Ricks v. Austria et al

Filing 49

FINDINGS and RECOMMENDATIONS Recommending Dismissal of Certain Claims and Defendants signed by Magistrate Judge Barbara A. McAuliffe on 12/22/2017. Referred to Judge Ishii; Objections to F&R due by 1/8/2018.(Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SCOTT K. RICKS,

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Plaintiff,

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v.

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A. AUSTRIA,

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Defendant.

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1:15-cv-01147-AWI-BAM (PC)
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSAL OF
CERTAIN CLAIMS AND DEFENDANTS
[ECF Nos. 20, 22]
FOURTEEN-DAY DEADLINE

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Plaintiff Scott K. Ricks is a state prisoner proceeding pro se and in forma pauperis in this

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civil rights action pursuant to 42 U.S.C. § 1983. This action is related to Ricks v. Onyeye, et al.,

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1:15-cv-1148-AWI-BAM, and Ricks v. Levine, et al., 1:15-cv-1150-AWI-BAM.

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On August 5, 2015, Plaintiff consented to the jurisdiction of a United States Magistrate

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Judge. (ECF No. 9.) On July 18, 2016, after being served in this matter, Defendant Austria

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declined to Magistrate Judge jurisdiction.

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On February 24, 2016, the Court screened Plaintiff’s complaint pursuant to 28 U.S.C. §

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1915A and 28 U.S.C. § 1915(e)(2)(B), and found that it stated a cognizable claim against Dr.

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Austria for deliberate indifference to Plaintiff’s serious medical needs in violation of the Eighth

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Amendment, but no other claims. (ECF No. 20.) Plaintiff was provided an opportunity to amend

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the complaint, or to notify the Court that he wished to proceed only on the cognizable claims

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identified in the screening order. (Id. at p. 7.)

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Following Plaintiff’s written notification that he would not amend his complaint, (ECF

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No. 21), on March 17, 2017, the Court dismissed all other claims and defendants for the failure
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to state a cognizable claim for relief, (ECF No. 22.) The Court indicated that jurisdiction existed

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under 28 U.S.C. § 636(c), based on the fact that Plaintiff had consented to Magistrate Judge

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jurisdiction and no other parties had yet appeared. (See id. at 1.)

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Williams v. King

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On November 9, 2017, the Ninth Circuit Court of Appeals ruled that 28 U.S.C. §

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636(c)(1) requires the consent of all named plaintiffs and defendants, even those not served with

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process, before jurisdiction may vest in a Magistrate Judge to dispose of a civil case. Williams v.

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King, 875 F.3d 500 (9th Cir. 2017). Here, no defendant was yet served at the time that the Court

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screened the complaint, and therefore none had appeared or consented to Magistrate Judge

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jurisdiction. Because all defendants had not consented, the undersigned’s dismissal of the claims

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and defendants is invalid under Williams. Accordingly, the Court did not have jurisdiction to

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dismiss the claims and defendants described in its March 17, 2017 order.
Because the undersigned nevertheless stands by the analysis in the previous screening

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order, she will below recommend to a District Judge that the non-cognizable claims be

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dismissed.

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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 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 U.S.C.

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§ 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-

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65 (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).
Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings

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liberally construed and to have any doubt resolved in their favor. Hebbe v. Pliler, 627 F.3d 338,

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342 (9th Cir. 2010) (citations omitted). To survive screening, Plaintiff’s claims must be facially

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plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each

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named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949

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(quotation marks omitted); Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir.

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2009). The sheer possibility that a defendant acted unlawfully is not sufficient, and mere

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consistency with liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678,

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129 S. Ct. at 1949 (quotation marks omitted); Moss, 572 F.3d at 969.

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III.

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Allegations
Plaintiff, an inmate in the custody of the California Department of Corrections and

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Rehabilitation (CDCR) at Salinas Valley State Prison, brings this action against correctional

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officials employed by the CDCR at North Kern State Prison, where the events at issue occurred.

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Plaintiff names as Defendants the following individuals: R. A. Austria; Nurse Practitioner G.

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Chernekoff; Chief Medical Executive N. Odeluga. Plaintiff also names J. Clark Kelso, the

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federal receiver for correctional health care services. Plaintiff claims that Defendants were

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deliberately indifferent to his serious medical needs, in violation of the Eighth Amendment.

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Plaintiff alleges that prior to his transfer to North Kern State Prison, he underwent two

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hernia surgeries, which were “failed and botched.” (Compl. p. 4.) Plaintiff was left with three

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ruptured ventral hernias when he was transferred to North Kern State Prison on December 19,

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2013. On December 20, 2013, Plaintiff submitted a sick call slip, stating that he was in extreme

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pain and suffering, and requesting surgery for his hernias.

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On December 23, 2013, Plaintiff was seen by Defendant Chernekoff. Defendant

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Chernekoff refused Plaintiff’s request to see a surgeon, stating that North Kern State Prison was

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a reception center, and only emergency surgeries were authorized. Plaintiff said that he was in

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extreme pain, but Defendant Chernekoff was “ambivalent.” (Id. p. 6.)
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On January 10, 2014, Plaintiff was seen by his assigned primary care physician,

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Defendant Dr. Austria. Plaintiff alleges that Dr. Austria examined him, and verified that “I did,

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in fact, have 3, ruptured, ventral hernias.” (Id.) Plaintiff alleges, that despite the fact that his

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abdomen “looks like there is a volleyball sticking out, under the skin, on the left side of my

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abdomen, and it looks like there are two (2) softballs sticking out, under the skin, on my right

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side,” Dr. Austria refused any diagnostic tests or a referral for surgery.
Plaintiff was seen again by Dr. Austria on February 18, 2014. Dr. Austria refused to

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examine Plaintiff or refer him to a surgeon.
Plaintiff filed another medical request on March 1, 2014. Plaintiff was then seen by Dr.

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Austria on April 1, 2014. Dr. Austria again refused to examine Plaintiff or refer him to a

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surgeon, despite Plaintiff’s complaint of severe pain. Dr. Austria similarly refused to examine

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Plaintiff or refer him to surgery on April 29, 2014.
On May 26, 2014, Plaintiff wrote to Defendant J. Clark Kelso regarding the lack of

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treatment for his hernias.

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On May 29, 2014, Plaintiff was transferred to Pleasant Valley State Prison. Plaintiff

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alleges that on July 26, 2014, he was examined by a surgeon, who determined that Plaintiff

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needed urgent surgery. He recommended “major repair.” The surgeon, Dr. Monfore, opined that

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“they (CDCR) really f***ed you up, didn’t they?’ (Id. p. 9.)
Plaintiff was seen by Dr. Michael at San Joaquin Community Hospital on September 23,

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2014. Dr. Michael determined that Plaintiff needed surgery immediately, but would have to be

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referred to U.S.C. Medical Center in Los Angeles for a “component separation repair.” (Id. p.

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10.)

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IV.

Discussion

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A. Medical Care

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A prisoner’s claim of inadequate medical care does not constitute cruel and unusual

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punishment in violation of the Eighth Amendment unless the mistreatment rises to the level of

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“deliberate indifference to serious medical needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir.

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2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two part test for deliberate
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indifference requires Plaintiff to show (1) “a ‘serious medical need’ by demonstrating that failure

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to treat a prisoner’s condition could result in further significant injury or the ‘unnecessary and

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

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indifferent.” Jett, 439 F.3d at 1096. A defendant does not act in a deliberately indifferent manner

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unless the defendant “knows of and disregards an excessive risk to inmate health or safety.”

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Farmer v. Brennan, 511 U.S. 825, 837 (1994). “Deliberate indifference is a high legal standard,”

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Simmons v. Navajo County Ariz., 609 F.3d 1011, 1019 (9th Cir. 2010); Toguchi v. Chung, 391

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F.3d 1051, 1060 (9th Cir. 2004), and is shown where there was “a purposeful act or failure to

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respond to a prisoner’s pain or possible medical need” and the indifference caused harm. Jett,

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439 F.3d at 1096.
In applying this standard, the Ninth Circuit has held that before it can be said that a

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prisoner’s civil rights have been abridged, “the indifference to his medical needs must be

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substantial. Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this

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cause of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing

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Estelle, 429 U.S. at 105-106). “[A] complaint that a physician has been negligent in diagnosing

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or treating a medical condition does not state a valid claim of medical mistreatment under the

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Eighth Amendment. Medical malpractice does not become a constitutional violation merely

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because the victim is a prisoner.” Estelle, 429 U.S. at 106; see also Anderson v. County of Kern,

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45 F.3d 1310, 1316 (9th Cir. 1995). Even gross negligence is insufficient to establish deliberate

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indifference to serious medical needs. See Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir.

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1990). Additionally, a prisoner’s mere disagreement with diagnosis or treatment does not support

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a claim of deliberate indifference. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989).

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Defendant Austria

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Liberally construed, Plaintiff has alleged facts indicating that Dr. Austria knew of a

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serious medical condition of Plaintiff’s, and refused to examine Plaintiff or otherwise treat him.

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Plaintiff also alleges that Dr. Austria engaged in conduct that delayed treatment for Plaintiff’s

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obvious hernias.

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Mere delay does not constitute deliberate indifference. Shapley v. Nevada Bd. of State

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Prison Com’rs, 766 F.2d 404, 407 (9th Cir. 1985). A plaintiff must show the delay caused him

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serious harm. Plaintiff is not, however, required to show substantial harm. McGuckin v. Smith,

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974 F.2d 1050, 1060 (9th Cir. 1992), overruled on other grounds, WNX Technologies, Inc. v.

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Miller, 104 F.3d 1133 (9th Cir. 1997). Here, Plaintiff has alleged that the delay in his medical

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care caused him to suffer severe and excruciating pain. Based on the foregoing, Plaintiff has

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therefore stated a claim for relief as to Defendant Austria.

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Defendant Chernekoff

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Plaintiff alleges that Nurse Practitioner Chernekoff refused his demand for immediate

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surgery, and told him that only emergency surgeries were authorized. Plaintiff further alleges

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that Defendant Chernekoff seemed “ambivalent.” This is not sufficient to show that Defendant

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Chernekoff was aware of a serious medical need, but was deliberately indifferent to that need.

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Plaintiff’s allegation that Chernekoff seemed ambivalent, with nothing more, fails to state a

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claim for relief.

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Defendant Kelso

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Plaintiff alleges that because he sent a letter to Defendant Kelso, the receiver, about his

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medical condition. Plaintiff fails to provide any factual allegations that Defendant Kelso

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personally deprived him of his constitutional rights, through actions or omissions.

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Moreover, even if plaintiff could allege a plausible civil rights claim, Defendant Kelso

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would be immune from suit. Defendant Kelso was appointed to be the receiver for CDCR’s

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health care system. See Plata v. Schwarzenegger, et al., C01-1351-TEH (N.D. Cal. Jan. 23, 2008)

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(class action constitutional challenge to the adequacy of medical care provided throughout the

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California state prison system). Judge Henderson ordered that: “The Receiver and his staff shall

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have the status of officers and agents of this Court and as such shall be vested with the same

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immunities as vest with this Court.” Id. at 5. Those judicial immunities extend to immunity from

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suit. See Pierson v. Ray, 386 U.S. 547, 553-54 (1967) (“Few doctrines were more solidly

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established at common law than the immunity of judges from liability for damages for acts

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committed within their judicial jurisdiction....”). This “quasi-judicial immunity” shields
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Defendant Kelso from suit for all actions taken in his capacity as Receiver. See In re Castillo,

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297 F.3d 940, 947 (9th Cir. 2002).
Thus, to the extent that Plaintiff seeks to sue Defendant Kelso in his capacity as receiver

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for acts or omissions relating to Plaintiff’s medical needs, Defendant Kelso is immune. See

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Haller v. Hartley, 2013 WL 322321 (E.D. Cal. Jan. 28, 2013) (“[T]he Court finds that Kelso is

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entitled to quasi-judicial immunity and suit may not be maintained against him.”). Accordingly,

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Plaintiff’s claims against Defendant Kelso should be dismissed without leave to amend. See, e.g.,

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Mullis v. U.S. Bankr. Court for Dist. of Nevada, 828 F.2d 1385, 1387 n.6 (9th Cir. 1987).
Defendant Odeluga

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Plaintiff alleges that Chief Medical Executive Odeluga denied his health care appeal with

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a decision that was over three months overdue, and that was in violation of law because Plaintiff

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never received and interview or doctor’s visit related to the appeal. (Compl. at 10.
There is no liberty interest in a prison grievance procedure as it is a procedural right only.

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Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988); Buckley v. Barlow, 997 F.2d 494, 495 (8th

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Cir. 1993). The prison grievance procedure does not confer any substantive rights upon inmates

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and actions in reviewing appeals cannot serve as a basis for liability under section 1983.

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Buckley, 997 F.2d at 495. Plaintiff therefore fails to state a claim against Defendant Odeluga to

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the extent that he is alleging improprieties in the grievance procedures.
Further, even when the Defendant is a medical professional, review of an administrative

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appeal does not necessarily demonstrate awareness of an alleged violation, or contribute to the

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underlying violation. George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007); Peralta v. Dillard, 744

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F.3d 1076, 1086-87 (9th Cir. 2014). Plaintiff must allege facts as to each Defendant indicating

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that they knew of and disregarded a serious medical condition of Plaintiff's, resulting in injury to

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Plaintiff. Here, Plaintiff does not allege what information was conveyed in the appeal reviewed

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by Defendant Odeluga or other facts showing that Defendant Odeluga was aware of a serious

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medical need but was deliberately indifferent to that need. Therefore, Plaintiff has failed to state

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a claim against Defendant Odeluga.

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V.

Conclusion and Recommendation

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Plaintiff’s complaint states a cognizable claim against Dr. Austria for deliberate

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indifference to Plaintiff’s serious medical needs in violation of the Eighth Amendment.

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However, Plaintiff failed to state any other cognizable claim.
As noted above, Plaintiff was provided an opportunity to attempt to amend his complaint

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to cure the identified deficiencies. Plaintiff declined to do so and notified the Court in writing

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that he only wished to proceed on the claims identified as cognizable. Thus, no further leave to

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amend is warranted here.
For these reasons, IT IS HEREBY RECOMMENDED that Defendants Chernekoff,

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Odeluga, and Kelso be dismissed from this action for Plaintiff’s failure to state a claim against

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them for which relief may be granted.
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 28 U.S.C. § 636(b)(l). Within fourteen

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(14) days after being served with these Findings and Recommendations, the parties may file

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written objections with the Court. The document should be captioned “Objections to Magistrate

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Judge’s Findings and Recommendations.” The parties are advised that failure to file objections

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within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772

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F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir.

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1991)).

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IT IS SO ORDERED.

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Dated:

/s/ Barbara

December 22, 2017

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A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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