Brandstatt v. California Substance Abuse and Treatment Facility, et al.
DISMISSAL ORDER, signed by Chief Judge Ralph R. Beistline on 10/9/2013. CASE CLOSED.(Fahrney, E)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
WILLIAM HUBERT LLOYD
Case No. 1:13-cv-00434-RRB
DR. ANTHONY ENENMOH, C.M.O, et
William Hubert Lloyd Brandstatt, a state prisoner appearing pro se and in forma
pauperis, filed a civil rights complaint under 42 U.S.C. § 1983 against various officials.1
Brandstatt is currently in the custody of the California Department of Corrections and
Rehabilitation (“CDCR”), incarcerated at the California State Prison–Corcoran. Upon initial
screening this Court dismissed Brandstatt’s Complaint with leave to amend.2 Pending
before this Court is Brandstatt’s Amended Complaint.
In addition to Dr. Enemoh, Brandstatt has named as Defendants Dr. Godwin
Ugwueze, Dr. Nyenke, Dr. Tiggs-Brown, L.D. Zamora, Chief of Medical Appeals, and John
Doe, the federally appointed receiver.
Brandstatt v. Enemoh, 1:13-cv-00434-RRB – 1
This Court is required to screen complaints brought by prisoners seeking relief
against a governmental entity or officer or employee of a governmental entity.3 This Court
must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally
“frivolous or malicious,” that “fails to state a claim on which relief may be granted,” or that
“seeks monetary relief against a defendant who is immune from such relief.”4 Likewise, a
prisoner must exhaust all administrative remedies as may be available,5 irrespective of
whether those administrative remedies provide for monetary relief.6
In determining whether a complaint states a claim, the Court looks to the pleading
standard under Federal Rule of Civil Procedure 8(a). Under Rule 8(a), a complaint must
contain “a short and plain statement of the claim showing that the pleader is entitled to
relief.”7 “[T]he pleading standard Rule 8 announces does not require ‘detailed factual
allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.”8 Failure to state a claim under § 1915A incorporates the familiar standard
28 U.S.C. § 1915A(a).
28 U.S.C. § 1915(e)(2)(B); 42 U.S.C. § 1997e(c); see Lopez v. Smith, 203
F.3d 1122, 1126 & n.7 (9th Cir. 2000) (en banc).
42 U.S.C. § 1997e(a); see Woodford v. Ngo, 548 U.S. 81, 93–95 (2006)
(“proper exhaustion” under § 1997e(a) is mandatory and requires proper adherence to
administrative procedural rules); Booth v. Churner, 532 U.S. 731, 741 (2001) (exhaustion
of administrative remedies must be completed before filing suit).
See Booth, 532 U.S. at 734.
Fed. R. Civ. P. 8(a)(2).
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 554, 555 (2007)).
Brandstatt v. Enemoh, 1:13-cv-00434-RRB – 2
applied in Federal Rule of Civil Procedure 12(b)(6), including the rule that complaints filed
by pro se prisoners are to be liberally construed, affording the prisoner the benefit of any
doubt, and dismissal should be granted only where it appears beyond doubt that the
plaintiff can plead no facts in support of his claim that would entitle him or her to relief.9
To state a claim requires the presentation of factual allegations sufficient to state
a plausible claim for relief.10 “[A] complaint [that] pleads facts that are ‘merely consistent
with’ a defendant’s liability . . . ‘stops short of the line between possibility and plausibility
of entitlement to relief.’”11 Further, although a court must accept as true all factual
allegations contained in a complaint, a court need not accept a plaintiff’s legal conclusions
as true.12 “Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.”13
GRAVAMEN OF COMPLAINT
Brandstatt suffers from an advanced case of Hepatitis–C. Brandstatt alleges that,
despite his numerous requests, the Defendants have refused to treat his Hepatitis –C with
Pegasys® (peginterferon alfa-2a), either alone or in combination with telaprevir. As relief,
Brandstatt requests this Court order the Defendants to provide him with the combination
Wilhelm v. Rotham, 680 F.3d 1113, 1121 (9th Cir. 2012).
Iqbal, 556 U.S. at 678–69; see Moss v. U.S. Secret Service, 572 F.3d 962,
969 (9th Cir. 2009) (quoting and applying Iqbal and Twombly).
Iqbal 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557).
Id. (quoting Twombly, 550 U.S. at 555).
Brandstatt v. Enemoh, 1:13-cv-00434-RRB – 3
Pegasys® (peginterferon alfa-2a)—telaprevir treatment as well as award him damages for
the past failure to provide the treatment.
The Supreme Court, applying the Eighth Amendment in the context of providing
medical care to prisoners, stated:
[D]eliberate indifference to serious medical needs of prisoners constitutes
the unnecessary and wanton infliction of pain proscribed by the Eighth
Amendment. This is true whether the indifference is manifested by prison
doctors in their response to the prisoner’s needs or by prison guards in
intentionally denying or delaying access to medical care or intentionally
interfering with the treatment once prescribed. Regardless of how evidenced,
deliberate indifference to a prisoner’s serious illness or injury states a cause
of action under § 1983.14
In Estelle the Supreme Court distinguished “deliberate indifference to serious medical
needs of prisoners,” from “negligen[ce] in diagnosing or treating a medical condition,”
holding that only the former violates the Constitution.15 In short, Eighth Amendment liability
requires “more than ordinary lack of due care for the prisoner's interests or safety.”16
In determining deliberate indifference, the court scrutinizes the particular facts and
looks for substantial indifference in the individual case, indicating more than mere
negligence or isolated occurrences of neglect.17 The Ninth Circuit has spoken to the subject
of the appropriate test under Estelle:
Estelle v. Gamble, 429 U.S. 97, 104–105 (1976) (footnotes, internal quotation
marks, and citations omitted).
Id. at 106.
Whitley v. Albers, 475 U.S. 312, 319 (1986).
Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990).
Brandstatt v. Enemoh, 1:13-cv-00434-RRB – 4
In the Ninth Circuit, the test for deliberate indifference consists of two parts.
First, the plaintiff must show a serious medical need by demonstrating that
failure to treat a prisoner’s condition could result in further significant injury
or the unnecessary and wanton infliction of pain. Second, the plaintiff must
show the defendant’s response to the need was deliberately indifferent. This
second prong - defendant’s response to the need was deliberately indifferent
- is satisfied by showing (a) a purposeful act or failure to respond to a
prisoner’s pain or possible medical need and (b) harm caused by the
indifference. Indifference may appear when prison officials deny, delay or
intentionally interfere with medical treatment, or it may be shown by the way
in which prison physicians provide medical care. Yet, an inadvertent [or
negligent] failure to provide adequate medical care alone does not state a
claim under § 1983. A prisoner need not show his harm was substantial;
however, such would provide additional support for the inmate’s claim that
the defendant was deliberately indifferent to his needs. If the harm is an
isolated exception to the defendant’s overall treatment of the prisoner [it]
ordinarily militates against a finding of deliberate indifference.18
The United States Supreme Court has outlined a two-part test to determine if prison
officials have violated a prisoner’s rights under the Eighth Amendment:
[A] prison official violates the Eighth Amendment only when two
requirements are met. First, the deprivation alleged must be, objectively,
sufficiently serious[;] a prison official’s act or omission must result in the
denial of the minimal civilized measure of life’s necessities. . . . The second
requirement follows from the principle that only the unnecessary and wanton
infliction of pain implicates the Eighth Amendment. To violate the Cruel and
Unusual Punishments Clause, a prison official must have a sufficiently
culpable state of mind.19
Jett v. Penner, 429 F.3d 1091, 1096 (9th Cir. 2006) (internal quotation marks
and citations omitted).
Farmer v. Brennan, 511 U.S. 825, 834 (1994) (citations and internal
quotations omitted); see also Wilson v. Seiter, 501 U.S. 294, 299–300 (1991) (discussing
subjective requirement); Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000) (discussing
two-part test); Osolinski v. Kane, 92 F.3d 934, 937 (9th Cir. 1996) (same); Wallis v.
Baldwin, 70 F.3d 1074, 1076–77 (9th Cir. 1995) (same); Allen v. Sakai, 48 F.3d 1082, 1087
(9th Cir. 1994) (same).
Brandstatt v. Enemoh, 1:13-cv-00434-RRB – 5
Brandstatt has exhausted his administrative remedies. At the second level of review
on December 17, 2010, Defendant Enenmoh held:
On CDC 602 Inmate/Parole Appeal Form dated September 12, 2010, you
write this is the second time you have completed this 602, you state you
have Hep C, you want the Pegasys treatment. You state you have already
requested the treatment twice since your arrival in December 2009 with
You request the Pegasys treatment. (9/20/10 additional note) writing you
requested this treatment at least twice since arriving at this facility in
December of 2009, still not administered.
You were dissatisfied with the First Level Decision writing, "I have been
fighting this issue since 2004 when I found out that I had this disease. No
committees, no reviews. Give me the Pegasys treatment."
You were interviewed at the First Level Review on October 28, 2010 by F.
Soto, Registered Nurse regarding the issues of this appeal. Effective
communication was obtained through slow, clear speaking and evidenced
in that you were able to appropriately ask and respond to questions
regarding the issues in this appeal.
The rules governing this issue are taken from the California Code of
CCR Title 15; Section, 3350 Provision of Medical Care and Definitions
CCR Title 15; Section, 3354 Health Care Responsibilities and
Review of your Unit Health Record (UHR) revealed the following:
You were seen and examined by your Primary Care Physician on
October 21, 2010. Based on the exam the doctor referred you to the Hep C
clinic for a consult.
Brandstatt v. Enemoh, 1:13-cv-00434-RRB – 6
Upon prepping your unit health record for the Hep C clinic it was found that
you were scheduled in error as your current medical condition does meet the
necessary criteria for Hepatitis C Treatment at this time. You are encouraged
to discuss the protocol for Hepatitis C with your primary care physician.
Based on the above information, the decision rendered at the First Level of
Review has changed. This appeal is DENIED as your current medical
condition does not meet criteria for Hepatitis C Treatment at this time. You
are advised to discuss Hep C Protocols with your Primary Care Physician.20
On April 26, 2011, at the Director Level, Defendant Zamora, held:
Your CDCR 602 Inmate/Parole Appeal Form dated September 12, 2010, you
wrote this was the second time you have competed this 602; you stated you
have Hepatitis C (Hep C) you wanted the Pegasys treatment; and you stated
you have already requested the treatment twice since your arrival in
December 2009 with negative results.
You requested the following:
To receive Pegasys treatment for HCV.
PRIOR APPEAL HISTORY:
The informal level was bypassed and the appeal was elevated from the
informal level to the first level of review.
At the first level, submitted on September 12,2010, you stated your issues
and requests as noted above.
The First Level Response (FLR) stated your appeal was partially granted and
you were interviewed by Registered Nurse (RN) Soto on
October 28, 2010;
you [sic] Unit Health Record (UHR) was reviewed;
you were seen in Delta Clinic by Dr. Ugwueze on October 21,
MD line follow up in 60 days;
you would be referred to a Hepatologist for a consult; and
MAR Committee Review.
Amended Complaint, Exh. A [Docket 23, p. 14].
Brandstatt v. Enemoh, 1:13-cv-00434-RRB – 7
At the second level, submitted on November 17, 2010, you stated you were
dissatisfied with FLR; and you stated give you the Pegasys treatment.21
The Second Level Response (SLR) stated your appeal was denied and
you were scheduled in error as your current medical condition
did not meet the necessary criteria for Hep C treatment at this
you were encouraged to discuss the protocol for Hep C with
your primary care provider.
BASIS FOR DIRECTOR'S LEVEL DECISION:
At the Director's Level of Review (DLR), submitted on January 4, 2011, you
stated you have a life threatening disease and wanted it treated as soon as
At the DLR, your appeal file and documents obtained from your Unit Health
Record (UHR) were reviewed by licensed clinical staff who determined your
care related to your appeal issues was adequate as you received medical
treatment, specialist, pain medication was provided and additional diagnostic
testing was completed to address your concerns. Based on the review, it
appears that your appeal issues have been addressed.
The FLR indicated a review of the California Substance Abuse Treatment
(SATF) list of “Inmates with Test .of Adult Basic Education (TABE) Reading
Scores of 4.0 or Less” indicates you have a Reading Grade Point Level
(RGPL) above 4.0 and you have no disabilities requiring special
accommodation to achieve effective communication.
After review, there is no compelling evidence that warrants intervention at the
Director's Level of Review as your medical condition has been evaluated by
licensed clinical staff and you are receiving treatment deemed medically
RULES AND REGULATIONS:
The rules governing these issues are: California Code of Regulations, Title
15; Inmate Medical Services Program Policies and Procedures (2006); and
the Department Operations Manual.
Amended Complaint, Exh. A [Docket 23, p. 13].
Brandstatt v. Enemoh, 1:13-cv-00434-RRB – 8
No changes or modifications are required by the institution.22
Also attached to the Complaint is a First Level Health Care Appeal Response dated
December 20, 2011:
In your CDCR-602 HC Inmate/Parolee Health Care Appeal Form received
on 11-29-2011 you indicate the following: I have submitted 2 different 7362
forms numbers 9860168 and 1712696 requesting to see a doctor about
treatment for my Hep-C. the first was dated 10-7-11 and the second was 113-11. I have not received any response at all.
You requested the following:
1) To see a doctor so he can see about treatment for his hepatitis C.
You were interviewed by Nyenke, MD on 12-6-2011 regarding the issues
submitted in this appeal. During the interview, you were allowed the
opportunity to provide clarification in regards to your appeal issue(s).
* * * *
Review of your appeal with attachment(s), Unit Health Record (UHR), and
all pertinent departmental policies and procedures were reviewed.
Based on review of primary care provider progress note dated on 12-6-2011,
there is no indication for active treatment of inmate's hepatitis C at this time.
per progress notes "53 year old with a history of hepatitis C genotype 1. He
had a liver biopsy in 2005 and again in 2009. Both showed stage 1 fibrosis.
CDCR current policies and guidelines recommend no prescription treatment
for this group of patients." Plan of care per progress notes, "Hepatitis CGenotype 1 stage 1 fibrosis. Patient advised to continue avoidance of
hepatotoxic agents. He claims he exercises daily (cardio) and has been
advised to continue. Obtain routine labs."23
Amended Complaint, Exh. A [Docket 21, p. 15].
Amended Complaint, Exh. A [Docket 23, p. 37]. Brandstatt does not allege
that he pursued this avenue further as provided by the applicable California regulations.
Brandstatt v. Enemoh, 1:13-cv-00434-RRB – 9
Also attached to the Amended Complaint is a copy of the California Heath Care
Services Hepatitis C Chronic Care Program Policy.24 It is clear f rom the Amended
Complaint and attachments that Brandstatt acknowledges that ,in this case, the physician
Defendants did nothing more than adhere to CDCR policy.25 Indeed, it is CDCR policy, not
the acts of the physicians involved, that Brandstatt is challenging. The theory underlying
Brandstatt’s complaint is that the treating physicians have not “pushed for exemption from
the [CDCR] criteria” per Brandstatt’s request.26
To show deliberate indifference, Brandstatt must prove that “the official knows of
and disregards an excessive risk to inmate health or safety; the official must both be aware
of facts from which the inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference.”27 “Thus, Farmer [ ] requires an inmate to
show that the official knew of the risk and that the official inferred that substantial harm
might result from the risk.”28 The “prison official need not have acted ‘believing that harm
actually would befall an inmate; it is enough that the official acted . . . despite his
knowledge of a substantial risk of serious harm.’”29
Amended Complaint, Exh. C [Docket 23, pp. 74–112].
That factor differentiates this case from the Supreme Court decision in
Erickson v. Pardus, 552 U.S. 89 (2007), in which the prisoner met the Department’s
standards for the treatment that was denied.
Amended Complaint, pp. 8–9 [Docket 23, pp. 8–9].
Farmer, 511 U.S. at 837.
Wallis, 70 F.3d at 1077.
Id. (quoting Farmer, 511 U.S. at 842) (omission in original).
Brandstatt v. Enemoh, 1:13-cv-00434-RRB – 10
Brandstatt’s attack on CDCR policy fails to clear significant hurdle: i.e., refusal to
provide a particular treatment, basically a difference in medical opinion, is generally, at
most, medical malpractice, not cognizable in a § 1983 civil rights action. To constitute a
viable deliberate indifference claim, Brandstatt must allege more than simply stating that
the policy followed by the Defendants, or any of them, precluded providing him with a
particular treatment. He must show that the course dictated by the policy was medically
unacceptable under the circumstances, and that policy was chosen in conscious disregard
of an excessive risk to Brandstatt’s health.30 In this case it is clear that Brandstatt does not
meet that standard.
As presently constituted the Complaint fails to state a viable cause of action against
any Defendant and must be dismissed. It is also apparent from the Amended Complaint
and the documents attached thereto that Brandstatt cannot truthfully plead a viable cause
of action under § 1983. Accordingly, granting leave to amend would be futile.31
This Court, having fully considered the matter finds that reasonable jurists could not
disagree with this Court’s resolution of his constitutional claims, or that jurists could
conclude the issues presented are adequate to deserve encouragement to proceed further.
See Toguchi v. Chung, 391 F.3d 1051, 1059-60 (9th Cir. 2004); Jackson v.
MacIntosh, 90 F.3d 330, 332 (9th Cir. 1996); Sanchez v. Wild, 891 F.2d 240, 242 (9th Cir.
1989); Franklin v. State of Ore., State Welfare Div., 662 F.2d 1337, 1334 (9th Cir. 1981).
See Foman v. Davis, 371 U.S. 178, 182 (1962); AmerisourceBergen Corp.
v. Dialysist West, Inc., 445 F.3d 1132, 1136 (9th Cir. 2006).
Brandstatt v. Enemoh, 1:13-cv-00434-RRB – 11
Accordingly, any appeal would be frivolous or taken in bad faith, and Brandstatt's in forma
pauperis status should be revoked.32
For the reasons set forth above, the Court hereby ORDERS as follows:
The Amended Complaint on file is hereby DISMISSED, without leave to
Brandstatt's in forma pauperis status is hereby REVOKED; and
The Clerk of the Court is directed to enter judgment accordingly.
IT IS SO ORDERED this 9th day of October, 2013.
S/RALPH R. BEISTLINE
UNITED STATES DISTRICT JUDGE
28 U.S.C. § 1915(a)(3); see Hooker v. American Airlines, 302 F.3d 1091,
1092 (9th Cir. 2002) (revocation of in forma pauperis status is appropriate if the appeal is
Brandstatt v. Enemoh, 1:13-cv-00434-RRB – 12
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