Jones v. Boparai

Filing 10

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gary S. Austin on 5/16/2014 recommending that 9 Amended Prisoner Civil Rights Complaint filed by Vernon Jones be dismissed with prejudice. Referred to Judge Anthony W. Ishii; Objections to F&R due by 6/19/2014. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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VERNON JONES,

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Plaintiff,

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vs.
M. BOPARI, M.D., et al.,

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Defendants.

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1:13-cv-00881-AWI-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

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I.

BACKGROUND

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Vernon Jones ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis

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

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commencing this action on January 12, 2013. (Doc. 1.) The Court screened the Complaint

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pursuant to 28 U.S.C. § 1915A and issued an order on October 21, 2013, dismissing the

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Complaint for failure to state a claim, with leave to amend. (Doc. 8.) On November 15, 2013,

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Plaintiff filed the First Amended Complaint, which is now before the court for screening.

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(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 the California Rehabilitation Center in Norco,

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California, in the custody of the California Department of Corrections and Rehabilitation

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(CDCR). The events at issue in the First Amended Complaint allegedly occurred at Avenal

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State Prison in Avenal, California, when Plaintiff was incarcerated at there. Plaintiff names as

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sole defendant Dr. M. Bopari (“Defendant”). Defendant was employed by the CDCR at the

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time of the events at issue. Plaintiff’s factual allegations follow.

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Plaintiff alleges that he has been denied a much-needed surgery to remove cataracts.

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Surgery was recommended to Plaintiff by Folsom State Prison. However, Dr. M. Bopari,

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physician at ASP, substituted the surgery with a less effective course of treatment, prescription

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eyeglasses. Plaintiff alleges that when he walks during the day, he experiences a blind spot to

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his left. At night, he experiences a “scintillation spot” that impairs his vision. (Amended

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Compl. at 3 ¶IV.) Plaintiff claims that his impaired vision jeopardizes his safety and poses a

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hazard to the security of the institution.

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Dr. Bopari is familiar with Plaintiff’s need for cataract surgery based on the

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documented medical history and the recommendation by Folsom State Prison. Instead, Dr.

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Bopari prescribed glasses, which actually exacerbated the situation, causing Plaintiff to suffer

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headaches from the glasses because of the prescription.

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glasses.

Plaintiff ultimately returned the

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Plaintiff alleges that Dr. Bopari knew that Plaintiff’s situation can only be corrected

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through surgery. However, for budgetary or other reasons, Plaintiff is being denied the surgery.

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Plaintiff alleges that Dr. Bopari and other medical personnel acted with deliberate indifference.

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Plaintiff requests monetary damages and injunctive relief.
IV.

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PLAINTIFF=S EIGHTH AMENDMENT MEDICAL CLAIM
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[T]o maintain an Eighth Amendment claim based on prison medical treatment, an

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

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

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

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

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

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

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

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

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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)).

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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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Discussion

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Plaintiff has demonstrated that he has a serious medical need because he has cataracts.

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However, Plaintiff fails to show that defendant Dr. M. Bopari acted against him with deliberate

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indifference to a substantial risk of serious harm. Plaintiff fails to allege facts showing that Dr.

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Bopari acted against him, or failed to act, while knowing of, and deliberately disregarding, a

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substantial risk of serious harm to Plaintiff. Plaintiff alleges, at most, a difference of opinion

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between the doctors and himself about his medical treatment, which does not give rise to a §

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1983 claim. Therefore, Plaintiff fails to state an Eighth Amendment medical claim.

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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. The Court previously granted Plaintiff

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leave to amend the complaint, with ample guidance by the Court. Plaintiff has now filed two

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complaints without stating any claims upon which relief may be granted under § 1983. The

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Court finds that the deficiencies outlined above are not capable of being cured by amendment,

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and therefore further leave to amend should not be granted. 28 U.S.C. ' 1915(e)(2)(B)(ii);

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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 16, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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