Ornelas v. Correctional Healthcare Services et al

Filing 20

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Barbara A. McAuliffe on 10/17/2014 recommending DISMISSAL of ACTION. Referred to Judge Lawrence J. O'Neill; Objections to F&R due by 11/3/2014. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ERNESTO ORNELAS,

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Plaintiff,

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v.
CORRECTIONAL HEALTH CARE
SERVICES, et al.,
Defendants.

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1:13-cv-00224-LJO-BAM (PC)
FINDINGS AND RECOMMENDATIONS
REGARDING DISMISSAL OF ACTION
FOURTEEN-DAY DEADLINE

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I.

Screening Requirement and Standard

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Plaintiff Ernesto Ornelas (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action on

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February 13, 2013. On May 23, 2014, the Court dismissed Plaintiff’s first amended complaint

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with leave to amend. (ECF No. 12.) Plaintiff’s second amended complaint, filed on August 11,

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2014, is currently before the Court for screening.

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

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governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. §

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1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous or

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malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary

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relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2); 28

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U.S.C. § 1915(e)(2)(B)(ii).

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A complaint must contain “a short and plain statement of the claim showing that the

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pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not

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required, but “[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, 1964-65

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(2007)). While a plaintiff’s allegations are taken as true, courts “are 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).

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Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings

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liberally construed and to have any doubt resolved in their favor. Hebbe v. Pliler, 627 F.3d 338,

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342 (9th Cir. 2010) (citations omitted). To survive screening, Plaintiff’s claims must be facially

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plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each

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named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949

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(quotation marks omitted); Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir.

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2009). The sheer possibility that a defendant acted unlawfully is not sufficient, and mere

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consistency with liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at

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678, 129 S.Ct. at 1949 (quotation marks omitted); Moss, 572 F.3d at 969.
Plaintiff’s Allegations

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II.

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Plaintiff is incarcerated at the California Correctional Institution in Tehachapi, California,

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where the events the complaint are alleged to have occurred. Plaintiff names the following

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defendants: (1) Dr. H. Tate; (2) Dr. S. Shiesha; (3) Dr. A. Joaquin; and (4) L. D. Zamora, Chief

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Health Care Services.

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Plaintiff is a 57-year-old prisoner with an extensive history of chronic lower back pain

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that radiates to his hip and leg area. When Plaintiff was 15 years old, he fell off a two story

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building and was temporarily paralyzed. Plaintiff has difficulty walking or standing for

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prolonged periods and was taking 60 mg of morphine twice a day for pain.

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On May 20, 2009, Plaintiff transferred to Ironwood State Prison. On December 11, 2009,
Plaintiff underwent magnetic resonance imaging (MRI) of his lumbar spine. The MRI report
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revealed mild degenerative disk disease, minimal to mild circumferential disc bulges, bilateral

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fact hypertrophy and mild bilateral neural foramen narrowing. Following the MRI, Plaintiff was

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referred to a spine specialist.

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On April 16, 2010, Plaintiff was evaluated at the orthopedic surgical spine clinic and

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underwent a nerve conduction study. The study found mild degenerative disk disease, herniated

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nucleus pulposus with foraminal stenosis right greater than left, right S1 radiculopathy by nerve

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conduction study. Plaintiff was referred for a trial of epidural injections, along with continuing

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pain medication. On December 1, 2010, epidural injections were given to Plaintiff at Alvarado

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Hospital, but they did not help relieve the painful symptoms.

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Plaintiff transferred to CCI. In April 2012, Plaintiff filled out a CDCR-7362 health care

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services request form to see a doctor regarding his chronic lower back pain. Defendants denied

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Plaintiff access to a spine specialist and pain management.

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Count 1 – Defendant Tate

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Plaintiff alleges that Defendant Tate violated his Eighth Amendment rights. On May 2,

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2012, Plaintiff had a medical appointment with Dr. Tate regarding Plaintiff’s chronic lower back

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pain due to degenerative disk disease, arthritis, herniated disk and annular tear. Plaintiff reported

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sharp pain in his hips, buttocks and back of thighs, along with numbness to his legs and feet.

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Plaintiff asked to be referred to a spine specialist and a pain specialist. Plaintiff also requested a

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disability chrono for a waist chain, along with a lower tier/lower bunk. Dr. Tate denied

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Plaintiff’s requests.

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On May 17, 2012, Plaintiff filed a grievance CDCR 602 regarding Dr. Tate’s refusal to

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provide an accommodation chrono. Plaintiff also complained that Dr. Tate was not a spine

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specialist and refused to identify the source of the pain or provide adequate pain medication.

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Plaintiff alleges that Dr. Tate denied Plaintiff treatment by a spine specialist, adequate

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pain management, a waist chain chrono and a lower tier/lower bunk chrono. Plaintiff also

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alleges that Dr. Tate allowed Plaintiff to suffer ongoing pain and did not provide Plaintiff with

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any real relief of pain or medical treatment consistent with his injuries.

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Count 2 – Dr. Shiesha

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On June 12, 2012, Dr. Shiesha denied Plaintiff’s grievance at the first level. Dr. Shiesha

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denied Plaintiff’s request for a spine specialist, pain management, referral to podiatry, a waist

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chain chrono, a lower tier/lower bunk. Dr. Shiesha reported stated, “That no relief from ongoing

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documented pain will be given.” (ECF No. 19, p. 9.) Dr. Shiesha denied any meaningful relief

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for ongoing pain.

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Plaintiff alleges that he was evaluated on April 16, 2012, by the orthopedic surgical spine

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clinic.1 He was to continue on his pain medication, 60 mg of morphine twice a day for extreme

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pain. (ECF No. 19, p. 9 and Ex. B.) On April 16, 2010, the orthopedic surgical spin clinic

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acknowledged Plaintiff’s use of a cane for ambulation. Plaintiff contends that Dr. Shiesha was

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well aware of the reports made by the spine specialist in 2010, but denied Plaintiff’s request for

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relief, including his request to see a spine specialist.

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Count III – Dr. A. Joaquin

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Plaintiff alleges that Defendant Joaquin violated his Eighth Amendment rights. On July

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26, 2012, Dr. Joaquin partially granted Plaintiff’s appeal. After acknowledging that MRI and

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nerve conduction study reports supported Plaintiff’s claim of serious pain, Dr. Joaquin refused to

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refer Plaintiff to a spine specialist or neurosurgeon and refused the waist chain and lower

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tier/lower bunk chrono. Plaintiff also asserts that Defendant Joaquin refused to refer Plaintiff to

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a pain management specialist.

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Count IV – Dr. L. D. Zamora

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Plaintiff alleges that Defendant Zamora violated Plaintiff’s Eighth Amendment rights.

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On December 11, 2012, Dr. Zamora stated that no changes or modifications were required for

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Plaintiff’s request for pain management, medical treatment of lumbar spine, waist chain chrono,

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or lower tier/lower bunk chrono. Defendant Zamora refused to alleviate Plaintiff’s chronic pain,

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refused to grant referral to a spine specialist or pain management committee, and refused to grant

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Plaintiff a waist chain and lower tier/lower bunk chrono.

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The 2012 date appears to be an error.
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See Pl’s Ex. B.

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III.

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Eighth Amendment – Deliberate Indifference to Serious Medical Need

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

Discussion

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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, 291, 50

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L.Ed.2d 251 (1976)). The two part test for deliberate indifference requires the plaintiff to show

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(1) “a ‘serious medical need’ by demonstrating that failure to treat a prisoner’s condition could

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result in further significant injury or the ‘unnecessary and wanton infliction of pain,’ “and (2)

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“the defendant's response to the need was deliberately indifferent.” Jett, 439 F.3d at 1096;

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Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012).
Deliberate indifference is shown where the official is aware of a serious medical need and

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fails to adequately respond. Simmons, 609 F.3d at 1018. “Deliberate indifference is a high legal

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standard.” Id. at 1019; Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). The prison

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official must be aware of facts from which he could make an inference that “a substantial risk of

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serious harm exists” and he must make the inference. Farmer, 511 U.S. at 837.

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Plaintiff has not stated a cognizable claim for deliberate indifference to serious medical
needs against any of the named defendants.

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Dr. Tate

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Plaintiff complains that Dr. Tate did not provide treatment consistent with spine specialist

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evaluation completed in 2010. According to the exhibits, however, Plaintiff was treated by Dr.

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Tate in 2012, several years after the spine evaluation. In 2012, based on examination, Dr. Tate

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prescribed medication for pain and referred for x-rays of his spine. (ECF No. 19, Exs. G, H.)

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The x-rays, taken on November 27, 2013, showed only “mild degenerative changes of the

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cervical spine.” (ECF No. 19, Ex. I.). There is no indication that Defendant Tate failed to

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respond to Plaintiff’s pain and complaints in 2012.

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At best, Plaintiff alleges a disagreement with Defendant Tate’s treatment decisions,

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including the failure to provide referrals and chronos. This is not sufficient to state a cognizable

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Eighth Amendment claim. Toguchi, 391 F.3d at 1057-58, 1060 (a difference of opinion between
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a healthcare professional and a prisoner does not rise to the level of deliberate indifference;

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negligence in diagnosing or treating a medical condition also does not amount to deliberate

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indifference). A difference of opinion may support a deliberate indifference claim if the prisoner

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can “show that the course of treatment the doctors chose was medically unacceptable under the

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circumstances,” and “that they chose this course in conscious disregard of an excessive risk to

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plaintiff's health.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996). In this instance,

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however, Plaintiff’s exhibits, including his x-rays, showed only mild degenerative changes

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during his course of treatment by Dr. Tate in 2012 for which Dr. Tate treated Plaintiff. (Exs. G,

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I.) Accordingly, Plaintiff has not appropriately alleged that Dr. Tate chose a course of treatment

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in conscious disregard of an excessive risk to Plaintiff’s health.

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Drs. Shiesha and Joaquin, Defendant Zamora

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Plaintiff fails to state a cognizable claim for deliberate indifference to serious medical

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needs against the reviewers of his 602 complaint, Defendants Shiesha, Joaquin, and Zamora.

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First, the prison grievance procedure does not confer any substantive rights upon inmates and

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actions in reviewing appeals cannot serve as a basis for liability under section 1983. Buckley v.

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Barlow, 997 F.2d 494, 495 (8th Cir.1993). Second, and more importantly, Plaintiff has failed to

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establish that Defendants Shiesha, Joaquin and Zamora were deliberately indifferent to a serious

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medical need. Rather, Plaintiff again alleges only a difference of opinion between the treatment

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he believed that he required and the opinion of Dr. Tate and other prison medical staff. This is

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not sufficient to state a cognizable Eighth Amendment claim. Toguchi, 391 F.3d at 1057-58,

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1060.

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IV.

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Plaintiff’s second amended complaint fails to state a cognizable section 1983 claim.

Conclusion and Recommendations

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Plaintiff was previously granted leave to amend his complaint, but has been unable to state a

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cognizable claim. As such, further leave to amend is not warranted. Lopez v. Smith, 203 F.3d

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1122, 1130 (9th Cir. 2000).

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Accordingly, it is HEREBY RECOMMENDED that this action be DISMISSED based on
Plaintiff’s failure to state a cognizable section 1983 claim.
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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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fourteen (14) 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 “Objections 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:

/s/ Barbara

October 17, 2014

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A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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