Summers v. Chapnick et.al.

Filing 27

ORDER REQUIRING Plaintiff either to File an Amended Complaint or to NOTIFY Court of Willingness to Proceed only on Claims Identified Herein; Response Due within Thirty Days signed by Magistrate Judge Dennis L. Beck on 10/17/2013. (Attachments: # 1 Amended Complaint Form)(Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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GEORGE EDWARD SUMMERS,

Case No. 1:13-cv-00190-LJO-DLB PC

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Plaintiff,
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v.
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R. CHAPNICK, et al.,

ORDER REQUIRING PLAINTIFF EITHER
TO FILE AMENDED COMPLAINT OR TO
NOTIFY COURT OF WILLINGNESS TO
PROCEED ONLY ON CLAIMS
IDENTIFIED HEREIN

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Defendants.

(ECF No. 14)

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RESPONSE DUE WITHIN THIRTY DAYS
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I.

Background

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Plaintiff George Edward Summers (“Plaintiff”) is a prisoner in the custody of the California

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Department of Corrections and Rehabilitation (“CDCR”) and is proceeding pro se in this civil action

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pursuant to 42 U.S.C. § 1983.

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of California. (ECF No. 1.) On November 13, 2013, Plaintiff filed his original complaint, which is

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presently before the Court for screening. (ECF No. 14.) On February 7, 2013, this case was

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transferred to this Court in the Eastern District of California. (ECF No. 15.)

On May 16, 2012, Plaintiff filed this action in the Northern District

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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). The

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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

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monetary relief from a defendant who is immune from such relief. Id. § 1915A(b)(1),(2).

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A complaint must contain “a short and plain statement of the claim showing that the pleader
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is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,

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do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550

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U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a

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claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570). While factual

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allegations are accepted as true, legal conclusions are not. Id.

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II.

Summary of Complaint1

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Plaintiff was incarcerated at Avenal State Prison (“ASP”) in Avenal, California, where the

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events giving rise to this action occurred. Plaintiff names R. Chapnick (Chief Medical Officer), M.

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Boparai, M.D. (Chief Physician Surgeon), J. Biol, M.D. (Attending Physician), N. Siegrist (Nurse

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Practitioner), and various Does as defendants in this action.

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Plaintiff alleges the following. In early 2011, Plaintiff had some health problems and was

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sent for routine x-rays on April 29, 2011. The results showed “right quadrant ultrasound: indicated

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in mid-right side of liver a mass that appeared well circumscribed, but has some mixed echoes and is

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avascular, measured 4.8x4.2 cm.” This report was sent to ASP and prison staff received it on May 2,

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2011. However, Plaintiff’s attending physician, Defendant Biol,2 did not review the report until May

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11, 2011. On May 31, 2011, Defendant Chapnick ordered a CT-scan for Plaintiff. The report stated

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that the liver contours are nodular suggestive of cirrhosis and there were several heterogeneous

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masses within the liver, which was suggestive of hemangioma. The report also showed several

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lesions suggesting hemangioma. A MRI utilizing hemangioma protocol or nuclear medicine was

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suggested for further evaluation.

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In December 2011, Plaintiff saw Dr. Ganpule a cancer specialist. Dr. Ganpule ordered

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surgery to remove the masses in his body and informed him that he had hepatocellular carcinoma,

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form of liver cancer. He told Plaintiff that unless he had the surgery as soon as possible, the masses

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would become too large to remove and would result in death. On January 17, 2012, Plaintiff

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submitted an inmate appeal to obtain this treatment because he had waited over thirty day with no

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Plaintiff’s Complaint is filled with unfamiliar medical terminology and various illegible words. The Court uses its best
judgment in summarizing the Complaint.
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J. Sampang was Defendant Biol’s name during this time and prior to her marriage.

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response.

The first level response was partially granted because a request for oncology was

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approved by pending scheduling. On March 3, 2012, Plaintiff submitted the second level of appeal

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because he was displeased with Defendant Biol’s finding in regards to the CT-Scan. The second

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level of appeal was partially granted. The reviewer explained that Defendant Bio’s findings clearly

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documented that there is no conclusive evidence of hepatocellular carcinoma and also no evidence of

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metastatic disease. Plaintiff was placed on the medication Nexavor for systematic therapy for his

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hepatocellular carcinoma.

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Plaintiff submitted a third level of review because the second level failed to note the surgical

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pathology report specifically indicating his cancer. Plaintiff also noted the delay in his treatment.

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The third level of appeal was denied. During the appeals time period and prior to August 2012, no

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medical staff listed Plaintiff’s condition as urgent. Medical staff’s failure to list his condition as

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urgent caused a serious delay in his needed treatment.

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Plaintiff contends a violation of the Eighth Amendment for deliberate indifference to a

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serious medical need. Plaintiff requests injunctive relieve for medical treatment and compensatory

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and punitive damages as relief.

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III.

Analysis

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A.

Eighth Amendment—Deliberate Indifference

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The Eighth Amendment prohibits cruel and unusual punishment. “The Constitution does not

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mandate comfortable prisons.” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quotation and citation

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omitted).

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Amendment violation unless (1) “the prison official deprived the prisoner of the ‘minimal civilized

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measure of life’s necessities,’” and (2) “the prison official ‘acted with deliberate indifference in

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doing so.’” Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (quoting Hallett v. Morgan, 296

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F.3d 732, 744 (9th Cir. 2002) (citation omitted)). The deliberate indifference standard involves an

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objective and a subjective prong.

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“sufficiently serious . . . .” Farmer, 511 U.S. at 834 (citing Wilson v. Seiter, 501 U.S. 294, 298

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(1991)). Second, the prison official must “know[] of and disregard[] an excessive risk to inmate

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health or safety . . . .” Id. at 837.

A prisoner’s claim of inadequate medical care does not rise to the level of an Eighth

First, the alleged deprivation must be, in objective terms,

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“Deliberate indifference is a high legal standard.” Toguchi, 391 F.3d at 1060. “Under this

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standard, the prison official must not only ‘be aware of the facts from which the inference could be

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drawn that a substantial risk of serious harm exists,’ but that person ‘must also draw the inference.’”

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Id. at 1057 (quoting Farmer, 511 U.S. at 837). “‘If a prison official should have been aware of the

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risk, but 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. Cnty. of Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)).

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Here, the Court finds that Plaintiff states a cognizable claim for relief against Defendants J.

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Biol and N. Siegrist for deliberate indifference to a serious medical need, in violation of the Eighth

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Amendment. Defendant Biol performed tests on Plaintiff and was aware of his hepatocellular

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carcinoma, but failed to treat Plaintiff. Defendant Siegrist had frequent contact with Plaintiff and

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was aware of his serious medical condition, but failed to provide Plaintiff with treatment and

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develop a medical plan. Defendant Siegrist’s classification of Plaintiff’s medical needs as “routine”

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caused serious delay for his treatment. Accordingly, Plaintiff states a claim against Defendants Biol

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and Siegrist for deliberate indifference, in violation of the Eighth Amendment.

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B.

Supervisory Liability

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Under section 1983, Plaintiff must link the named defendants to the participation in the

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violation at issue. Iqbal, 556 U.S. at 676-77, 129 S.Ct. at 1948-49; Simmons v. Navajo Cnty., Ariz.,

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609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir.

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2009); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). Liability may not be imposed on

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supervisory personnel under the theory of respondeat superior, Iqbal, 556 U.S. at 676-77, 129 S.Ct.

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at 1948-49; Simmons, 609 F.3d at 1020-21; Ewing, 588 F.3d at 1235; Jones, 297 F.3d at 934, and as

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administrators, Defendants may only be held liable if they “participated in or directed the violations,

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or knew of the violations and failed to act to prevent them,” Taylor v. List, 880 F.2d 1040, 1045 (9th

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Cir. 1989); accord Starr v. Baca, 652 F.3d 1202, 1205-08 (9th Cir. 2011), cert. denied, 132 S.Ct.

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2101 (2012); Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009); Preschooler II v. Clark Cnty.

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Sch. Bd. of Trs., 479 F.3d 1175, 1182 (9th Cir. 2007); Harris v. Roderick, 126 F.3d 1189, 1204 (9th

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Cir. 1997). Some culpable action or inaction must be attributable to Defendants and while the

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creation or enforcement of, or acquiescence in, an unconstitutional policy, may support a claim, the
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policy must have been the moving force behind the violation. Starr, 652 F.3d at 1205; Jeffers v.

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Gomez, 267 F.3d 895, 914-15 (9th Cir. 2001); Redman v. Cnty. of San Diego, 942 F.2d 1435, 1446-

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47 (9th Cir. 1991); Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989).

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Defendants Chapnick and Boparai were not personally involved with any of the incidents

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Plaintiff alleges. Plaintiff has failed to allege that these defendants participated, directed, or knew of

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the violations and failed to act to prevent them. Plaintiff also fails to allege of any unconstitutional

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CDCR policy that was the moving force behind his constitutional violations. Accordingly, Plaintiff

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has not stated any claims against Defendants Chapnick and Boparai.

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IV.

Conclusion and Order

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Plaintiff’s Complaint states a cognizable claim against Defendant Biol and Siegrist for

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deliberate indifference to a serious medical need, in violation of the Eighth Amendment. Plaintiff

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has not sufficiently alleged facts for claims against any other defendants. The Court will provide

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Plaintiff with the opportunity to file an amended complaint curing the deficiencies identified by the

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Court in this order. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff may not

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change the nature of this suit by adding new, unrelated claims in his amended complaint. George v.

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Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” complaints).

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If Plaintiff does not wish to file an amended complaint and is agreeable to proceeding only

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on the claims against Defendants Biol and Siegrist, Plaintiff may so notify the Court in writing, and

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the Court will issue an order for dismissal of the other claims and Defendants, and will forward

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Plaintiff two (2) summons and two (2) USM-285 form for completion and return.

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If Plaintiff decides to amend, Plaintiff’s amended complaint should be brief, Fed. R. Civ. P.

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8(a), but must state what each named defendant did that led to the deprivation of Plaintiff’s

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constitutional or other federal rights. See Iqbal, 556 U.S. at 678.

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“[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level . . . .”

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Twombly, 550 U.S. at 555.

Although accepted as true, the

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Finally, Plaintiff is advised that an amended complaint supersedes the original complaint,

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Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997) overruled in part on other grounds,

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Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (en banc); King v. Atiyeh, 814 F.2d 565,
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567 (9th Cir. 1987), and must be “complete in itself without reference to the prior or superseded

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pleading,” Local Rule 220.

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Based on the foregoing, it is HEREBY ORDERED that:

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The Clerk’s Office shall send Plaintiff a civil rights complaint form;

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2.

Within thirty (30) days from the date of service of this order, Plaintiff must either:

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a.

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File an amended complaint curing the deficiencies identified by the Court in
this order, or

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b.

Notify the Court in writing that he does not wish to file an amended complaint

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and wishes to proceed only against Defendants Biol and Siegrist for deliberate

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indifference to a serious medical need, in violation of the Eighth Amendment;

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and

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3.

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If Plaintiff fails to comply with this order, this action will be dismissed for failure
to obey a court order.

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IT IS SO ORDERED.
Dated:

/s/ Dennis

October 17, 2013

L. Beck

UNITED STATES MAGISTRATE JUDGE
DEAC_Signature-END:

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