Steele v. Enenmoh et al

Filing 14

FINDINGS and RECOMMENDATIONS recommending that pursuant to 28:1915A, this action be dismissed with prejudice for failure to state a claim upon which relief may be granted under 1983, and that this dismissal be subject to the "three-strikes" provision ;re 11 Amended Prisoner Civil Rights Complaint filed by Tejay A. Steele ; referred to Judge O'Neill,signed by Magistrate Judge Gary S. Austin on 06/22/2015. Objections to F&R due by 7/27/2015 (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TEJAY A. STEELE,

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Plaintiff,

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1:11-cv-01578-LJO-GSA-PC
FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT THIS CASE BE
DISMISSED, WITH PREJUDICE, FOR
FAILURE TO STATE A CLAIM
(Doc. 11.)

vs.
A. ENENMOH, et al.,

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Defendants.

OBJECTIONS, IF ANY, DUE WITHIN
THIRTY DAYS

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I.

BACKGROUND

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Tejay A. Steele ("Plaintiff") is a state prisoner proceeding pro se with this civil rights

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action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on

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September 19, 2011. (Doc. 1.) Plaintiff filed the First Amended Complaint on October 14,

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2011, and the Second Amended Complaint on February 6, 2012. (Docs. 6, 7.) On July 25,

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2014, the court dismissed the Second Amended Complaint for failure to state a claim, with

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leave to amend. (Doc. 8.) On October 28, 2014, Plaintiff filed the Third Amended Complaint.

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(Doc. 11.)

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The Third Amended Complaint is now before the court for screening.
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II.

SCREENING REQUIREMENT

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The in forma pauperis statute provides that Athe court shall dismiss the case at any time

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if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief

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may be granted.@ 28 U.S.C. ' 1915(e)(2)(B)(ii). “Rule 8(a)‟s simplified pleading standard

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applies to all civil actions, with limited exceptions,” none of which applies to section 1983

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actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002); Fed. R. Civ. P. 8(a). A

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complaint must contain Aa short and plain statement of the claim showing that the pleader is

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entitled to relief . . . .@ Fed. R. Civ. P. 8(a)(2). “Such a statement must simply give the

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defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.”

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Swierkiewicz, 534 U.S. at 512. Detailed factual allegations are not required, but A[t]hreadbare

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recitals of the elements of a cause of action, supported by mere conclusory statements, do not

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suffice,@ Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic

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Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)), and courts Aare not required to

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indulge unwarranted inferences,@ Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir.

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2009) (internal quotation marks and citation omitted). While factual allegations are accepted as

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true, legal conclusions are not. Iqbal, 556 U.S. at 678. However, “the liberal pleading standard

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. . . applies only to a plaintiff’s factual allegations.” Neitze v. Williams, 490 U.S. 319, 330 n.9

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(1989). “[A] liberal interpretation of a civil rights complaint may not supply essential elements

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of the claim that were not initially pled.” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251,

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1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).

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III.

THIRD AMENDED COMPLAINT

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Plaintiff is presently incarcerated at the Correctional Training Facility in Soledad,

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California. The events at issue in the Third Amended Complaint allegedly occurred at the

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California Substance Abuse Treatment Facility (SATF) in Corcoran, California, when Plaintiff

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was incarcerated there. Plaintiff names as defendants Dr. Anthony Enenmoh, Dr. Edward

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Grossman, Nurse Rashanda Dickson, Warden Kathleen Allison, and Dr. Olga Beregovskaya.

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Plaintiff alleges that he is near-sighted and legally blind without corrective lenses. On

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October 23, 2008, Plaintiff was transferred to SATF and allowed to retain his contact lenses in
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his possession. On November 18, 2008, Dr. Rotman provided Plaintiff with a six-month

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chrono for saline solution to care for his contact lenses.

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On January 8, 2009, Ophthalmologist Sofinski informed Plaintiff that he was required

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to try wearing eyeglasses before his contact lens chrono would be renewed, due to a new policy

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limiting which patients would be provided with a contact lens chrono. Plaintiff was provided

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with an eyeglass prescription and one additional supply of contact lenses.

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Plaintiff wore the eyeglasses and experienced severe pain. In June and July 2009,

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Plaintiff filed requests for medical care to defendant Nurse Dickson and other medical staff,

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informing them of his pain and concern that his eyes were being damaged. Defendant Dickson

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did not schedule an immediate exam. Plaintiff’s contact lens supply was low, and he was

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forced to wear the eyeglasses or his expired pair of contact lenses.

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On July 14, 2009, Plaintiff was scheduled by Nurse Dickson to see defendant Dr.

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Sofinski, who confirmed that the eyeglasses prescription was inaccurate. Dr. Sofinski told

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Plaintiff that correction of his vision with contact lenses, rather than eyeglasses, would be more

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effective, due to the disparity of his vertex distance. Dr. Sofinski told Plaintiff that defendant

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Dr. Enenmoh would make the final decision whether Plaintiff could have contact lenses. After

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the exam, Nurse Dickson belittled Plaintiff, accusing him of being a malingerer to obtain

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contact lenses.

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temporary contact lens chrono as ordered by Dr. Sofinski.

Nurse Dickson told Plaintiff he would not be seeing Dr. Rotman for a

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On July 15, 2009, Plaintiff was examined by defendant Dr. Grossman who agreed that

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his vision could be better corrected with contact lenses, but that contact lenses were not a

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medical necessity. After the exam, Nurse Dickson brought Plaintiff’s new prescription to him

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but would not discuss his concerns that the strength of the prescription was markedly different

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than his contact lens prescription. Plaintiff filed two medical services forms expressing his

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concerns that the new prescription was inaccurate.

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On July 21, 2009, Plaintiff filed the first of several memoranda to defendant Dr.

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Enenmoh and Dr. Beregovskaya outlining his eyeglass problems in detail. Plaintiff did not

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receive a reply. On August 7, 2009, Primary Care Physician Dr. Peters ordered Plaintiff
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additional saline solution and submitted a referral for Plaintiff to be examined by an

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ophthalmologist. Plaintiff received a letter from a private optometrist discussing the benefits of

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contact lenses and forwarded it to his doctors and Warden Allison. Plaintiff filed requests to be

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seen at the medical clinic, which was supervised by defendant Nurse Dixon. Plaintiff was told

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that he would not be seen as requested by his primary care physician, but instead would be seen

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as ordered by the ophthalmologist. This was a deviation from medical care policy which

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Plaintiff attributes to Nurse Dickson. Plaintiff received notice in November 2009 from Dr.

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Beregovskaya that his contact lens chrono would not be renewed, per the July 29, 2008 policy

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memo.

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On December 31, 2009, Plaintiff’s wife contacted R.N. Ybarra, a nurse at SATF in

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charge of the Patient Advocacy Program, who requested an exam for Plaintiff to determine

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suitability for contact lenses and the possibility of Lasik eye surgery by a private physician at

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no cost to the state. On January 5, 2010, Dr. Rashid examined Plaintiff, noted the July 29, 2008

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memo about contact lenses, and asked Plaintiff to write to the Chief Medical Officer (Dr.

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Enenmoh) about having Lasik surgery. On February 2, 2009, Dr. Rashid indicated to Plaintiff

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that Lasik surgery and contact lenses were not medically indicated in Plaintiff’s medical file,

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and that he should obtain eyeglasses as provided by the state.

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On March 1, 2010, Plaintiff’s wife again wrote to Warden Allison asking for Lasik

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surgery for Plaintiff, indicating that all costs would be provided in advance and expressing

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Plaintiff’s continuing problems with the eyeglasses. Defendant Dr. Beregovskaya replied to

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Plaintiff’s wife, indicating that no medical indication exists for the performance of Lasik or

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contact lenses. Dr. Beregovskaya cited cost as a determining factor under state law, which was

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not applicable in Plaintiff’s case.

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On April 18, 2010, Plaintiff filed a request for medical services, noting his severe

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headaches and dizziness from wearing eyeglasses. Plaintiff was scheduled and would be

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ducated.

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On May 11, 2010, Plaintiff’s wife again wrote to Warden Allison requesting

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reconsideration of the request for Lasik surgery, noting that another inmate housed at SATF,
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Phillip Spector, had been allowed by Defendants to receive treatment by private physicians for

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tooth repair, which did not meet the standard for medical necessity forming the basis of Dr.

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Beregovskaya’s denial of Plaintiff’s request for Lasik surgery.

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spokesperson’s statement in the L.A. Times that “inmates can seek to visit private physicians or

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dentists if they can afford to not only pay for treatment, but cover the state’s transportation and

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security costs.” (Doc. 11 at 22:18-20.)

She also noted a CDCR

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On May 23, 2010, Plaintiff submitted another request for medical services, informing

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Nurse Dickson that his headaches were becoming intolerable and other inmates had been seen

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by the optometrist ahead of him. The clinic only replied, “You are scheduled and will be

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ducated.” (Id. at 23 ¶58.) R.N. Page told Plaintiff that she and other staff believed it was

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wrong that another inmate was able to obtain treatment by his private physician, but Plaintiff’s

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requests were denied.

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protection claim.

She offered to testify for Plaintiff if he decided to file an equal

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On June 30, 2010, Plaintiff was examined by Dr. Grossman who informed Plaintiff that

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the previous eyeglass prescription from July 15, 2009 was incorrect, causing Plaintiff’s pain

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and suffering.

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incorrect.

Dr. Grossman provided a new prescription, which was later found to be

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On July 1, 2010, Warden Allison denied Plaintiff’s wife’s request for reconsideration

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under CCF § 3350.1(b) which provides “surgery not medically necessary shall not be

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provided,” with cost as a determinative fact. Plaintiff contends that Lasik eye surgery should

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be deemed medically necessary because it is not cosmetic or elective surgery, and Plaintiff’s

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vision disorder is a physical eye birth defect. Plaintiff’s wife appealed the denial, and the

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appeal was denied in mid-2012.

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On August 7, 2010, Plaintiff submitted a request to the Office of Administrative Law

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requesting a determination whether the July 29, 2008 memorandum prohibiting contact lens

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solution being dispensed in many situations was an “underground regulation” in violation of

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the Administrative Procedures Act. (Id. at 26 ¶69.) Plaintiff also filed an inmate medical care

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appeal which was denied at the Director’s Level of Review on March 29, 2011.
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On September 17, 2010, the Office of Administrative Law suggested that Plaintiff

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contact the Federal Receiver regarding the July 29, 2008 memo regarding contact lens solution.

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Plaintiff did so and received a reply letter declining his request as inapplicable to the Federal

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Receivership.

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On November 10, 2010, Plaintiff was again examined by Dr. Grossman, who

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negligently stated that the June 30, 2010 prescription provided by him was correct, implying

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that Plaintiff was a malingerer, stating, “This is just a mean, mean prison. They won’t let you

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have contacts.” (Id. at 28 ¶76.) Plaintiff observed Dr. Grossman throwing a document from

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Plaintiff’s medical file in the wastebasket. At the end of the exam, Plaintiff retrieved the exam

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notes from the wastebasket and was forced to relinquish it to Officer Pilgrim. Another inmate

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saw Officer Pilgrim return the document to Dr. Grossman, who returned it to the wastebasket

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and later alleged he was “transferring notes.” (Id. at 29 ¶78.)

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On December 21, 2010, Plaintiff submitted a claim to the California Victim

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Compensation and Government Claims Board (CVCGCB) regarding the events at issue. On

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December 27, 2010, Plaintiff sent a letter to the Prison Law Office regarding his inadequate

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vision care. On December 29, 2010, and January 11, 2011, Plaintiff sent letters to SATF’s

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CEO V. Colunga regarding his vision care problems. According to defendant Dr. Enenmoh,

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the first letter was sent to him for response. On January 27, 2011, Plaintiff sent another letter to

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CEO Colunga and defendant Dr. Enenmoh.

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On February 9, 2011, Dr. Enenmoh sent Plaintiff to Fresno for an off-site

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ophthalmology/optometry consultation. Plaintiff did not have his glasses with him at the time

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of the examination, because he did not know he was going to an off-site consultation.

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Therefore, Plaintiff had worn his expired contact lenses. At the consultation, Dr. Nguyen found

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that the previous eyeglasses prescriptions from Dr. Grossman were wrong and were the cause

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of the severity of Plaintiff’s adverse effects.

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prescription but not a “pupil distance.” (Id. at 31 ¶85.) On February 23, 2011, Plaintiff

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received a letter from Dr. Enenmoh dated February 8, 2011, informing Plaintiff that he would

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be evaluated by an independent optometrist.
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Dr. Nguyen provided a new eyeglasses

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On March 29, 2011, Plaintiff’s medical care appeal was denied at the Director’s Level

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of Review, and Plaintiff sent the denial to the Prison Law Office as requested. On May 11,

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2011, Plaintiff received notice from the CVCGCB that his issues were outside their scope and

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appropriate for resolution in the court system.

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On May 23, 2011, Plaintiff was taken to see Dr. Rashid who determined that Plaintiff’s

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“pupil distance is 64mm.” (Id. at 31-32 ¶90.) Dr. Grossman had determined that Plaintiff’s

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pupil distance was 66mm, 65mm, and 63mm on separate occasions, and Dr. Sofinski

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determined it was 65mm.

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inconsistencies illuminate Dr. Grossman’s deliberate indifference or negligence.

Plaintiff alleges that pupil distance does not change, and the

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For more than 20 months, Plaintiff suffered symptoms such as debilitating migraine

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headaches, constant dizziness, severe burning pain and sharp shooting pains in his eyes, vision

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abnormalities, blurred vision, painful muscle spasms, irritability, reduction in motivation to

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exercise, fatigue, dry eye syndrome, and emotional distress, affecting Plaintiff’s ability to read,

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write, and work.

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In November 2011, Dr. Enenmoh approved Dr. Kokor’s request for Plaintiff to be

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provided with a permanent contact lens and supplies chrono, and on March 2, 2012, Plaintiff

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received the chrono. Plaintiff seeks a permanent injunction to ensure his chrono and saline

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solution order are not rescinded. Plaintiff also requests monetary damages, declaratory relief,

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and attorney’s fees.

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IV.

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PLAINTIFF’S CLAIMS
The Civil Rights Act under which this action was filed provides:
Every person who, under color of [state law] . . . subjects, or
causes to be subjected, any citizen of the United States . . . to the
deprivation of any rights, privileges, or immunities secured by
the Constitution . . . shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for
redress.

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42 U.S.C. ' 1983. ASection 1983 . . . creates a cause of action for violations of the federal

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Constitution and laws.@ Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997)

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(internal quotations omitted). ATo the extent that the violation of a state law amounts to the
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deprivation of a state-created interest that reaches beyond that guaranteed by the federal

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Constitution, Section 1983 offers no redress.@ Id.

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To state a claim under section 1983, a plaintiff must allege that (1) the defendant acted

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under color of state law and (2) the defendant deprived him of rights secured by the

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Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir.

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2006). AA person >subjects= another to the deprivation of a constitutional right, within the

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meaning of section 1983, if he does an affirmative act, participates in another=s affirmative acts,

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or omits to perform an act which he is legally required to do that causes the deprivation of

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which complaint is made.@ Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). AThe

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requisite causal connection can be established not only by some kind of direct, personal

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participation in the deprivation, but also by setting in motion a series of acts by others which

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the actor knows or reasonably should know would cause others to inflict the constitutional

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injury.@ Id. at 743-44.
Medical Claim – Eighth Amendment

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A.

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A[T]o maintain an Eighth Amendment claim based on prison medical treatment, an

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inmate must show >deliberate indifference to serious medical needs.=@ Jett v. Penner, 439 F.3d

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1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285 (1976)).

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The two-part test for deliberate indifference requires the plaintiff to show (1) A>a serious

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medical need= by demonstrating that >failure to treat a prisoner=s condition could result in

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further significant injury or the unnecessary and wanton infliction of pain,=@ and (2) Athe

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defendant=s response to the need was deliberately indifferent.@ Jett, 439 F.3d at 1096 (quoting

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McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds by WMX

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Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc) (internal quotations

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omitted)). Deliberate indifference is shown by Aa purposeful act or failure to respond to a

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prisoner=s pain or possible medical need, and harm caused by the indifference.@ Id. (citing

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McGuckin, 974 F.2d at 1060).

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officials deny, delay or intentionally interfere with medical treatment, or it may be shown by

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the way in which prison physicians provide medical care.@ Id. Where a prisoner is alleging a

Deliberate indifference may be manifested Awhen prison

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

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prisoner to make a claim of deliberate indifference to serious medical needs. McGuckin at

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1060 (citing Shapely v. Nevada Bd. of State Prison Comm=rs, 766 F.2d 404, 407 (9th Cir.

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1985)).

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ADeliberate indifference is a high legal standard.@ Toguchi v. Chung, 391 F.3d 1051,

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1060 (9th Cir. 2004). AUnder this standard, the prison official must not only >be aware of the

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facts from which the inference could be drawn that a substantial risk of serious harm exists,= but

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that person >must also draw the inference.=@ Id. at 1057 (quoting Farmer v. Brennan, 511 U.S.

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825, 837, 114 S.Ct. 1970 (1994)). A>If a prison official should have been aware of the risk, but

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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.

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2002)).

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constitutional deprivation under the Eighth Amendment. Id. at 1060. A[E]ven gross negligence

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is insufficient to establish a constitutional violation.@ Id. (citing Wood v. Housewright, 900

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F.2d 1332, 1334 (9th Cir. 1990)).

AA showing of medical malpractice or negligence is insufficient to establish a

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AA difference of opinion between a prisoner-patient and prison medical authorities

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regarding treatment does not give rise to a ' 1983 claim.@ Franklin v. Oregon, 662 F.2d 1337,

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1344 (9th Cir. 1981) (internal citation omitted). To prevail, plaintiff Amust show that the course

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of treatment the doctors chosen was medically unacceptable under the circumstances . . . and . .

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. that they chose this course in conscious disregard of an excessive risk to plaintiff=s health.@

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Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (internal citations omitted).

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Plaintiff has demonstrated that he had a serious medical need, because the eyeglasses

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provided to him caused him debilitating migraine headaches, constant dizziness, severe burning

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pain and sharp shooting pains in his eyes, vision abnormalities, and emotional distress.

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Plaintiff argues that Lasik surgery or contact lenses are medically necessary to prevent his

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serious symptoms.

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Defendants deprived him of contact lenses, or disapproved a contact lens chrono, knowing that

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However, Plaintiff has not specifically alleged facts that any of the

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a proper eyeglass prescription was not possible. Moreover, Plaintiff indicates that he was

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wearing contact lenses at his most recent outside appointment.

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Plaintiff has not alleged facts demonstrating that any of the Defendants acted with

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deliberate indifference. Deliberate indifference is a high legal standard. Toguchi, 391 F.3d at

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1060. Plaintiff has not shown that any Defendant acted, or failed to act, while knowing of and

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consciously disregarding a serious risk to Plaintiff’s health. Therefore, Plaintiff fails to state a

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medical care claim under the Eighth Amendment.

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B.

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The Equal Protection Clause requires that persons who are similarly situated be treated

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alike. City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 439, 105 S.Ct. 3249

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(1985); Shakur v. Schriro, 514 F.3d 878, 891 (9th Cir. 2008). An equal protection claim may

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be established by showing that Defendants intentionally discriminated against Plaintiff based

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on his membership in a protected class, Comm. Concerning Cmty. Improvement v. City of

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Modesto, 583 F.3d 690, 702-03 (9th Cir. 2009); Serrano v. Francis, 345 F.3d 1071,1082 (9th

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Cir. 2003), Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001), or that similarly

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situated individuals were intentionally treated differently without a rational relationship to a

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legitimate state purpose, Engquist v. Oregon Department of Agr., 553 U.S. 591, 601-02, 128

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S.Ct. 2146 (2008); Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073

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(2000); Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 592 (9th Cir. 2008); North Pacifica LLC

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v. City of Pacifica, 526 F.3d 478, 486 (9th Cir. 2008).

Equal Protection

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Plaintiff has not alleged any facts demonstrating that he was intentionally discriminated

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against on the basis of his membership in a protected class, or that he was intentionally treated

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differently than other similarly situated inmates without a rational relationship to a legitimate

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state purpose. Plaintiff argues that his rights to equal protection were violated because another

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inmate was approved for outside medical treatment and Plaintiff was not. The mere fact that

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two inmates both requested to see private doctors for outside medical treatment does not make

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them similarly situated for purposes of the equal protection clause. Moreover, Plaintiff has not

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shown that he was intentionally treated differently. Therefore, Plaintiff fails to state a claim for

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relief for violation of his right to equal protection.

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C.

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Plaintiff brings claims against Defendants for violation of various California state laws.

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Plaintiff is advised that violation of state tort law, state regulations, rules and policies of the

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CDCR, or other state law is not sufficient to state a claim for relief under ' 1983. To state a

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claim under ' 1983, there must be a deprivation of federal constitutional or statutory rights.

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See Paul v. Davis, 424 U.S. 693 (1976). Although the court may exercise supplemental

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jurisdiction over state law claims, Plaintiff must first have a cognizable claim for relief under

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federal law. See 28 U.S.C. ' 1367. In this instance, the Court fails to find any cognizable

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federal claims in the Third Amended Complaint. Therefore, Plaintiff=s state claims fail.

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V.

State Law Claims

CONCLUSION AND RECOMMENDATIONS

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The Court finds that Plaintiff=s Third Amended Complaint fails to state any claims upon

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which relief can be granted under ' 1983 against any of the Defendants. In this action, the

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Court previously granted Plaintiff an opportunity to amend the complaint, with guidance by the

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Court. The Court finds that the deficiencies outlined above are not capable of being cured by

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amendment, and therefore further leave to amend should not be granted. Lopez v. Smith, 203

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F.3d 1122, 1127 (9th Cir. 2000).

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Therefore, IT IS HEREBY RECOMMENDED that pursuant to 28 U.S.C. ' 1915A,

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this action be dismissed with prejudice for failure to state a claim upon which relief may be

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granted under ' 1983, and that this dismissal be subject to the Athree-strikes@ provision set forth

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in 28 U.S.C. ' 1915(g). Silva v. Vittorio, 658 F.3d 1090, 1098 (9th Cir. 2011).

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within thirty

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(30) days after being served with these findings and recommendations, Plaintiff may file

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written objections with the court.

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Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file

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objections within the specified time may result in the waiver of rights on appeal. Wilkerson v.

Such a document should be captioned "Objections to

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Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394

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(9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

June 22, 2015

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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