Johnson v. Yulit et al

Filing 40

ORDER DISMISSING This Action for Failure to State a Claim Upon Which Relief Could be Granted and That This Action Count as a Strike Under 28 U.S.C. 1915(g), signed by Magistrate Judge Stanley A. Boone on 12/23/15. CASE CLOSED (Strike). (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROBERT D. JOHNSON,

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Case No. 1:12-cv-00947-SAB-PC

Plaintiff,

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v.

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ORDER DISMISSING THIS ACTION FOR
FAILURE TO STATE A CLAIM UPON
WHICH RELIEF COULD BE GRANTED
AND THAT THIS ACTION COUNT AS A
STRIKE UNDER 28 U.S.C. §1915(g).

DR. ULIT, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis pursuant to 42 U.S.C.

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18 § 1983. Plaintiff has consented to magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c).

19 Pending before the Court is Plaintiff‟s April 16, 2015, Third Amended Complaint, filed in
20 response to an order dismissing the Second Amended Complaint and granting Plaintiff leave to
21 amend.
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I.

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PROCEDURAL HISTORY
Plaintiff, an inmate in the custody of the California Department of Corrections and

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25 Rehabilitation (CDCR) at the Substance Abuse Treatment Facility at Corcoran (SATF), brings
26 this action against defendant correctional officials employed by the CDCR at SATF. Plaintiff
27 names as Defendants the following individuals: Dr. W. Ulit; “Nurse Physician” P. Rouch; Chief
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Plaintiff filed a consent to proceed before a magistrate judge on June 19, 2012 (ECF No. 9).

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1 Medical Officer E. Clark; Executive Officer T. Macias; Prison Health Care Manager I. Zamora.
2 Plaintiff claims that Defendants were deliberately indifferent to a serious medical condition of
3 Plaintiff‟s, in violation of the Eighth Amendment‟s prohibition of cruel and unusual punishment.
This action was initiated by civil complaint filed on June 1, 2012. (ECF No. 1.) Plaintiff

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5 filed a motion for leave to file an amended complaint, which was granted. On January 14, 2013,
6 Plaintiff filed a First Amended Complaint (ECF No. 21.) On November 20, 2013, Plaintiff filed
7 a Second Amended Complaint. (ECF No. 26.) On January 15, 2014, Plaintiff filed a Third
8 Amended Complaint, which was stricken on January 17, 2014, on the ground that Plaintiff did
9 not seek leave of court to amend. (ECF NO. 28.)

On March 18, 2015, an order was entered,

10 dismissing the January 15, 2014, Second Amended Complaint for failure to state a claim and
11 granting Plaintiff leave to file a Third Amended Complaint. (ECF No. 33.) On April 16, 2015,
12 Plaintiff filed the Third Amended Complaint that is before the Court.
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II.

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ALLEGATIONS
Plaintiff‟s allegations stem from his treatment for diabetes.

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In the order dismissing the

16 Second Amended Complaint, the Court noted that Plaintiff is a diabetic and has been insulin
17 dependent for over fourteen years. Plaintiff alleges that he has always practiced the “sliding
18 scale” method of treatment for his diabetes. Plaintiff alleges that the prison physicians have
19 discontinued the sliding scale method of treatment for Plaintiff. In the order dismissing the
20 Second Amended Complaint, the Court noted that Plaintiff‟s exhibits attached to his original
21 complaint indicated that the decision to discontinue the sliding scale method of treatment was
22 based upon professional medical opinion.2 Specifically, page 6 of Plaintiff‟s Exhibits to his
23 Complaint includes the response to Plaintiff‟s grievance at the second level of appeal.
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You were interviewed on 9/20/10 by P. Rouch, NP regarding your
sliding scale insulin. You were informed that your blood sugars
are well controlled without a sliding scale at this time. The nurse
practitioner is a qualified medical professional that is able to make
this determination. You may disagree with her decision but it does

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The Court is not required to accept as true conclusory allegations which are contradicted by documents referred to
in the complaint. See Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002); Steckman v. Hart Brewing, 143 F.3d
1293, 1295-96 (9th Cir. 1998).

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not mean that she is wrong. It is not necessary that you agree with
your treatment. It is necessary that you consent to your treatment.
Your medical history indicates that you have refused lab draws,
finger stick blood sugar checks and insulin. These actions impact
the ability to control your blood sugar levels. Dr. Ulit also
determined that your blood sugar levels are well controlled without
a sliding scale. The basis of the decision to deny the reinstatement
of the sliding scale is that your blood sugar levels are well
controlled at this time.

6 (Exhibit to Complaint, p. 6).
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III.

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ANALYSIS

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Under the Eighth Amendment, the government has an obligation to provide medical care

10 to those who are incarcerated. See Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000). “In
11 order to violate the Eighth Amendment proscription against cruel and unusual punishment, there
12 must be “a deliberate indifference to serious medical needs of prisoners.” Id. (quoting Estelle v.
13 Gamble, 429 U.S. 97, 104 (1976)). Lopez takes a two-prong approach to evaluating whether
14 medical care, or lack thereof, rises to the level of “deliberate indifference.” First, a court must
15 examine whether the plaintiff‟s medical needs were serious. Id. Second, a court must determine
16 whether “officials intentionally interfered with [the plaintiff‟s] medical treatment.” Id. at 1132.
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The Court advised Plaintiff that he could not prevail in a section 1983 action where only

18 the quality of treatment is subject to dispute. “A difference of opinion between a physician and
19 the prisoner – concerning what medical care is appropriate does not amount to deliberate
20 indifference.” Snow v. McDaniel, 681 F.3d 978, 987 (9th Cir. 2012)(citing Sanchez v. Vild, 891
21 F.2d 240, 242 (9th Cir. 1989)), overruled in part on other grounds, Peralta v. Dillard, 744 F.3d
22 1076, 1082-83 (9th Cir. 2014); Wilhelm v. Rotman, 680 F.3d 1113, 1122-23 (9th Cir.
23 2012)(citing Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1986)). Rather, Plaintiff “must
24 show that the course of treatment the doctors chose was medically unacceptable under the
25 circumstances and that the defendants chose this course in conscious disregard of an excessive
26 risk to [his]health.” Snow, 681 F.3d at 988 (citing Jackson, 90 F.3d at 332)(internal quotation
27 marks omitted).
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The Court noted that Plaintiff had not alleged any facts indicating that a medical

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1 professional deemed the decision to discontinue the sliding scale method to be medically
2 unacceptable. Plaintiff was specifically advised that he must allege facts indicating that each
3 individual defendant knew of and disregarded a serious risk to Plaintiff‟s health.
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In the Third Amended Complaint that is before the Court, Plaintiff provides greater

5 factual detain regarding his medical condition, but does not allege any facts that link any of the
6 named Defendants to conduct that constitutes deliberate indifference. Plaintiff alleges generally
7 that “deliberate indifference with malpractice began when Johnson‟s 602 grievance appeal . . .
8 having pain, dizziness, loss of breath, body aches.” (Page 1 of narrative attachment to Third
9 Amended Complaint, lines 5-6.)

Plaintiff alleges generally that his “deteriorating health and

10 loss of breath” was not a concern of Defendants Clark, Macias and Zamora. (Id. at 1:11.)
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The Third Amended Complaint consists of a narrative interspersed with legal argument.

12 Plaintiff sets forth numerous generalized allegations regarding the treatment for his diabetes, but
13 fails to specifically allege dates as to when he was seen by particular Defendants. Plaintiff
14 contends that he “is not arguing that this is simply a difference of „opinion,‟ as Rouch suggest.
15 But that all insulin, especially sliding-scale most importantly out of it all, is a serious need and a
16 mandatory daily need.”

(Id. 1:14-15.)

Plaintiff alleges that he continues to suffer from

17 neuropathy that is directly related to Ulit‟s treatment. Plaintiff does not, however, allege that he
18 was seen by a medical professional and diagnosed with neuropathy that resulted directly from his
19 insulin treatment. Plaintiff is not a medical professional, and may not hold Defendants liable
20 because, in his view, he suffers as a result of his treatment regimen.
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Plaintiff alleges that, in his view, “all suffering, fear, cell-damage, pain could/should have

22 been safely avoided had all Defendants not intentionally interfered with „A.D.A.‟ American
23 Diabetes Ass. Safety requirements by Defendants committing themselves in practicing the exact
24 opposite protocols that A.D.A. teach. Ulit, Rouch, Clark, Macias, cohearsed [sic] together.” (Id.
25 2:13-16.)

Plaintiff appears to argue that Defendants‟ violated the American Diabetes

26 Association protocols. Plaintiff alleges that Defendant Ulit provided “the exact opposite” of
27 what the protocols require. (Id. 3:13.)
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Throughout the Third Amended Complaint, Plaintiff sets forth generalized allegations

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1 that Defendants were deliberately indifferent to his serious medical needs, but does not allege
2 facts indicating that each Defendant engaged in particular conduct on a particular occasion that
3 constituted deliberate indifference, as that term is defined above. Plaintiff alleges that Defendant
4 Zamora “knew the extent of Johnson‟s pain, no food, black-out, continual insulin being took
5 outside of sliding scale is a one way course of treatment being largely ineffective, wrong, and
6 just doesn‟t work, and still declined to do anything.” (Id. 3:21-23.)

Plaintiff also refers to the

7 effects of his refusal to eat meals. Plaintiff alleges that he “did constantly refuse (and Rouch,
8 Clark, Zamora failed to do due-process) between August 2010 through March 2011, due to not
9 having enough insulin, was to eat many of meals[sic].” (Id. 6:18-19.)
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Plaintiff alleges that it was “clearly proven” that he had high blood sugar and not enough

11 insulin. (Id. 6:24.) Plaintiff contends that “this also shows that Defendants didn‟t care how
12 Plaintiff was going to eat nor give due-process in answering this grievance by Johnson.” (Id.
13 6:26.) Plaintiff alleges that he couldn‟t eat dinner because he did not have enough insulin to
14 protect him. Plaintiff alleges that the only way that he could avoid high blood sugar was to
15 throw away food. Plaintiff alleges that “daily finger stick/accu-check showing several meals
16 being thrown away on days with high blood sugar.” (Id. 7:2.)
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Plaintiff refers to an accommodation chrono that he requested, which would authorize

18 Plaintiff to eat only after his blood sugar was 130 mg or less. The chrono would have authorized
19 Plaintiff to store food, which is otherwise not allowed. Plaintiff alleges that Defendants‟ refusal
20 to authorize such a chrono constituted deliberate indifference. Plaintiff also alleges that when he
21 was transferred to another prison, the physicians there returned him to the sliding scale method
22 of treatment.
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The Court dismissed the Second Amended Complaint for failure to state a claim upon

24 which relief could be granted. In the March 18, 2015 order, the Court informed Plaintiff of the
25 deficiencies in his complaint, and dismissed the complaint on the ground that Plaintiff had failed
26 to state a claim upon which relief could be granted. Plaintiff was advised that the central claim
27 in his action – that he disagreed with the decision to discontinue the sliding scale method of
28 treatment – constituted a difference of opinion with medical professionals and thus did not state a

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1 claim for relief. In his Third Amended Complaint, Plaintiff re-states his allegations, albeit at
2 greater length and interspersed with legal argument.
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Plaintiff also alleges that the failure to provide him with a medical chrono authorizing

4 him to eat when his blood sugar was at a particular level fails to state a claim for relief. As
5 noted, when there is a difference of opinion between a prisoner and a prison medical
6 professional, Plaintiff “must show that the course of treatment the doctors chose was medically
7 unacceptable under the circumstances and that the defendants chose this course in conscious
8 disregard of an excessive risk to [his]health.” Snow, 681 F.3d at 988 (citing Jackson, 90 F.3d at
9 332)(internal quotation marks omitted). Plaintiff has not alleged any facts here indicating that a
10 medical professional determined that the denial of the chrono was medically acceptable under
11 the circumstances. That Plaintiff believes it is so does not state a claim for relief.
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Further, even if Plaintiff were to allege facts indicating that officials were deliberately

13 indifferent to a serious medical need, he has failed to link any of the named Defendants to
14 particular conduct that constitutes deliberate indifference. In the order dismissing the Second
15 Amended Complaint, Plaintiff was specifically advised that in order to hold each individual
16 defendant liable, he must name the individual defendant and explain how that Defendant
17 deprived Plaintiff of a protected right.

An allegation that Plaintiff has diabetes and that

18 Defendants in general have refused to accommodate Plaintiff‟s requests do not state a claim for
19 relief.
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Plaintiff has amended his complaint as a matter of right, and has further amended the

21 complaint in response to an order that specifically identified the deficiencies in the Second
22 Amended Complaint. The Court finds that the Third Amended Complaint cannot be cured by
23 further amendment. The facts alleged clearly indicate that Plaintiff has been treated for diabetes,
24 and that Plaintiff disagrees with the course of that treatment. Plaintiff does not allege any facts
25 suggesting that a medical professional deemed Plaintiff‟s course of treatment to be medically
26 unacceptable. Throughout his Third Amended Complaint, Plaintiff asserts his belief that his
27 Defendants‟ conduct was negligent. Even assuming Defendants erred, an Eighth Amendment
28 claim may not be premised on even gross negligence by a physician. Wood v. Housewright, 900

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1 F.2d 1332, 1334 (9th Cir. 1990). Allegations indicating medical malpractice do not state a claim
2 under the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, (1977); Snow v. McDaniel, 681
3 F.3d 978, 987-88 (9th Cir. 2012), overruled in part on other grounds, Peralta v. Dillard, 744 F.3d
4 1076, 1082-83 (9th Cir. 2014); Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012)(“The
5 deliberate indifference doctrine is limited in scope.”).
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Further, Plaintiff was clearly advised that he must link each Defendant with conduct that

7 constituted deliberate indifference. Plaintiff was advised that in order to state a claim against an
8 individual, he must “name the individual defendant, describe where that defendant is employed
9 and in what capacity, and explain how that defendant acted under color of state law. Plaintiff
10 should state clearly, in his own words, what happened. Plaintiff must describe what each
11 defendant, by name, did to violate the particular right described by Plaintiff.” (ECF No. 33,
12 4:10-13.) In the Third Amended Complaint, Plaintiff has failed to link any of the individual
13 Defendants to conduct that constitutes deliberate indifference. Throughout the Third Amended
14 Complaint, Plaintiff refers to defendants in general, and asserts conclusory allegations against
15 medical and correctional officials generally.
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Plaintiff also names supervisory Defendants Chief Medical Officer Clark, Executive

17 Officer T. Macias and Prison Health Care Manager I. Zamora. Government officials may not be
18 held liable for the actions of their subordinates under a theory of respondeat superior. Ashcroft
19 v. Iqbal, 556 U.S. 662, 673 (2009). Since a government official cannot be held liable under a
20 theory of vicarious liability for section 1983 actions, Plaintiff must plead that the official has
21 violated the Constitution through his own individual actions. Id. at 673. In other words, to state
22 claim for relief under section 1983, Plaintiff must link each named defendant with some
23 affirmative act or omission that demonstrates a violation of Plaintiff‟s federal rights.

He has

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IV.

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CONCLUSION AND ORDER

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Because Plaintiff has not filed a Third Amended Complaint that corrects the deficiencies

28 identified by the Court in the order dismissing the First Amended Complaint, the Court dismisses

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1 this action with prejudice for failure to state a claim upon which the Court could grant relief. See
2 Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2007)(recognizing longstanding rule that leave to
3 amend should be granted even if no request to amend was made unless the court determines that
4 the pleading could not be cured by the allegation of other facts); See Ferdik v. Bonzelet, 963
5 F.2d 1258, 1261 (9th Cir. 1992)(dismissal with prejudice upheld where court had instructed
6 plaintiff regarding deficiencies in prior order dismissing claim with leave to amend).
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Accordingly, IT IS HEREBY ORDERED that:

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1. This action is dismissed for failure to state a claim upon which relief can be granted;

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2. This action counts as a strike under 18 U.S.C. § 1915(g); and
3. The Clerk of Court is directed to close this case.

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IT IS SO ORDERED.

13 Dated:

December 23, 2015
UNITED STATES MAGISTRATE JUDGE

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