Willis v. Kandkhorova

Filing 35

FINDINGS and RECOMMENDATIONS to Dismiss Non-Cognizable Claims; Fourteen (14) Day Deadline signed by Magistrate Judge Michael J. Seng on 12/8/2017. Referred to Judge Anthony W. Ishii. Objections to F&R due by 12/26/2017. (Sant Agata, S)

1
2
3
4
5
6
7
8
9
10

UNITED STATES DISTRICT COURT

11

EASTERN DISTRICT OF CALIFORNIA

12
13

AVERILLE WILLIS,

14

Plaintiff,

15

v.

18

FINDINGS AND
RECOMMENDATIONS TO DISMISS
NON-COGNIZABLE CLAIMS
(ECF NO. 9)

16
17

CASE NO. 1:15-cv-01572-AWI-MJS (PC)

NELLYA KANDKHOROVA,

FOURTEEN (14) DAY DEADLINE

Defendant.

19
20
21
22
23
24
25
26
27
28

Plaintiff is a state prisoner proceeding in forma pauperis and with counsel 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. 5.) Defendant Kandkhorova declined to consent
to Magistrate judge jurisdiction. (ECF No. 16.)
On March 25, 2016, the Court screened Plaintiff’s first amended complaint (ECF
No. 9) and found it states a cognizable Eighth Amendment claim for damages and
injunctive relief against Defendant Kandkhorova. (ECF No. 10.) The remaining claim for
declaratory relief was dismissed with prejudice as subsumed within the damages claim.

1 Plaintiff’s claim for preliminary injunctive relief also was denied.
2 I.

Williams v. King

3

Federal courts are under a continuing duty to confirm their jurisdictional power and

4 are “obliged to inquire sua sponte whenever a doubt arises as to [its] existence[.]” Mt.
5 Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 278 (1977) (citations
6 omitted). On November 9, 2017, the Ninth Circuit Court of Appeals ruled that 28 U.S.C.
7 § 636(c)(1) requires the consent of all named plaintiffs and defendants, even those not
8 served with process, before jurisdiction may vest in a Magistrate Judge to dispose of a
9 civil claim. Williams v. King, 875 F.3d 500 (9th Cir. 2017). Accordingly, the Court held
10 that a Magistrate Judge does not have jurisdiction to dismiss a claim with prejudice
11 during screening even if the plaintiff has consented to Magistrate Judge jurisdiction. Id.
12

Here, Defendant was not yet served at the time that the Court screened the first

13 amended complaint and therefore had not appeared or consented to Magistrate Judge
14 jurisdiction. Because Defendant had not consented, the undersigned’s dismissal of
15 Plaintiff’s claims is invalid under Williams. Because the undersigned nevertheless stands
16 by the analysis in his previous screening order, he will below recommend to the District
17 Judge that the non-cognizable claim be dismissed and that preliminary injunctive relief be
18 denied.
19 II.

Findings and Recommendations on First Amended Complaint

20

A.

21

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

Screening Requirement

22 against a governmental entity or an officer or employee of a governmental entity. 28
23 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner
24 has raised claims that are legally “frivolous or malicious,” that fail to state a claim upon
25 which relief may be granted, or that seek monetary relief from a defendant who is
26 immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). “Notwithstanding any filing fee,
27 or any portion thereof, that may have been paid, the court shall dismiss the case at any
28 time if the court determines that . . . the action or appeal . . . fails to state a claim upon
2

1 which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).
2

B.

3

Section 1983 provides a cause of action against any person who deprives an

Pleading Standard

4 individual of federally guaranteed rights “under color” of state law. 42 U.S.C. § 1983. A
5 complaint must contain “a short and plain statement of the claim showing that the pleader
6 is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not
7 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by
8 mere conclusory statements, do not suffice,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
9 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)), and courts “are not
10 required to indulge unwarranted inferences,” Doe I v. Wal-Mart Stores, Inc., 572 F.3d
11 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). While factual
12 allegations are accepted as true, legal conclusions are not. Iqbal, 556 U.S. at 678.
13

Under section 1983, Plaintiff must demonstrate that each defendant personally

14 participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir.
15 2002). This requires the presentation of factual allegations sufficient to state a plausible
16 claim for relief. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962,
17 969 (9th Cir. 2009). Prisoners proceeding pro se in civil rights actions are entitled to
18 have their pleadings liberally construed and to have any doubt resolved in their favor,
19 Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted), but nevertheless,
20 the mere possibility of misconduct falls short of meeting the plausibility standard, Iqbal,
21 556 U.S. at 678; Moss, 572 F.3d at 969.
Plaintiff’s Allegations

22

C.

23

Plaintiff is incarcerated at California Substance Abuse Treatment Facility

24 (“CSATF”), where the acts giving rise to his complaint occurred. He brings a claim for
25 Eighth Amendment medical indifference against his primary care provider, Dr. Nellya
26 Kandkhorova.
27
28
3

1

Plaintiff’s allegations may be summarized essentially as follows.

2

On September 17, 2014, at Folsom State Prison, Dr. Feinberg prescribed Plaintiff

3 pain medication and pain management accommodations that provided relief for pain in
4 Plaintiff’s spine, lower back, and neck. The medication included morphine and the
5 accommodations included permanent accommodations for a lower floor cell, bottom
6 bunk, a wooden cane, and no stairs. Plaintiff was placed in the DPM accommodation
7 chrono program.
8

On October 29, 2014, Plaintiff was transferred to CSATF. On October 30, 2014,

9 Plaintiff was seen by Defendant. When Plaintiff entered Defendant’s office, Defendant
10 asked Plaintiff why he had accommodations and took morphine. Plaintiff explained that
11 these had been prescribed by his prior doctor to prevent unnecessary pain and further
12 injury. He explained the activities that cause him pain and the ways in which the
13 accommodations helped him. Defendant told Plaintiff that she did not care about his
14 complaints because it did not look like there was anything wrong with him. Plaintiff asked
15 Defendant to review his medical records and recent MRI but she refused. Defendant told
16 Plaintiff that she would be discontinuing his prescription and accommodations. Plaintiff
17 expressed concern that he would experience pain as a result. Defendant told Plaintiff to
18 leave her office. Defendant ordered that Plaintiff’s morphine be tapered off and replaced
19 with other medication.
20

That night, Plaintiff wrote a 602 medical appeal regarding the visit. Plaintiff also

21 submitted CDCR 7362 requests for treatment. He was prescribed a variety of
22 medications that were ineffective and/or had negative side effects. He continues to
23 experience unnecessary pain as a result of the changes made by Defendant.
24

Plaintiff alleges that Defendant’s conduct constitutes medical indifference in

25 violation of the Eighth Amendment. He seeks money damages, declaratory relief, and
26 preliminary and permanent injunctive relief requiring Defendant to treat his conditions.
27
28
4

1
2
3

D.

Analysis
1.

Medical Indifference

The Eighth Amendment’s Cruel and Unusual Punishments Clause prohibits

4 deliberate indifference to the serious medical needs of prisoners. McGuckin v. Smith, 974
5 F.2d 1050, 1059 (9th Cir. 1992). A claim of medical indifference requires (1) a serious
6 medical need, and (2) a deliberately indifferent response by defendant. Jett v. Penner,
7 439 F.3d 1091, 1096 (9th Cir. 2006). The deliberate indifference standard is met by
8 showing (a) a purposeful act or failure to respond to a prisoner's pain or possible medical
9 need and (b) harm caused by the indifference. Id. Where a prisoner alleges deliberate
10 indifference based on a delay in medical treatment, the prisoner must show that the delay
11 led to further injury. See Hallett v. Morgan, 296 F.3d 732, 745-46 (9th Cir. 2002);
12 McGuckin, 974 F.2d at 1060a; Shapley v. Nevada Bd. Of State Prison Comm’rs, 766
13 F.2d 404, 407 (9th Cir. 1985) (per curiam).
14

“Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d

15 1051, 1060 (9th Cir. 2004). “Under this standard, the prison official must not only ‘be
16 aware of the facts from which the inference could be drawn that a substantial risk of
17 serious harm exists,’ but that person ‘must also draw the inference.’” Id. at 1057 (quoting
18 Farmer v. Brennan, 511 U.S. 825, 837 (1994)). “‘If a prison official should have been
19 aware of the risk, but was not, then the official has not violated the Eighth Amendment,
20 no matter how severe the risk.’” Id. (brackets omitted) (quoting Gibson, 290 F.3d at
21 1188). Mere indifference, negligence, or medical malpractice is not sufficient to support
22 the claim. Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle v.
23 Gamble, 429 U.S. 87, 105-06 (1976)). A prisoner can establish deliberate indifference by
24 showing that officials intentionally interfered with his medical treatment for reasons
25 unrelated to the prisoner’s medical needs. See Hamilton v. Endell, 981 F.2d 1062, 1066
26 (9th Cir. 1992); Estelle, 429 U.S. at 105.
27

An allegation that prison officials deliberately ignored a prisoner’s complaint about

28 the ineffective nature of prescribed pain medication and the pain being suffered as a
5

1 result can, in some circumstances, give rise to a constitutional claim. See Chess v.
2 Dovey, No. CIV S-07-1767 LKK DAD P., 2011 WL 567375, at *21 (E.D. Cal. Feb. 15,
3 2011) (denying summary judgment on Eighth Amendment claim where the doctor
4 “ignored plaintiff’s complaint about the ineffective nature of the Tylenol, aspirin and other
5 medications he was being given and the pain being suffered as a result”); Franklin v.
6 Dudley, No. 2:07-cv-2259 FCD KJN P., 2010 WL 5477693, at *6 (E.D. Cal. Dec. 29,
7 2010) (existence of triable issue of fact as to whether defendant violated Eighth
8 Amendment precluded the granting of summary judgment where plaintiff was previously
9 prescribed narcotic pain medication but now was given only Motrin, Naprosyn, and
10 Tylenol under prison’s no-narcotic policy). However, a prisoner does not have a
11 constitutional right to the medication of his choice, and a mere difference of opinion
12 regarding appropriate treatment and pain medication is insufficient to give rise to a
13 constitutional claim. Toguchi, 391 F.3d at 1058; Wilson v. Borg, No. 95-15720, 1995 WL
14 571481, at *2 (9th Cir. Sept. 27, 1995); Smith v. Norrish, No. 94-16906, 1995 WL
15 267126, at *1 (9th Cir. May 5, 1995); McMican v. Lewis, No. 94-16676, 1995 WL 247177,
16 at *2 (9th Cir. Apr. 27, 1995).
17

Plaintiff’s allegations of pain are sufficient to allege a serious medical need. Jett,

18 439 F.3d at 1096 (a “serious medical need” may be shown by demonstrating that “failure
19 to treat a prisoner's condition could result in further significant injury or the ‘unnecessary
20 and wanton infliction of pain’”); McGuckin, 974 F.2d at 1059-60 (“The existence of an
21 injury that a reasonable doctor or patient would find important and worthy of comment or
22 treatment; the presence of a medical condition that significantly affects an individual's
23 daily activities; or the existence of chronic and substantial pain are examples of
24 indications that a prisoner has a ‘serious’ need for medical treatment.”).
25

Accepting the facts alleged by Plaintiff as true, as the Court must do at the

26 pleading stage, Plaintiff also has alleged sufficient facts to support a claim of deliberate
27 indifference. Plaintiff’s allegations that Defendant changed Plaintiff’s medication and
28 accommodations without examining him, refused to review medical records, and refused
6

1 to acknowledge Plaintiff’s pain, reflect indifference to Plaintiff’s complaints. Plaintiff
2 advised Defendant that her proposed course of treatment would be ineffective, then
3 continued to complain of pain once the changes were instituted. The allegations state
4 more than a difference of opinion regarding proper treatment or a mere preference for a
5 different medication. See Toguchi, 391 F.3d at 1058. Instead, Plaintiff alleges facts to
6 show that Defendant purposefully interfered with his ongoing medical treatment, without
7 medical reason, and with deliberate indifference to the fact that doing so would cause
8 Plaintiff unnecessary pain.
9

Accordingly, Plaintiff should continue to proceed on his Eighth Amendment

10 medical indifference claim against Defendant Kandkhorova.
11
12

2.

Declaratory Relief

Plaintiff seeks declaratory relief. However, because his claims for damages

13 necessarily entail a determination of whether his rights were violated, his separate
14 request for declaratory relief is subsumed by those claims. Rhodes v. Robinson, 408 F.3d
15 559, 566 n.8 (9th Cir. 2005). Therefore, Plaintiff’s claim for declaratory relief should be
16 dismissed.
17

3.

Injunctive Relief

18

Plaintiff requests preliminary and permanent injunctive relief.

19

Injunctive relief, whether temporary or permanent, is an “extraordinary remedy,

20 never awarded as of right.” Winter v. Natural Res. Def. Council, 555 U.S. 7, 22 (2008). “A
21 plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the
22 merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that
23 the balance of equities tips in his favor, and that an injunction is in the public interest.”
24 Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009)
25 (quoting Winter, 555 U.S. at 20).
26

Although Plaintiff states a cognizable claim, at this stage of the proceedings the

27 Court is without sufficient evidence to determine that Plaintiff is likely to succeed on the
28 merits.
7

1

Plaintiff also fails to suggest a real and immediate threat of irreparable injury. See

2 City of Los Angeles v. Lyons, 461 U.S. 95, 101–102 (1983) (plaintiff must show “real and
3 immediate” threat of injury, and “[p]ast exposure to illegal conduct does not in itself show
4 a present case or controversy regarding injunctive relief . . . if unaccompanied by any
5 continuing, present, adverse effects.”). There is nothing to indicate that his condition will
6 worsen without the requested treatment.
7

Plaintiff does not address the third or fourth elements, the balancing of equities

8 and public interest concerns. Presently, the Court finds nothing to tip the balance of
9 equities in Plaintiff’s favor. And, while the public has an interest in providing inmates with
10 constitutionally adequate care, the record before the Court does not justify the Court
11 substituting its judgment regarding Plaintiff’s medical treatment for that of medical staff.
12

These criteria not having been met, Plaintiff is not entitled to preliminary injunctive

13 relief. Nevertheless, Plaintiff should continue to proceed in this action on a claim for
14 permanent injunctive relief.
15 III.

Conclusion

16

In sum, Plaintiff’s first amended complaint states a cognizable Eighth Amendment

17 claim for damages and injunctive relief based on alleged inadequate medical care by
18 Defendant Kandkhorova but no other cognizable claims.
19

Accordingly, IT IS HEREBY RECOMMENDED that:

20

1.

This action continue to proceed only on Plaintiff’s Eighth Amendment claim

21 for damages and injunctive relief against Defendant Kandkhorova;
22

2.

All other claims be DISMISSED with prejudice; and

23

3.

That Plaintiff’s request for preliminary injunctive relief be DENIED..

24

These findings and recommendations will be submitted to the United States

25 District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C.
26 § 636(b)(1). Within fourteen (14) days after being served with the findings and
27 recommendations, the parties may file written objections with the Court. The document
28 should be captioned “Objections to Magistrate Judge’s Findings and Recommendation.”
8

1 A party may respond to another party’s objections by filing a response within fourteen
2 (14) days after being served with a copy of that party’s objections. The parties are
3 advised that failure to file objections within the specified time may result in the waiver of
4 rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter
5 v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
6
7
8
9

IT IS SO ORDERED.
Dated:

December 8, 2017

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
9