Solomon v. Tate et al

Filing 12

ORDER Dismissing Case, with Prejudice, for Failure to State a Claim Upon Which Relief May be Granted Under Section 1983; ORDER that this Dismissal is Subject to the "Three-Strikes" Provision Set Forth in 28 USC 1915(g); ORDER for Clerk to Close this Case, signed by Magistrate Judge Gary S. Austin on 6/26/14. CASE CLOSED. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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VINCENTE SOLOMON,

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Plaintiff,

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vs.
H. TATE, et al.,

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Defendants.

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1:12-cv-00056-GSA-PC
ORDER DISMISSING CASE, WITH
PREJUDICE, FOR FAILURE TO STATE A
CLAIM UPON WHICH RELIEF MAY BE
GRANTED UNDER SECTION 1983
(Doc. 11.)
ORDER THAT THIS DISMISSAL IS
SUBJECT TO THE ATHREE-STRIKES@
PROVISION SET FORTH IN 28 U.S.C. '
1915(g)
ORDER FOR CLERK TO CLOSE THIS
CASE

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I.

BACKGROUND

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Vincente Solomon (APlaintiff@) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. ' 1983. Plaintiff filed the Complaint

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commencing this case on January 12, 2012. (Doc. 1.)

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On January 20, 2012, Plaintiff consented to Magistrate Judge jurisdiction in this action

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pursuant to 28 U.S.C. ' 636(c), and no other parties have made an appearance. (Doc. 4.)

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Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the Eastern District of

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California, the undersigned shall conduct any and all proceedings in the case until such time as

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reassignment to a District Judge is required. Local Rule Appendix A(k)(3).

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The court screened Plaintiff‟s Complaint and issued an order on October 15, 2013,

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dismissing the Complaint for failure to state a claim, with leave to amend. (Doc. 8.) On

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January 6, 2014, Plaintiff filed the First Amended Complaint, which is now before the court for

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screening. (Doc. 11.)
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II.

SCREENING REQUIREMENT

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The in forma pauperis statutes 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). A complaint must contain Aa short and plain

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statement of the claim showing that the pleader is entitled to relief . . . .@ Fed. R. Civ. P.

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8(a)(2). Detailed factual allegations are not required, but A[t]hreadbare recitals of the elements

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of a cause of action, supported by mere conclusory statements, do not suffice,@ Ashcroft v.

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Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly,

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550 U.S. 544, 555, 127 S.Ct. 1955 (2007)), and courts Aare not required to indulge unwarranted

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inferences,@ Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal

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quotation marks and citation omitted). While factual allegations are accepted as true, legal

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conclusions are not. Iqbal, 556 U.S. at 678.

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III.

SUMMARY OF FIRST AMENDED COMPLAINT

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Plaintiff is presently incarcerated at Corcoran State Prison in Corcoran, California, in

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the custody of the California Department of Corrections and Rehabilitation (CDCR). Plaintiff

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was incarcerated at California Correctional Institution in Tehachapi, California, at the time the

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events at issue in the First Amended Complaint allegedly occurred.

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defendants CDCR employees Dr. P. Duong (dentist), T. Franco (R.D.A.), Dr. P. Pounds, Chief

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L. Zamora, Dr. W. Prewett, Dr. Dutry, Correctional Officer (C/O) Vickers, C/O Bergens, Dr.

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Nguyen, and D.A.R. Doctor (“Defendants”). Plaintiff‟s factual allegations follow.

Plaintiff names as

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On August 27, 2010, Dr. Bruitt, Dr. P. Duong, and R.D.A. T. Franco took x-rays of

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Plaintiff‟s mouth and gums. Plaintiff was told that he had a severe mouth infection and

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abscessed gums. Plaintiff spoke to R.D.A. Nurse Jane Doe who told Plaintiff, in front of his

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two escorting officers C/O Vickers and C/O Bergens, that for all mouth infections, the proper

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treatment is a dose of Penicillin or antibiotics, and then she left. T. Franco suggested to Dr.

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Bruitt and Dr. P. Duong that Plaintiff should not get any antibiotics or a root canal, because she

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heard Plaintiff is an a--hole, and the CDCR only extracts teeth and does not fix them. Plaintiff

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told Dr. Bruitt and Dr. P. Duong that he didn‟t want his teeth pulled out, and wanted to keep
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them to chew his food. This is when Plaintiff knew R.D.A. Franco, Dr. Bruitt, and Dr. P.

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Duong were intentionally violating the Eighth Amendment. They all left and went into an

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office. They came back five minutes later and told Plaintiff his teeth were rotten down to the

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roots and the infection was so bad it was going to cause all of Plaintiff‟s teeth to rot and cause

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permanent blindness. Plaintiff asked when he could get antibiotics to kill the infection. 1 Dr.

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Bruitt, Dr. P. Duong, and T. Franco said they were not going to give Plaintiff any antibiotics to

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kill the infection unless he let them pull the teeth “right now.” (Amd Cmp (ACP) at 4:19.) All

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three of them repeated that it goes against CDCR‟s policy to save teeth, even when they can be

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clearly saved.

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In 2009 at Salinas Valley State Prison, Plaintiff was seen by a dental specialist and

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knew that the filling in tooth#29 must be removed and replaced. When Plaintiff told this to Dr.

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Bruitt, Dr. P. Duong, and T. Franco, they again told him it is against CDCR policy to fix

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inmates‟ teeth, and they only pull teeth. They refused to give Plaintiff antibiotics, clearly

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knowing that Plaintiff could lose all of his teeth, go permanently blind, and suffer pain.

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On October 29, 2010, Plaintiff‟s case was turned over to the Dental Authorization

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Review Board, and on November 3, 2010, he was seen by Dr. A. Pounds. Plaintiff‟s mouth,

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jaw, eye, and the whole right side of his face and mouth were swollen from the infection. Dr.

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A. Pounds said that Plaintiff should have received antibiotics, but that usage of antibiotics

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should be discouraged as the risks would outweigh the benefits. Dr. A. Pounds told Plaintiff

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that he did not meet the criteria for other treatment.

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Plaintiff was never given any dental treatment or antibiotics. The CDCR dentists all

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agreed to stick together and cause Plaintiff to go blind and lose all of his teeth. Dr. A. Pounds

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did not order any treatment or antibiotics for Plaintiff on November 3, 2010. It is humanly

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impossible for that to be the appropriate dental care. Plaintiff was given no treatment, no pain

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medications, no heat compression, no hot water or salt water to soothe his gums, and no

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antibiotics for the infection. This policy violates inmates‟ rights to dental care. The Prison

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From this point forward in the ACP, Plaintiff refers the court to Exhibits A and B. (ACP at 4:28, 5:28,
6:28, 7:28.) However, no exhibits were submitted with the ACP.
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Law Office and court-appointed dental experts audited the dental programs and made a copy of

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Plaintiff‟s dental records, knowing that “somebody dropp[ed] the ball.” (ACP at 6:9-10.)

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CDCR dental staff will only perform root canals on the front eight teeth, and the other teeth are

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pulled out. Plaintiff filed a complaint and was denied antibiotics and forced to live in pain for

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nearly four years. This was done to Plaintiff because he is black. The CDCR clearly continues

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to violate established law by purposely inflicting pain and suffering upon Plaintiff.

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At the Director‟s Level of review, reviewer L. Zamora acknowledged that Plaintiff did

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not receive any antibiotics or a root canal on September 15, 2010. Dr. A. Haggar, Dr. Duong,

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Dr. Prewitt, and Dr. A. Pounds, all dentists, agreed they could save Plaintiff‟s tooth#29 without

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a doubt, but Plaintiff must have a court order for CDCR to change the dental plan policy.

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Plaintiff requests monetary damages and injunctive relief.
IV.

PLAINTIFF=S CLAIMS
The Civil Rights Act under which this action was filed provides:

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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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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

Eighth Amendment Medical Claim

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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

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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)).

Deliberate indifference may be manifested Awhen prison

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Plaintiff fails to state an Eighth Amendment medical claim against any of the named

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prison officials. While Plaintiff shows he had serious medical needs because of an oral

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infection, he fails to allege facts showing more than a difference of opinion about the

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appropriate treatment. Plaintiff and the dental providers disagreed about treatment. Plaintiff

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requested antibiotics to kill the infection and save his teeth, but dental providers examined him

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and offered instead to pull his teeth pursuant to the CDCR‟s policy. Plaintiff refused the

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treatment offered. These facts do not demonstrate that defendants acted, or failed to act, while

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knowing of and deliberately disregarding a substantial risk to Plaintiff‟s health.

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The court found in its prior screening order that the prison‟s response to Plaintiff‟s

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appeal “indicated that dental staff acted within professional guidelines and policy.” (Order,

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Doc. 8 at 3:20-21.) Plaintiff‟s evidence showed that “Plaintiff‟s request for antibiotics was

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denied by the dentist as there was no medical indication for antibiotics[;] Plaintiff‟s request for

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a root canal was denied by the dentist „per policy and procedure‟[of the Inmate Dental Services

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Program; and] Plaintiff‟s request for antibiotics was granted in that antibiotics would be

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prescribed when medically indicated.” (Id. at 3:9-21.) This evidence contradicts Plaintiff‟s
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claim that defendants deliberately disregarded Plaintiff‟s medical needs. At most, Plaintiff

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states a claim for negligence or medical malpractice, which is a state tort claim. Although the

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court may exercise supplemental jurisdiction over state law claims, Plaintiff must first have a

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cognizable claim for relief under federal law. See 28 U.S.C. ' 1367. In this instance, the court

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fails to find any cognizable federal claims in the First Amended Complaint, and therefore,

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Plaintiff=s claim fails.

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B.

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Plaintiff alleges that he was denied appropriate treatment for his oral infection because

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Equal Protection

he is black. This allegation suggests a claim for violation of equal protection rights.

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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).

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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. Therefore, Plaintiff fails to state a claim for relief for violation of his right to

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equal protection.

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C.

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Plaintiff alleges that Defendants violated his rights under the First and Fourteenth

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First and Fourteenth Amendments

Amendments.

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First Amendment

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The First Amendment provides that, “Congress shall make no law respecting an

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establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of

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speech, or of the press; or the right of the people peaceably to assemble, and to petition the

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Government for a redress of grievances.” U.S. Const. amend. I.

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Plaintiff has not alleged facts demonstrating that his religious rights, right to freedom of

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speech, right to petition the government, or any other right under the First Amendment were

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violated by any of the Defendants. Therefore, Plaintiff fails to state a First Amendment claim.

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Fourteenth Amendment

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The Due Process Clause of the Fourteenth Amendment protects prisoners from being

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deprived of life, liberty, or property without due process of law. Wolff v. McDonnell, 418 U.S.

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539, 556 (1974). In order to state a cause of action for deprivation of procedural due process, a

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plaintiff must first establish the existence of an interest for which the protection is sought.

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Liberty interests may arise from the Due Process Clause itself or from state law. Hewitt v.

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Helms, 459 U.S. 460, 466-68 (1983). With respect to liberty interests arising from state law,

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the existence of a liberty interest created by prison regulations is determined by focusing on the

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nature of the deprivation. Sandin v. Conner, 515 U.S. 472, 481-84 (1995). Liberty interests

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created by prison regulations are limited to freedom from restraint which Aimposes atypical and

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significant hardship on the inmate in relation to the ordinary incidents of prison life.@ Id. at

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484.

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Plaintiff has not alleged facts demonstrating that he was subject to an action which

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entitled him to due process protections under federal law. Therefore, Plaintiff fails to state a

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claim for violation of due process under the Fourteenth Amendment.

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V.

CONCLUSION AND ORDER

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The court finds that Plaintiff=s First Amended Complaint fails to state any claims upon

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which relief may be granted under ' 1983 against any Defendant. In this action, the court

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

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court. Plaintiff was advised in the court‟s prior screening order that he “must allege facts

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indicating that each Defendant knew of and disregarded a serious risk to Plaintiff‟s health,

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resulting in injury to Plaintiff [and] . . . must allege facts indicating that each defendant was

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aware of a specific harm to Plaintiff, and acted with deliberate indifference to that harm.”

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(Order, Doc. 8 at 5:9-16.) Nonetheless, Plaintiff fails to state a cognizable Eighth Amendment

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medical claim in the First Amended Complaint.
Plaintiff has now filed two complaints without alleging facts against any defendant

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which state a claim under ' 1983. The court finds that the deficiencies outlined above are not

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capable of being cured by amendment, and therefore further leave to amend should not be

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granted. 28 U.S.C. ' 1915(e)(2)(B)(ii); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000).

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Therefore, IT IS HEREBY ORDERED that:

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1.

Pursuant to 28 U.S.C. ' 1915A and 28 U.S.C. ' 1915(e), this action is

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DISMISSED, with prejudice, for failure to state a claim upon which relief may

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be granted under ' 1983;

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2.

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This dismissal is subject to the Athree-strikes@ provision set forth in 28 U.S.C. '
1915(g). Silva v. Vittorio, 658 F.3d 1090, 1098 (9th Cir. 2011); and

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The Clerk is directed to close this case.

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IT IS SO ORDERED.
Dated:

June 26, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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