Cano v. Smith et al

Filing 8

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Jennifer L. Thurston on 12/11/2014 recommending that action be dismissed with prejudice re 7 . Referred to Judge Lawrence J. O'Neill; Objections to F&R due by 1/15/2015. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GABRIEL CANO,

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Plaintiff,
FINDINGS AND RECOMMENDATIONS
TO DISMISS AMENDED COMPLAINT WITH
PREJUDICE FOR FAILURE/INABILITY TO
STATE A CLAIM

v.
SMITH, et al.,

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Defendants.

(Doc. 13)
30-DAY DEADLINE

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Case No. 1:14-cv-01396-JLT (PC)

I. Findings

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A. Background

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Plaintiff, Gabriel Cano, is a prisoner in the custody of the California Department of

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Corrections and Rehabilitation (“CDCR”). Plaintiff is proceeding pro se and in forma pauperis in

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this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint in this action

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on September 8, 2014. (Doc. 1.) It was screened and dismissed with leave to amend. (Docs. 9,

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10.) On October 8, 2014, Plaintiff filed the First Amended Complaint, which is before the Court

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for screening. (Doc. 13.)

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B.

Screening Requirement

The Court is required to screen complaints brought by prisoners seeking relief against a
governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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frivolous, malicious, fail to state a claim upon which relief may be granted, or that seek monetary

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relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2); 28 U.S.C.

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§ 1915(e)(2)(B)(i)-(iii).

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C.

Summary of the First Amended Complaint

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Plaintiff complains of incidents that occurred at California State Prison - Corcoran ("CSP-

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Cor") in Corcoran, California. Plaintiff names the following Defendants: Doctors Conall

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McCabe, R. Gill, Jeffrey Wang; Teresa Macias; L.D. Zamora; and the CSP-Cor Pain Committee.

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Plaintiff seeks monetary and injunctive relief.

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Plaintiff alleges that he has a history of lower back pain and has been given the

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prescription pain killer "Tramadol" by numerous physicians. Plaintiff complains of acts that

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occurred from October 14, 2012 through October of 2013 wherein he was no longer allowed to

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receive Tramadol, but was given Ibuprofen instead for his lower back pain.

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Despite being given the applicable legal standards, Plaintiff has not stated any cognizable

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claims such that this action should be dismissed.

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II.

Analysis

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A.

Plaintiff's Claims for Relief

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Plaintiff grieves his inability to obtain his medication of choice, Tramadol, to relieve his

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chronic back pain. Apparently, Plaintiff filed an inmate appeal regarding receiving Ibuprofen

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instead of Tramadol for his back pain. Dr.Gill was the interviewer at the first level of his appeal

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and failed to give Plaintiff Tramadol; Dr. McCabe reviewed the first level decision; Dr. Wang

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implemented the policy under which Tramadol was no longer given for pain; and Zamora

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reviewed Plaintiff's appeal at the third level.

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1. Eighth Amendment -- Medical Care

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As stated in the prior screening order, to maintain an Eighth Amendment claim based on

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medical care in prison, a plaintiff must first Ashow a serious medical need by demonstrating that

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failure to treat a prisoner=s condition could result in further significant injury or the unnecessary

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and wanton infliction of pain. Second, the plaintiff must show the defendants= response to the
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need was deliberately indifferent.@ Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012)

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(quoting Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quotation marks omitted)).

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The existence of a condition or injury that a reasonable doctor would find important and

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worthy of comment or treatment, the presence of a medical condition that significantly affects an

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individual=s daily activities, and the existence of chronic or substantial pain are indications of a

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serious medical need. Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (citing McGuckin v.

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Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc.

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v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc)) (quotation marks omitted); Doty v.

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County of Lassen, 37 F.3d 540, 546 n.3 (9th Cir. 1994). For screening purposes, Plaintiff's lower

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back pain is accepted as a serious medical need.

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Deliberate indifference is Aa state of mind more blameworthy than negligence@ and

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Arequires >more than ordinary lack of due care for the prisoner=s interests or safety.=@ Farmer, 511

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U.S. at 835 (quoting Whitley, 475 U.S. at 319). ADeliberate indifference is a high legal standard.@

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Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir.2004). AUnder this standard, the prison official

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must not 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 (quoting

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Farmer, 511 U.S. at 837). A>If a prison official should have been aware of the risk, but was not,

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then the official has not violated the Eighth Amendment, no matter how severe the risk.=@ Id.

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(quoting Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)).

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Plaintiff has failed to allege anything more than a difference of opinion between him and

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the prison medical staff regarding the proper, effective pain medication for his lower back pain.

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This is insufficient to state a cognizable Eighth Amendment violation. See Estelle v. Gamble, 429

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U.S. 97, 107 (1976).

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2. Inmate Appeals

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It appears that Plaintiff intends to grieve the actions of Dr. Gill, Dr. McCabe, Dr. Wang,

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and L. Zamora for their involvement in the processing and reviewing of his 602 inmate appeals

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related to his inability to receive Tramadol, or similar medication other than Ibuprofen for his

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lower back pain.
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As stated in the prior screening order, "[a prison] grievance procedure is a procedural right

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only, it does not confer any substantive right upon the inmates." Buckley v. Barlow, 997 F.2d

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494, 495 (8th Cir. 1993) (citing Azeez v. DeRobertis, 568 F. Supp. 8, 10 (N.D. Ill. 1982)); see also

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Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (no liberty interest in processing of appeals

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because no entitlement to a specific grievance procedure); Massey v. Helman, 259 F.3d 641, 647

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(7th Cir. 2001) (existence of grievance procedure confers no liberty interest on prisoner); Mann v.

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Adams, 855 F.2d 639, 640 (9th Cir. 1988). "Hence, it does not give rise to a protected liberty

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interest requiring the procedural protections envisioned by the Fourteenth Amendment." Azeez v.

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DeRobertis, 568 F. Supp. at 10; Spencer v. Moore, 638 F. Supp. 315, 316 (E.D. Mo. 1986).

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Actions in reviewing prisoner's administrative appeal generally cannot serve as the basis

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for liability under a § 1983 action. Buckley, 997 F.2d at 495. Thus, since he has neither a liberty

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interest, nor a substantive right in inmate appeals, Plaintiff fails, and is unable to prove the

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elements of a constitutional violation purely for the processing and/or reviewing of his inmate

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appeals.

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However, as also stated in the prior screening order, Plaintiff might be able to state the

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elements for a claim under the Eight Amendment for deliberate indifference to his serious

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medical needs against those medical personnel who were involved in reviewing his inmate

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appeals if Plaintiff was also able to state a claim against a defendant for deliberate indifference to

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his serious medical needs in an appeal regarding that issue. The distinction in this case, as

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discussed above, is that Plaintiff does not and cannot state a cognizable claim based on denial of

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his medication of choice, Tramadol. Without a cognizable underlying Eighth Amendment claim,

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the actions of reviewers of inmate appeals thereon are also not cognizable.

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3. Supervisory Liability
Plaintiff alleges that both Defendants Dr. Wong and Zamora implemented the policy of
"no Tramadol for pain."

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As also stated in the prior screening order, to state a claim for relief under section 1983

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based on a theory of supervisory liability, Plaintiff must allege facts that would support a claim

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that supervisory defendants either: personally participated in the alleged deprivation of
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constitutional rights; knew of the violations and failed to act to prevent them; or promulgated or

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"implemented a policy so deficient that the policy 'itself is a repudiation of constitutional rights'

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and is 'the moving force of the constitutional violation.'" Hansen v. Black, 885 F.2d 642, 646 (9th

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Cir. 1989) (internal citations omitted); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). While

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Plaintiff alleges that both Dr. Wang and Zamora implemented the policy of "no Tramadol for

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pain," this policy, as discussed above, does not amount to a violation of Plaintiff's Eighth

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Amendment rights to support a claim of supervisory liability for its implementation.

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Further, even if it amounted to an Eighth Amendment violation, Plaintiff's allegations that
Dr. Wang and Zamora implemented the policy are nothing more than A>bare assertions . . .

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amount[ing] to nothing more than a Aformulaic recitation of the elements@ of a constitutional

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discrimination claim,= for the purposes of ruling on a motion to dismiss [and thus also for

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screening purposes], are not entitled to an assumption of truth.@ Moss, 572 F.3d at 969 (quoting

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Iqbal, 556 U.S. at 1951 (quoting Twombly, 550 U.S. at 555)). ASuch allegations are not to be

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discounted because they are >unrealistic or nonsensical,= but rather because they do nothing more

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than state a legal conclusion B even if that conclusion is cast in the form of a factual allegation.@

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Id. Thus, Plaintiff fails to state a cognizable claim against Dr. Wang or Zamora for the

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implementation of the policy of "no Tramadol for pain."

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III.

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CONCLUSION
Plaintiff's First Amended Complaint fails to state a cognizable claim against any of the

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named Defendants. Given Plaintiff's persistence in attempting to state a causes of action that he

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as previously been advised are not actionable, it appears futile to allow further amendment.

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Accordingly, it is HEREBY RECOMMENDED that this entire action be dismissed with
prejudice and this dismissal should count as a strike for purposes of 28 U.S.C. §1915(g).
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 30

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days after being served with these Findings and Recommendations, Plaintiff may file written

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objections with the Court. The document should be captioned AObjections to Magistrate Judge=s

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Findings and Recommendations.@ Plaintiff is advised that failure to file objections within the
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specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, __ F.3d __, __,

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No. 11-17911, 2014 WL 6435497, at *3 (9th Cir. Nov. 18, 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:

December 11, 2014

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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