Hutchins, Jr. v. Lockyer, et al.
ORDER REINSTATING DISMISSED CLAIMS re 26 and FINDINGS and RECOMMENDATIONS to Dismiss Claims re 20 , signed by Magistrate Judge Michael J. Seng on 11/21/17. Referred to Judge Drozd. Objections to F&R Due Within Fourteen Days. (Gonzalez, R)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
CLIFTON HUTCHINS, JR.,
Case No. 1:15-cv-01537-DAD-MJS
ORDER REINSTATING DISMISSED
BILL LOCKYER, et al.,
RECOMMENDATIONS TO DISMISS
(ECF NOS. 20; 26)
FOURTEEN (14) DAY DEADLINE
Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil
rights action filed pursuant to 42 U.S.C. § 1983. (ECF No. 1.) He has consented to
Magistrate Judge jurisdiction. (ECF No. 7.) Defendant Johal appeared in this action and
declined to consent to Magistrate Judge jurisdiction. (ECF No. 35.) Defendants Klang,
Yousseff, Nurse Does 1-2, and Does 3-6 have not yet appeared in this action.
On December 19, 2016, the Court screened and dismissed all claims against
Defendants Klang, Yousseff, Nurse Does 1-2, and Does 3-6 in Plaintiff’s second
1 amended complaint with prejudice.1 (ECF No 26.) Plaintiff declined to pursue claims
2 against Defendants Lockyer, Lewis, Ramos, Sheheta, Patel, Katavich, and Does 7-10 in
3 the second amended complaint after his original complaint and first amended complaint
4 were dismissed with leave to amend. (ECF Nos. 14; 20.)
This case has proceeded on Plaintiff’s claim against Defendant Johal. (ECF Nos.
6 21; 26.) Defendant Johal filed a motion to dismiss on March 10, 2017. (ECF No. 30.) On
7 August 22, 2017, the undersigned issued findings and recommendations to deny the
8 motion to dismiss. (ECF No. 34.) Those findings and recommendations are currently
9 pending before the District Judge.
Federal courts are under a continuing duty to confirm their jurisdictional power and
12 are “obliged to inquire sua sponte whenever a doubt arises as to [its] existence[.]” Mt.
13 Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 278 (1977) (citations
14 omitted). On November 9, 2017, the Ninth Circuit Court of Appeals ruled that 28 U.S.C. §
15 636(c)(1) requires the consent of all named plaintiffs and defendants, even those not
16 served with process, before jurisdiction may vest in a Magistrate Judge to dispose of a
17 civil case. Williams v. King, --- F.3d ----, No. 15-15259, 2017 WL 5180205 (9th Cir. Nov.
18 9, 2017). Accordingly, the Court held that a Magistrate Judge does not have jurisdiction
19 to dismiss a case with prejudice during screening even if the plaintiff has consented to
20 Magistrate Judge jurisdiction. Id.
Here, Defendants Klang, Yousseff, Nurse Does 1-2, and Does 3-6 were never
22 served and never appeared in this action. Therefore, they have not consented to
23 Magistrate Judge jurisdiction. Because these Defendants have not consented and the
Specifically, in the Court’s second screening Order issued on October 17, 2016 (ECF
No. 20), the Court explained that Plaintiff’s claims in the second amended complaint
against Defendants Klang, Yousseff, Nurse Does 1-2, and Does 3-6 were not cognizable
and required Plaintiff to either file a third amended complaint or notify Court of willingness
to proceed only on cognizable claims against Defendant Johal. On December 15 and 16,
2016, Plaintiff filed two notices of willingness to proceed on his cognizable claims. (ECF
Nos. 24; 25.) Thereafter, the Court dismissed Plaintiff’s claims against Defendants Klang,
Yousseff, Nurse Does 1-2, and Does 3-6. (ECF No. 26.)
1 undersigned dismissed Plaintiff’s claims against them with prejudice, the dismissal is
2 invalid under Williams. The claims against them therefore are reinstated. However, for
3 the reasons below, the undersigned will recommend to the District Judge that they be
Findings and Recommendations on Second Amended Complaint
The Court is required to screen complaints brought by prisoners seeking relief
8 against a governmental entity or an officer or employee of a governmental entity. 28
9 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner
10 has raised claims that are legally “frivolous or malicious,” that fail to state a claim upon
11 which relief may be granted, or that seek monetary relief from a defendant who is
12 immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). “Notwithstanding any filing fee,
13 or any portion thereof, that may have been paid, the court shall dismiss the case at any
14 time if the court determines that . . . the action or appeal . . . fails to state a claim upon
15 which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).
Section 1983 provides a cause of action against any person who deprives an
18 individual of federally guaranteed rights “under color” of state law. 42 U.S.C. § 1983. A
19 complaint must contain “a short and plain statement of the claim showing that the pleader
20 is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not
21 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by
22 mere conclusory statements, do not suffice,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
23 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)), and courts “are not
24 required to indulge unwarranted inferences,” Doe I v. Wal-Mart Stores, Inc., 572 F.3d
25 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). While factual
26 allegations are accepted as true, legal conclusions are not. Iqbal, 556 U.S. at 678.
Under section 1983, Plaintiff must demonstrate that each defendant personally
28 participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir.
1 2002). This requires the presentation of factual allegations sufficient to state a plausible
2 claim for relief. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962,
3 969 (9th Cir. 2009). Prisoners proceeding pro se in civil rights actions are entitled to
4 have their pleadings liberally construed and to have any doubt resolved in their favor,
5 Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted), but nevertheless,
6 the mere possibility of misconduct falls short of meeting the plausibility standard, Iqbal,
7 556 U.S. at 678; Moss, 572 F.3d at 969.
Plaintiff, who is currently incarcerated at the Correctional Training Facility in
10 Soledad, California, complains of acts that occurred at Wasco State Prison (“WSP”) in
11 Wasco, California. Plaintiff brings this action against several Defendants, all employees
12 of WSP: Drs. A. Johal, A. Klang, and A. Youssef; Nurse Does 1 and 2, and Does 3-6.
13 Plaintiff alleges that Defendants denied him adequate medical care in violation of the
14 Eighth Amendment of the Constitution.
Plaintiff’s allegations may be summarized as follows:
Plaintiff has constant pain from arthritis and joint disease in his knee and shoulder.
17 He was prescribed 30 mg of morphine to manage this pain.
On August 16, 2014, Plaintiff submitted a CDCR 7362 Form (“7362”) requesting a
19 medication refill for his morphine before he ran out and asking to be taken off of
20 Ibuprofen because it was causing him stomach pain, nausea, and dizziness. Though
21 Plaintiff was supposed to receive a response within 72 hours of submitting his request, he
22 did not hear from Nurse Doe 1 in that time period. Therefore, on August 21, 2014,
23 Plaintiff submitted a second 7362 repeating the requests from the first 7362 and also
24 clarifying the nature of his ailments. Nurse Doe 1 deliberately failed to respond to both
25 7362s because Plaintiff had previously submitted verbal and written complaints about not
26 receiving pain medication or seeing a doctor. As a result, Plaintiff suffered unnecessary
27 pain between September 8, when his pain medication ran out, and September 12, 2014.
Plaintiff had a “medical priority ducat” to see the doctor on September 8, 2014. He
1 was not called to see the doctor that day.
Accordingly, on September 9, 2014 he
2 submitted another 7362. Plaintiff does not state to whom he submitted this form. He
3 states that he “made medical staff aware” that he was never called to see the doctor for
4 his appointment. Nurse Doe 2 deliberately failed to notify the doctor to refill Plaintiff’s
5 medication and/or set another appointment for Plaintiff to see the doctor.
Plaintiff eventually saw Defendant Johal on September 12, 2014, after he had
7 gone four days without morphine. At the appointment, Defendant Johal told Plaintiff that
8 she would reduce Plaintiff’s morphine prescription from 30 mg to 15 mg and thereafter
9 discontinue it. When asked why, she said that Plaintiff “complained too much.” Defendant
10 Johal’s treatment plan ran counter to CDCR guidelines, as Defendant Johal was required
11 to gradually taper Plaintiff off of morphine over time until the drug was “no longer
12 needed.” Plaintiff states that Defendants Johal, Klang, and Youssef, along with Does 3-6,
13 were all members of the pain management committee who jointly agreed to discontinue
14 Plaintiff’s morphine prescription without conducting a “medical assessment” of Plaintiff.
On September 30, 2014, Nurse Doe 2 failed to send Plaintiff’s morphine to the
16 medication dispensary window. Plaintiff believes this was in retaliation for Plaintiff’s
17 numerous 7362s.
On or about October 7, 2014, Defendant Johal cut off Plaintiff’s morphine entirely,
19 leaving Plaintiff with “no pain medication.” Soon thereafter, Plaintiff submitted several
20 7362s complaining that medications such as Naproxen, Meloxicam, Ibuprofen, or
21 acetaminophen with codeine did not help his pain and instead caused nausea and
22 dizziness. When Plaintiff discussed these issues with Defendant Johal, she told him to
23 “quit complaining” to her supervisor.
Plaintiff filed an inmate appeal (“602”) requesting the reinstatement of his
25 morphine prescription and requesting physical therapy, a knee brace, and a pain
26 assessment appointment. Plaintiff complained that he was never “medically evaluated”
27 before his morphine prescription was terminated.
At the first level of review, Defendant Klang partially granted Plaintiff’s appeal; he
1 granted physical therapy, a knee brace, and a pain assessment appointment, but denied
2 the request for opioid medications. Plaintiff then submitted an appeal to the second level,
3 again requesting the reinstatement of opioid medications. At this level, Defendant Klang
4 and Defendant Youssef denied Plaintiff’s, stating that Plaintiff’s healthcare records
5 revealed “no objective evidence of severe disease.”
Plaintiff’s request for opioids was again denied at the Director’s Level. Plaintiff
7 states he has not received the physical therapy, knee brace, and pain assessment he
8 was granted pursuant the first level of review.
Plaintiff has continuously suffered from extreme pain as a result of Defendants’
10 failure to provide appropriate, adequate medical care, namely opioid medications.
Eighth Amendment Medical Indifference
For Eighth Amendment claims arising out of medical care in prison, Plaintiff “must
15 show (1) a serious medical need by demonstrating that failure to treat [his] condition
16 could result in further significant injury or the unnecessary and wanton infliction of pain,”
17 and (2) that “the defendant’s response to the need was deliberately indifferent.” Wilhelm
18 v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (citing Jett v. Penner, 439 F.3d 1091,
19 1096 (9th Cir. 2006)). Deliberate indifference is shown by “(a) a purposeful act or failure
20 to respond to a prisoner’s pain or possible medical need, and (b) harm caused by the
21 indifference.” Wilhelm, 680 F.3d at 1122 (citing Jett, 439 F.3d at 1096). The requisite
22 state of mind is one of subjective recklessness, which entails more than ordinary lack of
23 due care. Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012), overruled in part on
24 other grounds, Peralta v. Dillard, 744 F.3d 1076, 1082-83 (9th Cir. 2014) (citation and
25 quotation marks omitted); Wilhelm, 680 F.3d at 1122.
Plaintiff states he suffers from chronic pain due to arthritis and joint disease. This
27 is sufficient to allege an objectively serious medical need. Colwell v. Bannister, 763 F.3d
28 1060, 1066 (9th Cir. 2014) (existence of chronic or substantial pain indicates a serious
1 medical need) (citation omitted).
The second element of an Eighth Amendment claim is subjective deliberate
3 indifference, which involves two parts. Lemire, 726 F.3d at 1078. Plaintiff must
4 demonstrate first that the risk to his health from Defendants’ acts or omissions was
5 obvious or that Defendants were aware of the substantial risk to his health, and second
6 that there was no reasonable justification for exposing him to that risk. Id. (citing Thomas
7 v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010)) (quotation marks omitted). There must
8 be some causal connection between the actions or omissions of each named defendant
9 and the violation at issue; liability may not be imposed under a theory of respondeat
10 superior. Iqbal, 556 U.S. at 676-77; Lemire, 726 F.3d at 1074-75; Lacey v. Maricopa
11 County, 693 F.3d 896, 915-16 (9th Cir. 2012) (en banc); Starr v. Baca, 652 F.3d 1202,
12 1205-08 (9th Cir. 2011).
Plaintiff’s SAC uses the words “pain medication” interchangeably with “opioids”
15 and “morphine,” leaving it unclear at times as to whether he is alleging denial of all
16 medication or just denial of opioids. The Court will proceed on the assumption that when
17 Plaintiff says he received no pain medication, he means that he did not receive opioids. If
18 Plaintiff chooses to amend, he must distinguish between “pain medication” and “opioids.”
Plaintiff alleges that he suffered four days of unnecessary pain between
21 September 8 and 14 because Nurse Doe 1 failed to respond to his August 16, 2014
22 health care request. There is no allegation, however, that this Defendant was aware of
23 this request, was responsible for responding to the request, and/or was aware that her
24 failure to respond would render Plaintiff without medication several weeks later. On the
25 facts alleged, Plaintiff fails to state an Eighth Amendment medical indifference claim
26 against Defendant Nurse Doe 1.
Plaintiff alleges that Nurse Doe 2 failed to notify the doctor to refill Plaintiff’s
28 morphine prescription and/or schedule an appointment for Plaintiff to see a doctor after
1 Plaintiff missed his doctor’s appointment. As with Plaintiff’s allegations against Defendant
2 Nurse Doe 1, Plaintiff’s claims against Defendant Nurse Doe 2 are conclusory, do not
3 show Doe 2 knew of Plaintiff’s requests, had power to do anything about them, or knew
4 or should have known that a failure to act on them would cause Plaintiff pain. No
5 cognizable claim is stated against Doe 2.
Accordingly, these claims should be dismissed.
Plaintiff alleges that Defendant Johal told him she would reduce and then
9 discontinue Plaintiff’s morphine medication because she believed he was a drug addict.
Although Plaintiff may have been unhappy with the discontinuation of his
11 morphine, a mere disagreement with a treatment plan does not suffice to support a claim
12 under section 1983. Jackson v. MacIntosh, 90 F.3d 330, 332 (9th Cir. 1996). For a
13 prisoner to prevail on a claim involving choices between alternative courses of treatment,
14 he must show that the chosen course of treatment was “medically unacceptable under
15 the circumstances” and was chosen “in conscious disregard of an excessive risk to the
16 prisoner’s health.” Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004) (citing
17 Jackson, 90 F.3d at 332.) Plaintiff has not presented such facts here. Further, Plaintiff
18 provides no support for his conclusory claim that Defendant Johal was required to
19 continue Plaintiff’s morphine until it was “no longer needed.” Plaintiff’s Eighth Amendment
20 claim against Defendant Johal for her failure to prescribe morphine or other opioids
21 should be dismissed.2
Plaintiff accuses Drs. Youssef and Klang of improperly denying Plaintiff’s requests
Drs. Youssef and Klang
Plaintiff further claimed that Defendant Johal continued to prescribe him alternative pain
medications despite Plaintiff’s complaints that these medications caused him nausea and
dizziness and did not alleviate his pain. Taking these allegations as true, Plaintiff pled a
cognizable Eight Amendment claim against Defendant Johal for her continued
prescription of medications knowing that they worsened Plaintiff’s condition rather than
helped it. This is one of the claims that Plaintiff is currently proceeding on, and, for which,
this Court has recommended denial of Defendant Johal’s motion to dismiss. (See ECF
1 for opioids at the appeals level.
Generally, denying a prisoner’s administrative appeal does not cause or contribute
3 to the underlying violation, George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007), and a
4 plaintiff does not a have protected liberty interest in the processing of his appeals.
5 Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (citing Mann v. Adams, 855 F.2d
6 639, 640 (9th Cir. 1988)). However, prison administrators cannot willfully turn a blind eye
7 to constitutional violations being committed by subordinates. Jett, 439 F.3d at 1098 (9th
8 Cir. 2006). Accordingly, there may be limited circumstances in which those involved in
9 reviewing an inmate appeal can be held liable under section 1983. Those circumstances
10 have not been presented here.
It appears that Drs. Youssef and Klang simply affirmed the decision of Defendant
12 Johal to discontinue Plaintiff’s morphine and continue prescribing Plaintiff acetaminophen
13 with codeine and other medications. Plaintiff’s Eighth Amendment claims against Drs.
14 Youssef and Klang will be dismissed. Mere disagreement with a treatment plan is not
15 sufficient to allege a constitutional violation, Jackson, 90 F.3d at 332, and it is not clear
16 from Plaintiff’s complaint that Drs. Youssef and Klang actually knew that the alternative
17 medications were ineffective for Plaintiff’s pain; indeed, it does not appear that Plaintiff
18 ever complained about the effectiveness of those medications in his appeals.
Accordingly, these claims should be dismissed.
Members of the Pain Management Committee
Plaintiff claims that Defendants Johal, Klang, and Youssef, together with Does 3-6,
22 were all members of the pain management committee that chose to discontinue Plaintiff’s
23 morphine “without conducting a medical assessment.” Plaintiff’s argument is unavailing; it
24 appears the pain management committee simply relied on the assessment of Plaintiff’s
25 primary doctor in issuing its directive to taper and discontinue Plaintiff’s morphine. As
26 stated above, mere difference in medical opinion is insufficient to state a claim for
27 medical indifference. Plaintiff’s Eighth Amendment claims against all of these Defendants
28 for choosing to discontinue Plaintiff’s morphine should be dismissed.
First Amendment Retaliation
While Plaintiff does not explicitly say so, he appears to make a First Amendment
4 retaliation claim against Nurse Does 1 and 2.
“Prisoners have a First Amendment right to file grievances against prison officials
6 and to be free from retaliation for doing so.” Watison v. Carter, 668 F.3d 1108, 1114 (9th
7 Cir. 2012) (citing Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009)). Within the
8 prison context, a viable claim of First Amendment retaliation entails five basic elements:
9 (1) An assertion that a state actor took some adverse action against an inmate (2)
10 because of (3) that prisoner’s protected conduct, and that such action (4) chilled the
11 inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably
12 advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th
13 Cir. 2005); accord Watison v. Carter, 668 F.3d at 1114-15; Silva v. Di Vittorio, 658 F.3d
14 1090, 1104 (9th Cir. 2011); Brodheim v. Cry, 584 F.3d at 1269.
The second element focuses on causation and motive. See Brodheim, 584 F.3d at
16 1271. A plaintiff must show that his protected conduct was a “‘substantial’ or ‘motivating’
17 factor behind the defendant’s conduct.” Id. (quoting Sorrano’s Gasco, Inc. v. Morgan,
18 874 F.2d 1310, 1314 (9th Cir. 1989). Although it can be difficult to establish the motive or
19 intent of the defendant, a plaintiff may rely on circumstantial evidence. Bruce, 351 F.3d
20 at 1289 (finding that a prisoner established a triable issue of fact regarding prison
21 officials’ retaliatory motives by raising issues of suspect timing, evidence, and
22 statements); Hines v. Gomez, 108 F.3d 265, 267-68 (9th Cir. 1997); Pratt v. Rowland, 65
23 F.3d 802, 808 (9th Cir. 1995) (“timing can properly be considered as circumstantial
24 evidence of retaliatory intent”).
In terms of the third prerequisite, filing a complaint is a protected action under the
26 First Amendment. Valandingham v. Bojorquez, 866 F.2d 1135, 1138 (9th Cir. 1989).
Plaintiff states that Nurse Does 1 and 2 deliberately failed to respond to Plaintiff’s
28 August and September 2014 7362s in retaliation for Plaintiff’s verbal and written
1 complaints about his pain medication and lack of access to the prison doctor. Plaintiff
2 also claims that Nurse Doe 2 failed to supply Plaintiff’s medication on September 30,
3 2014 for the same reasons. Plaintiff must show that his protected conduct, i.e.
4 complaining about his pain medication or inability to see a doctor, was a “substantial or
5 motivating factor” behind the Nurse Does’ adverse actions. This nexus may be shown
6 through circumstantial or direct evidence. At this juncture, Plaintiff has provided nothing
7 more than pure speculation as to the Nurse Does’ motives. Plaintiff has not stated a
8 cognizable retaliation claim against Nurse Does 1 and 2, and, accordingly, the claims
9 should be dismissed.3
Plaintiff states he did not receive the pain assessment appointment, physical
12 therapy, and knee brace he was granted as a result of his first level appeal.
These claims appear to be unrelated to Plaintiff’s allegations regarding his pain
14 medication and therefore belong in a separate suit. Fed. R. Civ. P. 20(a)(2) (joined claims
15 must arise out of the same “transaction, occurrence, or series of transactions or
16 occurrences” and there is a “question of law or fact common to all defendants.”);
17 Coughlin v. Rogers, 130 F.3d 1348, 1351 (9th Cir.1997); Desert Empire Bank v. Ins. Co.
18 of North America, 623 F.2d 1371, 1375 (9th Cir.1980).
Accordingly, these claims should be dismissed.
For the foregoing reasons, the claims dismissed in the Court’s screening order
22 (ECF No. 26) are reinstated.
Further, IT IS HEREBY RECOMMENDED that
Plaintiff’s claims against Defendants Klang, Yousseff, Nurse Does 1-2, and
25 Does 3-6 be DISMISSED;
The Court found a cognizable retaliation claim against Defendant Johal (ECF No. 20),
27 which is the second claim on which Plaintiff is currently proceeding, and, for which, the
Court has recommended denial of Defendant Johal’s motion to dismiss. (See ECF No.
Plaintiff’s first claim against Defendant Johal for medical indifference be
2 DISMISSED (see supra at 8 & n. 2); and
This action proceed on the Plaintiff’s second medical indifference claim (see
4 supra at n. 2) and retaliation claim against Defendant Johal in the second amended
5 complaint as found in the Court’s two previous screening Orders (ECF Nos. 20; 26.).
These Findings and Recommendations will be submitted to the United States
7 District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. §
8 636(b)(l). Within fourteen (14) days after being served with these Findings and
9 Recommendations, the parties may file written objections with the Court. The document
10 should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.”
11 The parties are advised that failure to file objections within the specified time may result
12 in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir.
13 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
IT IS SO ORDERED.
November 21, 2017
Michael J. Seng
UNITED STATES MAGISTRATE JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?