Caesar v. Beard, et al.

Filing 12

FINDINGS and RECOMMENDATIONS to Dismiss Case, with Prejudice, for Failure to State a Claim, signed by Magistrate Judge Gary S. Austin on 3/17/15. Referred to Judge O'Neill; 30-Day Deadline. (Verduzco, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DANNY CAESAR, 12 Plaintiff, 13 14 vs. 1:13-cv-01726-LJO-GSA-PC FINDINGS AND RECOMMENDATIONS TO DISMISS CASE, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM (Doc. 11.) JEFFREY BEARD, et al., 15 Defendants. OBJECTIONS, IF ANY, DUE WITHIN THIRTY DAYS 16 17 18 I. BACKGROUND 19 Danny Caesar (“Plaintiff”) is a state prisoner proceeding pro se with this civil rights 20 action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on 21 October 28, 2013. (Doc. 1.) 22 The court screened the Complaint under 28 U.S.C. § 1915A and entered an order on 23 March 17, 2014, dismissing the Complaint for failure to state a claim, with leave to amend. 24 (Doc. 10.) On April 17, 2014, Plaintiff filed the First Amended Complaint, which is now 25 before the court for screening. (Doc. 11.) 26 II. SCREENING REQUIREMENT 27 The court is required to screen complaints brought by prisoners seeking relief against a 28 governmental entity or officer or employee of a governmental entity. 28 U.S.C. ' 1915A(a). 1 1 The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 2 legally Afrivolous or malicious,@ that fail to state a claim upon which relief may be granted, or 3 that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 4 ' 1915A(b)(1),(2). ANotwithstanding any filing fee, or any portion thereof, that may have been 5 paid, the court shall dismiss the case at any time if the court determines that the action or 6 appeal fails to state a claim upon which relief may be granted.@ 28 U.S.C. ' 1915(e)(2)(B)(ii). 7 A complaint is required to contain Aa short and plain statement of the claim showing 8 that the pleader is entitled to relief.@ Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are 9 not required, but A[t]hreadbare recitals of the elements of a cause of action, supported by mere 10 conclusory statements, do not suffice.@ Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 11 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 12 (2007)). While a plaintiff=s allegations are taken as true, courts Aare not required to indulge 13 unwarranted inferences.@ Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) 14 (internal quotation marks and citation omitted). Plaintiff must set forth Asufficient factual 15 matter, accepted as true, to >state a claim to relief that is plausible on its face.=@ Iqbal, 556 U.S. 16 at 678. While factual allegations are accepted as true, legal conclusions are not. Id. 17 To state a viable claim for relief, Plaintiff must set forth sufficient factual allegations to 18 state a plausible claim for relief. Id. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 19 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility 20 standard. Id. 21 III. SUMMARY OF FIRST AMENDED COMPLAINT 22 Plaintiff is presently incarcerated at Kern Valley State Prison (KVSP) in Delano, 23 California, in the custody of the California Department of Corrections and Rehabilitation 24 (CDCR), where the events at issue in the First Amended Complaint allegedly occurred. 25 Plaintiff names as defendants Jeffrey Beard (Director, CDCR), Ms. Lopez (Chief Medical 26 Officer-KVSP), Ismael Patel (Primary Care Physician-KVSP), and Kongara Nanditha (Primary 27 Care Physician-KVSP) (collectively, “Defendants”). Defendants were employed by the CDCR 28 at KVSP at the time of the events at issue. Plaintiff’s factual allegations follow. 2 1 Plaintiff has suffered from a permanent degenerative medical condition known as 2 “frostbite residuals,” since 1976. First Amended Complaint at 3 ¶IV. Since his initial injury, 3 Plaintiff’s medical condition has worsened. Plaintiff suffers pain during prolonged standing 4 and walking, and he was issued a wheelchair at Pelican Bay State Prison. 5 Since his arrival at KVSP, Plaintiff’s medical treatment has changed. Officials propose 6 to take away his wheelchair and other ADA protections necessary for daily functioning. Dr. 7 Patel denied Plaintiff access to a neurologist, the most qualified doctor to treat his condition, 8 claiming he can diagnose Plaintiff’s diseased nervous system better than a neurologist. Dr. 9 Patel also denied Plaintiff the use of his wheelchair. 10 11 Plaintiff filed two inmate appeals against Dr. Patel, resulting in the denial of access to a neurologist and the use of a wheelchair by Director Jeffrey Beard. 12 Dr. Kongara requested and obtained the approval of Chief Medical Officer Lopez to 13 take away Plaintiff’s permanent chrono for a wheelchair and various other ADA protections. 14 Defendants all acted with negligence and subjected Plaintiff to cruel and unusual punishment. 15 16 17 18 19 20 21 Plaintiff requests injunctive relief. IV. 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. 22 42 U.S.C. ' 1983. ASection 1983 . . . creates a cause of action for violations of the federal 23 Constitution and laws.@ Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997) 24 (internal quotations omitted). ATo the extent that the violation of a state law amounts to the 25 deprivation of a state-created interest that reaches beyond that guaranteed by the federal 26 Constitution, Section 1983 offers no redress.@ Id. 27 A[T]o maintain an Eighth Amendment claim based on prison medical treatment, an 28 inmate must show >deliberate indifference to serious medical needs.=@ Jett v. Penner, 439 F.3d 3 1 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285 (1976)). 2 The two-part test for deliberate indifference requires the plaintiff to show (1) A>a serious 3 medical need= by demonstrating that >failure to treat a prisoner=s condition could result in 4 further significant injury or the unnecessary and wanton infliction of pain,=@ and (2) Athe 5 defendant=s response to the need was deliberately indifferent.@ Jett, 439 F.3d at 1096 (quoting 6 McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds by WMX 7 Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc) (internal quotations 8 omitted)). Deliberate indifference is shown by Aa purposeful act or failure to respond to a 9 prisoner=s pain or possible medical need, and harm caused by the indifference.@ Id. (citing Deliberate indifference may be manifested Awhen prison 10 McGuckin, 974 F.2d at 1060). 11 officials deny, delay or intentionally interfere with medical treatment, or it may be shown by 12 the way in which prison physicians provide medical care.@ Id. Where a prisoner is alleging a 13 delay in receiving medical treatment, the delay must have led to further harm in order for the 14 prisoner to make a claim of deliberate indifference to serious medical needs. McGuckin at 15 1060 (citing Shapely v. Nevada Bd. of State Prison Comm=rs, 766 F.2d 404, 407 (9th Cir. 16 1985)). 17 ADeliberate indifference is a high legal standard.@ Toguchi v. Chung, 391 F.3d 1051, 18 1060 (9th Cir. 2004). AUnder this standard, the prison official must not only >be aware of the 19 facts from which the inference could be drawn that a substantial risk of serious harm exists,= but 20 that person >must also draw the inference.=@ Id. at 1057 (quoting Farmer v. Brennan, 511 U.S. 21 825, 837, 114 S.Ct. 1970 (1994)). A>If a prison official should have been aware of the risk, but 22 was not, then the official has not violated the Eighth Amendment, no matter how severe the 23 risk.=@ Id. (quoting Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir. 24 2002)). 25 constitutional deprivation under the Eighth Amendment. Id. at 1060. A[E]ven gross negligence 26 is insufficient to establish a constitutional violation.@ Id. (citing Wood v. Housewright, 900 27 F.2d 1332, 1334 (9th Cir. 1990)). 28 /// AA showing of medical malpractice or negligence is insufficient to establish a 4 1 AA difference of opinion between a prisoner-patient and prison medical authorities 2 regarding treatment does not give rise to a ' 1983 claim.@ Franklin v. Oregon, 662 F.2d 1337, 3 1344 (9th Cir. 1981) (internal citation omitted). To prevail, plaintiff Amust show that the course 4 of treatment the doctors chosen was medically unacceptable under the circumstances . . . and . . 5 . that they chose this course in conscious disregard of an excessive risk to plaintiff=s health.@ 6 Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (internal citations omitted). 7 Plaintiff alleges that he suffers from a permanent degenerative medical condition, 8 frostbite residuals, which causes him pain during prolonged standing and walking. 9 allegation is sufficient to meet the objective serious medical need standard. However, Plaintiff 10 fails to allege facts demonstrating that any of the Defendants acted against him with deliberate 11 indifference. Plaintiff’s allegations do not demonstrate more than a difference of opinion 12 between Plaintiff and his doctors, whether Plaintiff’s treatment should include access to a 13 wheelchair or a visit to a neurologist. Plaintiff has not alleged facts showing that any of the 14 Defendants acted against him, or failed to act, while knowing of and disregarding a substantial 15 risk of serious harm to Plaintiff. Therefore, Plaintiff fails to state a cognizable medical claim. This 16 To the extent that Plaintiff seeks to state an ADA1 claim, the treatment, or lack of 17 treatment, concerning Plaintiff=s medical condition does not provide a basis upon which to 18 impose liability under the ADA. Burger v. Bloomberg, 418 F.3d 882, 882 (8th Cir. 2005) 19 (medical treatment decisions not a basis for RA or ADA claims); Fitzgerald v. Corr. Corp. of 20 Am., 403 F.3d 1134, 1144 (10th Cir. 2005) (medical decisions not ordinarily within scope of 21 ADA or RA); Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996) (AThe ADA does not create 22 a remedy for medical malpractice.@). Plaintiff refers to his intermittent use of a wheelchair, but 23 does not specifically allege facts indicting that he is a qualified individual with a disability, or 24 what specific service, program or activity he was denied based upon that disability. Plaintiff 25 may not assert his list of complaints regarding conditions of confinement under the umbrella of 26 the ADA. Therefore, Plaintiff fails to state an ADA claim. 27 28 1 Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132. 5 Plaintiff alleges that defendant Beard addressed Plaintiff’s prison appeals, denying his 1 Generally, denying a prisoner’s 2 requests for a wheelchair and an outside neurologist. 3 administrative appeal does not cause or contribute to the underlying violation. George v. 4 Smith, 507 F.3d 605, 609 (7th Cir. 2007) (quotation marks omitted). 5 administrators cannot willfully turn a blind eye to constitutional violations being committed by 6 subordinates, Jett, 439 F.3d at 1098, there may be limited circumstances in which those 7 involved in reviewing an administrative appeal can be held liable under section 1983, but that 8 circumstance has not been presented here. The mere existence of an administrative appeals 9 process does not create a protected liberty interest upon which Plaintiff may base a claim that 10 he was denied a particular result. Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003); Mann 11 v. Adams, 855 F.2d 639, 640 (9th Cir. 1988). Therefore, the court finds that Plaintiff fails to 12 state a claim against defendant Beard. 13 V. Because prison CONCLUSION AND RECOMMENDATIONS 14 The Court finds that Plaintiff=s First Amended Complaint fails to state any cognizable 15 claim upon which relief may be granted under ' 1983. The Court previously granted Plaintiff 16 leave to amend the complaint, with ample guidance by the Court. Plaintiff has now filed two 17 complaints without stating any claims upon which relief may be granted under § 1983. The 18 Court finds that the deficiencies outlined above are not capable of being cured by amendment, 19 and therefore further leave to amend should not be granted. 28 U.S.C. ' 1915(e)(2)(B)(ii); 20 Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). 21 Accordingly, based on the foregoing, IT IS HEREBY RECOMMENDED that: 22 1. 23 This action be DISMISSED in its entirety, with prejudice, for failure to state a claim upon which relief may be granted; and This dismissal count as a STRIKE pursuant to 28 U.S.C. ' 1915(g). 24 2. 25 These Findings and Recommendations will be submitted to the United States District 26 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within 27 thirty (30) days after being served with these Findings and Recommendations, Plaintiff may file 28 written objections with the Court. The document should be captioned AObjections to 6 1 Magistrate Judge=s Findings and Recommendations.@ Plaintiff is advised that failure to file 2 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 3 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 4 (9th Cir. 1991)). 5 6 7 8 IT IS SO ORDERED. Dated: March 17, 2015 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7

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