Baldhosky v. Hubbard et al

Filing 139

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS and DISMISSING Non-Cognizable Claims 28 , 126 , signed by Chief Judge Lawrence J. O'Neill on 3/20/2018. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RAYMOND BALDHOSKY,

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Plaintiff,

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CASE NO. 1:12-cv-01200-LJO-MJS (PC)

v.
SUSAN HUBBARD, et al.,

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Defendants.

ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND DISMISSING
NON-COGNIZABLE CLAIMS
(ECF Nos. 28, 126)

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Plaintiff is a former state prisoner proceeding in forma pauperis but with counsel

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in this civil rights action brought pursuant to 42 U.S.C. § 1983. The matter was referred

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to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule

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302.

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Before the Court are the Magistrate Judge’s December 4, 2017 findings and

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recommendations to dismiss certain claims for failure to state a cognizable claim. (ECF

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No. 126.)

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I.

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Procedural History
This case has a lengthy and somewhat complicated procedural history that bears

on the matters presently before the Court.

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Plaintiff initiated this action (hereinafter “Baldhosky I”) pro se on July 23, 2012

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with the filing of his complaint and a motion to proceed in forma pauperis. (ECF Nos. 1,

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3.) Shortly thereafter, Plaintiff consented to Magistrate Judge jurisdiction. (ECF No. 6.)

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The complaint lingered in the screening stage until December 9, 2013. (ECF No.

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13.) On that date, the Magistrate Judge reviewed the complaint and noted several

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defects: (1) the seventy-four page complaint was “replete with redundancies,

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unnecessary verbiage, and legal citations and extracts,” and therefore failed to meet the

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pleading requirements of Federal Rule of Civil Procedure 8(a); (2) the complaint

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contained claims that were not properly joined under Rule 18(a); (3) factual detail was

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lacking to link specific claims to specific defendants, and (4) the facts as pled did not

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support cognizable claims. The complaint was dismissed with leave to amend. (Id.)

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Plaintiff filed a first amended complaint on January 21, 2014. (ECF No. 16.) On

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February 7, 2014, Plaintiff apparently heeded the Court’s admonition regarding

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misjoinder and initiated a separate action, Baldhosky v. State, No.1:14-cv-00166-LJO-

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MJS (hereinafter “Baldhosky II”), which contained a number of claims originally pled in

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his complaint in Baldhosky I. On April 30, 2014 and May 1, 2014, Plaintiff lodged in

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Baldhosky I a second amended complaint. (ECF Nos. 20, 23.) The second amended

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complaint eventually was filed as the operative pleading. (ECF Nos. 24 and 25.) On

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October 7, 2015, the Magistrate Judge screened the second amended complaint, found

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some of the claims cognizable, and ordered Plaintiff to file a third amended complaint or

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notify the Court of his willingness to proceed only on the cognizable claims. (ECF No.

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26.)

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On October 28, 2015, Plaintiff filed a third amended complaint. (ECF No. 28.) On

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May 4, 2016, the Magistrate Judge issued his final screening order, in which he

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dismissed several of Plaintiff’s Eighth Amendment medical indifference claims with

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prejudice for failure to state a claim. (ECF No. 31.) This case has since proceeded

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against Defendants Drs. Gonzalez, Nguyen, and Metts; PAs Peters and Byers; and

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Nurses Grossi, Ruff, Indindes, Kaylor, and Dunn on Eighth Amendment claims for

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medical indifference on the bases set forth in the Magistrate Judge’s screening order.

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(Id.) Little else of substance has occurred due to delays associated with locating and

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serving all of the defendants.

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While Plaintiff pursued the screening process in Baldhosky I, his claims in

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Baldhosky II also were under review. On October 20, 2014, the Magistrate Judge issued

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a final screening order on the first amended complaint, finding cognizable medical

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indifference and state law medical negligence claims against Defendants Sanchez,

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Diwendi, Yang, Cross, Toni, Smith, Daniels, and Does 2-13, 15-17, 19-20, and 24-40, all

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physicians and nurses at Corcoran State Prison. (ECF No. 8 in Baldhosky II.) The

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remaining claims and defendants were dismissed.1 (Id.) The defendants were served

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with process and filed a motion to dismiss, arguing that the statute of limitations had

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expired. (ECF No. 19 in Baldhosky II). The undersigned granted the motion and Plaintiff

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appealed. (ECF Nos. 35, 38 in Baldhosky II.)

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On appeal of Baldhosky II, the Ninth Circuit determined that the Magistrate Judge

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abused his discretion in Baldhosky I when he dismissed the initial complaint with leave to

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amend, rather than severing the misjoined claims. (ECF No. 44 in Baldhosky II). Thus,

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the Ninth Circuit concluded, Plaintiff was entitled to equitable tolling of the statute of

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limitations in Baldhosky II. (Id.) The Ninth Circuit vacated the judgment and remanded.

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Baldhosky II is now in discovery pending resolution of the pleadings.

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II.

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Williams v. King
Both Baldhosky I and Baldhosky II have proceeded to discovery on a screening

order issued solely by a Magistrate Judge.

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On November 9, 2017, the Ninth Circuit Court of Appeals ruled that 28 U.S.C.

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§ 636(c)(1) requires the consent of all named plaintiffs and defendants, even those not

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served with process, before jurisdiction may vest in a Magistrate Judge to dispose of a

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Plaintiff also challenges the screening order in Baldhosky II. These challenges will be addressed in a
separate order in that action.

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civil claim. Williams v. King, 875 F.3d 500 (9th Cir. 2017). Accordingly, the Court held

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that a Magistrate Judge does not have jurisdiction to dismiss a claim with prejudice

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during screening, even if the plaintiff has consented to Magistrate Judge jurisdiction. Id.

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On December 4, 2018, the Magistrate Judge recognized that Defendants had

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neither appeared nor consented to Magistrate Judge jurisdiction when the relevant

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screening order issued, and he therefore re-issued his previous screening order as

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findings and recommendations. The findings and recommendations were served on all

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parties with notice that objections thereto were to be filed within fourteen days. (ECF No.

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126.) Plaintiff obtained counsel, who filed objections on his behalf. (ECF Nos. 128, 130.)

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Defendants filed no objections, nor did they respond to Plaintiff’s objections.

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III.

Plaintiff’s Objections

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304,

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the Court has conducted a de novo review of Plaintiff’s case. Having carefully reviewed

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the entire file, including Plaintiff’s objections, the Court finds the findings and

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recommendations to be supported by the record and by proper analysis. The Court

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responds to Plaintiff’s objections below.

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A.

Screening Requirement

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The Magistrate Judge screened Plaintiff’s complaint pursuant to the in forma

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pauperis statute, which provides: “Notwithstanding any filing fee, or any portion thereof,

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that may have been paid, the court shall dismiss the case at any time if the court

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determines that . . . the action or appeal (i) is frivolous or malicious, (ii) fails to state a

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claim on which relief may be granted; or (3) seeks monetary relief against a defendant

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who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).

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Plaintiff contends that the Court’s authority to dismiss complaints brought by non-

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prisoners proceeding in forma pauperis is limited to pleadings that are frivolous or

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malicious. According to Plaintiff, if a non-prisoner’s complaint is not frivolous or

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malicious, service should immediately be ordered, and the pleadings resolved through

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the adversarial process on a motion to dismiss. He therefore contends that the action

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should proceed on all claims stated in the third amended complaint.

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Courts have widely held that 28 U.S.C. § 1915(e)(2)(B) authorizes the court to

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sua sponte screen and dismiss claims without regard to whether the Plaintiff is a

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prisoner. See e.g., Rowe v. Shake, 196 F.3d 778, 783 (7th Cir.1999) (“[D]istrict courts

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have the power to screen complaints filed by all litigants, prisoners and non-prisoners

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alike, regardless of fee status.” (citing § 1915(e)(2)(B)); Michau v. Charleston County,

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S.C., 434 F.3d 725, 728 (4th Cir. 2006); Atamian v. Burns, 236 Fed. Appx. 753, 754 (3rd

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Cir. 2007) (“[T]he provisions of § 1915(e) apply to all in forma pauperis complaints, not

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simply those filed by prisoners.”); Buchheit v. Green, 705 F.3d 1157, 1161 (10th Cir.

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2012).

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Plaintiff’s reliance on cases limiting such screening to actions that are frivolous or

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malicious is misplaced. The current section 1915(e) replaced the former section 1915(d),

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which provided that a district court “may dismiss the case if the allegation of poverty is

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untrue, or if satisfied that the action is frivolous or malicious.” 28 U.S.C. § 1915(d)

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(1994). The Supreme Court held in Neitzke v. Williams, 490 U.S. 319 (1989), that

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section 1915(d) did not authorize district courts to dismiss, sua sponte, a complaint for

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failure to state a claim. Thereafter, Congress amended the statute to expressly include

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the “failure to state a claim” basis for sua sponte dismissal. It is therefore clear that

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Congress intended to overrule Neitzke in that regard. It is therefore also clear that

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section 1915(e) permits a district court to dismiss an in forma pauperis complaint that

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fails to state a claim. See Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (citing

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Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.1998)).

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Plaintiff’s argument to the contrary is therefore unavailing.

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B.

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Alternatively, Plaintiff argues that all of his stated claims are cognizable or can be

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Review of Individual Claims

made cognizable through amendment.

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Generalized Allegations

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The Magistrate Judge noted that Plaintiff’s complaint improperly raised “some

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general allegations that are directed toward all of the Defendants collectively.” (ECF No. 126

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at 12.) The Magistrate Judge recommended dismissal of these claims because did not set

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forth specific facts regarding the conduct of any individual defendant that led to an alleged

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violation of Plaintiff’s rights, as required to state a claim under section 1983. Leer v. Murphy,

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844 F.2d 628, 634 (9th Cir. 1988); see also Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.

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1989). Plaintiff’s objections in this regard are directed primarily to his claims alleging that

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individuals who identities are apparently presently unknown reviewed his health care

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services requests and failed to act in violation of his constitutional rights.

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The mere failure to act on a health care services request is insufficient to allege a

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violation of the Eighth Amendment. Additionally, the denial of a prisoner’s administrative

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requests generally does not cause or contribute to any underlying constitutional

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violation. George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007) (quotation marks omitted).

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However, prison administrators cannot willfully turn a blind eye to constitutional violations

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being committed by subordinates. Jett v. Penner, 439 F.3d 1091, 1098 (9th Cir. 2006).

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Thus, there may be limited circumstances in which those involved in reviewing an inmate

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appeal can be held liable under section 1983.

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If Plaintiff has some basis to suggest that the individuals reviewing his health care

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requests either acted with deliberate indifference to his serious medical needs or turned

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a blind eye to the constitutional violations of subordinates, he has failed to present it.

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Instead, he suggests he should be able to pursue discovery to determine whether this

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occurred. This does not comport with applicable pleading standards. Bell Atl. Corp. v.

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Twombly, 550 U.S. 544, 547 (2007) (pleading standards require plaintiffs to nudge their

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claims “across the line from conceivable to plausible”).

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2.

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Olga Beregovskaya2

Plaintiff presents three grounds on which he contends he should be permitted to
proceed against Defendant Beregovskaya.

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First, he states that Beregovskaya was his primary care physician “at times” from

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February 2010 to July 29, 2010. From May 7, 2010 to July 29, 2010, she saw Plaintiff

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nearly daily. During this time, Plaintiff required assistance he could not perform on his

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own to ensure that his recovery from pressure sores and infection would be successful.

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In this regard, he was under the care of a contract surgeon, Dr. Freeman, who ordered

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surgery for a date certain. Beregovskaya knew of this recommendation but failed to

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prepare Plaintiff for surgery and Plaintiff did not receive the surgery as scheduled.

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Apparently, records reflect that this was due to an error. Nonetheless, Plaintiff

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speculates that discovery could show that Beregovskaya instead acted with deliberate

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indifference. He offers no facts to support this contention. His speculation is insufficient

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to demonstrate a cognizable claim. Twombly, 550 U.S. at 547 (2007) (pleading

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standards require plaintiffs to nudge their claims “across the line from conceivable to

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plausible”).

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Next, he alleges deliberate indifference based on Beregovskaya’s decision not to

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return Plaintiff to Dr. Freeman for post-surgical care, and to instead care for the wound

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herself. According to Plaintiff, this care was inadequate and Beregovskaya was not

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adequately trained or competent to address his complex medical condition. However, as

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stated by the Magistrate Judge, these allegations suggest at most negligence, and not a

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constitutional claim.

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Finally, he contends that Beregovskaya’s failure to arrange post-release medical

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care constituted constitutionally actionable deliberate indifference to his serious medical

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needs under the Eighth Amendment. As stated by the Magistrate Judge, a prison

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official’s obligations to a released prisoner under the Eighth Amendment are extremely

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Erroneously named in the complaint as “Olga Veregovskay.”

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limited. See Wakefield v. Thompson, 177 F.3d 1160, 1164 (9th Cir. 1999). The Court

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finds no support for the argument that Beregovskaya was required to maintain Plaintiff’s

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medical care in the community, as Plaintiff contends. Accordingly, this allegation fails to

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state a claim.

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3.

PA Peters

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The Magistrate Judge found some of the claims against Defendant Peters to be

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cognizable. However, the Magistrate Judge concluded that Peters’ alleged failure to

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provide Plaintiff a “proper care plan” at a time when Plaintiff had not yet developed

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pressure sores, failed to state a claim. Plaintiff’s objections reflect some confusion in this

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regard, as he contends that the care was inadequate to heal the pressure sores, and

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therefore deliberately indifferent. The Court agrees with the Magistrate Judge that the

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facts alleged regarding Plaintiff’s June 30, 2009 visit with Peters do not state a claim.

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Dr. Gonzalez

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The Court agrees with Plaintiff that Gonzalez’s alleged failure to consider possible

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accommodations for Plaintiff is sufficient to state a claim. While Plaintiff does not have a

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right to the treatment of his choice, and the evidence eventually may show that Plaintiff’s

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requested accommodations were denied without deliberate indifference to his medical

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needs, the alleged failure to examine Plaintiff and the related failure to offer any

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accommodations (other than bowel care supplies) in the face of early-onset skin

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deterioration is sufficient to state a claim. In separate findings and recommendation on

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Defendants’ motion to dismiss, the Magistrate Judge clarified that the cognizable claim

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“arises from Defendant Gonzalez’s failure to examine Plaintiff and thereafter to offer

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appropriate treatment for his skin deterioration.” (ECF No. 65 at 7.) The undersigned

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adopted these findings and recommendations in full. (ECF No. 82.) The Court

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understands the current findings and recommendations to reach the same conclusion.

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The Court need not, and will not, parse the complaint to determine whether Plaintiff

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states a cognizable claim with regard to each accommodation he desired.

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Defendant Ruff

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The Magistrate Judge found cognizable claims against Defendant Ruff. However,

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he deemed non-cognizable the allegation that Ruff improperly positioned Plaintiff on an

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examination table, which Plaintiff contends Ruff did for her own convenience. Plaintiff

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states that he can amend the complaint to state that he complained to Ruff that the

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positioning was causing him pain and that he suffered unnecessary pain for

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approximately five minutes. This de minimis contact does not rise to a constitutional

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violation. Cf. Hudson v. McMillian, 503 U.S. 1, 9-10 (1992) (“The Eighth Amendment's

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prohibition of ‘cruel and unusual’ punishments necessarily excludes from constitutional

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recognition de minimis uses of physical force, provided that the use of force is not of a

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sort ‘”repugnant to the conscience of mankind.”’” (citations omitted)). Even if amended, it

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would fail to state a claim.

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IV.

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Conclusion and Order
Based on the foregoing, it is HEREBY ORDERED that:

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1. The findings and recommendations issued December 4, 2017 (ECF No.

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126) are adopted in full;

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2. The action shall continue to proceed on the cognizable Eighth

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Amendment medical indifference claims against Drs. Gonzalez, Nguyen,

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and Metts; PAs Peters and Byers; and Nurses Grossi, Ruff, Indindes,

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Kaylor, and Dunn, as explained in the Magistrate Judge’s screening order;

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and

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3. All other claims and defendants are dismissed with prejudice for failure to

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state a claim.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill _____

March 20, 2018

UNITED STATES CHIEF DISTRICT JUDGE
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