Ross v. Woodward, et al.

Filing 13

ORDER DISMISSING CASE, With Prejudice, For Failure To State A Claim (Doc. 12 ), ORDER For This Dismissal To Count As A Strike Pursuant To 28 U.S.C. §1915(g), ORDER For Clerk To Close Case, signed by Magistrate Judge Gary S. Austin on 3/11/2015. CASE CLOSED.(Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LYNN D. ROSS,

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Plaintiff,

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vs.

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Defendants.

ORDER DISMISSING CASE, WITH
PREJUDICE, FOR FAILURE TO STATE A
CLAIM
(Doc. 12.)

B. WOODWARD, et al.,

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1:13-cv-01703-GSA-PC

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ORDER FOR THIS DISMISSAL TO
COUNT AS A STRIKE PURSUANT TO 28
U.S.C. '1915(g)
ORDER FOR CLERK TO CLOSE CASE

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I.

BACKGROUND

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Lynn Dell Ross (“Plaintiff”) is a state prisoner proceeding pro se with this civil rights

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action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on

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October 23, 2013. (Doc. 1.) On October 30, 2013, Plaintiff consented to Magistrate Judge

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jurisdiction in this action pursuant to 28 U.S.C. ' 636(c), and no other parties have made an

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appearance. (Doc. 4.) Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the

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Eastern District of California, the undersigned shall conduct any and all proceedings in the case

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until such time as reassignment to a District Judge is required. Local Rule Appendix A(k)(3).
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The court screened the Complaint under 28 U.S.C. § 1915A and entered an order on

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March 17, 2014, dismissing the Complaint for failure to state a claim, with leave to amend.

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(Doc. 11.) On April 7, 2014, Plaintiff filed the First Amended Complaint, which is now before

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the court for screening. (Doc. 12.)

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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. Id. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969

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(9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility

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standard. Id.

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III.

SUMMARY OF FIRST AMENDED COMPLAINT

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Plaintiff is presently incarcerated at Valley State Prison for Men in Chowchilla,

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

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(CDCR), where the events at issue in the First Amended Complaint allegedly occurred.

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Plaintiff names as defendants Barbara Woodward (Nurse Practitioner) and N. Malakkla (Chief

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Physician and Surgeon) (“Defendants”). Defendants were employed by the CDCR at the time

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

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On or about July 3, 2013, Plaintiff reported to the Facility D Clinic complaining of

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excruciating pain because of his ventral hernia. Plaintiff was in so much pain that he lay balled

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up in a fetal position due to the pain, in front of the clinic. Defendant Nurse Practitioner

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Woodward would not take any action. Defendant Dr. Malakka was notified of the emergency

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and summoned by the prison alert system. Plaintiff lay in front of the clinic for over an hour,

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suffering pain and humiliation as defendant Woodward and other medical staff told Plaintiff,

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“There is nothing we can do for you, as we do not believe anything is wrong with you!” (First

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Amended Complaint (FAC), Doc. 12 at 5:26-28.)

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On August 13, 2013, Plaintiff was interviewed by defendant Woodward regarding an

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administrative appeal Plaintiff had filed regarding a request for transfer and Plaintiff’s need for

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a change in medication to relieve his pain because the prescribed medication known as a “G.I.

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Cocktail” (Gastrinal Intestine Cocktail) was not working. Defendant Woodward was aware of

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Plaintiff’s ongoing painful episodes due to the ventral hernia. She told Plaintiff she was not

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going to change the medication and he just has to deal with the pain. Plaintiff told defendant

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Woodward that his excruciating pain prevents him from sleeping, walking, and concentrating,

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and he needs a different pain medication. Woodward told Plaintiff that she was not concerned,

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because Plaintiff always complains about pain.

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adequately relieving Plaintiff’s pain, but refused to do anything.

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She knew the “G.I. Cocktail” was not

On or about August 27, 2013, defendant Dr. Malakka signed off on the appeal, agreeing

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with defendant Woodward’s determination, refusing to address Plaintiff’s pain. Defendants

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knew or should have known that Plaintiff faced a substantial risk of future serious harm, and

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they disregarded that risk.

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Plaintiff suffers pain, humiliation, degradation, emotional stress, duress, mental

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anguish, and embarrassment. Plaintiff seeks monetary damages.

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IV.

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PLAINTIFF=S EIGHTH AMENDMENT MEDICAL CLAIM
The Civil Rights Act under which this action was filed provides:
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

Deliberate indifference may be manifested Awhen prison

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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)).

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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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is insufficient to establish a constitutional violation.@ Id. (citing Wood v. Housewright, 900

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F.2d 1332, 1334 (9th Cir. 1990)).

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

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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 chosen 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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Here, Plaintiff alleges that he suffered excruciating pain due to a ventral hernia. This

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allegation is sufficient to meet the objective serious harm standard. However, Plaintiff fails to

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allege facts demonstrating that defendants Woodward and Malakkla treated him with deliberate

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indifference. Plaintiff’s own allegations indicate that defendant Woodward did not believe

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Plaintiff was in pain or that anything was wrong with Plaintiff. As to defendant Malakkla,

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Plaintiff only alleges that Malakkla was summoned for help when Plaintiff was lying on the
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floor in pain, and he later addressed Plaintiff’s administrative appeal. Generally, denying a

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prisoner’s administrative appeal does not cause or contribute to the underlying violation.

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George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007) (quotation marks omitted). Because prison

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administrators cannot willfully turn a blind eye to constitutional violations being committed by

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subordinates, Jett, 439 F.3d at 1098, there may be limited circumstances in which those

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involved in reviewing an administrative appeal can be held liable under section 1983, but that

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circumstance has not been presented here. Plaintiff has not alleged facts showing that Dr.

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Malakkla acted, or failed to act, while knowingly disregarding a substantial risk of serious harm

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to Plaintiff’s health.1 The mere existence of an administrative appeals process does not create a

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protected liberty interest upon which Plaintiff may base a claim that he was denied a particular

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result. Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003); Mann v. Adams, 855 F.2d 639,

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640 (9th Cir. 1988).

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V.

CONCLUSION

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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). Accordingly, this action shall be

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dismissed in its entirety, with prejudice, for failure to state a claim.

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Based on the foregoing, it is HEREBY ORDERED that:

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1.

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This action is DISMISSED in its entirety, with prejudice, for failure to state a
claim upon which relief may be granted;

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AThreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.@ Iqbal, 556 U.S. at 678.
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This dismissal counts as a STRIKE pursuant to 28 U.S.C. ' 1915(g); and

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The Clerk is directed to CLOSE this case.

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IT IS SO ORDERED.
Dated:

March 11, 2015

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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