Dearwester v. California Department of Corrections and Rehabilitation et al

Filing 31

ORDER DISMISSING Action for Failure to State a Claim, signed by Magistrate Judge Dennis L. Beck on 7/13/16. (CASE CLOSED)(Hellings, J)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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FRANK LEE DEARWESTER,

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Plaintiff,

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No. 1:15-cv-00415 DLB PC
ORDER DISMISSING ACTION FOR
FAILURE TO STATE A CLAIM

v.
CDCR, et al.,

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Defendants.

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Plaintiff Frank Lee Dearwester (“Plaintiff”) is a California state prisoner proceeding pro

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se and in forma pauperis in this action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on

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February 26, 2015, and it was transferred to this Court on March 16, 2015. Plaintiff’s original

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complaint was stricken because it was unsigned, and he filed his First Amended Complaint

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(“FAC”) on June 9, 2015.1

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Pursuant to Court order, Plaintiff filed a Second Amended Complaint on May 2, 2016.

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Plaintiff names the California Department of Corrections and Rehabilitation (“CDCR”), North

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Kern State Prison (“NKSP”) Warden Doe, NKSP, Quest Diagnostics, NKSP doctors Odeluga,

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Shittu, Krzysiak and Robles and Does 1-99 as Defendants.2

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The FAC was originally filed in a new action, 1:15-cv-00621 SKO. However, that action was dismissed as
duplicative and the complaint was filed as the FAC in this action.
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Plaintiff consented to the jurisdiction of the United States Magistrate Judge on March 12, 2015.

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A.

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SCREENING REQUIREMENT
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 fail to state a claim upon which relief may be granted, or that seek

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monetary relief from a defendant who is immune from such relief. 28 U.S.C.

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§ 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion thereof, that may have been

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paid, the court shall dismiss the case at any time if the court determines that . . . the action or

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appeal . . . fails to state a claim upon which relief may be granted.” 28 U.S.C.

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§ 1915(e)(2)(B)(ii).
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, 129 S. Ct. 1937, 1949 (2009) (citing

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Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient

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factual matter, accepted as true, to ‘state a claim that is plausible on its face.’” Id. (quoting

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Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are

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not. Id.
Section 1983 provides a cause of action for the violation of Plaintiff’s constitutional or

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other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d

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1087, 1092 (9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006);

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Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). Plaintiff’s allegations must link the actions

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or omissions of each named defendant to a violation of his rights; there is no respondeat superior

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liability under section 1983. Iqbal, 556 U.S. at 676-77; Simmons v. Navajo County, Ariz., 609

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F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir.

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2009); Jones, 297 F.3d at 934. Plaintiff must present factual allegations sufficient to state a

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plausible claim for relief. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962,

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969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility

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standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.

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B.

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SUMMARY OF PLAINTIFF’S ALLEGATIONS
Plaintiff is currently incarcerated at Corcoran State Prison. The events at issue occurred

while he was incarcerated at NKSP.

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Plaintiff alleges that on August 1, 2013, he was processed through NKSP Medical

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Diagnostics, where Doe employees collected his bodily fluids for testing. The testing was

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motivated by the Warden’s policy, and performed under the direction and supervision of

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Defendants Shittu and/or Krzysiak and/or Robles. The test was performed on site by Doe

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employees of Quest Diagnostics.

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On August 20, 2013, he received a “Notification of Diagnostic Test Results” indicating a

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positive HIV test result. Plaintiff immediately began having heart palpitations and psychological

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symptoms, including stress, anxiety, claustrophobia, insomnia, depression and panic attacks.

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Plaintiff attended a follow-up appointment on August 29, 2013, during which the doctor

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offered no explanation or relief. Instead, he ordered another HIV blood draw, which was taken

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on August 30, 2013.

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On September 11, 2013, Plaintiff received test results which he contends only caused

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further trauma. The results indicated that Plaintiff was “being scheduled” and provided “quasi-

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confirmation” of the prior positive test result. ECF No. 30, at 2.

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Plaintiff was seen by Defendant Krzysiak on October 9, 2013, but he did nothing to

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alleviate his concerns. Instead, Defendant Krzysiak only cited the negligence of unnamed

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employees, stating that the results were confusing to him. Defendant Krzysiak told Plaintiff that

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“they” must have mixed his test results, or specimen, with that of someone else. ECF No. 30, at

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3. He suggested that Plaintiff receive another test in six months.

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Plaintiff states that he has undergone multiple HIV blood draws and has not been notified
of any positive results. He is not under any medical regimen for HIV treatment.

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Plaintiff alleges that while this is “outstanding news,” there was a period of time when he

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underwent extreme mental anguish. When the initial incident happened, “there was/were no end3

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date(s) presented upon which time [Plaintiff] might expect some relief.” ECF No. 30, at 3. He

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states that “this negligent act or series of acts” made him feel that he was doomed to die a horrible

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and painful death. This level of stress was constant for the fifty-one days between August 20,

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2013, and October 9, 2013. He is still suffering the psychological impact.

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Plaintiff believes that the employees who sampled his blood on August 1, 2013, were

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negligent in their duty to properly label the vial. The employees who assigned sample numbers,

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or affixed identification stickers to Plaintiff’s medical records, were negligent in not assigning the

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correct number.

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As to Doe employees of Quest Diagnostics, Plaintiff alleges that they were negligent in

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their duty to provide accurate test results, and to ensure that the samples and corresponding

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medical records remained separate from one another.
Plaintiff further alleges that the Warden is liable for the “negligent/injurious event”

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because it was performed as a matter of policy, and was not an isolated incident. The Warden is

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also responsible for the direct supervision of the Doe employees of NKSP.

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Plaintiff believes that Defendant doctors Shittu, Krzysiek, Odeluga or Robles are liable

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because the “negligent/injurious” incident was a matter of policy for which they are responsible

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for implementing and/or maintaining. They are also responsible for the direct supervision of the

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Doe employees who took actions under this policy. ECF No. 30, at 4.

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Finally, Plaintiff contends that Defendants Shittu and Odeluga are responsible for

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“perpetuating” the injury by denying Plaintiff’s appeals on January 2, 2014, and April 23, 2014,

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respectively. ECF No. 30, at 5.

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C.

DISCUSSION

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1.

CDCR and NKSP

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Plaintiff again names CDCR and NKSP as Defendants. Plaintiff is advised that he may

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not sustain an action against CDCR or a state prison. The Eleventh Amendment prohibits federal

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courts from hearing suits brought against an unconsenting state. Brooks v. Sulphur Springs

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Valley Elec. Co., 951 F.2d 1050, 1053 (9th Cir. 1991) (citation omitted); see also Seminole Tribe

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of Fla. v. Florida, 116 S.Ct. 1114, 1122 (1996); Puerto Rico Aqueduct Sewer Auth. v. Metcalf &
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Eddy, Inc., 506 U.S. 139, 144 (1993); Austin v. State Indus. Ins. Sys., 939 F.2d 676, 677 (9th Cir.

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1991). The Eleventh Amendment bars suits against state agencies as well as those where the state

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itself is named as a defendant. See Natural Resources Defense Council v. California Dep’t of

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Tranp., 96 F.3d 420, 421 (9th Cir. 1996); Brooks, 951 F.2d at 1053; Taylor v. List, 880 F.2d

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1040, 1045 (9th Cir. 1989) (concluding that Nevada Department of Prisons was a state agency

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entitled to Eleventh Amendment immunity); Mitchell v. Los Angeles Community College Dist.,

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861 F.2d 198, 201 (9th Cir. 1989).

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Therefore, both CDCR and NKSP, which is part of CDCR, are entitled to Eleventh
Amendment immunity from suit.

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2.

Eighth Amendment

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The Eighth Amendment of the United States Constitution entitles Plaintiff to medical care,

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but it is violated only when a prison official acts with deliberate indifference to an inmate’s

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serious medical needs. Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012), 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,

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680 F.3d 1113, 1122 (9th Cir. 2012); Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006).

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Plaintiff “must show (1) a serious medical need by demonstrating that failure to treat [his]

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condition could result in further significant injury or the unnecessary and wanton infliction of

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pain,” and (2) that “the defendant’s response to the need was deliberately indifferent.” Wilhelm,

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680 F.3d at 1122 (citing Jett, 439 F.3d at 1096).

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Deliberate indifference is shown by “(a) a purposeful act or failure to respond to a

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prisoner’s pain or possible medical need, and (b) harm caused by the indifference.” Wilhelm, 680

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F.3d at 1122 (citing Jett, 439 F.3d at 1096). The requisite state of mind is one of subjective

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recklessness, which entails more than ordinary lack of due care. Snow, 681 F.3d at 985 (citation

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and quotation marks omitted); Wilhelm, 680 F.3d at 1122.
Plaintiff’s allegations are based on a false-positive HIV test, and the resulting mental and

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physical suffering. In the prior screening order, the Court explained that Plaintiff failed to

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demonstrate that any Defendant acted with the requisite state of mind, i.e., that they knew of a

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substantial risk of serious harm and disregarded that risk by failing to take reasonable measures to

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abate it.

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In amending, Plaintiff has added numerous allegations, but they do not correct the

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deficiency. Plaintiff repeatedly cites the negligent acts of various Defendants, but neither

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mistakes nor negligent acts can support a finding of deliberate indifference. Even assuming

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Defendants erred, an Eighth Amendment claim may not be premised on even gross negligence by

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a physician. Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990).

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As to Defendant Krzysiak, Plaintiff now alleges that he did nothing to alleviate his
concerns. However, in his First Amended Complaint, Plaintiff stated that Defendant tried to

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alleviate his worries by suggesting that the false-positive result may have been caused by mixing

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inmate medical records. Plaintiff cannot contradict his prior statements in an attempt to state a

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claim.

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Plaintiff also suggests that Defendants were deliberately indifferent because when the

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initial incident happened, “there was/were no end-date(s) presented upon which time [Plaintiff]

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might expect some relief.” ECF No. 30, at 3. This failure to act in the way Plaintiff would have

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liked does not rise to the level of deliberate indifference. “A difference of opinion between a

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physician and the prisoner - or between medical professionals - concerning what medical care is

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appropriate does not amount to deliberate indifference.” Snow v. McDaniel, 681 F.3d 978, 987

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

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

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

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1986)). 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

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

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332) (internal quotation marks omitted). Plaintiff has not made such a showing.

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Plaintiff’s suggestion that Defendants did not respond to his concerns also fails to state a

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claim. “A prison official’s duty under the Eighth Amendment is to ensure reasonable safety, a

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standard that incorporates due regard for prison officials’ unenviable task of keeping dangerous
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men in safe custody under humane conditions.” Farmer v. Brennan, 511 U.S. 825, 844-45, 114

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S.Ct. 1970 (1994) (internal quotation marks and citations omitted). Thus, “prison officials who

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actually knew of a substantial risk to inmate health or safety may be found free from liability if

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they responded reasonably to the risk, even if harm ultimately was not averted.” Id. at 844.

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Here, the facts show that Plaintiff was seen by different doctors between August 20, 2013,

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and October 9, 2013. At his August 29, 2013, appointment, the doctor ordered another test. At

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his appointment with Defendant Krzysiak, Defendant offered an explanation for the results and

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suggested that Plaintiff have another test in six months. While Plaintiff may have believed that

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the situation should have been handled differently, there was no failure to reasonably respond.

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Plaintiff seems to indicate that he understands that his allegations do not rise to the level

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of a constitutional violation. He states, “[i]f this Court is unable or unwilling to address this

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matter as a negligence or personal injury matter, but requires any claim be a constitutional

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question only, then Plaintiff prays that liberal construal be interpreted by this Court to include its

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referral of this matter to a more appropriate lower court, such as the Superior Court. . .” ECF No.

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30, at 5-6.

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For the above reasons, Plaintiff fails to state a claim under the Eighth Amendment.

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3.

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Under section 1983, Plaintiff must link the named defendants to the participation in the

Supervisory Liability

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violation at issue. Ashcroft v. Iqbal, 556 U.S. 662, 676-77, 129 S.Ct. 1937, 1948-49 (2009);

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Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of

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Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones v. Williams, 297 F.3d 930, 934 (9th Cir.

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2002). Liability may not be imposed under a theory of respondeat superior, and there must exist

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some causal connection between the conduct of each named defendant and the violation at issue.

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Iqbal, 556 U.S. at 676-77; Lemire v. California Dep’t of Corr. and Rehab., 726 F.3d 1062, 1074-

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75 (9th Cir. 2013).

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“A supervisor may be liable only if (1) he or she is personally involved in the

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constitutional deprivation, or (2) there is a sufficient causal connection between the supervisor’s

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wrongful conduct and the constitutional violation.” Crowley, 734 F.3d at 977 (citing Snow, 681
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F.3d at 989) (internal quotation marks omitted); accord Lemire, 726 F.3d at 1074-75; Lacey, 693

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F.3d at 915-16. “Under the latter theory, supervisory liability exists even without overt personal

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participation in the offensive act if supervisory officials implement a policy so deficient that the

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policy itself is a repudiation of constitutional rights and is the moving force of a constitutional

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violation.” Crowley, 734 F.3d at 977 (citing Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989))

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(internal quotation marks omitted).

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The Court explained the requirements of supervisory liability in the prior screening order.

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Plaintiff now attempts to correct this deficiency by citing an unnamed policy pursuant to which

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the testing was performed. Plaintiff’s allegations, however, are speculative and contain no facts

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to state a claim.

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Finally, as to Defendants Shittu and Odeluga, Plaintiff states that they were personally

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involved because they denied his appeals. Again, denying a prisoner’s administrative appeal

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generally does not cause or contribute to the underlying violation. George v. Smith, 507 F.3d

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605, 609 (7th Cir. 2007) (quotation marks omitted). However, because prison administrators

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cannot willfully turn a blind eye to constitutional violations being committed by subordinates, Jett

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v. Penner, 439 F.3d 1091, 1098 (9th Cir. 2006), there may be limited circumstances in which

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those involved in reviewing an inmate appeal can be held liable under section 1983. That

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circumstance has not been presented here.
Plaintiff’s conclusory allegation that Defendants Shittu and Odeluga denied his medical

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appeals is insufficient to support a plausible claim for relief. Iqbal, 556 U.S. at 678-79, 129 S.Ct.

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at 1949-50; Moss, 572 F.3d at 969. Further, Plaintiff has not stated a viable claim against any

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Defendant for denying him medical care. Absent the presentation of facts sufficient to show that

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an Eighth Amendment violation occurred in the first place, Plaintiff cannot pursue a claim against

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those who reviewed the administrative appeal grieving the underlying denial of medical care.

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Plaintiff therefore fails to state a claim based on supervisory liability.
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CONCLUSION AND ORDER

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

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1983. The Court has provided Plaintiff with an opportunity to amend, but he has failed to correct
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the deficiencies. Based on the nature of the issues, and Plaintiff’s request that this action be sent

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to the correct court, the court finds that further leave to amend is not warranted. Akhtar, 698 F.3d

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at 1212-13; Lopez, 203 F.3d at 1130.

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Accordingly, this action is DISMISSED for failure to state a claim for which relief may be
granted.

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IT IS SO ORDERED.
Dated:

/s/ Dennis

July 13, 2016

L. Beck

UNITED STATES MAGISTRATE JUDGE

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