Parthemore v. Toor et.al.

Filing 24

FINDINGS and RECOMMENDATIONS to Dismiss Action With Prejudice for Failure to Stata a Claim 23 , signed by Magistrate Judge Michael J. Seng on 12/31/14: Objections Due Within Fourteen (14) Days. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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IRA D. PARTHEMORE,

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Plaintiff,
v.
KIRAN DEEP SINGH TOOR, et al.,
Defendants.

CASE NO. 1:14-cv-0307-AWI-MJS (PC)
FINDINGS AND RECOMMENDATIONS TO
DISMISS ACTION WITH PREJUDICE FOR
FAILURE TO STATE A CLAIM
(ECF No. 23)
OBJECTIONS DUE WITHIN FOURTEEN
(14) DAYS

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil
rights action brought pursuant to 42 U.S.C. § 1983.

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The Court screened Plaintiff‟s complaint (ECF No. 5) and dismissed it for failure to

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state a claim, but gave leave to amend (ECF No. 15). Plaintiff‟s first amended complaint

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(ECF No. 16) also was dismissed with leave to amend (ECF No. 17). Plaintiff‟s second

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amended complaint is now before the Court for screening.

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I.

SCREENING REQUIREMENT

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The Court is required to screen complaints brought by prisoners seeking relief

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against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has

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raised claims that are legally “frivolous, malicious,” or that fail to state a claim upon which

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relief may be granted, or that seek monetary relief from a defendant who is immune from

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such relief. 28 U.S.C. § 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion

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thereof, that may have been paid, the court shall dismiss the case at any time if the court

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determines that . . . the action or appeal . . . fails to state a claim upon which relief may

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be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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II.

PLEADING STANDARD

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Section 1983 “provides a cause of action for the deprivation of any rights,

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privileges, or immunities secured by the Constitution and laws of the United States.”

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Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983).

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Section 1983 is not itself a source of substantive rights, but merely provides a method for

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vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94

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(1989).

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To state a claim under § 1983, a plaintiff must allege two essential elements: (1)

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that a right secured by the Constitution or laws of the United States was violated and (2)

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that the alleged violation was committed by a person acting under the color of state law.

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See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243,

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1245 (9th Cir. 1987).

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A complaint must contain “a short and plain statement of the claim showing that

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the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations

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are not required, but “[t]hreadbare recitals of the elements of a cause of action,

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supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S.

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662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

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Plaintiff must set forth “sufficient factual matter, accepted as true, to state a claim to relief

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that is plausible on its face.” Id. Facial plausibility demands more than the mere

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possibility that a defendant committed misconduct and, while factual allegations are

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accepted as true, legal conclusions are not. Id. at 677-78.

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III.

PLAINTIFF’S ALLEGATIONS

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Plaintiff complains of acts that occurred during his incarceration at Valley State

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Prison (“VSP”). Plaintiff names as Defendants: 1) Kiran Deep Singh Toor, Physician at

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VSP, 2) Nagabhushana Siddappa Malakkla, Chief Medical Officer at VSP, and 3) Pal

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Singh Virk, Chief Medical Executive at VSP.

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Plaintiff‟s allegations may be summarized essentially as follows:

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Plaintiff is 74 years old and has had severe arthritis in all of his joints for over

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twelve years. Plaintiff previously was incarcerated at Mule Creek State Prison, and was

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receiving the “non-formulary” drug Celebrex for his arthritis pain. Plaintiff had been on

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Celebrex for over seven years. Other medications were not effective in treating his pain.

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On April 22, 2013, Plaintiff was transferred to VSP and to the care of Defendant

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Toor. Dr. Toor stopped Plaintiff‟s Celebrex prescription before seeing or examining

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Plaintiff. When Plaintiff saw Dr. Toor on May 13, 2013, Dr. Toor lied by telling Plaintiff

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that his Celebrex prescription had expired on April 30, 2013. However, Plaintiff‟s

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Celebrex prescription did not expire until November 9, 2013. Dr. Toor also falsely stated

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that Celebrex is never given at VSP. However, other inmates were periodically receiving

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Celebrex.

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Plaintiff asked Dr. Toor to review his medical records to verify that other

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medications had been ineffective. Dr. Toor refused to review the records and offered

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Plaintiff Tylenol, Tylenol with codeine, and Naproxin. Plaintiff informed Dr. Toor that

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these medications were ineffective and that Plaintiff could not tolerate codeine.

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Plaintiff demanded that Dr. Toor submit a Nonformulary Drug Request form so

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Plaintiff could continue to receive Celebrex. Dr. Toor completed the form “in such a

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manner as to guarantee denial.” Defendant Malakkla denied the request. Plaintiff filed

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grievances, which were denied by Defendants Malakkla and Virk.

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When Plaintiff later discovered that his Celebrex prescription had not expired, but

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rather had been cancelled by Dr. Toor, Dr. Toor informed him that the prescription was

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cancelled due to cost, and that Dr. Toor could do nothing further. Plaintiff also requested

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to see a specialist, and Dr. Toor denied the request.

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Plaintiff continues to suffer severe arthritic pain. His condition has deteriorated

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since the Celebrex prescription was cancelled. He now requires a cane to walk, has a

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slower gait, and has extreme pain when sitting down and standing up.

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Plaintiff seeks the reinstatement of his Celebrex prescription, and compensatory

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and punitive damages.

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IV.

ANALYSIS

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A.

Medical Indifference

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A claim of medical indifference requires (1) a serious medical need, and (2) a

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deliberately indifferent response by defendant. Jett v. Penner, 439 F.3d 1091, 1096 (9th

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Cir. 2006). A serious medical need may be shown by demonstrating that “failure to treat

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a prisoner's condition could result in further significant injury or the „unnecessary and

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wanton infliction of pain.‟” Id.; see also McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th

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Cir. 1992) (“The existence of an injury that a reasonable doctor or patient would find

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important and worthy of comment or treatment; the presence of a medical condition that

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significantly affects an individual's daily activities; or the existence of chronic and

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substantial pain are examples of indications that a prisoner has a „serious‟ need for

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medical treatment.”).

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The deliberate indifference standard is met by showing (a) a purposeful act or

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failure to respond to a prisoner's pain or possible medical need and (b) harm caused by

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the indifference. Id. “Deliberate indifference is a high legal standard.” Toguchi v. Chung,

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391 F.3d 1051, 1060 (9th Cir. 2004). “Under this standard, the prison official must not

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only „be aware of the facts from which the inference could be drawn that a substantial

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risk of serious harm exists,‟ but that person „must also draw the inference.‟” Id. at 1057

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(quoting Farmer, 511 U.S. at 837). “„If a prison official should have been aware of the

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risk, but was not, then the official has not violated the Eighth Amendment, no matter how

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severe the risk.‟” Id. (brackets omitted) (quoting Gibson, 290 F.3d at 1188). Mere

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indifference, negligence, or medical malpractice is not sufficient to support the claim.

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Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle v. Gamble,

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429 U.S. 87, 105-06 (1976)).

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An allegation that prison officials deliberately ignored a prisoner‟s complaint about

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the ineffective nature of prescribed pain medication and the pain being suffered as a

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result can, in some circumstances, give rise to a constitutional claim. See Chess v.

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Dovey, No. CIV S-07-1767 LKK DAD P., 2011 WL 567375, at *21 (E.D. Cal. Feb. 15,

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2011) (denying summary judgment on Eighth Amendment claim where the doctor

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“ignored plaintiff‟s complaint about the ineffective nature of the Tylenol, aspirin and other

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medications he was being given and the pain being suffered as a result”); Franklin v.

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Dudley, No. 2:07-cv-2259 FCD KJN P., 2010 WL 5477693, at *6 (E.D. Cal. Dec. 29,

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2010) (existence of triable issue of fact as to whether defendant violated Eighth

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Amendment precluded the granting of summary judgment where plaintiff was previously

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prescribed narcotic pain medication but now was given only Motrin, Naprosyn, and

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Tylenol under prison‟s no-narcotic policy). However, a prisoner does not have a

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constitutional right to the medication of his choice, and a mere difference of opinion

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regarding appropriate treatment and pain medication is insufficient to give rise to a

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constitutional claim. Toguchi, 391 F.3d at 1058; Wilson v. Borg, No. 95-15720, 1995 WL

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571481, at *2 (9th Cir. Sept. 27, 1995); Smith v. Norrish, No. 94-16906, 1995 WL

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267126, at *1 (9th Cir. May 5, 1995); McMican v. Lewis, No. 94-16676, 1995 WL

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247177, at *2 (9th Cir. Apr. 27, 1995).

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Plaintiff‟s allegation that he suffers from severe arthritis is sufficient to allege a

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serious medical need. Jett, 439 F.3d at 1096 (a “serious medical need” may be shown

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by demonstrating that “failure to treat a prisoner's condition could result in further

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significant injury or the „unnecessary and wanton infliction of pain‟”); see also McGuckin,

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974 F.2d at 1059-60. However, Plaintiff has not alleged sufficient facts to show that

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Defendants were deliberately indifferent to his pain.

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Plaintiff‟s allegation that Dr. Toor discontinued his Celebrex prescription without

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examining him, standing alone, is insufficient to demonstrate deliberate indifference.

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Plaintiff argues that this action reflects deliberate indifference because Dr. Toor certainly

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had to have reviewed his medical records before altering his pain medication, and thus

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must have been aware that other medications were ineffective. At the same time,

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however, Plaintiff contends that Dr. Toor refused to review his medical records.

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Regardless of whether Dr. Toor should have or did review Plaintiff‟s medical records,

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there are no facts alleged to indicate that Dr. Toor actually was aware that discontinuing

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Celebrex approximately two weeks prior to Plaintiff‟s examination would create a

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significant risk of harm to Plaintiff or that Dr. Toor deliberately ignored that risk.

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Additionally, Plaintiff has failed to allege that Dr. Toor‟s refusal to provide

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Celebrex reflected deliberate indifference to Plaintiff‟s health. Plaintiff‟s allegations reflect

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that Dr. Toor was aware of Plaintiff‟s pain, offered Plaintiff pain medication and, upon

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being informed of Plaintiff‟s history with Celebrex and other medications, submitted a

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Nonformulary Drug Request for Celebrex for Plaintiff. Thus, Plaintiff‟s allegations indicate

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that Dr. Toor did not fail to respond to Plaintiff‟s pain complaints. Further, the allegation

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that Dr. Toor purposefully made false statements on the Nonformulary Drug Request

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form in order to guarantee denial of the request is unsupported by any alleged facts and

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appears based exclusively upon speculation. Plaintiff contends Dr. Toor must have

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known the statements were false based on a review of Plaintiff‟s medical records. Again,

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however, Plaintiff simultaneously contends that Dr. Toor refused to review his medical

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records. Under the facts alleged, it is equally plausible that misstatements, if any, were

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the result of negligence or medical malpractice. Plaintiff has not alleged facts to show

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that Dr. Toor knew that his statements were false or would lead to the denial of Plaintiff‟s

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Celebrex. See Twombly, 550 U.S. at 570 (plaintiffs must allege sufficient facts to

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“nudge[] their claims across the line from conceivable to plausible”).

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The allegation that Defendants Malakkla and Virk denied the Nonformulary Drug

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Request and denied Plaintiff‟s grievances is not, standing alone, sufficient to allege

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deliberate indifference. Plaintiff does not allege an improper motive for denying the

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Nonformulary Drug Request. Nor does he describe the content of his grievances or

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Defendants‟ responses. Without more, the Court cannot determine whether these

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decisions reflects a purposeful failure to respond to Plaintiff‟s pain or mere difference of

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opinion regarding appropriate treatment and pain medication.

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Plaintiff has failed to allege a claim for deliberate indifference. He previously was

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advised of these deficiencies and failed to cure them. Further leave to amend would be

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futile and should be denied.

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B.

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Plaintiff‟s request for reinstatement of his Celebrex prescription falls within the

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Injunctive Relief

category of requests for injunctive relief.

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Injunctive relief, whether temporary or permanent, is an “extraordinary remedy,

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never awarded as of right.” Winter v. Natural Res. Def. Council, 555 U.S. 7, 22 (2008).

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“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on

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the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief,

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that the balance of equities tips in his favor, and that an injunction is in the public

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interest.” Am. Trucking Ass‟ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir.

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2009) (quoting Winter, 555 U.S. at 20). The Court does not have jurisdiction to order

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injunctive relief which would require directing parties not before the Court to take action.

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Zepeda v. United States Immigration & Naturalization Serv., 753 F.2d 719, 727 (9th Cir.

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1985) (“A federal court may issue an injunction if it has personal jurisdiction over the

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parties and subject matter jurisdiction over the claim; it may not attempt to determine the

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rights of persons not before the court.”).

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Plaintiff‟s request for injunctive relief is moot because he is no longer incarcerated

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at VSP, and nothing indicates he will be transferred back to VSP. See Preiser v.

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Newkirk, 422 U.S. 395, 402–03 (1975); Johnson v. Moore, 948 F.2d 517, 519 (9th Cir.

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1991); see also Andrews v. Cervantes, 493 F.3d 1047, 1053 n. 5 (9th Cir. 2007).

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Although Plaintiff appears to allege he is not receiving Celebrex at his current institution,

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Plaintiff has not named any officials at his current institution as Defendants.

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Accordingly, Plaintiff has failed to state a claim for injunctive relief. Leave to

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amend this claim would be futile and should be denied.

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V.

CONCLUSION AND RECOMMENDATION

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Plaintiff‟s second amended complaint fails to state any cognizable claim. He

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previously was advised of pleading deficiencies and afforded the opportunity to correct

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them. He failed to do so. Any further leave to amend reasonably appears futile and

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should be denied.

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The undersigned recommends that the action be dismissed with prejudice, that

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dismissal count as a strike pursuant to 28 U.S.C. § 1915(g), and that the Clerk of the

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Court terminate any and all pending motions and close the case.

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The Findings and Recommendation 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)(1).

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Within fourteen (14) days after being served with the Findings and Recommendation, the

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parties may file written objections with the Court. The document should be captioned

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“Objections to Magistrate Judge‟s Findings and Recommendation.” A party may respond

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to another party‟s objections by filing a response within fourteen (14) days after being

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served with a copy of that party‟s objections. The parties are advised that failure to file

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objections within the specified time may result in the waiver of rights on appeal.

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Wilkerson v. Wheeler, __ F.3d __, __, No. 11-17911, 2014 WL 6435497, at *3 (9th Cir.

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Nov. 18, 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

December 31, 2014

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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