Tabatabaee v. Marshall, et al.

Filing 17

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Barbara A. McAuliffe on 6/10/2015 recommending dismissal for failure to state a claim re 16 Second Amended Prisoner Civil Rights Complaint. Referred to Judge Lawrence J. O'Neill; Objections to F&R due within 14-days.(Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ALEX TABATABAEE,

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Plaintiff,

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v.
BRIAN MARSHALL, et al.,

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Defendants.

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1:13-cv-00911-LJO-BAM (PC)
FINDINGS AND RECOMMENDATIONS
REGARDING DISMISSAL FOR FAILURE
TO STATE A CLAIM
(ECF No. 16)
FOURTEEN-DAY DEADLINE

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Findings and Recommendations

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I.

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Plaintiff Alex Tabatabaee (“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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June 17, 2013. On November 18, 2014, the Court dismissed Plaintiff’s first amended complaint

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with leave to amend. Plaintiff’s second amended complaint, filed on December 29, 2014, is

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currently before the Court for screening.

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Screening Requirement and Standard

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).
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 Kern Valley State Prison. The events alleged in the complaint

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occurred while Plaintiff was housed at Wasco State Prison. Plaintiff names the following

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defendants: (1) Brian Marshall; (2) D. Bradford; (3) M. Medina; (4) R. Ritchie; (5) Jane Does 1-

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3; (6) A. Johnson; (7) V. Safari; (8) R. Baldoz; (9) Julie Santos; (10) Claudette Quiling; (11) L.

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Coleman; (12) C. Grandjean Rios; and (13) John Doe #1.

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Plaintiff was housed at Wasco State Prison from February 2 to August 9, 2012. Wasco

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State Prison has a correctional treatment center (CTC) that houses inmate-patients that are in

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need of professional supervised health care services and treatment.

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On June 10, 2012, Plaintiff was removed from general population after a suicide attempt

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and was admitted to the CTC on suicide watch. Plaintiff remained in the CTC from June 11 to

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June 23, 2012.

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On June 11, 2012, about 1:45 a.m., Plaintiff was assigned to the CTC and placed on
suicide watch with 1-on-1 direct observation.
On June 12, 2012, at about 3:45 p.m., Defendant A. Johnson, CNA, took Plaintiff’s vital

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signs through the food port and then documented the vitals in Plaintiff’s medical chart.

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Defendant acknowledged that Plaintiff was suffering from hypotension as his blood pressure was

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91/61. During this assessment, Defendant A. Johnson exchanged sarcastic statements with

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Plaintiff. Defendant A. Johnson stated, “You’ve got low blood pressure, but it should be of no

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concern to you especially if you die from it, it’ll work out in your favor anyway since you

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claimed to be suicidal.” Plaintiff alleges that a blood pressure measurement of 91/61 is

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considered “hypotension” and a person with this condition requires treatment. However, on June

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12, 2012, Defendant A. Johnson refused to provide Plaintiff with any medical care for his

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hypotension. She also failed to monitor Plaintiff’s blood pressure and vital signs during her

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shift.

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On June 12, 2012, at 4:15 p.m., Defendant V. Safari reviewed Plaintiff’s health chart and

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administered Plaintiff’s p.m. medication of Cymbalta. Defendant V. Safari did not check

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Plaintiff’s vital signs and did not provide any medical care for Plaintiff’s hypotension.

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Defendant V. Safari claimed she did not have time to monitor his blood pressure. Plaintiff

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alleges that Cymbalta may have unfavorable blood pressure side effects.

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On June 12, 2012, at 8:30 p.m., Defendant Safari and Defendant Baldoz administered

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Plaintiff’s nightly medication of Buspirone (Buspar) 30 mg. Defendants Safari and Baldoz did

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provide Plaintiff any medical care for his hypotension despite knowledge that the medication

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may cause further unfavorable blood pressure side effects.

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On June 13, 2012, from 12:00 a.m. to 3:00 a.m., Plaintiff was having difficulty with sleep

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because of CTC’s nursing and custody staff. Plaintiff alleges that they were loud, slamming

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doors, laughing and dragging things across the floor. At about 3:00 a.m., Plaintiff complained

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about the staff to Defendant Santos. At about 3:15 a.m., Plaintiff again complained to Defendant

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Santos and another nurse at 3:15 a.m. Defendant Santos then offered to give Plaintiff a psych

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medication to make him sleep better. Plaintiff informed Defendant Santos that he would accept

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the medication if he was not given a mood stabilizer because he does not like the side effects of

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those types of medications.

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At approximately 3:20 a.m., Defendant Santos reviewed Plaintiff’s medical chart with

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Defendant Quiling. Defendant Santos entered Plaintiff’s room with a custody officer to

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administer an injection. Plaintiff was skeptical of the injection and demanded to know what the

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medication was. Defendant Santos replied, “Don’t worry so much about it, we know what we

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are doing. We are not going to give you something that you don’t want.” Defendant Santos then

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injected the medication into Plaintiff’s left shoulder and left Plaintiff’s room with the custody

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officer. Defendants Santos and Quiling failed to monitor Plaintiff’s untreated hypotension. At

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3:40 a.m., Plaintiff was overwhelmed with drowsiness and fell asleep. The injected medication

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was later discovered to be Ziprasidone Mesylate (Geodon), which was prescribed by Dr. Hemela

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as PRN. Plaintiff alleges that Geodon is a mood stabilizer medication that can lower blood

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pressure. Plaintiff alleges that after the injection of Geodon, Defendant Santos and another nurse

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documented fraudulent notes in Plaintiff’s health records to justify the injection.

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On June 13, 2012, at 6:40 a.m., Defendant Klingenberg falsely documented in Plaintiff’s

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chart that no physical distress was noted despite being informed by Plaintiff that he was feeling

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slightly light headed with stiffness of his muscles.

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On June 13, 2012, at 7:00 a.m., C.N.A. Mason took Plaintiff’s vital signs through the

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food port and documented them in Plaintiff’s medical chart. Plaintiff’s blood pressure was

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90/62. At 8:10 a.m., CTC’s nursing staff informed the clinical custody officer, Defendant John

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Doe #1, that Plaintiff was suffering from low blood pressure and they needed his assistance

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while they checked Plaintiff’s blood pressure through the food port. Defendant John Doe #1

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approached Plaintiff’s door and demanded that Plaintiff get up from his mattress on the floor and

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come to the door to have his blood pressure taken by the C.N.A. Plaintiff informed Defendant

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John Doe #1 and C.N.A. Coleman that he was feeling dizzy, lightheaded, and too weak to stand

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and that if he got up from his mattress, he may fall. Defendant John Doe #1 then stated, “Cut

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your bullshit acting! If you don’t come to this room’s door, I am going to fucking pepper spray

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you then make you fucking get up.” Plaintiff slowly got off his mattress and walked to the door.

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As Plaintiff was having his blood pressure taken by C.N.A. Coleman through the food port,

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Plaintiff lost consciousness and fell to the floor. As a result of the fall, Plaintiff injured his right

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knee and the back of his head. Plaintiff was transported to the TTA to receive urgent care.

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Plaintiff was treated by Dr. Soleimani and received a few sutures on the back of his head to close

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his wound.

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On June 13, 2012, Dr. Soleimani generated a medical assessment report. According to

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the findings, Plaintiff was suffering from hypotension with blood pressure of 84/50 and

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bradycardia with a low pulse rate of 48. It was deemed that Plaintiff’s fall was most likely due to

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a drop in blood pressure as a result of Plaintiff’s hypotension. Plaintiff was to be administered

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saline IV fluids and his pysch meds were suspended until his vital signs and blood pressure were

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stabilized. Per the physician’s order, Plaintiff’s sutures were to be removed in no more than 10

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days.

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On June 13, 2012, at 10:00 a.m., Plaintiff returned to his CTC room for suicide watch.

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At this time, Defendant Acala administered an IV tube to Plaintiff’s left arm through the food

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port. Plaintiff was administered IV fluids for 1 hour while lying on the floor inside his cell.

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Plaintiff alleges that this caused him great discomfort and pain to his left arm and head.

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Within 5 days of Plaintiff’s placement at CTC, he was infected with Scabies because of
poor room sanitation and linen conditions.
On June 23, 2012, at 9:30 a.m., Plaintiff’s mental health treatment team ordered Plaintiff

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to be discharged from CTC and informed Defendant Rios of Plaintiff’s discharge order.

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Defendant Rios was the discharge nurse responsible for fulfilling physicians’ orders, preparing

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prescribed medications before return to general population and arranging follow-up care.

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Plaintiff alleges that Defendant Rios discharged Plaintiff without any of his medications or

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removal of his sutures. As a result, Plaintiff was left for two weeks without any of his needed

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medications for his medical conditions (Barrett’s Esophagus with G.E.R.D. and gastritis).

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During this time, Plaintiff suffered from nausea, stomach bloating, cramps and increased

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G.E.R.D. symptoms. Plaintiff’s sutures were removed from the back of his head about two

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weeks past the 10-day removal order. This caused gross scarring at the site of his injury.

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Due to Plaintiff’s right knee injury, he was diagnosed with an internal radial tear of the

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medial meniscus with joint effusion, which required surgery. This affected Plaintiff’s daily

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physical activities and impaired his mobility. He was subjected to daily pain and lost sensation

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to the left inner side of his right knee. Plaintiff underwent knee surgery about nine months after

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June 13, 2012. Plaintiff still experiences right knee pain.

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On December 6, 2012, Plaintiff submitted a claim to the California Government Claims
Board. On January 17, 2013, the Board rejected Plaintiff’s claim.
Plaintiff brings the following claims: (1) deliberate indifference to serious medical needs

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in violation of the Eighth Amendment against Defendants A. Johnson, V. Safari, R. Baldoz, J.

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Santos, and C. Quiling for treatment related to Plaintiff’s hypotension condition; (2) deliberate

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indifference to Plaintiff’s safety in violation of the Eighth Amendment against Defendant John

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Doe #1; (3) failure to properly train and supervise staff in violation of the Eighth Amendment

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against B. Marshall, D. Bradford, Jane Does 1-3, and R. Richey; (4) deliberate indifference to

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serious medical needs in violation of the Eighth Amendment against C. Grandjean Rios related

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to Plaintiff’s discharge care; (5) deliberate indifference to Plaintiff’s serious medical needs

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against Defendant L. Coleman; and (6) state law claims for intentional infliction of emotional

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distress and medical malpractice.

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Plaintiff seeks compensatory and punitive damages.

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III.

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A. First Claim for Relief: Deliberate Indifference to Serious Medical Needs

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In his first claim for relief, Plaintiff alleges that Defendants A. Johnson, V. Safari, R.

Discussion

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Baldoz, J. Santos, and C. Quiling were deliberately indifferent to Plaintiff’s hypotension

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condition in violation of the Eighth Amendment to the United States Constitution.

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

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Deliberate indifference is shown where the official is aware of a serious medical need and

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fails to adequately respond. Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1018 (9th Cir.

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2010). “Deliberate indifference is a high legal standard.” Id. at 1019; Toguchi v. Chung, 391

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F.3d 1051, 1060 (9th Cir. 2004). “[A] complaint that a physician has been negligent in

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diagnosing or treating a medical condition does not state a valid claim of medical mistreatment

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under the Eighth Amendment. Medical malpractice does not become a constitutional violation

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merely because the victim is a prisoner.” Estelle, 429 U.S. at 106; see also Anderson v. County

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of Kern, 45 F.3d 1310, 1316 (9th Cir.1995). Even gross negligence is insufficient to establish

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deliberate indifference to serious medical needs. See Wood v. Housewright, 900 F.2d 1332, 1334

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(9th Cir.1990).

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Plaintiff admits that Defendants Johnson, Safari, Baldoz, Santos, and Quiling provided

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him with medical treatment and care. In particular, Plaintiff admits that Defendant A. Johnson

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took Plaintiff’s vitals, Defendants V. Safari and Baldoz administered needed medications for

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certain of Plaintiff’s medical issues, and Defendants Santos and Quiling responded to Plaintiff’s

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request for medications to help him sleep. Plaintiff’s allegations that these defendants failed to

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treat his hypotension amount to medical malpractice or, at most, gross negligence, which is not

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sufficient to state a cognizable Eighth Amendment claim.

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B. Second Claim for Relief: Deliberate Indifference

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In his second claim for relief, Plaintiff alleges that Defendant John Doe #1 was

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deliberately indifferent to Plaintiff’s health and safety in violation of the Eighth Amendment to

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the United States Constitution.

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The Eighth Amendment's prohibition against cruel and unusual punishment protects

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prisoners from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041,

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1045 (9th Cir. 2006). Prison officials therefore have a “duty to ensure that prisoners are provided

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adequate shelter, food, clothing, sanitation, medical care, and personal safety.” Johnson v. Lewis,

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217 F.3d 726, 731 (9th Cir. 2000) (citations omitted).

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In order to establish a violation of this duty, a prisoner must show that he was subjected

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to an objectively serious deprivation that amounts to a denial of “the minimal civilized measure

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of life's necessities.” Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811

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(1994) (quoting Rhodes v. Chapman, 452 U.S. 337, 346, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981)).

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A prisoner must also show that prison officials acted with sufficiently culpable states of mind in

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failing to satisfy their duties. Farmer, 511 U.S. at 834. Prison officials must have acted with

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deliberate indifference. Id. A prison official is liable under the Eighth Amendment only if he

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“knows of and disregards an excessive risk to inmate health or safety; the official must both be

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aware of facts from which the inference could be drawn that a substantial risk of serious harm

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exists, and he must also draw the inference.” Id. at 837.

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In this case, Plaintiff alleges that Defendant John Doe #1 ordered Plaintiff to get up from

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his mattress on the floor and come to the door to have his blood pressure taken by the C.N.A.

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Although Plaintiff indicated that he was not feeling well, was lightheaded and was too weak to

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get up from his mattress, Defendant John Doe #1 threatened Plaintiff with pepper spray if he

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failed to get up and come to the door. After Plaintiff came to the door, and while his vitals were

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being taken, Plaintiff lost consciousness and fell to the floor.

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Plaintiff has failed to allege facts demonstrating that Defendant John Doe #1 knew of and

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disregarded an excessive risk to Plaintiff’s health or safety from losing consciousness and falling.

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Plaintiff also has failed to allege facts sufficient to demonstrate that Defendant John Doe #1 drew

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any inference that Plaintiff was at substantial risk of harm from a fall based solely on Plaintiff’s

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complaints. Defendant John Doe #1 was reportedly acting in compliance with the nursing staff

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request that he provide assistance while a nurse checked Plaintiff’s blood pressure through the

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food port. (ECF No. 16, p. 9.) In other words, Defendant John Doe #1 relied on the opinion or

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statements of the nursing staff.

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C. Third Claim for Relief: Failure to Train/Supervise

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In his third claim for relief, Plaintiff alleges that Defendant B. Marshall, D. Bradford,

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Jane Does 1-3 and R. Ritchie failed to provide adequate training and supervision of CTC nursing

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and custody staff. Plaintiff also elsewhere alleges that Defendant Medina failed to provide

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adequate training and supervision. However, Plaintiff may not bring suit against these

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defendants (or any others) based solely on their roles as supervisors.

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Supervisory personnel may not be held liable under section 1983 for the actions of

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subordinate employees based on respondeat superior or vicarious liability. Crowley v. Bannister,

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734 F.3d 967, 977 (9th Cir. 2013); accord Lemire v. California Dep’t of Corr. and Rehab., 726

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F.3d 1062, 1074-75 (9th Cir. 2013); Lacey v. Maricopa County, 693 F.3d 896, 915-16 (9th Cir.

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2012) (en banc). “A supervisor may be liable only if (1) he or she is personally involved in the

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constitutional deprivation, or (2) there is a sufficient causal connection between the supervisor’s

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wrongful conduct and the constitutional violation.” Crowley, 734 F.3d at 977 (citing Snow v.

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McDaniel, 681 F.3d 978, 989) (9th Cir. 2012) (internal quotation marks omitted); accord Lemire,

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726 F.3d at 1074-75; Lacey, 693 F.3d at 915-16. “Under the latter theory, supervisory liability

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exists even without overt personal participation in the offensive act if supervisory officials

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implement a policy so deficient that the policy itself is a repudiation of constitutional rights and

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is the moving force of a constitutional violation.” Crowley, 734 F.3d at 977 (citing Hansen v.

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Black, 885 F.2d 642, 646 (9th Cir. 1989)) (internal quotation marks omitted).

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Plaintiff has not alleged that Defendants B. Marshall, D. Bradford, Jane Does 1-2 and R.

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Richey were personally involved the constitutional deprivation related to Plaintiff’s hypotension

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or that they instituted a deficient policy. Plaintiff’s conclusory allegations regarding deficient

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policies are not sufficient as he has not identified any relevant policy.

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D. Fourth Claim for Relief: Deliberate Indifference to Serious Medical Needs

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In his fourth claim for relief, Plaintiff alleges that Defendant C. Grandjean Rios was

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deliberately indifferent to Plaintiff’s post-discharge medical needs in violation of the Eighth

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Amendment to the United States Constitution. As discussed above, to state a claim based on

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prison medical treatment, an inmate “must show ‘deliberate indifference to serious medical

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needs.’” Jett, 439 F.3d at 1096.

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Plaintiff has not stated a cognizable claim for relief against Defendant Rios. There is no

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indication that Defendant Rios was responsible for or had control over the actions of custody or

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medical staff following Plaintiff’s return to the general population. Stated differently, there is no

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indication that Defendant Rios controlled the administration of Plaintiff’s medication or the

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responsiveness to his health care needs (such as ensuring removal of the sutures) after Plaintiff’s

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release from the CTC.

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E. Fifth Claim for Relief: Deliberate Indifference to Serious Medical Needs

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In his fifth claim for relief, Plaintiff alleges that Defendant Coleman was deliberately

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indifferent by taking Plaintiff’s blood pressure through the food port. In order to state a claim

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based on prison medical treatment, an inmate “must show ‘deliberate indifference to serious

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medical needs.’” Jett, 439 F.3d at 1096.

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Plaintiff has not stated a cognizable claim for deliberate indifference to serious medical

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needs against Defendant Coleman. At best, Plaintiff has alleged gross negligence, which is

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insufficient to establish deliberate indifference to serious medical needs. See Wood, 900 F.2d at

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1334.

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F. State Law Claims

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As Plaintiff has failed to state any cognizable federal claims in this action, the Court finds

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it unnecessary to screen Plaintiff’s state law claims. The Court generally declines to exercise

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supplemental jurisdiction over state law claims in the absence of viable federal claims and this

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case presents no exception. 28 U.S.C. § 1367(c)(3); Parra v. PacifiCare of Ariz., Inc., 715 F.3d

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1146, 1156 (9th Cir. 2013); Herman Family Revocable Trust v. Teddy Bear, 254 F.3d 802, 805

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(9th Cir. 2001); see also Watison v. Carter, 668 F.3d 1108, 1117 (9th Cir. 2012) (if court

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declines to exercise supplemental jurisdiction over state law claims once court dismissed federal

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claims, then the court should dismiss the state law claims without prejudice). Therefore, it shall

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be recommended that Plaintiff’s state law claims be dismissed without prejudice. 28 U.S.C. §

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1367(c)(3); Parra, 715 F.3d at 1156.

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IV.

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Plaintiff’s complaint fails to state a cognizable section 1983 claim upon which relief may

Conclusion and Recommendation

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be granted. Although Plaintiff was provided with the relevant legal standards applicable to his

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federal claims, he has been unable to cure the deficiencies by amendment. Therefore, further

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leave to amend is not warranted. See Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000).

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Additionally, Plaintiff’s state law claims should be dismissed, without prejudice, for lack of

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jurisdiction. 28 U.S.C. § 1367(c)(3).

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Accordingly, it is HEREBY RECOMMENDED that:

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1. Plaintiff’s state law claims be dismissed, without prejudice, for lack of jurisdiction;

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and
2. This action be dismissed as to Plaintiff’s federal claims, with prejudice, for failure to

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state a cognizable claim under section 1983.

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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, the parties

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may file written objections with the Court. The document should be captioned “Objections to

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Magistrate Judge’s Findings and Recommendations.” The parties are advised that failure to file

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objections within the specified time may result in the waiver of the “right to challenge the

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magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir.

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2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.

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Dated:

/s/ Barbara

June 10, 2015

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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