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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DANNY CAESAR,

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Plaintiff,

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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.,

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Defendants.

OBJECTIONS, IF ANY, DUE WITHIN
THIRTY DAYS

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I.

BACKGROUND

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Danny Caesar (“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 28, 2013. (Doc. 1.)

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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. 10.) On April 17, 2014, Plaintiff filed the First Amended Complaint, which is now

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before the court for screening. (Doc. 11.)

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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 Kern Valley State Prison (KVSP) in Delano,

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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 Jeffrey Beard (Director, CDCR), Ms. Lopez (Chief Medical

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Officer-KVSP), Ismael Patel (Primary Care Physician-KVSP), and Kongara Nanditha (Primary

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Care Physician-KVSP) (collectively, “Defendants”). Defendants were employed by the CDCR

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at KVSP at the time of the events at issue. Plaintiff’s factual allegations follow.
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Plaintiff has suffered from a permanent degenerative medical condition known as

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“frostbite residuals,” since 1976. First Amended Complaint at 3 ¶IV. Since his initial injury,

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Plaintiff’s medical condition has worsened. Plaintiff suffers pain during prolonged standing

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and walking, and he was issued a wheelchair at Pelican Bay State Prison.

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Since his arrival at KVSP, Plaintiff’s medical treatment has changed. Officials propose

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to take away his wheelchair and other ADA protections necessary for daily functioning. Dr.

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Patel denied Plaintiff access to a neurologist, the most qualified doctor to treat his condition,

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claiming he can diagnose Plaintiff’s diseased nervous system better than a neurologist. Dr.

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Patel also denied Plaintiff the use of his wheelchair.

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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.

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Dr. Kongara requested and obtained the approval of Chief Medical Officer Lopez to

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take away Plaintiff’s permanent chrono for a wheelchair and various other ADA protections.

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Defendants all acted with negligence and subjected Plaintiff to cruel and unusual punishment.

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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.

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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
Deliberate indifference may be manifested Awhen prison

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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)).

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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)).

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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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Plaintiff alleges that he suffers from a permanent degenerative medical condition,

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frostbite residuals, which causes him pain during prolonged standing and walking.

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allegation is sufficient to meet the objective serious medical need standard. However, Plaintiff

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fails to allege facts demonstrating that any of the Defendants acted against him with deliberate

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indifference. Plaintiff’s allegations do not demonstrate more than a difference of opinion

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between Plaintiff and his doctors, whether Plaintiff’s treatment should include access to a

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wheelchair or a visit to a neurologist. Plaintiff has not alleged facts showing that any of the

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Defendants acted against him, or failed to act, while knowing of and disregarding a substantial

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risk of serious harm to Plaintiff. Therefore, Plaintiff fails to state a cognizable medical claim.

This

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To the extent that Plaintiff seeks to state an ADA1 claim, the treatment, or lack of

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treatment, concerning Plaintiff=s medical condition does not provide a basis upon which to

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impose liability under the ADA. Burger v. Bloomberg, 418 F.3d 882, 882 (8th Cir. 2005)

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(medical treatment decisions not a basis for RA or ADA claims); Fitzgerald v. Corr. Corp. of

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Am., 403 F.3d 1134, 1144 (10th Cir. 2005) (medical decisions not ordinarily within scope of

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ADA or RA); Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996) (AThe ADA does not create

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a remedy for medical malpractice.@). Plaintiff refers to his intermittent use of a wheelchair, but

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does not specifically allege facts indicting that he is a qualified individual with a disability, or

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what specific service, program or activity he was denied based upon that disability. Plaintiff

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may not assert his list of complaints regarding conditions of confinement under the umbrella of

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the ADA. Therefore, Plaintiff fails to state an ADA claim.

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Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132.
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Plaintiff alleges that defendant Beard addressed Plaintiff’s prison appeals, denying his

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Generally, denying a prisoner’s

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requests for a wheelchair and an outside neurologist.

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administrative appeal does not cause or contribute to the underlying violation. George v.

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

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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. The mere existence of an administrative appeals

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process does not create a protected liberty interest upon which Plaintiff may base a claim that

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he was denied a particular result. Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003); Mann

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v. Adams, 855 F.2d 639, 640 (9th Cir. 1988). Therefore, the court finds that Plaintiff fails to

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state a claim against defendant Beard.

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V.

Because prison

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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claim 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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Accordingly, based on the foregoing, IT IS HEREBY RECOMMENDED that:

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1.

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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).

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2.

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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 file

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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 result in the waiver of rights on appeal. Wilkerson v.

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Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394

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(9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

March 17, 2015

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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