Miller v. Adonis, et al.

Filing 62

FINDINGS and RECOMMENDATIONS recommending that This Action Proceed Only Against Defendants Davis, Chavez, and Loyd for Violation of Due Process and All Remaining Claims and Defendants be DISMISSED re 49 Third Amended Prisoner Civil Rights Complaint signed by Magistrate Judge Erica P. Grosjean on 10/13/2016. Referred to Judge Drozd. Objections to F&R due within thirty (30) days. (Jessen, A)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CHARLES A. MILLER, 12 13 14 Plaintiff, vs. 15 CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, et al., 16 Defendants. 17 18 19 1:12-cv-00353-DAD-EPG-PC FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS ACTION PROCEED ONLY FOR DELIBERATE INDIFFERENCE TO SERIOUS MEDICAL NEEDS AND GOVERNMENT CODE SECTION 845.6 AGAINST DEFENDANTS MEDINA, CHUDY AND FREDERICHS, AS WELL AS VIOLATION OF THE BANE ACT AGAINST DEFENDANT MEDINA; AND FOR RETALIATION AND BANE ACT AGAINST DEFENDANTS EDDINGS AND WALKER; AND THAT ALL OTHER CLAIMS AND DEFENDANTS BE DISMISSED FROM THIS ACTION (ECF No. 49) 20 THIRY DAY DEADLINE 21 22 I. 23 Charles A. Miller (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights 24 BACKGROUND action pursuant to 42 U.S.C. § 1983. 25 This action was initiated by civil complaint filed by Plaintiff in the Fresno County 26 Superior Court on June 15, 2010 (Case #10CECG02100). On March 8, 2012, defendants 27 Adonis, Griffith, Gutierrez, Igbinosa, Medina, and Mendez removed the case to federal court 28 and requested the court to screen the complaint under 28 U.S.C. § 1915A. (ECF Nos. 1, 2.) On 1 1 March 8, 2012, defendants California Department of Corrections and Rehabilitation (“CDCR”), 2 Ahmed, Anderson, Chudy, Duenas, Eddings, Pascual, and Walker joined in the Notice of 3 Removal of Action. (ECF No. 4.) On October 4, 2012, the Court 1 granted Defendants’ motion 4 for the court to screen the complaint. (ECF No. 16.) 5 On October 17, 2013, the Court dismissed the Complaint for violation of Rule 8(a) of 6 the Federal Rules of Civil Procedure, with leave to amend. (ECF No. 32.) On December 2, 7 2013, Plaintiff filed the First Amended Complaint. (ECF No. 35.) On June 19, 2014, the Court 8 issued an order striking the First Amended Complaint for Plaintiff’s failure to comply with the 9 court’s order of October 17, 2013. (ECF No. 40.) Plaintiff was granted leave to file a Second 10 Amended Complaint. (Id.) On August 13, 2014, Plaintiff filed the Second Amended Complaint. 11 (ECF No. 44.) The Court screened the Second Amended complaint on June 29, 2015. (ECF 12 No. 46) The Court found that Plaintiff’s Second Amended Complaint stated a cognizable 13 Eighth Amendment medical claim against defendant Officer M. Medina for not allowing him to 14 sit down instead of standing, but found that the Second Amended Complaint failed to state any 15 other claims. (ECF No. 46). The Court gave Plaintiff a choice of going forward on that one 16 claim or further amending his complaint. 17 On July 10, 2015, Plaintiff filed a motion for reconsideration, asking for District Court 18 to conduct a de novo review and arguing that the Magistrate Judge erred in dismissing all but 19 one claim (with leave to amend). (ECF No. 47) On July 16, 2015, District Judge Lawrence J. 20 O’Neill denied Plaintiff’s motion for reconsideration. (ECF No. 47) 21 Plaintiff filed a Third Amended Complaint on July 31, 2015. (ECF No. 49) The Court 22 screened Plaintiff’s Third Amended Complaint and found that it stated cognizable claims for 23 against Defendants Medina, Chudy and Frederichs for Deliberate Indifference to Serious 24 Medical Needs in violation of the Eighth Amendment, as well as for violation of Government 25 Code § 845.6. The Court found that the Third Amended Complaint also stated a related Bane 26 Act claim against Defendant Medina. The Court also found that it stated cognizable claims 27 28 1 All Magistrate Judge orders before October 12, 2015 were issued by Magistrate Judge Gary S. Austin. 2 1 against Defendants Eddings and Walker for Retaliation in violation of the First Amendment, as 2 well as for violation of the Bane Act. The Court gave Plaintiff the choice of proceeding only 3 on the claims found cognizable by the Court, or indicating that he does not agree to proceed 4 only on those claims, subject to findings and recommendations consistent with the Court’s 5 order. 6 On October 5, 2016, Plaintiff notified the Court that he wished to proceed on the claims 7 found cognizable “so long as plaintiff’s doing do [sic] is not, and will not be, construed in 8 anyway as an expressed, or implied, waiver, forfeiture, [sic] abandonment or consent to 9 involuntary dismissal, of the remaining claims.” (ECF No. 61, emphasis in original). Plaintiff 10 indicated that he reserved his right to de novo review before the District Court. 11 Accordingly, the Court submits the following findings and recommendations to the 12 District Court, to permit certain claims and defendants to go forward, and others to be 13 dismissed with prejudice, as described below. 14 II. 15 The Court is required to screen complaints brought by prisoners seeking relief against a 16 governmental entity or officer or employee of a governmental entity. 28 U.S.C. ' 1915A(a). 17 The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 18 legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or 19 that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 20 ' 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion thereof, that may have been 21 paid, the court shall dismiss the case at any time if the court determines that the action or 22 appeal fails to state a claim upon which relief may be granted.” 28 U.S.C. ' 1915(e)(2)(B)(ii). SCREENING REQUIREMENT 23 A complaint is required to contain “a short and plain statement of the claim showing 24 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are 25 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 26 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 27 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are 28 taken as true, Courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart 3 1 Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 2 To state a viable claim, Plaintiff must set forth “sufficient factual matter, accepted as true, to 3 ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678-79; Moss v. U.S. 4 Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). While factual allegations are accepted as 5 true, legal conclusions are not. Id. The mere possibility of misconduct falls short of meeting 6 this plausibility standard. Id. 7 III. 8 Plaintiff’s Third Amended Complaint (TAC) is brought against 20 named defendants: 9 SUMMARY OF THIRD AMENDED COMPLAINT Defendants M. Adonis, the CDCR, Felix Igbinosa, B. Baxter, Susan Rido, Melissa Griffith, G. 10 Mendez, Etta Brown, Angelica Duenas, B. Howerton, E. Eddings, A. Walker, A. Gutierrez, 11 Joseph Chody, J. Anderson, Tim Frederichs, Z. Ahmed, Y. Olivas, L. Fernandez, M. Medina. 12 Additionally, Plaintiff includes “various unidentified DOE persons whose identities plaintiff 13 does not currently know who joined in, or participated knowingly in, a retalitory [sic] transfer 14 of plaintiff from PVSP to CTF-Soledad.” 15 Plaintiff alleges that, in late March 2009, Plaintiff developed a kidney stone condition 16 that required him to be hospitalized. On March 31, 2009, while hospitalized at Community 17 Regional Medical Center (CRMC), a doctor named Christina Hernandez ordered x-rays of 18 Plaintiff’s right knee. Those x-rays did not reveal evidence of a fracture, dislocation, or bone 19 density abnormality. Dr. Hernandez then ordered Plaintiff to be seen by an orthopedic 20 specialist and physical therapist. She also ordered that Plaintiff’s knee be immobilized. 21 On April 3, 2009, Plaintiff was seen by Orthopedic P.A. Antonio Rubio as well as 22 Physical Therapist Katie Clark. When Plaintiff was discharged, Dr. Hernandez issued the 23 following treatment order: “Mr. Miller has an appointment c [sic] our ortho clinic on 4-19-09 at 24 8:45 am and an MRI as an outpt on June 5 at 1:00 pm here at Fresno Comm. Hospt.” 25 Plaintiff alleges that Dr. Hernandez’s orders were made known to Defendants Igbinosa, 26 Rido, and Baxter in writing and telephonically on April 3, 2009. Defendant Igbinosa was 27 responsible for all healthcare services and policies at PVSP. He had an obligation to properly 28 train and supervise subordinates on how to fill out and submit for approval the “Physician 4 1 Request for Service” (“RFS”) forms, and had a duty to timely and promptly respond to 602 2 grievances, yet failed to do so. Plaintiff alleges that Defendant Igbinosa’s failure to train 3 subordinate defendants was a moving force behind the delay in examination. 4 Defendant Rido chose not to leave her home to come out to the PVSP prison and 5 personally examine Plaintiff’s knee injuries as the “duty physician” should have done. 6 Defendant Rido failed to do an RFS form herself, nor direct and train Defendant Baxter to do 7 one. Plaintiff alleges that Defendant Rido, as an off-site physician, was insufficiently trained to 8 do an RFS and did not want to be responsible for follow-up treatment. Defendant Rido authorized Defendant Baxter to write a physician’s order on CDC-7221 9 10 and CDC-7230 forms. Baxter did so and noted the need for an orthopedic specialist 11 examination on 4/19/09. Defendant Baxter also prepared a physician’s order on April 3, 2009, 12 which caused Plaintiff to be issued a wheelchair, walker, cane and knee brace, upon his return 13 to PVSP, as well as Motrin for pain. But Defendant Baxter refused to summon Defendant Rido 14 to physically examine plaintiff’s knee. Together, Defendants Igbinosa, Rido and Baxter’s failure to take the necessary steps to 15 16 get Plaintiff the physician ordered orthopedic specialist examination resulted in a delay from 17 the April 19, 2009 planned examination date through May 29, 2009, when Plaintiff finally 18 obtained a CT Scan. Plaintiff received the CT scan on May 29, 2009 because he filed a CDCR- 19 602 grievance, which was partially granted. 20 The CT scan that took place on May 29, 2009 was read on June 5, 2009. It revealed 21 fractures of the distal femur, proximal tibia, anterior subluxation, meniscus tears, bone density 22 loss, and hypertrophic changes. Plaintiff alleges that such issues were due to improper healing 23 caused by the Defendants’ delay in providing adequate medical care after his fall on March 31, 24 2009. 25 On August 4, 2009, Plaintiff received an orthopedic specialist examination from Dr. 26 Marshall S. Lewis. Arthroscopic surgery was recommended to repair the medial/lateral 27 mensici [sic], perform a partial menisectomy/synovectomy, but not to effect primary cruciate 28 ligament repairs due to the permanent nature of their damage. Plaintiff alleges that the four 5 1 2 month delay in seeing an orthopedic specialist caused improper healing. Defendants Brown and Duenas were complicit in these delays due to their inadequate 3 responses to Plaintiff’s 602 grievances. Defendant Dr. Duenas and Physician’s Assistant 4 Brown were in a position to resolve the delay and had authority to do a proper RFS, but did 5 nothing until September 3, 2009, when they partially granted and partially denied Plaintiff’s 6 602 because Plaintiff had seen Dr. Lewis and was pending transfer out of PVSP. 7 Defendant Griffith saw Plaintiff on April 23, 2009 in response to CDC-7362 that Miller 8 submitted, and Defendant Griffith noted Plaintiff’s inability to walk on his right knee at the 9 time. Defendant Griffith knew of Plaintiff’s mobility impairment and the physician orders that 10 Plaintiff use a wheelchair, walker, cane and knee brace to get around PVSP. But none of the 11 Defendants told Plaintiff to cease using his right knee/leg for sufficient time to let it heal. 12 On June 23, 2009, Dr. Menagral told Plaintiff about the results of his CT Scan and 13 renewed the comprehensive accommodation chrono for use of the wheelchair, walker, cane and 14 knee brace pending the orthopedic specialist examination. 15 At some unidentified point in time, Plaintiff alleges that Defendants Griffith, Walker, 16 Eddings, and others who are unknown but were employed at PVSP in 2009, entered into a 17 meeting of the minds, plan or agreement to transfer Plaintiff out of PVSP in retaliation for 18 Plaintiff having assisted a fellow state prisoner, Arthur Semendinger, in his separate lawsuit 19 against Defendant Griffith and others. On June 24, 2009, Defendants Walker, Eddings and 20 other Doe defendants held a meeting in which Plaintiff appeared in a wheelchair and was 21 informed that he was being transferred to another prison as a result of Plaintiff assisting inmate 22 Semendinger in his lawsuit against Mills, May, and Griffith. Plaintiff objected to this transfer 23 on the basis that the prison under consideration for transfer, Ironwood State Prison, was not a 24 wheelchair compatible facility. Defendant Eddings told Plaintiff: “Your need for a wheelchair, 25 or other medical needs, is not our main concern or problem. Its [sic] a medical problem that is 26 between you and the medical department . . . . Your [sic] here for transfer consideration to ISP 27 because you put together an affidavit that was filed in another inmate’s lawsuit against Sergeant 28 May, and Lieutenant Mills, that caused the Court to rule against them during a recent hearing, 6 1 and we feel you need to be transferred out of this institution [PVSP] for your own good as well 2 as theirs.” Defendant Walker stated “you wouldn’t be having this problem if you would slow 3 your roll when it comes to helping other prisoners with their litigation. We don’t have a 4 problem when your [sic] doing your own legal work, but helping other inmates with claims 5 against my facility supervisors means you, or they, need to go.” Defendant Walker also 6 explained to Plaintiff “We don’t care what your medical problems are, or anything about your 7 medical concerns, were [sic] here to transfer you because your [sic] a security problem from 8 our way of seeing things. You can’t expect to stay at this prison very long, or any other one for 9 that matter, to get your medical needs handled property, if all you want to do is instigate other 10 inmates to litigate claims against our staff.” The participants in that meeting all chilled 11 Plaintiff’s willingness to help other prisoners with litigation, or be a witness for another inmate 12 unless the litigation involves himself as a party to the action. Defendants’ attempt to transfer Plaintiff to ISP was ultimately unsuccessful because the 13 14 transportation sergeant refused to transport Plaintiff in a wheelchair to ISP. 15 Following the meetings and unsuccessful attempt to transfer Plaintiff to ISP, Plaintiff 16 resumed helping inmate Semedinger prepare briefs in his case. The court ruled in favor of Mr. 17 Semedinger at the hearing resulting from the briefs prepared by Plaintiff. Defendant Eddings 18 overheard these court proceedings. 19 After the court hearing, Defendant Eddings summoned Plaintiff to his office at PVSP 20 and told Plaintiff he was being transferred to CIF-Soledad because “You just don’t seem to get 21 it. So long as you persist in helping Semendinger with his lawsuit against staff, your[sic] going 22 to be the one who suffers the consequences, not him.” When Plaintiff objected that transfer 23 would interfere with his knee surgery, Defendant Eddings told Plaintiff “The Warden, and 24 litigation office, don’t care about your surgery. They just want you out of here, like the rest of 25 us.” 26 Plaintiff was transferred to CIF-Soledad on September 24, 2009. 27 Before his transfer, Dr. I. Paja issued a Comprehensive Accommodation Chrono, 28 physician’s order, which ordered that Plaintiff be provided with a cane, knee brace, walker and 7 1 wheelchair for six months. This was approved by Defendant Igbinosa and the PVSP “Mar 2 Committee.” It should have been effective until March 16, 2010. 3 On September 21, 2009, Plaintiff was summoned to the PVSP medical clinic and 4 Defendants Mendez, Adonis, Griffith, Gutierrez, and Duenas told Plaintiff to turn in the 5 wheelchair, walker, knee brace and cane to them for purpose of being transferred to CIF- 6 Soledad on September 24, 2009 so that CDCR transportation staff would take Plaintiff on the 7 bus, unlike last time. Plaintiff was told he could have these appliances at CIF-Soledad. 8 Plaintiff told these defendants that he could not walk more than 50 feet without his knee giving 9 out. Defendant Adonis gave Plaintiff a receipt for the wheelchair. However, no wheelchair 10 was reissued to him at CIF-Soledad upon his arrival. 11 In his last days at PVSP, Plaintiff was returned to his cell without his appliances and 12 was put on a modified “confined to quarter” status pending transfer. He still had to move or 13 walk about in pain at times. 14 Before that transfer, Defendant Howerton intentionally fabricated the medical record to 15 state that Plaintiff was refusing surgery and wanted to transfer. This fabrication further delayed 16 Plaintiff’s knee surgery. 17 The next day, Defendants Griffith, Mendez, and Gutierrez approached Plaintiff with a 18 CDCR-7225 form for “Refusal of Examination and/or Treatment” that had been filled out for 19 Plaintiff to sign. Instead of endorsing it, Plaintiff wrote “I want my surgery and am not 20 refusing it at all.” Defendants Mendez, Griffith and Gutierrez told Plaintiff that he would be 21 transferred to CIF-North on September 24, 2009 “if you sign the CDC-7225 form or not, and if 22 you do not sign the form stating that you consent to have your surgery continued at the new 23 prison, you will probably never receive the surgery at CIF because they will consider your 24 refusal to sign as a refusal of the treatment altogether.” Plaintiff then wrote on the form “I want 25 my surgery but also want to transfer out on schedule. Would like to continue the surgery at my 26 next institution.” Defendants Griffith and Mendez assured Plaintiff again that upon his arrival 27 at CIF-Soledad, he would be provided with a knee brace, wheelchair, and/or walker, pending 28 knee surgery. 8 1 Plaintiff alleges that defendants knew or reasonably should have known that he would 2 not be provided with a wheelchair, walker and knee brace at CIF-Soledad after his transfer to 3 that institution because it was not a CDCR institution that accommodated ADA disabled 4 persons. 5 On September 24, 2009, Plaintiff was transferred from PVSP to CIF-Soledad without a 6 lift as had been ordered by Dr. Paja and approved by Defendant Igbinosa and the PVSP MAR 7 Committee. 8 9 10 Upon arrival at CIF- Soledad, R. Pascual told Plaintiff that CIF “does not accommodate wheelchair bound” prisoners and that no knee brace, wheelchair or walker was available for him. Plaintiff was given a cane. 11 Plaintiff alleges that Defendant Chudy, the CIF Chief Medical Officer, and Defendant 12 Frederichs, the CIF Chief Physician and Surgeon, as of September 24, 2009 were responsible 13 for promulgating the policy of not providing prisoners in need of wheelchairs, walkers and 14 knee braces any appliances regardless of their medical needs. 15 Plaintiff filed multiple grievances at CIF-Soledad requesting medical care and 16 treatment. In the meantime, Plaintiff was walking on his right knee only using a cane for 17 support for another 5 to 6 weeks. 18 Plaintiff saw a CIF physician, Defendant Ahmed, on November 25, 2009. Defendant 19 Ahmed told Plaintiff he could not order him a wheelchair or walker because “CIF has an 20 unwritten policy to the effect that we cannot accommodate prisoner’s [sic] with wheelchair, or 21 walker, needs.” Defendant Ahmed further explained “it doesn’t matter if you need a 22 wheelchair, walker, or other orthopedic appliance in order to walk, you won’t get one here. 23 You’ll need to be transferred someplace else.” Plaintiff received similar responses to his 602 24 grievances, where prison officials indicated “CIF does not accommodate wheelchair bound Pt.” 25 Defendant Ahmed prescribed MS contin (“morphine”) to Plaintiff. Defendant Ahmed also 26 issued instructions that Plaintiff had a need for a cane, low-bunk, no stair usage, and no 27 bending restrictions. 28 On January 29, 2010, Plaintiff met with an orthopedic specialist/surgeon named Dr. 9 1 Donald Pompan, who recommended Plaintiff for arthroscopic surgery. Dr. Pompan notes that 2 Plaintiff should be provided with a wheelchair and/or walker “if” or “when” needed. 3 Nevertheless, the prison continued to deny Plaintiff’s requests for a wheelchair and walker in 4 602 grievances. 5 On January 31, 2010, Defendant Medina, a prison guard, observed Plaintiff sitting on a 6 wooden bench after the evening meal. The guard asked why Plaintiff was not standing. 7 Plaintiff showed Defendant Medina proof of his medical problem. Nevertheless, Defendant 8 Medina ordered Plaintiff to stand at his door anyway. After Plaintiff filed 602 grievances 9 regarding Defendant Medina’s conduct, Medina was told that Plaintiff could be seated in front 10 of his cell when needed. Even after learning of this decision, Defendant Medina again ordered 11 Plaintiff to stand by his cell door while waiting to go to the evening meal. Defendant Medina 12 threatened Plaintiff with disciplinary action if he did not stand, and said that he (Medina) did 13 not have to comply with the directive of his superiors. Plaintiff did as ordered but reinjured his 14 menisci and suffered excruciating pain as a result. 15 Plaintiff brings the following claims: cruel and unusual punishment in violation of the 16 Eighth Amendment, retaliatory transfer in violation of the First Amendment, interference with 17 civil rights in violation of the Bane Act Civil Code § 52.1, negligence in violation of 18 Government Code § 845.6, and professional negligence (medical malpractice). EVALUATION OF PLAINTIFF’S EIGHTH AMENDMENT CLAIM 19 IV. 20 “[T]o maintain an Eighth Amendment claim based on prison medical treatment, an 21 inmate must show ‘deliberate indifference to serious medical needs.’ ” Jett v. Penner, 439 F.3d 22 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two-part 23 test for deliberate indifference requires the plaintiff to show (1) “‘a serious medical need’ by 24 demonstrating that ‘failure to treat a prisoner's condition could result in further significant 25 injury or the unnecessary and wanton infliction of pain,’” and (2) “the defendant's response to 26 the need was deliberately indifferent.” Jett, 439 F.3d at 1096 (quoting McGuckin v. Smith, 974 27 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 28 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc) (internal quotations omitted)). Deliberate 10 1 indifference is shown by “a purposeful act or failure to respond to a prisoner's pain or possible 2 medical need, and harm caused by the indifference.” Id. (citing McGuckin, 974 F.2d at 1060). 3 Deliberate indifference may be manifested “when prison officials deny, delay or intentionally 4 interfere with medical treatment, or it may be shown by the way in which prison physicians 5 provide medical care.” Id. Where a prisoner is alleging a delay in receiving medical treatment, 6 the delay must have led to further harm in order for the prisoner to make a claim of deliberate 7 indifference to serious medical needs. McGuckin, 974 F.2d at 1060 (citing Shapely v. Nevada 8 Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985)). 9 “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 10 1060 (9th Cir. 2004). “A showing of medical malpractice or negligence is insufficient to 11 establish a constitutional deprivation under the Eighth Amendment.” Id. “[E]ven gross 12 negligence is insufficient to establish a constitutional violation.” Id. (citing Wood v. 13 Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990)). 14 “A difference of opinion between a prisoner-patient and prison medical authorities 15 regarding treatment does not give rise to a § 1983 claim.” Franklin v. Oregon, 662 F.2d 1337, 16 1344 (9th Cir. 1981) (internal citation omitted). To prevail, Plaintiff “must show that the course 17 of treatment the doctors chose was medically unacceptable under the circumstances...and...that 18 they chose this course in conscious disregard of an excessive risk to plaintiff's health.” Jackson 19 v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (internal citations omitted). 20 The Court finds that Plaintiff’s TAC states an Eighth Amendment claim for deliberate 21 indifference to serious medical needs against Defendant Medina. Plaintiff alleges that 22 Defendant Medina was aware of Plaintiff’s medical needs and disregarded them by ordering 23 Plaintiff to stand on his injured knee and that Plaintiff suffered injury as a result. 24 The Court also finds that Plaintiff’s TAC states a cognizable claim against Defendant 25 Chudy, the CIF Chief Medical Officer, and Defendant Frederichs, the CIF Chief Physician and 26 Surgeon, for promulgating the policy of not providing prisoners in need of wheelchairs, 27 walkers and knee braces any appliances despite need. 28 Section 1983 provides a cause of action for the violation of Plaintiff's constitutional or 11 1 other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 2 1087, 1092 (9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 3 2006); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). To state a claim, Plaintiff must 4 demonstrate that each defendant personally participated in the deprivation of his rights. Iqbal, 5 556 U.S. at 676-77, 129 S.Ct. at 1949; Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1020- 6 21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones, 297 7 F.3d at 934. Liability may not be imposed on supervisory personnel under the theory of 8 respondeat superior, Iqbal, 556 U.S. at 676-77; Simmons, 609 F.3d at 1020-21; Ewing, 588 9 F.3d at 1235; Jones, 297 F.3d at 934, and supervisory personnel may only be held liable if they 10 “participated in or directed the violations, or knew of the violations and failed to act to prevent 11 them,” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); accord Starr v. Baca, 652 F.3d 12 1202, 1205-08 (9th Cir. 2011), cert. denied, 132 S.Ct. 2101 (2012); Corales v. Bennett, 567 13 F.3d 554, 570 (9th Cir. 2009). 14 15 That said, supervisors can be held directly liable under certain narrow circumstances. As the Ninth Circuit explained: 16 17 18 19 20 21 22 23 We have long permitted plaintiffs to hold supervisors individually liable in § 1983 suits when culpable action, or inaction, is directly attributed to them. We have never required a plaintiff to allege that a supervisor was physically present when the injury occurred. In Larez v. City of Los Angeles, 946 F.2d 630 (9th Cir.1991), we explained that to be held liable, the supervisor need not be “directly and personally involved in the same way as are the individual officers who are on the scene inflicting constitutional injury.” Id. at 645. Rather, the supervisor's participation could include his “own culpable action or inaction in the training, supervision, or control of his subordinates,” “his acquiescence in the constitutional deprivations of which the complaint is made,” or “conduct that showed a reckless or callous indifference to the rights of others.” Id. at 646 (internal citations, quotation marks, and alterations omitted). 24 25 Starr v. Baca, 652 F.3d 1202, 1205–06 (9th Cir. 2011). See also Redman v. County of San 26 Diego, 942 F.2d 1435, 1446–47 (9th Cir. 1991) (“Supervisory liability exists even without 27 overt personal participation in the offensive act if supervisory officials implement a policy so 28 deficient that the policy “itself is a repudiation of constitutional rights” and is “the moving 12 1 force of the constitutional violation.” . . . This latter liability is not a form of vicarious liability. 2 Rather, it is direct liability. Under direct liability, plaintiff must show the supervisor breached a 3 duty to plaintiff which was the proximate cause of the injury. The law clearly allows actions 4 against supervisors under section 1983 as long as a sufficient causal connection is present and 5 the plaintiff was deprived under color of law of a federally secured right.”). 6 The Court finds that Plaintiff’s TAC satisfies this narrow exception for supervisory 7 liability as to named CIF supervisor defendants, at least at the pleading stage. The TAC 8 includes specific factual allegations that CIF Soledad has an unconstitutional policy of not 9 accommodating wheelchair bound prisoners at all, regardless of their medical needs. Plaintiff 10 alleges he was explicitly told this multiple times including by R. Pascual, Dr. Ahmed, and L. 11 Fernandez. Plaintiff alleges that he had a serious medical need for a wheelchair and supports 12 this claim by factual allegations that medical professionals had prescribed him a wheelchair. 13 Plaintiff also alleges that he was repeatedly denied a wheelchair solely due to an 14 unconstitutional policy at CIF. He also specifically alleges that Defendants Chudy and 15 Fredericks personally created this policy. Liberally construed in favor of Plaintiff, as the Court 16 must do at this stage, the Court finds that Plaintiff has alleged that Defendants Chudy and 17 Fredericks are liable for deliberate indifference to medical needs under the Eighth Amendment 18 based on their promulgation and enforcement of an unconstitutional policy at CIF-Soledad. 19 The Court finds that Plaintiff fails to allege a viable Eighth Amendment claim as to any 20 of the remaining defendants. The Court has carefully examined Plaintiffs long and frustrating 21 history of trying to get medical care for his knee. Nevertheless, the Court finds that no other 22 defendant’s actions, as alleged, satisfies all the elements of an Eighth Amendment violation. 23 For certain actors, such as those who did not process the correct form for his orthopedic 24 consultation, Plaintiff fails to allege deliberate indifference, i.e. a purposeful act or failure to 25 respond to a prisoner’s medical need. For other actions that do appear to be intentional and 26 deliberate, such as falsifying a form or coercing a response to the form to make it appear that 27 Plaintiff had waived surgery, it does not appear that such actions caused further injury because 28 Plaintiff continued to insist that he wanted such surgery rather than endorsing the proposed 13 1 forms. In other words, Defendants’ attempts to deny medical care based on falsification of 2 forms were unsuccessful. Plaintiff’s allegations about prison staff at PVSP removing his 3 appliances before transfer do not establish sufficient deliberate indifference because they 4 allowed him a restricted cell movement status and indicated that he would get his wheelchair at 5 CIF-Soledad, which was a decision outside their control. In the end, Plaintiff’s allegations 6 taken as a whole indicate that PVSP officials allowed Plaintiff to consult doctors, use a 7 wheelchair and other medical appliances, and schedule surgery, albeit later than Plaintiff 8 wished. 9 As will be discussed below, PVSP’s actions occurred in the shadow of a dispute about 10 Plaintiff’s legal assistance to another inmate ultimately resulting in his transfer to CIF-Soledad. 11 Plaintiff has not established that the transfer was done intentionally to deprive him of medical 12 care, and indeed Plaintiff alleges that it was done in retaliation for his work on other inmates’ 13 legal cases. The allegations, construed in Plaintiff’s favor, establish that persons at CIF- 14 Soledad deprived Plaintiff of his medical appliances due to a policy by the supervisors of the 15 prison, as discussed above. The Court thus does not find that any of the other defendants’ 16 actions at PVSP as alleged rise to the level of a constitutional Eighth Amendment violation. EVALUATION OF PLAINTIFF’S RETALIATION CLAIM 17 V. 18 Plaintiff next brings a First Amendment retaliation claim against certain PVSP 19 defendants on the basis that they transferred him to another prison in retaliation for Plaintiff’s 20 legal assistance to other inmates. 21 Allegations of retaliation against a prisoner's First Amendment rights to speech or to 22 petition the government may support a section 1983 claim. Silva v. Di Vittorio, 658 F.3d 1090, 23 1104 (9th Cir. 2011); Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985); see also 24 Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989); Pratt v. Rowland, 65 F.3d 802, 25 807 (9th Cir. 1995). “Within the prison context, a viable claim of First Amendment retaliation 26 entails five basic elements: (1) An assertion that a state actor took some adverse action against 27 an inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled 28 the inmate's exercise of his First Amendment rights, and (5) the action did not reasonably 14 1 advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2 2005); accord Watison v. Carter, 668 F.3d 1108, 1114-15 (9th Cir. 2012); Silva, 658 at 1104; 3 Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009). 4 Plaintiff has alleged that prison officials at PVSP transferred him to another institution 5 because of his assistance of another inmate’s legal proceedings and that the transfer chilled his 6 willingness to assist other prisoners in their litigation. 7 The Ninth Circuit addressed the issue of legal assistance to other inmates in Blaisdell v. 8 Frappiea, 729 F.3d 1237, 1242 (9th Cir. 2013), in which the Court affirmed summary judgment 9 dismissing a prisoner’s First Amendment retaliation claim where it was based on alleged 10 retaliation for legal assistance to another inmate. Id. at 1247 (“As any alleged retaliation 11 against Blaisdell was not rooted in activity safeguarded by the Constitution, the district court 12 properly awarded summary judgment in favor of Frappiea.”). The Court explained that “a 13 claim for retaliation can be based upon the theory that the government imposed a burden on the 14 plaintiff, more generally, ‘because he exercise[d] a constitutional right. . . .’”. Id. at 1243-44. 15 The Court then discussed each potential constitutional right, and explained why assisting a 16 fellow inmate did not constitute constitutionally protected activity under that right. For 17 example, regarding the “right to litigate without active interference,” the Court explained that 18 access-to-courts rights do not exist in an “abstract, freestanding” form. Instead, they are 19 tethered to principles of Article III standing. For there to be a judicially cognizable injury, “the 20 party before [the court] must seek a remedy for a personal and tangible harm.” Thus, while 21 [the two inmates] each have an access-to-courts right to file litigation from prison, they cannot 22 vicariously assert that protection on each other's behalf.” Id. at 1243-44. 23 That said, the Ninth Circuit in Blaisdell relied on a footnote in the U.S. Supreme Court 24 case of Shaw v. Murphy, 532 U.S. 223 (2001) to find that the right to provide legal advice is a 25 contingent right depending on the legal need of the other inmates. Blaisdell, 729 F.3d at 1245, 26 citing Shaw, 532 U.S. at 231 n. 3 (“Under our right-of-access precedents, inmates have a right 27 to receive legal advice from other inmates only when it is a necessary means for ensuring a 28 reasonably adequate opportunity to present claimed violations of fundamental constitutional 15 1 rights to the courts.”) (internal quotations and citations omitted). The Ninth Circuit noted the 2 following facts in affirming the grant of summary judgment in that case: “CCA's Corporate and 3 Facilities Policy provides for a law library and for contract attorneys or paralegals to help 4 inmates prepare motions to proceed in forma pauperis, motions for appointment of counsel, 5 habeas petitions, and § 1983 suits. . . . He also acknowledges that the federal rules furnished 6 Gouveia with potential ways to effectuate service.” Id. at 1245. The Ninth Circuit thus looked 7 to facts not available to the Court at the screening stage regarding the inmate’s resources in 8 evaluating, and ultimately upholding dismissal of, the inmate’s retaliation claim. 9 Also relevant to this analysis is the U.S. Supreme Court’s holding in Shaw that legal 10 assistance to fellow inmates was not entitled to an elevated level of protection—but 11 nevertheless was entitled to some protection: 12 13 14 15 16 17 18 19 20 21 22 Finally, even if we were to consider giving special protection to particular kinds of speech based upon content, we would not do so for speech that includes legal advice. Augmenting First Amendment protection for inmate legal advice would undermine prison officials’ ability to address the “complex and intractable” problems of prison administration. Although supervised inmate legal assistance programs may serve valuable ends, it is “indisputable” that inmate law clerks “are sometimes a menace to prison discipline” and that prisoners have an “acknowledged propensity ... to abuse both the giving and the seeking of [legal] assistance.” . . . We thus decline to cloak the provision of legal assistance with any First Amendment protection above and beyond the protection normally accorded prisoners' speech. Instead, the proper constitutional test is the one we set forth in Turner. Irrespective of whether the correspondence contains legal advice, the constitutional analysis is the same. Shaw, 532 U.S. at 231–32. With these legal standards in mind, the Court has doubts about whether Plaintiff’s 23 retaliation claim will ultimately survive. The Court also questions whether Defendants would 24 be entitled to qualified immunity given the legal precedent on this issue. Nevertheless, this 25 Court recommends that this claim proceed past the screening stage so that the Court can 26 evaluate it with a more fully developed record and input from Defendants regarding the basis 27 for the transfer, the ability of the inmates to receive legal assistance from other means, and any 28 16 1 security issues involved.2 2 3 Accordingly, the Court finds that Plaintiff states a claim for retaliation under the First Amendment against Defendants Eddings and Walker. 4 VI. 5 Plaintiff also brings the following claims under state law: interference with civil rights 6 actionable under Bane Act. Civil Code § 52.1, statutory negligence under Government Code § 7 845.6, and Professional Negligence/Medical Malpractice. State Claims 8 The Court does not have jurisdiction over state law claims, unless subject to the Court’s 9 supplemental jurisdiction. Pursuant to 28 U.S.C. § 1367(a), in any civil action in which the 10 district court has original jurisdiction, the district court “shall have supplemental jurisdiction 11 over all other claims in the action within such original jurisdiction that they form part of the 12 same case or controversy under Article III [of the Constitution],” with specific exceptions. 13 “Pendent jurisdiction over state claims exists when the federal claim is sufficiently substantial 14 to confer federal jurisdiction, and there is a ‘common nucleus of operative fact between the 15 state and federal claims.’” Brady v. Brown, 51 F.3d 810, 816 (9th Cir. 1995) (quoting Gilder v. 16 PGA Tour, Inc., 936 F.2d 417, 421 (9th Cir.1991)). “[O]nce judicial power exists under § 17 1367(a), retention of supplemental jurisdiction over state law claims under 1367(c) is 18 discretionary.” Acri v. Varian Assoc., Inc., 114 F.3d 999, 1000 (9th Cir. 1997). The Supreme 19 Court has cautioned that “if the federal claims are dismissed before trial, . . . the state claims 20 should be dismissed as well.” United Mine Workers of America v. Gibbs, 383 U.S. 715, 726 21 (1966). 22 23 In this instance, the Court has found a cognizable federal section 1983 for deliberate indifference to serious medical needs under the Eighth Amendment against Defendant Medina, 24 25 26 27 28 2 The Court notes that the underlying district court in Blaisdell allowed the retaliation claim to go forward at the screening stage and then granted summary judgment against the inmate based on a more fully developed record. Blaisdell, 729 F.3d at 1241 (“The court’s screening order, while expressing the view that Blaisdell's service of process was not an actionable basis for a retaliation claim, did not definitively screen that allegation. Instead, the order simply directed Frappiea to file an answer as to Count One.”). 17 1 Defendant Chudy, and Defendant Frederichs. The Court has also found a cognizable federal 2 section 1983 for retaliation under the First Amendment against Defendants Eddings and 3 Walker. The Court will examine the three state law claims as to these same defendants to 4 determine whether supplemental jurisdiction would be appropriate under these legal standards. 5 A. BANE ACT 6 California's Bane Act, Civil Code § 52.1, provides: 7 8 9 10 11 12 13 14 15 16 (a) If a person or persons, whether or not acting under color of law, interferes by threat, intimidation, or coercion, or attempts to interfere by threat, intimidation, or coercion, with the exercise or enjoyment by any individual or individuals of rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of this state, the Attorney General, or any district attorney or city attorney may bring a civil action for injunctive and other appropriate equitable relief in the name of the people of the State of California, in order to protect the peaceable exercise or enjoyment of the right or rights secured. . . . (b) Any individual whose exercise or enjoyment of rights secured by the Constitution or laws of the United States, or of rights secured by the Constitution or laws of this state, has been interfered with, or attempted to be interfered with, as described in subdivision (a), may institute and prosecute in his or her own name and on his or her own behalf a civil action . . . to eliminate a pattern or practice of conduct as described in subdivision (a). 17 18 Cal. Civ. Code, § 52.1. “The essence of such a claim is that ‘the defendant, by the specified 19 improper means ... tried to or did prevent the plaintiff from doing something he or she had the 20 right to do under the law or force the plaintiff to do something he or she was not required to 21 do.’ ” Boarman v. Cnty. of Sacramento, 55 F. Supp. 3d 1271, 1287 (E.D. Cal. 2014) (quoting 22 Austin B. v. Escondido Union Sch. Dist., 149 Cal. App. 4th 860, 883 (2007)). The key element 23 in Bane Act cases is “the element of threat, intimidation, or coercion.” Shoyoye v. Cnty. of 24 L.A., 203 Cal. App. 4th 947, 959 (2012). “The act of interference with a constitutional right 25 must itself be deliberate or spiteful.” Id. “The statute requires a showing of coercion 26 independent from the coercion inherent in the wrongful detention [or other tort] itself.” Id. 27 The Court finds that the Bane Act claim against Defendants Eddings and Walker is 28 sufficiently related to the retaliation claim against those same defendants to confer federal 18 1 jurisdiction, as there is a common nucleus of operative fact between the state and federal 2 claims. Plaintiff has alleged a colorable claim against Defendants Eddings and Walker that 3 some coercion was involved in order to deter exercise of a constitutional right. The same is 4 true of Plaintiff’s Bane Act claim against Defendant Medina, where Plaintiff has alleged 5 coercive conduct by Defendant Medina that arguably was meant to deter Plaintiff’s right to be 6 free from cruel and unusual punishment, and that Bane Act claim is substantially related to the 7 Eighth Amendment claim the Court has found cognizable against Defendant Medina. In 8 contrast, Plaintiff has not alleged any arguably coercive acts by Defendant Chudy and 9 Defendant Frederichs so the TAC fails to state a Bane Act claim against them even though 10 11 Plaintiff’s allegations under this cause of action are related to Plaintiff’s constitutional claim. The Court thus recommends exercising supplemental jurisdiction over Plaintiff’s Bane 12 Act claims against Defendants Eddings, Walker, and Medina, but no other defendants. 13 Although Plaintiff has alleged Bane Act claims against other defendants, the Court 14 recommends declining to exercise jurisdiction over those state law claims because there is not a 15 pending federal claim against the CDCR or other defendants that is substantially related to the 16 Bane act claim. Thus, the Court does not find a sufficiently related colorable Bane Act claim 17 against any other defendants to warrant exercising supplemental jurisdiction over them. 18 B. STATUTORY NEGLIGENCE UNDER GOVERNMENT CODE § 845.6 19 California Government Code § 845.6 provides (with certain exceptions) that “a public 20 employee, and the public entity where the employee is acting within the scope of his 21 employment, is liable if the employee knows or has reason to know that the prisoner is in need 22 of immediate medical care and he fails to take reasonable action to summon such medical 23 care.” Cal. Gov. Code § 845.6. 24 The Court finds that the Section 845.6 claim against Defendants Medina, Chudy, and 25 Frederichs is sufficiently related to the Eighth Amendment claim to confer federal jurisdiction, 26 and there is a common nucleus of operative fact between the state and federal claims. The 27 Court thus recommends exercising supplemental jurisdiction over the Section 845.6 claim 28 against Defendants Medina, Chudy, and Frederichs, but no other defendants. The Court does 19 1 not find a sufficiently related claim against any other defendants to warrant exercising 2 supplemental jurisdiction. 3 In Plaintiff’s response to the Court’s screening order, he specifically objects to the 4 dismissal of the Government Code § 845.6 claim against the CDCR. (ECF No. 61, p.3) The 5 Court recommends declining to exercise supplemental jurisdiction over such a claim. The 6 Court has not found a cognizable federal claim against the CDCR. Moreover, Plaintiff’s 7 Government Code claim against the CDCR relates to the failure to promptly provide medical 8 care at PVSP, which the Court has found does not state a claim against the individual 9 defendants. Thus, the Government Code § 845.6 claim against CDCR is not related in subject 10 matter to a cognizable federal claims against an individual, as recommended by this order. 11 C. PROFESSIONAL NEGLIGENCE/MEDICAL MALPRACTICE 12 To show medical malpractice under California law, a plaintiff must establish: “ ‘(1) the 13 duty of the professional to use such skill, prudence, and diligence as other members of his 14 profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal 15 connection between the negligent conduct and the resulting injury; and (4) actual loss or 16 damage resulting from the professional's negligence.’ ” Hanson v. Grode, 76 Cal.App.4th 601, 17 606, 90 Cal.Rptr.2d 396 (1999) (quoting Gami v. Mullikin Medical Center, 18 Cal.App.4th 18 870, 877, 22 Cal.Rptr.2d 819 (1993)). 19 The Court does not find that the medical malpractice claims are sufficiently related to 20 any of the federal claims the Court recommends going forward. The Court has not found that 21 Plaintiff has stated a federal constitutional claim against any medical professional. 22 Accordingly, the Court recommends declining to exercise jurisdiction over any claims for 23 professional negligence under California law as to any defendant. 24 VII. 25 The Court has screened Plaintiff’s Third Amended Complaint and finds that it states 26 cognizable claims against Defendants Medina, Chudy and Frederichs for Deliberate 27 Indifference to Serious Medical Needs in violation of the Eighth Amendment, as well as for 28 violation of Government Code § 845.6. The Court also finds a colorable claim under the Bane CONCLUSION AND ORDER 20 1 Act against Defendant Medina that is substantially related to the Eighth Amendment claim. 2 The Court also finds that Plaintiff’s Third Amended Complaint states cognizable claims against 3 Defendants Eddings and Walker for Retaliation in violation of the First Amendment, as well as 4 for violation of the Bane Act. However, the TAC states no other cognizable claims subject to 5 this Court’s jurisdiction against any of the other defendants. 6 Plaintiff has been given multiple chances to amend his complaint with guidance from 7 the Court. This is Plaintiff’s Third Amended complaint. In Plaintiff’s response to the Court’s 8 screening order, Plaintiff agreed to proceed on the claims found cognizable, but objected to 9 dismissal of the remaining claims and defendants. Accordingly, the Court recommends moving 10 forward on the cognizable claims without further leave to amend. 11 Based on the foregoing, it is HEREBY RECOMMENDED that: 12 1. 13 This action proceed only against Defendants Davis, Chavez, and Loyd for violation for due process; 14 2. All remaining claims and defendants be dismissed from this action. 15 Specifically, the Court recommends dismissal of all asserted federal claims, 16 besides those found cognizable, with prejudice. 17 dismissal of all asserted state claims, besides those found cognizable and subject 18 to supplemental jurisdiction, without prejudice. The Court recommends 19 These Findings and Recommendations will be submitted to the United States District 20 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 21 thirty (30) days after being served with these Findings and Recommendations, Plaintiff may 22 file written objections with the Court. The document should be captioned “Objections to 23 Magistrate Judge=s Findings and Recommendations.” 24 \\\ 25 \\\ 26 \\\ 27 \\\ 28 \\\ 21 1 Plaintiff is advised that failure to file objections within the specified time may result in 2 the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) 3 (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 4 5 6 IT IS SO ORDERED. Dated: October 13, 2016 /s/ UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 22

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