Cruz v. Pacific Orthopedic Medical Group et al

Filing 13

FINDINGS and RECOMMENDATIONS RECOMMENDING DISMISSAL OF SECOND AMENDED COMPLAINT FOR FAILURE TO STATE A COGNIZABLE CLAIM re 12 signed by Magistrate Judge Stanley A. Boone on 2/25/2015. Referred to Judge Anthony W. Ishii; Objections to F&R due by 4/2/2015. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAMES F. CRUZ,

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Plaintiff,
v.
PACIFIC ORTHOPEDIC MEDICAL
GROUPS, et al.,
Defendants.

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Case No.: 1:14-cv-01631-AWI-SAB (PC)
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSAL OF SECOND
AMENDED COMPLAINT FOR FAILURE TO
STATE A COGNIZABLE CLAIM
[ECF No. 12]

Plaintiff James F. Cruz is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.
Now pending before the Court is Plaintiff’s second amended complaint, filed February 23,
2015. (ECF No. 12.)

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I.

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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). 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 or malicious,” that “fails to state a claim on which relief may be granted,” or that “seeks

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monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).
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A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled

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to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but “[t]hreadbare

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recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”

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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555

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(2007)). Plaintiff must demonstrate that each named defendant personally participated in the

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deprivation of his rights. Iqbal, 556 U.S. at 676-677; Simmons v. Navajo County, Ariz., 609 F.3d

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1011, 1020-1021 (9th Cir. 2010).

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Prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings
liberally construed and to have any doubt resolved in their favor, but the pleading standard is now

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higher, Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted), and to survive

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screening, Plaintiff’s claims must be facially plausible, which requires sufficient factual detail to allow

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the Court to reasonably infer that each named defendant is liable for the misconduct alleged. Iqbal,

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556 U.S. at 678-79; Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The “sheer

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possibility that a defendant has acted unlawfully” is not sufficient, and “facts that are ‘merely

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consistent with’ a defendant’s liability” falls short of satisfying the plausibility standard. Iqbal, 556

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U.S. at 678; Moss, 572 F.3d at 969.

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II.

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COMPLAINT ALLEGATIONS

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In the caption of the second amended complaint, Plaintiff names Pacific Orthopedic Medical,

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Doctor Marshall Lewis, California Department of Corrections and Rehabilitation Avenal State Prison,

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Warden Jones, and Does 1 through 25, as Defendants. However, in the body portion of the complaint,

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Plaintiff clarifies that Doctor Marshall Lewis is the sole Defendant in this action. (ECF No. 12, 2nd

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Amd. Compl. at 3.)

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Plaintiff contends that he received faulty treatment and surgery on the wrong part of his ankle

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which caused pain. Plaintiff requests surgery to repair his ankle and monetary damages for pain and

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suffering.

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III.

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DISCUSSION

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A.

Deliberate Indifference to Serious Medical Need

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For Eighth Amendment claims arising out of medical care in prison, Plaintiff “must show (1) a

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serious medical need by demonstrating that failure to treat [his] condition could result in further

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significant injury or the unnecessary and wanton infliction of pain,” and (2) that “the defendant’s

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response to the need was deliberately indifferent.” Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir.

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2012) (citing Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006)). Deliberate indifference is shown

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by “(a) a purposeful act or failure to respond to a prisoner’s pain or possible medical need, and (b)

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harm caused by the indifference.” Wilhelm, 680 F.3d at 1122 (citing Jett, 439 F.3d at 1096). The

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requisite state of mind is one of subjective recklessness, which entails more than ordinary lack of due

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care. Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012) (citation and quotation marks omitted);

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Wilhelm, 680 F.3d at 1122.

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Plaintiff fails to allege facts giving rise to a constitutional claim of deliberate indifference.

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“Medical malpractice does not become a constitutional violation merely because the victim is a

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prisoner.” Estelle v. Gamble, 429 U.S. 97, 106 (1977); Snow v. McDaniel, 681 F.3d 978, 987-88 (9th

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Cir. 2012), overruled in part on other grounds, Peralta v. Dillard, 744 F.3d 1076, 1082-83 (9th Cir.

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2014); Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012). Furthermore, “[a] difference of

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opinion between a physician and the prisoner - or between medical professionals - concerning what

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medical care is appropriate does not amount to deliberate indifference.” Snow v. McDaniel, 681 F.3d

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978, 987 (9th Cir. 2012) (citing Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989)), overruled in part

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on other grounds, Peralta v. Dillard, 744 F.3d 1076, 1082-83 (9th Cir. 2014); Wilhelm v. Rotman, 680

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F.3d 1113, 1122-23 (9th Cir. 2012) (citing Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1986)).

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Rather, Plaintiff “must show that the course of treatment the doctors chose was medically

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unacceptable under the circumstances and that the defendants chose this course in conscious disregard

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of an excessive risk to [his] health.” Snow, 681 F.3d at 988 (citing Jackson, 90 F.3d at 332) (internal

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quotation marks omitted). Although Plaintiff contends that he received “faulty” treatment and surgery

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on the wrong ankle which caused pain, Plaintiff’s allegations, at best, allege potential negligence on
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the part of Doctor Marshall Lewis. However, Plaintiff’s exhibits attached to the first amended

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complaint, ECF No. 10 (of which this Court takes judicial notice), negate any claim of deliberate

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indifference, and reveal that Plaintiff alleges nothing more than mere disagreement with the treatment

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he was provided.1 In Inmate Appeal Log No. 12024104, Plaintiff alleges that “[i]n 2007, I was sent to

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Bakersfield for surgery on my ‘left right front front’ [sic] side of my left ankle. While in surgery the

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Doctor did surgery on my left front side of my left ankle instead of my left right front of my left ankle.

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He never corrected the problem. He instead created a new one. I am in constant pain, I am in pain

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throughout the day. They gave me pain medication “Aproxin” [sic] but it does not work. On a scale

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from 1 through 10 my pain is ’10.” Please correct the mistake that the Doctor did and do surgery on

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my left ankle, so that I do not have to [e]ndure this pain any longer.” (ECF No. 10, Ex. C-7, dated

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April 9, 2012.) Plaintiff’s inmate appeal, Log No. 12024104, was denied at the first level based on the

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following:
PA Kelly documented left ankle with history of multiple surgeries. PA Kelly noted you
had an MRI in 2007 which revealed moderate to severe arthritis with internal fixation
screws in place to the medial malleolus. PA Kelly documented that you walk with a
cane and that you have a moderate limp. PA Kelly advised you to increase your
naproxen 500mg from 1 tablet twice a day with food and water. She documented that
you already have a low bunk and a cane. You were advised to follow up for chronic
left ankle pain in 3 months, sooner if needed. PA Kelly documented that you
verbalized an understanding. Effective communication was easily reached despite
listed TABE score of 3.5. It was noted that you stated you will continue with the
appeal process. Your request for your ankle to be re-operated is denied as not
medically warranted.

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(ECF No. 10, Ex. C-12.)

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The appeal was thereafter denied at the second level of review which stated:

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The Second Level Appeal, received on 5/18/2012, and a review of your appeal, Unit
Health Record (UHR), electronic Unit Health Record (e-UHR), and relevant documents
was conducted by the Chief Medical Executive’s Office on May 30, 2012. You were
seen by J. Kelly, PA-C, on April 23, 2012, PA Kelly documented that left ankle with

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In general the Court must accept the material allegations in the complaint as true and construe them in the light most
favorable to plaintiff. However where exhibits are attached to the complaint, the Court is not limited to the allegations
contained in the complaint, and can consider the exhibits. Roth v. Garcia Marquez, 942 F.2d 617, 625 n.1 (9th Cir. 1991).
Where the allegations in the complaint are refuted by the exhibits, the Court need not accept the allegations as true.
Sprewell v. Golden State Warriors, 266 F.3d 979, 987 (9th Cir. 2001); Roth, 942 F.2d at 625 n.1.

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history of multiple surgeries. An MRI was completed in 2007 which revealed moderate
to severe arthritis with internal fixation screws in place to the medical malleolus. PA
Kelly documented that you already have a cane and low bunk. You were advised to
increase your naproxen 500 mg from 1 tablet daily to naproxen 500 mg 1 tablet twice
daily. You were advised to keep your follow up appointment. There have been no
changes in your eUHR since you were last seen on April 23, 2012 by PA Kelly. The
decision of denied remains at Second Level.

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(ECF No. 10, Ex. C-16.)
At the third and final level of review, the appeal was also denied based on the following:

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Your appeal file and documents obtained from you Unit Health Record were reviewed
by licensed clinical staff. These records indicate:

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You have received Primary Care Provided (PCP) evaluation and treatment to February
12, 2012, for your history of chronic left ankle pain.

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You are recorded as functional within the prison environment and independent in your
activities of daily living.

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OTLA-HC contacted your medical care providers to discuss your case. It appears you
have already had three surgeries on your ankle. The possibility of further surgery is
being considered. You received left ankle and foot x-rays on February 18, 2014.

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Your medical care providers have described their concerns about the effectiveness and
safety of more surgery, pain medications, and appliances.

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You are being provided medical care and attention pursuant to the rules and regulations
governing the management and delivery of medically necessary health care services to
California Department of Corrections and Rehabilitation inmates.

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........................ ............ ... . ......... ...........
After review, no intervention at the Director’s Level of Review is necessary as your
medical condition has been evaluated and you are receiving treatment deemed
medically necessary.
(ECF No. 10, Ex. C-26.)
Plaintiff cannot state a cognizable claim on the basis of the quality of treatment. Sanchez v.

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Vild, 891 F.2d 240, 242 (9th Cir. 1989). A difference of opinion between a physician and the prisoner

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- or between medical professionals - concerning what medical care is appropriate does not amount to

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deliberate indifference.” Snow v. McDaniel, 681 F.3d at 987 (citing Sanchez v. Vild, 891 F.2d at

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242); Wilhelm v. Rotman, 680 F.3d 1113, 1122-23 (9th Cir. 2012) (citing Jackson v. McIntosh, 90

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F.3d 330, 332 (9th Cir. 1986)). Rather, Plaintiff “must show that the course of treatment the doctors

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chose was medically unacceptable under the circumstances and that the defendants chose this course

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in conscious disregard of an excessive risk to [his] health.” Snow, 681 F.3d at 988 (citing Jackson, 90

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F.3d at 332) (internal quotation marks omitted). As with Plaintiff’s prior complaints, Plaintiff has

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failed to provide any factual allegations which support a claim that Doctor Marshall Lewis acted with

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deliberate indifference and purposely disregarded a substantial risk of serious harm to Plaintiff. It is

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apparent from the record before the Court that Plaintiff has been evaluated and treated, repeatedly, and

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his mere disagreement with such medical decisions does not give rise to a constitutional violation.

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Accordingly, Plaintiff fails to state a cognizable claim for deliberate indifference to a serious medical

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need, and the complaint must be dismissed for failure to state a cognizable claim for relief.

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B.

Leave to Amend

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Plaintiff was previously notified of the deficiencies in his claims and was given leave to amend

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on two prior occasions. Yet, even after amendment, Plaintiff has presented the same deficiencies as

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previously dismissed and based on the nature of the deficiencies at issue, the Court finds that further

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leave to amend is not warranted. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); Noll v.

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Carlson, 809 F.2d 1446, 1448-1449 (9th Cir. 2011); see also DCD Programs, Ltd. V. Leighton, 833

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F.2d 183, 188 (9th Cir. 1987) (leave to amend may be denied where the proposed amendment “merely

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restates the same facts using different language, or reasserts a claim previously determined.”) (quoting

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Wakeen v. Hoffman House, Inc., 724 F.2d 1238, 1244 (7th Cir. 1983).

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IV.

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RECOMMENDATION

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Based on the foregoing, the Court finds that Plaintiff fails to state any claims upon which relief

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may be granted under section 1983. Given the nature of Plaintiff’s deficiencies at issue in light of the

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previous screening orders, further leave to amend will not be granted. Askhtar v. Mesa, 698 F.3d

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1202, 1212-1213 (9th Cir. 2012); Lopez, 203 F.3d at 1130-1131; Noll, 809 F.2d at 1448-1449.

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Accordingly, IT IS HEREBY RECOMMENDED that this action be DISMISSED, with

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prejudice, for failure to state a claim under section 1983.
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These Findings and Recommendations will be submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) days

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

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with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendations.” Plaintiff is advised that failure to file objections within the specified time may

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result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014)

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

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IT IS SO ORDERED.
Dated:

February 25, 2015
UNITED STATES MAGISTRATE JUDGE

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