: At the second level, submitted on May 11, 2009,
you stated you were dissatisfied because this was a group appeal and
the reason Dr. McCoula had put you on a regular diet was because
the Administration had failed to comply with his orders for a Renal
Diet; and to serve you hot meals, and ice chips as your medical
orders.
The Second Level Response (SLR) stated your appeal was partially
granted and indicated:
•
all submitted documentation and supporting arguments had
been considered;
•
a thorough examination had been conducted regarding the
claim presented;
•
you had refused the Renal Diet offered at CSP-COR;
•
you were ordered to be placed on a regular diet on June 3,
2009;
•
you were receiving your ice chips as ordered;
•
you were informed you may submit a Request for Services
(RFS) to see a doctor and request a Renal Diet during your
appointment; and
•
your concerns noted in the appeal regarding CSATF were
outside the authority of CSP-COR to address.
ORDER DISMISSING COMPLAINT WITHOUT LEAVE TO AMEND
Calloway v. Adams, 1:11-cv-01281-RRB – 15

IV.

BASIS FOR DIRECTOR'S LEVEL DECISION:
At the Director's Level of Review, submitted on July 15, 2009, you
stated that COR has no Renal Diet at all; the Renal Diet was a diet list
that they provided but was not being followed by the cooks at all; your
diet was not being made at COR nor was the ice chips; and you
wanted what you requested.
At the DLR, your appeal file and documents obtained from your Unit
Health Record (UHR) were reviewed by licensed clinical staff who
determined your care related to your appeal issues was adequate as
you received medical treatment to address your concerns.
Your request to be given a Renal Diet; ice chips and have TV's
installed in the six unit dialysis were appropriately addressed in the
FLR and SLR.
* * * *
Only authorized CDCR health care staffs are permitted, within the
scope of their licensure, to diagnose illness or prescribe medication
and health care treatment for patient-inmates. No other personnel or
inmates may do so.
After review, there is no compelling evidence that warrants
intervention at the Director's Level of Review as your medical
condition has been evaluated by licensed clinical staff and you are
receiving treatment deemed medically necessary.35

Fourth CDC 602 (Corcoran)
I.
II.

35

DIRECTOR’S LEVEL DECISION: Appeal is denied.
ISSUE:
Your CDC 602 indicated that you are concerned that your life is in
imminent danger due to continued retaliatory reprisal against you by
your assigned Nephrologist, Social Worker, Registered Nurses and
Dietitian; you state that you believe that there is a conspiracy by those
Medical Staff personnel to under mind [sic] your serious medical
needs; you claim that you are being forced against your will to keep
going to the California Substance Abuse Treatment Facility (SATF) for
hemodialysis; you claim that you are being denied equal treatment of
dialysis care; you claim that you are deliberately being denied your
long term medical goals and transplant by your Nephrologist; you
claim that you are being denied the same renal diet; and finally you
claim that you are being denied daily hygiene.

Docket 31, pp 110–12, COR-09-11164 dtd June 21, 2010

ORDER DISMISSING COMPLAINT WITHOUT LEAVE TO AMEND
Calloway v. Adams, 1:11-cv-01281-RRB – 16

III.

IV.

You requested that you do not go to SATF for your hemodialysis; you
state that you want your assigned Nephrologist removed.
PRIOR APPEAL HISTORY:
A. Informal Level: The informal level was bypassed and your appeal
has been elevated from the informal level to the first level for a
response.
B. First Level: At the first level, submitted on January 12,
2010, you stated your issues and requests as noted above.
The First Level Response (FLR) stated your appeal was denied as
follows:
•
Your Unit Health Record (UHR) was reviewed.
•
You were examined.
•
You were advised that SATF was an appropriate
location for your dialysis.
•
You were advised that custody provides safety at SATF.
•
You were advised that contractor discipline is not the
duty of the inmate.
C. Second Level: At the second level, submitted on May 18, 2010,
you stated that you never refused to be reviewed and you are
deliberately being placed in danger, by sending you to SATF for your
dialysis.
The Second Level Response (SLR) stated your appeal was denied as
follows:
•
Your UHR was reviewed.
•
You were advised that it is documented that you
refused the Medical Appointment regarding your appeal
on May 30, 2010.
•
You were advised that your medical issues regarding
your kidney disease is well documented in your UHR.
•
You were advised that you cannot make changes to
staff assignments.
•
You were advised that there aren't any conspiracy
issues to harm you.
•
You were advised that you would continue to receive
[sic] your dialysis at SATF.
BASIS FOR DIRECTOR'S LEVEL DECISION:
At the Director's Level of Review (DLR), submitted on July 21, 2010,
you stated that you never refused to see the interviewer for the SLR;
you claim that you had dialysis the day you were called for the
interview; you claim the deliberate indifference to your medical needs
still continue daily; you claim that these delays are causing you severe

ORDER DISMISSING COMPLAINT WITHOUT LEAVE TO AMEND
Calloway v. Adams, 1:11-cv-01281-RRB – 17

discomfort to your everyday activities and causing you dysfunction
with your health.
A review of the appeal file was performed and revealed the following:
CDCR only provides medical services based on medical necessity
and supported by outcome data as effective medical care. In the
absence of available outcome data for a specific case, treatment will
be based on the judgment of the physician that the treatment is
considered effective for the purpose and is supported by diagnostic
information and consultations with appropriate specialists.
At the DLR, your appeal file and documents obtained from your health
record were reviewed and it was determined your care related to your
appeal issues was adequate, as you received medical treatment,
medication was provided to address your concerns at the FLR and
SLR.
During the review of Section H of your appeal, you have not
presented any new information which would change the prior appeal
decision of denied at the FLR and SLR. You are advised that at the
DLR, your housing concerns at KVSP are based on institutional
needs, and only KVSP staff is able to monitor those needs. Any staff
disciplinary issues will not be addressed through the appeal process[.]
You are reminded that only facility-employed health care staff and
consultants shall diagnose illness or prescribe medication or
treatment for inmates. No other person may do so. You will continue
to receive medically indicated medications and other clinical services.
While you may refuse medical treatment, you are not authorized to
select your clinician or clinic assignments. All clinician assignments
are determined by health care management based on facility needs.
You are encouraged to cooperate with your clinicians in order to
receive proper care and management of your condition. You will be
evaluated and treatment will be provided based on your clinician's
evaluation, diagnosis, and recommended treatment plan, according
to applicable policies.
At the DLR, your appeal file was reviewed and it was determined the
institution's response was comprehensive and adequate to address
your concerns. As a result, there is no compelling evidence that
warrants intervention at the Director's Level of review as you are
receiving treatment deemed medically necessary, including
medications, surgical intervention and specialty services. You are

ORDER DISMISSING COMPLAINT WITHOUT LEAVE TO AMEND
Calloway v. Adams, 1:11-cv-01281-RRB – 18

encouraged to cooperate with your clinicians in order to receive the
proper treatment for your condition.36
With respect to the question of the renal diet, it is clear from the record that at least
two physicians on separate occasions ordered that it be terminated. While Calloway
alleges that it was terminated for improper reasons, Calloway offers nothing other than his
own opinion that continuation of a renal diet was medically necessary. The Court also
notes that on July 13, 2013, the Chief Medical Officer at Corcoran issued a memorandum
noting that, because there was “no scientific evidence showing that ice is an essential and
medically necessary component in dialysis patients,” ice chronos would not longer be
honored at CSP-Corcoran until further notice.37
This Court does not doubt the seriousness of a renal failure, nor does the Court
doubt that the treatment Calloway seeks may very well be the optimal treatment for his
condition. That, however, is not the issue before this Court in this proceeding. The
Constitution does not mandate that a prisoner receive optimal medical treatment, only that
he receive sufficient care responsive to his needs.38 The record presented to this Court
clearly and unequivocally indicates that Calloway was seen regularly by medical personnel
who provided a course of treatment that, in the opinion of the attending medical personnel,
was considered adequate for his needs. A disagreement between a prisoner and a medical

36

Docket 31-1, pp. 32–34, COR-09-10-10956, dtd August 23, 2010.

37

Docket 31-1, p. 65.

38

See, e.g., Cano v. Taylor, 739 F.3d 1214, 1217 (9th Cir. 2014) (quoting Minneci
v. Pollard, 132 S. Ct. 617, 625 (2012)).
ORDER DISMISSING COMPLAINT WITHOUT LEAVE TO AMEND
Calloway v. Adams, 1:11-cv-01281-RRB – 19

professional over the most appropriate course of treatment does not give rise to a medical
deliberate indifference claim.39 At most, Calloway has pleaded a difference of medical
opinion as to the necessity for an adequate renal diet, ice chips, hypoallergenic soap,
shampoo, and moisturizing lotion; which is inadequate to establish a claim of constitutional
magnitude.40
V.

CONCLUSION/ORDER
While leave to amend is generally liberally granted, particularly with respect to pro

se prisoners, it is apparent that granting Calloway further leave to amend his complaint
would be futile.41 In addition, Calloway has disregarded the Court’s instructions limiting the
extent to which he was permitted to amend. Accordingly, for the foregoing reasons the
Amended Complaint at Docket 31 is hereby DISMISSED without leave to amend.
This Court, having fully considered the matter finds that reasonable jurists could not
disagree with this Court’s resolution of Plaintiff’s claims, or that jurists could conclude the
issues presented are adequate to deserve encouragement to proceed further. Therefore,

39

Franklin, 662 F.2d at 1344.

40

Toguchi, 391 F.3d 1059–60. The Court further notes that also pending in this
district is Calloway v. Biter, 1:13-cv-00747-GSA, in which Calloway alleges that, while
incarcerated at Kern Valley State Prison between July 30, 2010, and February 6, 2013,
medical personnel there also denied him a renal diet, ice chips, and sundry items. The
Court takes judicial notice of that action. Fed. R. Evid. 201.
41

See Hartman v. California Dept. of Corr. and Rehab., 707 F.3d 1141, 1130 (9th
Cir. 2013) (“A district court may deny leave to amend when amendment would be futile.”).
ORDER DISMISSING COMPLAINT WITHOUT LEAVE TO AMEND
Calloway v. Adams, 1:11-cv-01281-RRB – 20

any appeal from this decision would be frivolous or taken in bad faith.42 Accordingly,
Plaintiff’s in forma pauperis status is hereby REVOKED.
The Clerk of the Court is directed to enter final judgment dismissing this action in
its entirety as against all defendants, which states that the dismissal counts as a “strike”
under 42 U.S.C. § 1915(g).
IT IS SO ORDERED this 27th day of October, 2014.
S/ RALPH R. BEISTLINE
UNITED STATES DISTRICT JUDGE

42

28 U.S.C. § 1915(a)(3); see Hooker v. American Airlines, 302 F.3d 1091, 1092
(9th Cir. 2002).
ORDER DISMISSING COMPLAINT WITHOUT LEAVE TO AMEND
Calloway v. Adams, 1:11-cv-01281-RRB – 21