Kevin P. O'Connell v. Chen

Filing 21

ORDER DISMISSING CASE (Strike), with Prejudice, for Failure to State a Claim Upon which Relief may be Granted under Section 1983; ORDER THAT THIS DISMISSAL IS SUBJECT TO THE "THREE STRIKES" PROVISION set forth in 28 U.S.C. 1915(g); ORDER for Clerk to CLOSE this CASE signed by Magistrate Judge Gary S. Austin on 4/4/2014. CASE CLOSED. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KEVIN P. O’CONNELL,

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Plaintiff,

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vs.
DR. C. CHEN,

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Defendant.

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1:12-cv-01403-GSA-PC
ORDER DISMISSING CASE, WITH
PREJUDICE, FOR FAILURE TO STATE A
CLAIM UPON WHICH RELIEF MAY BE
GRANTED UNDER SECTION 1983
(Doc. 17.)
ORDER THAT THIS DISMISSAL IS
SUBJECT TO THE ATHREE-STRIKES@
PROVISION SET FORTH IN 28 U.S.C. '
1915(g)
ORDER FOR CLERK TO CLOSE THIS
CASE

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I.

BACKGROUND
Kevin P. O’Connell ("Plaintiff") is a state prisoner proceeding pro se and in forma

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

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commencing this action on August 27, 2012. (Doc. 1.)

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On August 27, 2012, Plaintiff consented to Magistrate Judge jurisdiction pursuant to 28

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U.S.C. § 636(c) in this action, and no other parties have made an appearance. (Doc. 3.)

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

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

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

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On May 14, 2013, the Court dismissed Plaintiff’s Complaint for failure to state a claim,

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with leave to amend. (Doc. 10.) On July 8, 2013, Plaintiff filed the First Amended Complaint.

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(Doc. 14.) On December 4, 2013, with leave of court, Plaintiff filed the Second Amended

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Complaint, which is now before the court for screening. (Doc. 17.)
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II.

SCREENING REQUIREMENT

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The court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. ' 1915A(a).

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The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are

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legally Afrivolous or malicious,@ that fail to state a claim upon which relief may be granted, or

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that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C.

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' 1915A(b)(1),(2). ANotwithstanding any filing fee, or any portion thereof, that may have been

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paid, the court shall dismiss the case at any time if the court determines that the action or

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appeal fails to state a claim upon which relief may be granted.@ 28 U.S.C. ' 1915(e)(2)(B)(ii).

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A complaint is required to contain Aa short and plain statement of the claim showing

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that the pleader is entitled to relief.@ Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are

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not required, but A[t]hreadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.@ Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937,

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1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955

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(2007)). While a plaintiff=s allegations are taken as true, courts Aare not required to indulge

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

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(internal quotation marks and citation omitted). Plaintiff must set forth Asufficient factual

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matter, accepted as true, to >state a claim to relief that is plausible on its face.=@ Iqbal 556 U.S.

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at 678. While factual allegations are accepted as true, legal conclusions are not. Id.

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To state a viable claim for relief, Plaintiff must set forth sufficient factual allegations to

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state a plausible claim for relief. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572

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F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this

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plausibility standard. Id.

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III.

SUMMARY OF SECOND AMENDED COMPLAINT

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Plaintiff is a former state prisoner who was in the custody of the California Department

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of Corrections and Rehabilitation (CDCR) and incarcerated at Kern Valley State Prison

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(KVSP) when the events at issue in the Second Amended Complaint allegedly occurred.

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Plaintiff names Dr. C. Chen (MD) (“Defendant”) as the sole defendant.
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Defendant was

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employed by the CDCR and working at KVSP at the time of the events at issue. Plaintiff's

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factual allegations follow.

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In late June 2010, Plaintiff was assaulted by three KVSP prison guards while rising

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from a wheelchair, causing Plaintiff significant physical and psychological injuries which were

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never treated. Plaintiff was placed in administrative segregation (Ad-Seg) on charges that he

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had assaulted staff. The assault charges were subsequently dismissed.

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While in Ad-Seg, Plaintiff requested suicide watch. At this time, Plaintiff was nine

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days into a twenty-one-day detoxification process from Methadone, which had been legally

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prescribed to Plaintiff for back pain diagnosed as disc protrusion, herniated and bulging discs,

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and degenerative disc disease. For nearly three years, Plaintiff was prescribed a high daily dose

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of Methadone. Then, Plaintiff’s Methadone prescription was discontinued and he was placed

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on the twenty-one day detoxification program, tapering off the medication.

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As part of the suicide watch intake process, Plaintiff was physically examined by Dr. C.

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Chen. Dr. Chen told Plaintiff he was aware of Plaintiff’s detoxification program, and aware

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that Plaintiff had been placed in Ad-Seg for assaulting staff. Dr. Chen spoke in a manner that

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implied Plaintiff was guilty of the allegation. Plaintiff’s eyes, legs, cheekbone, and other body

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parts were swollen from the assault, and his cheekbone was a purpish-red color. (A subsequent

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x-ray at Mule Creek State Prison showed that the cheekbone had been broken and never

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repaired by surgery.)

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Plaintiff that “it went with the turf” and he was physically fine and did not need follow up care.

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(Second Amended Complaint at 7.) Dr. Chen then cancelled the remaining eleven days of

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Plaintiff’s detoxification program.

Dr. Chen did not examine Plaintiff’s injuries or order x-rays. He told

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Plaintiff alleges that a good doctor would know that a Methadone prescription such as

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Plaintiff’s should not be abruptly discontinued, because of possible side effects including

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physical pain, psychological trauma, and even death. When Dr. Chen discontinued Plaintiff’s

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Methadone in a cold-turkey fashion, Plaintiff suffered severe cramps, pain, inability to sleep for

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days, nausea, sweats, hot and cold flashes, and an increase in suicidal thoughts. Plaintiff

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alleges that Dr. Chen should have known about Methadone’s potency and the detoxification
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process, because of the availability of published data. Plaintiff alleges that Dr. Chen’s conduct

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went far beyond a difference of opinion about appropriate medical care.

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Plaintiff suffered psychological trauma as a result of the abrupt discontinuation of

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Methadone.

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“confronted, escorted, and showered due to the fact that I had smeared my own human

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excrement on my face and in my mouth” without being aware of doing so. (Second Amended

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Complaint at 7.)

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Medical workers observed during the suicide watch that Plaintiff had to be

Plaintiff requests monetary damages as relief.
IV.

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

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Every person who, under color of [state law] . . . subjects, or
causes to be subjected, any citizen of the United States . . . to the
deprivation of any rights, privileges, or immunities secured by
the Constitution . . . shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for
redress.

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

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

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(internal quotations omitted). ATo the extent that the violation of a state law amounts to the

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deprivation of a state-created interest that reaches beyond that guaranteed by the federal

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Constitution, Section 1983 offers no redress.@ Id.

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A.

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

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

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

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

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

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

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

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

Eighth Amendment Medical Claim

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

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

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

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McGuckin, 974 F.2d at 1060).

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

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

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

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

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

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Deliberate indifference may be manifested Awhen prison

1985)).

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

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

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

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

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

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was not, then the official has not violated the Eighth Amendment, no matter how severe the

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risk.=@ Id. (quoting Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir.

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2002)).

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

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

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

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

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Plaintiff has demonstrated that he had a serious medical need when his Methadone

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prescription was cancelled, because of withdrawal symptoms including physical pain and

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psychological trauma. Plaintiff also demonstrated a serious medical need because his body

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parts were swollen and painful, and he had a broken cheekbone. However, Plaintiff fails to

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allege facts showing that Dr. Chen was deliberately indifferent to those needs. Plaintiff fails to

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show that Dr. Chen acted or failed to act while knowing of and deliberately disregarding a

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substantial risk of harm to Plaintiff.

Plaintiff alleges, at most, negligence, which is not
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actionable in a § 1983 action.

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inadequate medical care under the Eighth Amendment.

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V.

Therefore, Plaintiff fails to state a cognizable claim for

CONCLUSION

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The Court finds that Plaintiff=s First Amended Complaint fails to state any cognizable

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claims upon which relief may be granted under ' 1983. In this action, the Court previously

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

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Plaintiff has now filed two complaints without alleging facts against the defendant which state

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a claim under ' 1983. The Court finds that the deficiencies outlined above are not capable of

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being cured by amendment, and therefore further leave to amend should not be granted. 28

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

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Therefore, IT IS HEREBY ORDERED that:

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

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

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granted under ' 1983;

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2.

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This dismissal is subject to the Athree-strikes@ provision set forth in 28 U.S.C. '
1915(g); and

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The Clerk is directed to close this case.

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IT IS SO ORDERED.
Dated:

April 4, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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