Lewis v. Wang, et al.

Filing 10

FINDINGS and RECOMMENDATIONS Recommending That This Case Be Dismissed, With Prejudice, for Failure to State a Claim re 9 , signed by Magistrate Judge Gary S. Austin on 5/8/14: Objections, if any, due within thirty days. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JERRY LEWIS,

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Plaintiff,

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vs.
JEFFERY WANG, et al.,

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Defendants.

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I.

1:12-cv-01867-LJO-GSA-PC
FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT THIS CASE BE
DISMISSED, WITH PREJUDICE, FOR
FAILURE TO STATE A CLAIM
(Doc. 9.)
OBJECTIONS, IF ANY, DUE WITHIN
THIRTY DAYS

BACKGROUND

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Jerry Lewis ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis with

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

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this action on November 14, 2012. (Doc. 1.) The court screened the Complaint pursuant to 28

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U.S.C. 1915A and issued an order on August 8, 2013, dismissing the Complaint for failure to

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state a claim, with leave to amend. (Doc. 8.) On September 6, 2013, Plaintiff filed the First

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Amended Complaint, which is now before the court for screening. (Doc. 9.)

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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 FIRST AMENDED COMPLAINT

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Plaintiff is presently incarcerated at Corcoran State Prison (CSP) in Corcoran,

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California, where the events at issue in the First Amended Complaint allegedly occurred.

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Plaintiff names as defendants Dr. Jeffery Wang, Dr. E. Clark, Dr. W. Ulit, Physician‟s

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Assistant C. Sisodia, and Dr. R. Gill (collectively, “Defendants”). All of the Defendants were

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employed by the California Department of Corrections and Rehabilitation at CSP at the time of

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the events at issue. Plaintiff‟s factual allegations follow.

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Plaintiff has a long history of suffering severe pain and spasms in his lower back.

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Because of this condition, Plaintiff was provided with Chronos1 allowing him a bottom bunk,

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double mattress, orthopedic shoes, wedge pillow, and no repetitive lifting of fifteen pounds.

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“A „chrono‟ is a collection of informal notes taken by prison officials documenting medical orders.” Akhtar v.
Mesa, 698 F.3d 1202, 1205 n.1 (9th Cir. 2012).

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Plaintiff filed an inmate grievance requesting a permanent lower tier Chrono and

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continuance of the bottom bunk Chrono. At the First Level of appeal, on or about January 19,

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2012, defendant Physician‟s Assistant C. Sisodia denied the request, stating that Plaintiff no

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longer qualifies. Plaintiff informed defendant Sisodia that his pain level is so severe and

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unbearable that he is unable to sleep throughout most nights. Defendant Sisodia proceeded to

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vacate Plaintiff‟s Chronos for double mattress, orthopedic shoes, wedge pillow, and no

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repetitive lifting of fifteen pounds.

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On January 21 and 22, 2012, Plaintiff informed defendant Dr. Edgar Clark that he was

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experiencing severe lower back pains and spasms, and that the pain causes numbness to his

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feet, making it difficult to climb up and down the stairs, causing him to nearly fall down the

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stairs on a regular basis. Dr. Clark denied Plaintiff‟s request for lower bunk and lower tier

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Chronos, and did not approve the continuance of any of Plaintiff‟s medical Chronos, out of

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retaliation for Plaintiff using the prison grievance system. As Chief Medical Officer, Dr. Clark

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has the final decision on requests for approval of Plaintiff‟s Chronos and prescriptions.

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Clark vacated the Chronos on the ground that Plaintiff‟s pain and spasms had shown

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improvement.

Dr.

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On or about February 14, 2012, defendant Dr. R. Gill, who was fully aware of

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Plaintiff‟s history of pain and spasms, also denied Plaintiff‟s requests for lower tier and lower

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bunk Chronos, and stripped Plaintiff of his Chronos for double mattress, orthopedic shoes,

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wedge pillow, and no repetitive lifting of fifteen pounds. Dr. Gill also denied Plaintiff‟s

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request for the pain and spasm medication Flexoril. Further, Dr. Gill appeared to retaliate

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against Plaintiff for using the grievance system, using “Over-Kill” to strip Plaintiff of all of his

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permanent Chronos without any legitimate medical reason. (First Amended Cmp at 3 ¶IV.)

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Dr. Gill stated in his denial that Plaintiff‟s condition had improved over time, and Plaintiff no

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longer qualifies [for the Chronos] per Inmate Medical Services.

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On March 21, 2012, defendant Dr. Jeffery Wang, Acting Chief Medical Officer, while

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knowing of Plaintiff‟s long history of pain and spasms, and surgery on Plaintiff‟s feet, denied

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Plaintiff‟s request for bottom bunk and bottom tier Chronos at the Second Level of review.
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This denial forced Plaintiff to climb stairs and climb up and down from the top bunk, which

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caused further injury and increased the pain and spasms. Dr. Wang also stripped Plaintiff of his

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existing medical Chronos for double mattress, orthopedic shoes, wedge pillow, and no

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repetitive lifting of fifteen pounds, claiming that Plaintiff‟s condition has shown improvement

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over time, and he no longer needs to be housed on the bottom tier.

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On or about March 21, 2012, May 30, 2012, and July 13, 2012, Plaintiff requested that

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Dr. W. Ulit examine and treat the constant excruciating pain in his lower back which extended

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from his hip down the back of his right leg. Plaintiff informed Dr. Ulit that he is experiencing

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spasms causing numbness in his foot and leg, and Ibuprofen is not helpful.

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In a report dated October 30, 2012, Plaintiff received x-ray findings from a doctor at

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Truxtun Radiology Medical Group revealing that “[t]here is considerable new degenerative

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change at this inmate‟s L5-S1 disc level.” (First Amended Comp at 4:7-8, 9 (Exh)). Plaintiff

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asserts that this report shows that Defendants‟ actions caused his injury to become worse.

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Plaintiff‟s primary physician prescribed the pain medication Indomethacin for Plaintiff,

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to be administered from May 22, 2013 to August 20, 2013. However, on June 28, 2013,

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Plaintiff was only given half the prescription, for only 15 days instead of 30. On July 1, 2013,

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Physician‟s Assistant Sisodia interfered with the doctor‟s treatment by completely stopping the

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prescription.

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until August 8, 2013. On August 8, 2013, defendant Sisodia informed Plaintiff that she had

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banned the effective pain medication Indomethacin. Plaintiff requested another medication,

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Flexoril, which had been effective at reducing the pain and spasms, but defendant Sisodia, who

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is not a doctor, denied the request and prescribed medications that were known by her and other

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defendants to be ineffective. Even though defendant Sisodia is aware that Ibuprofen, Neproxin,

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Oxycarbymol, Tylenol, Robaxin, and several other medications had failed to reduce Plaintiff‟s

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pain and spasms, she still re-prescribed Ibuprofen and Oxycarbymol for Plaintiff when he

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described his severe pain symptoms to her.

Plaintiff was left without any pain medication whatsoever from July 13, 2013

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On August 16, 2013, defendant Dr. Ulit informed Plaintiff that he was going to stop

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Plaintiff‟s prescription for the ineffective medications Ibuprofen and Oxycarbymol and
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prescribe the pain medication Sulindoc, which was unfamiliar to Plaintiff. From August 16-19,

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2013, Plaintiff was without any pain medication. Plaintiff was called to the clinic on August

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19, 2013.

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Flexoril, but was denied. The new medication was ineffective against his pain and spasms.

Plaintiff requested the effective pain and spasm medications Idomethacin and

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Plaintiff presently suffers from unbearable pain in his lower back extending from his

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right hip down the back of his right leg, and possible neurological damage. Plaintiff fears for

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his safety because he has been forced to climb stairs, climb up and down from the top bunk,

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and be housed in an upstairs cell, without effective medications.

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Plaintiff requests injunctive relief via court orders for Defendants to provide him with

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the two effective medications he requested, and to provide him with lower bunk and lower tier

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Chronos and reinstate his previous Chronos.

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IV.

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

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

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

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

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

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

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Constitution, Section 1983 offers no redress.@ Id.

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A.

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

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

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

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

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

Eighth Amendment Medical Claim

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

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

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

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

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

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

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McGuckin, 974 F.2d at 1060).

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

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

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

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

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

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1985)).

Deliberate indifference may be manifested Awhen prison

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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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AA difference of opinion between a prisoner-patient and prison medical authorities

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regarding treatment does not give rise to a ' 1983 claim.@ Franklin v. Oregon, 662 F.2d 1337,

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1344 (9th Cir. 1981) (internal citation omitted). To prevail, plaintiff Amust show that the course

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of treatment the doctors chose was medically unacceptable under the circumstances . . . and . . .
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that they chose this course in conscious disregard of an excessive risk to plaintiff=s health.@

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Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (internal citations omitted).

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Plaintiff has shown that he has serious medical needs, because he suffers spasms in his

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lower back, and excruciating pain. However, Plaintiff fails to allege facts demonstrating that

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any of the Defendants were deliberately indifferent to Plaintiff‟s medical need. Plaintiff has

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not shown that any of the Defendants knew about and deliberately disregarded his serious

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medical needs and acted, or failed to act, knowing of a substantial risk of serious harm or injury

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to Plaintiff.

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showing of medical malpractice or even gross negligence is insufficient to establish a

As stated above, A[d]eliberate indifference is a high legal standard,@ and A[a]

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constitutional deprivation under the Eighth Amendment.

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Therefore, Plaintiff fails to state a cognizable medical claim against any of the Defendants.

Toguchi, 391 F.3d at 1060.

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B.

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Plaintiff alleges that some of the Defendants failed to respond properly to his inmate

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appeals. Defendants= actions in responding to Plaintiff=s appeals, alone, cannot give rise to any

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claims for relief under section 1983 for violation of due process.

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procedure is a procedural right only, it does not confer any substantive right upon the inmates.@

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Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (citing Azeez v. DeRobertis, 568 F.

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Supp. 8, 10 (N.D. Ill. 1982)); see also Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (no

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liberty interest in processing of appeals because no entitlement to a specific grievance

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procedure); Massey v. Helman, 259 F.3d 641, 647 (7th Cir. 2001) (existence of grievance

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procedure confers no liberty interest on prisoner); Mann v. Adams, 855 F.2d 639, 640 (9th Cir.

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1988). AHence, it does not give rise to a protected liberty interest requiring the procedural

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protections envisioned by the Fourteenth Amendment.@ Azeez, 568 F. Supp. at 10; Spencer v.

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Moore, 638 F. Supp. 315, 316 (E.D. Mo. 1986).

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administrative appeal, without more, are not actionable under section 1983. Buckley, 997 F.2d

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at 495. Thus, since he has neither a liberty interest, nor a substantive right in inmate appeals,

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Plaintiff fails to state a cognizable claim for the processing and/or reviewing of his inmate

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appeals.

Inmate Appeals Process

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A[A prison] grievance

Actions in reviewing a prisoner=s

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C.

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Allegations of retaliation against a prisoner‟s First Amendment rights to speech or to

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petition the government may support a 1983 claim. Rizzo v. Dawson, 778 F.2d 5527, 532 (9th

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Cir. 1985); see also Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989); Pratt v.

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Rowland, 65 F.3d 802, 807 (9th Cir. 1995). “Within the prison context, a viable claim of First

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Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some

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adverse action against an inmate (2) because of (3) that prisoner‟s protected conduct, and that

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such action (4) chilled the inmate‟s exercise of his First Amendment rights, and (5) the action

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did not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559,

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567-68 (9th Cir. 2005); accord Watison v. Carter, 668 F.3d 1108, 1114-15 (9th Cir. 2012);

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Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009).

Retaliation

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An allegation of retaliation against a prisoner‟s First Amendment right to file a prison

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grievance is sufficient to support a claim under section 1983. Bruce v. Ylst, 351 F.3d 1283,

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1288 (9th Cir. 2003). The Court must “„afford appropriate deference and flexibility‟ to prison

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officials in the evaluation of proffered legitimate penological reasons for conduct alleged to be

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retaliatory.” Pratt, 65 F.3d at 807 (9th Cir. 1995)(quoting Sandin v. Conner, 515 U.S. 472, 482

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(1995)). The burden is on Plaintiff to demonstrate “that there were no legitimate correctional

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purposes motivating the actions he complains of.” Pratt, 65 F.3d at 808.

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Plaintiff‟s retaliation claim fails, because he has not alleged any facts connecting

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Defendants‟ adverse conduct to Plaintiff‟s filing of prison grievances. Plaintiff fails to show

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that Defendants‟ acted adversely against him because of the grievances he filed. Moreover,

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Plaintiff has acknowledged that Defendants changed his medications and cancelled his medical

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Chronos based on their belief that Plaintiff‟s medical condition had improved, not because

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Plaintiff was filing grievances. Therefore, Plaintiff fails to state a claim for retaliation against

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any of the Defendants.

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V.

CONCLUSION AND RECOMMENDATIONS

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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 any of the Defendants

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

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

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

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Therefore, IT IS HEREBY RECOMMENDED that pursuant to 28 U.S.C. ' 1915A

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and 28 U.S.C. ' 1915(e), this action be dismissed with prejudice for failure to state a claim

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upon which relief may be granted under ' 1983, and that this dismissal be subject to the Athree-

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strikes@ provision set forth in 28 U.S.C. ' 1915(g). Silva v. Vittorio, 658 F.3d 1090, 1098 (9th

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Cir. 2011).

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These Findings and Recommendations will be submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within

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thirty (30) days after being served with these Findings and Recommendations, Plaintiff may

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file written objections with the court. The document should be captioned AObjections to

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Magistrate Judge=s Findings and Recommendations.@ Plaintiff is advised that failure to file

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objections within the specified time may waive the right to appeal the District Court=s order.

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Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:

May 8, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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