Johnson v. Fortune

Filing 13

FINDINGS and RECOMMENDATION to Dismiss Action With Prejudice for Failure to State a Claim, signed by Magistrate Judge Michael J. Seng on 4/13/16. Objections to F&R Due Within Fourteen Days. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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VANCE EDWARD JOHNSON,

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Plaintiff,

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v.
J. FORTUNE, et al.,

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Defendants.

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CASE No. 1:15-cv-01613-LJO-MJS (PC)
FINDINGS AND RECOMMENDATION TO
DISMISS ACTION WITH PREJUDICE
FOR FAILURE TO STATE A CLAIM
(ECF No. 9)
FOURTEEN (14) DAY OBJECTION
DEADLINE

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil
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rights action brought pursuant to 42 U.S.C. § 1983. (ECF No. 1, 4.)
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On November 20, 2015, the Court dismissed Plaintiff’s complaint for failure to

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state a claim, but gave leave to amend. (ECF No. 7.) His first amended complaint is
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before the Court for screening.
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I.

SCREENING REQUIREMENT

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The Court is required to screen complaints brought by prisoners seeking relief
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against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.
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§ 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has
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raised claims that are legally “frivolous, malicious,” or that fail to state a claim upon which

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relief may be granted, or that seek monetary relief from a defendant who is immune from

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such relief. 28 U.S.C. § 1915A(b)(1), (2).

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II.

PLEADING STANDARD

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Section 1983 “provides a cause of action for the deprivation of any rights,

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privileges, or immunities secured by the Constitution and laws of the United States.”

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Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983).

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Section 1983 is not itself a source of substantive rights, but merely provides a method for

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vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94

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(1989).

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To state a claim under § 1983, a plaintiff must allege two essential elements:

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(1) that a right secured by the Constitution or laws of the United States was violated and

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(2) that the alleged violation was committed by a person acting under the color of state

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law. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d

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1243, 1245 (9th Cir. 1987).

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A complaint must contain “a short and plain statement of the claim showing that

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the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations

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are not required, but “[t]hreadbare recitals of the elements of a cause of action,

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supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S.

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662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

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Plaintiff must set forth “sufficient factual matter, accepted as true, to state a claim to relief

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that is plausible on its face.” Id. Facial plausibility demands more than the mere

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possibility that a defendant committed misconduct and, while factual allegations are

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accepted as true, legal conclusions are not. Id. at 677-78.

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III.

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PLAINTIFF’S ALLEGATIONS
Plaintiff’s allegations are essentially unchanged from those contained in his initial

complaint.

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Plaintiff is incarcerated at Pleasant Valley State Prison, where the acts giving rise

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to his complaint occurred. He names Physician Assistant (“PA”) J. Fortune as the sole

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Defendant. His allegations may be summarized essentially as follows.

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Plaintiff suffers from chronic pain, arthritis, and degenerative disc disease. Plaintiff
was prescribed Tylenol 3 for his pain.

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On July 9, 2014, Plaintiff met with PA Fortune, who wanted to take Plaintiff off of

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Tylenol 3 immediately because he did not think that opiates should be “a front line

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treatment” for arthritis and that Plaintiff instead should be on a NSAID. Plaintiff was in

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visible pain during the visit and Fortune knew Plaintiff was in pain. When Plaintiff

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threatened to file a lawsuit, Defendant continued the medication and scheduled Plaintiff

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for a 60-day follow-up.

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On September 5, 2014, Plaintiff again met with PA Fortune. At this appointment,

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Defendant went beyond the scope of his duties and license when he stopped prescribing

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Tylenol 3 without a doctor’s approval and knowing that Plaintiff’s pain was worse in cold

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weather. Defendant prescribed Naproxyn, which worked for inflammation but not pain.

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He also prescribed another medication that did not work at all, leaving Plaintiff to suffer

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“in excruciating, unbearable pain” for 2.5 months. Fortune wrote in Plaintiff’s chart that

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he was not allergic to any medication.

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Plaintiff eventually was prescribed a stronger medication, presumably by

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someone other than Defendant. This medication caused an allergic reaction, which

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required a brief hospitalization. Plaintiff was later re-prescribed Tylenol 3 by a doctor.

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Plaintiff seeks $50,000 in compensatory damages, $50,000 in punitive damages,

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and removal of Defendant from his position as a PA.

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IV.

ANALYSIS

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Deliberate indifference to a prisoner's serious medical needs violates the Eighth

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Amendment's proscription against cruel and unusual punishment. See Estelle v.

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Gamble, 429 U.S. 97, 102-04 (1975). “In the Ninth Circuit, the test for deliberate

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indifference consists of two parts. First, the plaintiff must show a serious medical need

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by demonstrating that failure to treat a prisoner's condition could result in further

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significant injury or the unnecessary and wanton infliction of pain. Second, the plaintiff

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must show the defendant's response to the need was deliberately indifferent. This

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second prong ... is satisfied by showing (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.” Jett

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v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (internal citations, punctuation and

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quotation marks omitted).

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In applying this standard, the Ninth Circuit has held that before it can be said that

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

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

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

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1980) (citing Estelle, 429 U.S. at 105-06). “[A] complaint that a physician has been

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negligent in diagnosing or treating a medical condition does not state a valid claim of

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medical mistreatment under the Eighth Amendment. Medical malpractice does not

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become a constitutional violation merely because the victim is a prisoner.” Estelle, 429

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U.S. at 106; see also Anderson v. County of Kern, 45 F.3d 1310, 1316 (9th Cir. 1995);

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McGuckin, 974 F.2d at 1050, overruled on other grounds, WMX, 104 F.3d at 1136. Even

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gross negligence is insufficient to establish deliberate indifference to serious medical

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

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Plaintiff’s allegations are nearly identical to those contained in his original

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complaint. For the same reasons stated in the Court’s prior screening order, Plaintiff's

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amended complaint fails to state a claim for relief under Section 1983.

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A medical professional is not deliberately indifferent to an inmate's serious

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medical need when he prescribes a different method of treatment than that requested by

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the inmate. A difference of opinion between medical professionals concerning the

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appropriate course of treatment generally does not amount to deliberate indifference to

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serious medical needs. Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004); Sanchez

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v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). Also, “a difference of opinion between a

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prisoner-patient and prison medical authorities regarding treatment does not give rise to

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a [§] 1983 claim.” Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981). To establish

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that such a difference of opinion amounted to deliberate indifference, the prisoner “must

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show that the course of treatment the doctors chose was medically unacceptable under

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the circumstances” and “that they chose this course in conscious disregard of an

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excessive risk to [the prisoner's] health.” See Jackson v. McIntosh, 90 F.3d 330, 332 (9th

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Cir. 1996); see also Wilhelm v. Rotman, 680 F.3d 1113, 1123 (9th Cir. 2012) (awareness

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of need for treatment followed by unnecessary delay in implementing the prescribed

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treatment sufficient to plead deliberate indifference); see also Snow v. McDaniel, 681

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F.3d 978, 988 (9th Cir. 2012) (decision of non-treating, non-specialist physicians to

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repeatedly deny recommended surgical treatment may be medically unacceptable under

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all the circumstances). The allegations in Plaintiff's complaint fail to meet this demanding

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standard.

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V.

CONCLUSION AND RECOMMENDATION

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Plaintiff’s first amended complaint fails to state a cognizable claim. He previously

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was advised of pleading deficiencies and afforded the opportunity to correct them. He

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failed to do so. Any further leave to amend reasonably appears futile and should be

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denied.

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The undersigned recommends that the action be dismissed with prejudice, that

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dismissal count as a strike pursuant to 28 U.S.C. § 1915(g), and that the Clerk of the

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Court terminate any and all pending motions and close the case.

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The findings and recommendation will be submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1).

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Within fourteen (14) days after being served with the findings and recommendation, the

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parties may file written objections with the Court. The document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendation.” A party may respond

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to another party’s objections by filing a response within fourteen (14) days after being

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served with a copy of that party’s objections. The parties are advised that failure to file

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objections within the specified time may result in the waiver of rights on appeal.

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Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923

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F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

April 13, 2016

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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