Bolian v. Igbinosa, et al

Filing 20

FINDINGS And RECOMMENDATIONS Regarding Dismissal Of Action For Failure To State A Claim, Fourteen-Day Deadline (Doc. 18 ), signed by Magistrate Judge Barbara A. McAuliffe on 1/28/2016. F&R's referred to Judge Lawrence J. O'Neill;Objections to F&R due by 2/16/2016.(Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BRUCE BOLIAN,

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Plaintiff,

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v.
IGBINOSA, et al.,

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Defendants.

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1:14-cv-01966-LJO-BAM (PC)
FINDINGS AND RECOMMENDATIONS
REGARDING DISMISSAL OF ACTION
FOR FAILURE TO STATE A CLAIM
FOURTEEN-DAY DEADLINE

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I.

Screening Requirement and Standard

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Plaintiff Bruce Bolian (“Plaintiff”) is a former state prisoner proceeding pro se and in

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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this

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action on October 27, 2014. The matter was transferred to this Court on December 10, 2014. On

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June 9, 2015, the Court dismissed Plaintiff’s complaint with leave to amend. (ECF No. 17.)

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Plaintiff’s amended complaint, filed on June 22, 2015, is currently before the Court for

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screening.

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

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governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. §

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1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous or

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malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary

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

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U.S.C. § 1915(e)(2)(B)(ii).
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A complaint must contain “a short and plain statement of the claim showing that the

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pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not

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required, but “[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, 1964-65

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(2007)). While a plaintiff’s allegations are taken as true, courts “are 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).

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To survive screening, Plaintiff’s claims must be facially plausible, which requires

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sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable

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for the misconduct alleged. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks omitted);

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Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility

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that a defendant acted unlawfully is not sufficient, and mere consistency with liability falls short

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of satisfying the plausibility standard. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks

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omitted); Moss, 572 F.3d at 969.

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II.

Plaintiff’s Allegations

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Plaintiff is a former state prisoner. The events in the amended complaint are alleged to

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have occurred while Plaintiff was housed at the California Substance Abuse Treatment Facility

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in Corcoran, California. Plaintiff names the following defendants: (1) Dr. Igbinosa; (2) Officer

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S. Mischaud; (3) Officer Carlos; (4) Sergeant R. Velasco; and (5) Nurse Belantes.

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Plaintiff alleges: On May 14, 2014, Plaintiff was called to report to the F-Facility Clinic.

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He was approached by Officer Mischaud, who wanted Plaintiff’s wheelchair. Nurse Belantes

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also said to get out of the wheelchair. At that time, Dr. Igbinosa’s door was open. Plaintiff said

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to her that he could not walk, she knew his medical condition, and to please inform other staff

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about his physical condition. She stated that she was not going to get involved with officers.

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Thereafter, Officer Carlos asked if Plaintiff heard Officer Mishaud say get out of the wheelchair.

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Plaintiff said he could not because he can’t walk. Plaintiff asked to speak with someone higher

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up and wheeled himself to the custody staff office. He was followed by Officers Mishaud and
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Carlos. Plaintiff spoke with Sergeant Velasco, who stated that he wished to hear what his

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officers had to say about Plaintiff being the wheelchair. Plaintiff said he had a bad back and bad

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hips. Plaintiff also said he could not walk and that was why he was in the wheelchair. He told

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Sergeant Velasco that he could check Plaintiff’s medical records and see for himself. All three

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officer told Plaintiff to get out of the wheelchair or he would be forced out and end up in lockup.

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After the taking of his wheelchair, Plaintiff fell. He was injured on his forehead, bridge of his

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nose, upper and lower lips. He lost his front teeth and his face was disfigured.
Plaintiff alleges deliberate indifference to his medical needs and seeks to recover for

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injuries reportedly sustained in his fall.
III.

Discussion

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While the Eighth Amendment of the United States Constitution entitles Plaintiff to

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medical care, the Eighth Amendment is violated only when a prison official acts with deliberate

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indifference to an inmate’s serious medical needs. Snow v. McDaniel, 681 F.3d 978, 985 (9th

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

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Cir. 2014); Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012); Jett v. Penner, 439 F.3d

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1091, 1096 (9th Cir. 2006). Plaintiff “must show a serious medical need by demonstrating that

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failure to treat [his] condition could result in further significant injury or the unnecessary and

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wanton infliction of pain,” and (2) that “the defendant’s response to the need was deliberately

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indifferent.” Wilhelm, 680 F.3d at 1122 (citing Jett, 439 F.3d at 1096). Deliberate indifference

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is shown by “(a) a purposeful act or failure to respond to a prisoner’s pain or possible medical

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

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at 1096). The requisite state of mind is one of subjective recklessness, which entails more than

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ordinary lack of due care. Snow, 681 F.3d at 985 (citation and quotation marks omitted);

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Wilhelm, 680 F.3d at 1122.

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The crux of Plaintiff’s amended complaint is that Defendants were deliberately

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indifferent to his need for a wheelchair.

According to exhibits attached to the complaint,

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Plaintiff reportedly fell the day after his wheelchair was taken, on May 15, 2014. (ECF No. 18 at

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9, 11, 13.) Critically, however, these exhibits contradict Plaintiff’s allegations that he could not
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walk and required a wheelchair. Indeed, on May 8, 2014, a physician order indicates that

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Plaintiff was to discontinue the temporary wheelchair as there was “[n]o indication for use of

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wheelchair.” Plaintiff was noted to be doing okay and walking well. (ECF No. 18 at 24.) On

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May 12, 2014, progress notes indicated that Plaintiff was using a cane, but reportedly wanted a

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wheelchair because he could not walk. Plaintiff reportedly was seen last week in the clinic with

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a wheelchair and “was heard arguing with the officers because he refused to return the wheel

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chair even though he had been seen in the clinic since after he was supposed to turn in the

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wheelchair and he was walking OK with a cane.” (ECF No. 18 at 21.) Plaintiff was noted to

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ambulate “well with a cane; steady gate,” he was “observed walking out of the clinic and showed

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no apparent discomfort,” his physical examination was “unremarkable” and there was “[n]o

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indication for wheelchair as requested by the inmate.” (Id.) Plaintiff was offered a walker for

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longer distances. (Id.) As there was no indication Plaintiff had a medical need for a wheelchair,

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Defendants could not have been deliberately indifferent.

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Additionally, Plaintiff’s medical records indicate that there was no medical indication for

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back surgery and Plaintiff was provided treatment for pain, including steroid injections. (ECF

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No. 18 at pp. 19, 21.) To the extent Plaintiff merely disagrees with the course of treatment for

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his back pain, he cannot state a cognizable Eighth Amendment claim. A prisoner’s mere

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disagreement with diagnosis or treatment does not support a claim of deliberate indifference.

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Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir.1989).

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IV.

Conclusion and Recommendation

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Plaintiff’s complaint fails to state a cognizable claim upon which relief may be granted

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under section 1983. The deficiencies identified by the Court cannot be cured by amendment.

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Therefore, further leave to amend is not warranted. Lopez v. Smith, 203 F.3d 1122, 1130 (9th

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Cir. 2000).

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Based on the foregoing, it is HEREBY RECOMMENDED that this action be dismissed
for failure to state a cognizable claim upon which relief may be granted under section 1983.

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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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fourteen (14) days after being served with these findings and recommendations, Plaintiff may

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file written objections with the Court.

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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 the “right to challenge the

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magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir.

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

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IT IS SO ORDERED.

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Dated:

The document should be captioned “Objections to

/s/ Barbara

January 28, 2016

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A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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