Anderson v. Krpan et al

Filing 18

FINDINGS and RECOMMENDATION to Dismiss Action with Prejudice for Failure to State a Claim re 16 , signed by Magistrate Judge Michael J. Seng on 03/09/15. Referred to Judge Ishii. Fourteen-Day Deadline. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SHAWN ANDERSON,

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Plaintiff,
v.
CHRIS KRPAN, et al.,
Defendants.

CASE NO. 1:14-cv-01380-AWI-MJS (PC)
FINDINGS AND RECOMMENDATION TO
DISMISS ACTION WITH PREJUDICE
FOR FAILURE TO STATE A CLAIM
(ECF NO. 16)
FOURTEEN (14) DAY OBJECTION
DEADLINE

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil
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rights action brought pursuant to 42 U.S.C. § 1983. (ECF Nos. 4 & 14.)
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Plaintiff’s complaint (ECF No. 1) was dismissed for failure to state a claim, but he

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was given leave to amend (ECF No. 5.) On October 3, 2014, Plaintiff filed a first
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amended complaint. (ECF No. 9.) On October 27, 2014, the Court struck Plaintiff’s first

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amended complaint because it was unsigned. (ECF No. 10.) The Court instructed
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Plaintiff to file a signed amended pleading within thirty days. (Id.) The Court also noted
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that the unsigned first amended complaint was substantively deficient, advised Plaintiff
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of the legal standards applicable to what appeared to be Plaintiff’s claims, and instructed

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Plaintiff to cure the deficiencies in his amended pleading. (Id.)
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Plaintiff then filed another, unsigned first amended complaint on December 31,
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2014. (ECF No. 14.) On January 29, 2015, the Court struck Plaintiff’s complaint because

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it was unsigned, once again instructed Plaintiff to file a signed amended pleading, and

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again advised Plaintiff of the legal standards applicable to what appeared to be Plaintiff’s

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claims. (ECF No. 15.)

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Plaintiff filed a signed first amended complaint on February 2, 2015. (ECF No.

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16.) On February 11, 2015, the Court filed an order noting that Plaintiff’s signed pleading

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was nearly identical to the prior pleadings the Court had found deficient, and that it had

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been signed and mailed prior to the Court’s most recent screening order. (ECF No. 17.)

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The Court afforded Plaintiff an opportunity to withdraw his signed amended pleading and

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to file a pleading that cured the deficiencies noted in the Court’s screening order. Plaintiff

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did not respond to the Court’s order or file an amended pleading within the time allotted.

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Accordingly, the Court herein proceeds with screening Plaintiff’s February 2, 2015

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signed first amended complaint. (ECF No. 16.) The pleading is taken largely verbatim

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from his first attempt and second unsigned attempts to amend, and therefore bears the

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same deficiencies as the stricken pleadings. (Compare ECF Nos. 9, 14, and 16.) The

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only apparent differences are minor changes in the introduction and the request for

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relief. The Court, therefore, repeats much of the substance of the prior screening order.

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(See ECF Nos. 10 and 15.)

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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.

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PLAINTIFF’S ALLEGATIONS
Plaintiff names as Defendants (1) Chris Krpan, Sierra Conservation Camp

(“SCC”) Physician, and (2) Michael Forster, SCC Physician.
His allegations may be summarized essentially as follows:

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Plaintiff had reconstructive ankle surgery in February 2012. Following surgery, he

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suffered pain and swelling, and his ankle was unstable. He was wheelchair bound for a

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while and then was dependent on a cane.

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Plaintiff transferred to SCC in late 2012. He saw Defendant Forster for an initial

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medical evaluation on November 6, 2012. Forster noted the ankle was swollen, heard

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Plaintiff’s complaints of ongoing severe pain, and reviewed Plaintiff’s medical records

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including an August 2012 MRI showing a possible dislocation of the fibula. Forster stated

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he would refer Plaintiff to an orthopedic specialist. Forster did not refer Plaintiff to an

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orthopedist until January 13, 2013.

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Plaintiff was examined by Defendant Krpan on February 14, 2013. Krpan noted

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the swollen ankle, and reviewed Plaintiff’s medical records including the August MRI and

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a February 2013 x-ray showing floating bone particles in the ankle. Krpan also noted

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physical therapy had not improved Plaintiff’s symptoms. Krpan did not confirm the fibula

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dislocation and correct it. Krpan did not refer Plaintiff for surgery to remove the bone

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particles.

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Plaintiff maintains both Defendants viewed his urgent need for medical treatment

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as simply routine, delaying treatment of the possibly dislocated fibula and floating bone

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fragments, and causing Plaintiff continuing and worsening ankle pain and swelling.

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Plaintiff seeks monetary damages, declaratory relief, and an injunction requiring

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Defendants to provide adequate medical care.

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IV.

ANALYSIS – 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). 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. Where a prisoner alleges deliberate indifference based on a delay in

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medical treatment, the prisoner must show that the delay led to further injury. See Hallett

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v. Morgan, 296 F.3d 732, 745-46 (9th Cir. 2002); McGuckin v. Smith, 974 F.2d 1050,

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1060 (9th Cir. 1992); Shapley v. Nevada Bd. Of State Prison Comm’rs, 766 F.2d 404,

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407 (9th Cir. 1985) (per curiam). Delay which does not cause harm is insufficient to state

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a claim of deliberate medical indifference. Shapley, 766 F.2d at 407 (citing Estelle v.

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Gamble, 429 U.S. 97, 106 (1976)).

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“Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d

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1051, 1060 (9th Cir. 2004). “Under this standard, the prison official must not only ‘be

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

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serious harm exists,’ but that person ‘must also draw the inference.’” Id. at 1057 (quoting

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Farmer v. Brennan, 511 U.S. 825, 837 (1994)). “‘If a prison official should have been

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aware of the risk, but was not, then the official has not violated the Eighth Amendment,

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no matter how severe the risk.’” Id. (brackets omitted) (quoting Gibson, 290 F.3d at

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1188). Mere indifference, negligence, or medical malpractice is not sufficient to support

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

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

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Plaintiff’s post-surgical ankle presented a serious need for medical treatment. Jett,

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439 F.3d at 1096; McGuckin, 974 F.2d at 1059-60 (the existence of an injury that a

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reasonable doctor or patient would find important and worthy of comment or treatment,

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the presence of a medical condition that significantly affects an individual's daily

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activities, or the existence of chronic and substantial pain are examples of indications

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that a prisoner has a serious need for medical treatment).

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However, Plaintiff’s belief that his ankle required urgent treatment appears to be

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based solely on his lay opinion and speculation. He does not reference any medical

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findings or opinions or other evidence in support of these claims nor any facts which

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would suggest he is qualified to diagnose such conditions. Plaintiff’s beliefs, no matter

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how sincerely held, and his desire for alternative treatment, are not a basis for a civil

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rights claim unless the course of treatment chosen is medically unacceptable and in

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conscious disregard of an excessive risk to the prisoner's health. See Franklin v.

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Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981); Jackson v. McIntosh, 90 F.3d 330, 332

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(9th Cir. 1996). Nothing suggests Defendants intentionally provided medically

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unacceptable care. Evan v. Manos, 336 F. Supp. 2d 255, 261 (W.D.N.Y. 2004); see also

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Veloz v. New York, 339 F. Supp. 2d 505, 521 (S.D.N.Y. 2004) (“To establish deliberate

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indifference, plaintiff must demonstrate that the defendants actually wished him harm, or

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at least, were totally unconcerned with his welfare.” (brackets omitted) (citing Hathaway

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v. Coughlin, 37 F.3d 63, 69 (2d Cir. 1994))). Plaintiff’s allegations are insufficient to

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allege anything other than a difference of opinion regarding appropriate treatment.

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There is no factual basis to claim Defendants Forster and Krpan knowingly

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denied, delayed, or interfered with medically necessary consultation and treatment, or

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provided medically unacceptable care, causing harm to Plaintiff. See Toguchi v. Chung,

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391 F.3d 1051, 1058-60 (9th Cir. 2004); cf. Wilhelm v. Rotman, 680 F.3d 1113, 1123

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(9th Cir. 2012) (doctor's awareness of need for treatment followed by his unnecessary

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delay in implementing the prescribed treatment sufficient to plead deliberate

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indifference). Significantly, Plaintiff omits description of the diagnosis, prognosis and

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treatment plan created as a result of his January 2013 consultation with the orthopedic

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specialist.

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Plaintiff points to CDCR policies that require referral to a specialist for urgent

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medical needs be made within fifteen days. However, Plaintiff previously was instructed

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that merely citing to CDCR medical policy, without facts showing intentional indifference

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to the policy and resulting harm does not state a federal rights violations.

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V.

CONCLUSION AND ORDER

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Plaintiff’s first amended complaint fails to state a cognizable claim. He previously

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was advised of this deficiency and afforded the opportunity to correct it. He failed to do

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so. Any further leave to amend reasonably appears futile and 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, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923

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F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

March 9, 2015

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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