Feliciano v. Igbinosa et al

Filing 26

FINDINGS and RECOMMENDATIONS recommending that 25 Plaintiff's Second Amended Complaint With Prejudice for Failure to State a Claim signed by Magistrate Judge Jennifer L. Thurston on 4/28/2017. Referred to Judge Drozd. Objections to F&R due within thirty (30) days. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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VALENTIN FELICIANO,

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Plaintiff,

FINDINGS AND RECOMMENDATIONS TO
DISMISS SECOND AMENDED
COMPLAINT WITH PREJUDICE FOR
FAILURE TO STATE
A CLAIM

Defendants.

(Doc. 25)

v.

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IGBINOSA, et al.,

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30-DAY DEADLINE

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Case No. 1:15-cv-01735-DAD-JLT (PC)

I.

Findings

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A.

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Plaintiff’s initial Complaint in this action complained of events that occurred from

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roughly 2011 through 2014, while he was housed at Pleasant Valley State Prison, when he

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contracted Valley Fever for which he received inadequate medical care. (Doc. 1-2.) Plaintiff was

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provided the pleading requirements and legal standards for his delineated claims and has twice

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been given opportunity to amend his allegations. (Docs. 11, 21.) Despite this, Plaintiff fails to

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state factual allegations specific to his delineated claims and does not link any of the individuals

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named as defendants to any factual allegations in the Second Amended Complaint. (Doc. 25.)

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Further, Plaintiff exceeded the scope of leave to amend which was previously granted (Doc. 11, p.

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10) by adding allegations dating as far back as January 8, 2004, which are barred by the statute of

Procedural History

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limitations (Doc. 25, p. 4). Accordingly, the action should be DISMISSED with prejudice.

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B.

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

Screening Requirement

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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, malicious, fail to state a claim upon which relief may be granted, or that seek 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)(i)-(iii). If an action is dismissed on one of these three bases, a strike is imposed

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per 28 U.S.C. § 1915(g). An inmate who has had three or more prior actions or appeals dismissed

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as frivolous, malicious, or for failure to state a claim upon which relief may be granted, and has

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not alleged imminent danger of serious physical injury does not qualify to proceed in forma

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pauperis. See 28 U.S.C. § 1915(g); Richey v. Dahne, 807 F.3d 1201, 1208 (9th Cir. 2015).

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

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immunities secured by the Constitution and laws of the United States.” Wilder v. Virginia Hosp.

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Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of

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substantive rights, but merely provides a method for vindicating federal rights conferred

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elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989).

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To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a

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right secured by the Constitution or laws of the United States was violated and (2) that the alleged

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violation was committed by a person acting under the color of state law. See West v. Atkins, 487

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U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987).

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C.

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Plaintiff complains of incidents that apparently occurred at PVSP, though he is currently

Summary of the Second Amended Complaint

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housed at the Correctional Training Facility in Soledad, California. Plaintiff names Drs. Igbinosa,

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Darren Bright, Paul Brazelton, Peter Lamb, Ifemoa Ogbehi, and Luomg Nguyen as the defendants

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in this action and seeks monetary damages.

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In his first claim, for deliberate indifference to a known serious risk under the Eighth

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Amendment, Plaintiff alleges that at PVSP, though he was regularly exposed to wind blowing up

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dust, he did not always receive a mask to wear, which caused him to contract Valley Fever. On

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January 8, 2004, Plaintiff was transferred to CTF. (Doc. 25, pp. 3-4.) In his second claim, for

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deliberate indifference to his serious medical condition, Plaintiff alleges that at CTF, he was not

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properly diagnosed with Valley Fever and when it was diagnosed, he did not receive proper

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medical attention. (Id., pp. 4-5.)

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It is recommended that this action be dismissed with prejudice. Plaintiff has exceeded

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leave to amend granted by adding a claim that is clearly barred by the statute of limitations.

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Further, despite repeated opportunity and direction, Plaintiff fails to link any of the persons

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named as defendants to his allegations.
C.

Pleading Requirements
1. Federal Rule of Civil Procedure 8(a)

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"Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited

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exceptions," none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534

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U.S. 506, 512 (2002); Fed. R. Civ. Pro. 8(a). A complaint must contain "a short and plain

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statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. Pro. 8(a).

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"Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and

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the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512.

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Detailed factual allegations are not required, but A[t]hreadbare recitals of the elements of a

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cause of action, supported by mere conclusory statements, do not suffice.@ Ashcroft v. Iqbal, 556

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

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Plaintiff must set forth Asufficient factual matter, accepted as true, to >state a claim that is

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plausible on its face.=@ Iqbal, 556 U.S. at 678, quoting Twombly, 550 U.S. at 555. Factual

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allegations are accepted as true, but legal conclusions are not. Iqbal. at 678; see also Moss v. U.S.

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Secret Service, 572 F.3d 962, 969 (9th Cir. 2009); Twombly, 550 U.S. at 556-557.

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While Aplaintiffs [now] face a higher burden of pleadings facts . . . ,@ Al-Kidd v. Ashcroft,
580 F.3d 949, 977 (9th Cir. 2009), the pleadings of pro se prisoners are still construed liberally

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and are afforded the benefit of any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).

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However, "the liberal pleading standard . . . applies only to a plaintiff's factual allegations," Neitze

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v. Williams, 490 U.S. 319, 330 n.9 (1989), "a liberal interpretation of a civil rights complaint may

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not supply essential elements of the claim that were not initially pled," Bruns v. Nat'l Credit

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Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) quoting Ivey v. Bd. of Regents, 673 F.2d 266,

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268 (9th Cir. 1982), and courts are not required to indulge unwarranted inferences, Doe I v. Wal-

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Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation

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omitted). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, and

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“facts that are ‘merely consistent with’ a defendant’s liability” fall short of satisfying the

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plausibility standard. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949; Moss, 572 F.3d at 969.

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Plaintiff’s allegations fail to do more than state generalized complaints he has of not
receiving the appropriate treatment for his condition in a timely manner.

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2. Linkage Requirement

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To state a claim under 42 USC § 1983, there be an actual connection or link between the

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actions of the defendants and the deprivation alleged to have been suffered by Plaintiff. See

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Monell v. Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362

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(1976). The Ninth Circuit has held that A[a] person >subjects= another to the deprivation of a

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constitutional right, within the meaning of section 1983, if he does an affirmative act, participates

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in another=s affirmative acts or omits to perform an act which he is legally required to do that

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causes the deprivation of which complaint is made.@ Johnson v. Duffy, 588 F.2d 740, 743 (9th

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Cir. 1978). In order to state a claim for relief under section 1983, Plaintiff must link each named

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defendant with some affirmative act or omission that demonstrates a violation of Plaintiff=s

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federal rights.

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As previously mentioned, Plaintiff not only fails to state any factual allegations regarding

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the deficiencies in medical treatment, but also fails to link any of the individuals he named as

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defendants to any allegations whatsoever. He does not mention a single named defendant in any

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of his factual allegations. Thus, he fails to demonstrate an actual connection or link between the

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actions (or inaction) of anyone he named as a defendant and the deprivation he allegedly suffered.

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Further, as discussed below, even if Plaintiff had properly linked a defendant to his factual

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allegations, they are not cognizable.

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II.

Analysis

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A.

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In his first claim, for deliberate indifference to a known serious risk under the Eighth

Claim #1

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Amendment, Plaintiff alleges that at PVSP until January 8, 2004, though he was regularly

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exposed to wind blowing up dust, he did not always receive a mask to wear, which caused him to

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contract Valley Fever. (Doc. 25, pp. 3-4.) This claim is barred by the statute of limitations.

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The applicable statute of limitations starts to run upon accrual of the plaintiff’s claim, i.e.

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when he knows or has reason to know of the injury that is the basis of his action, Douglas v.

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Noelle, 567 F.3d 1103, 1109 (9th Cir. 2009), which is normally on the date of injury, Ward v.

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Westinghouse Canada, Inc., 32 F.3d 1405, 1407 (9th Cir.1994). Actions under section 1983 fall

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under the limitations period from the forum state’s statute of limitations for personal injury torts,

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see Wallace v. Kato, 549 U.S. 384, 387 (2007), which is two years in California, see Maldonado

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v. Harris, 370 F.3d 945, 954 (9th Cir. 2004); Cal. Civ. Proc. Code § 335.1.

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The two-year statute of limitations period is tolled for two years if the plaintiff is a

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prisoner serving a term of less than life which gives such prisoners effectively four years to file a

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federal suit. See Cal. Civ. Proc. Code § 352.1(a); Azer v. Connell, 306 F.3d 930, 936 (9th Cir.

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2002) (federal courts borrow the state’s California’s equitable tolling rules if they are not

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inconsistent with federal law). Though the term of Plaintiff’s sentence is not known, the

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limitations period for his claims would not differ if he were serving a term of life with the

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possibility of parole, as that is considered a term of less than life. Martinez v. Gomez, 137 F.3d

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1124, 1126 (9th Cir. 1998). Further, in California “[l]imitations are tolled during period of

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imprisonment of persons sentenced to life imprisonment.” Cal. Civ. Proc. Code § 352.1, note

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(West Ann. 2017) (2. Construction and application) (citing Grasso v. McDonough Power Equip.,

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264 Cal.App.2d 597, 601, 70 Cal.Rptr. 458 (1968) (reversed dismissal on demurrer based on

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statute of limitations of action brought by inmate sentenced to a life term roughly nine years after

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precipitating incident,)); see also Brooks v. Mercy Hosp., 1 Cal.App.5th 1, 6-7 (2016) (finding “. .

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. Grasso remains good law.”)

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Without knowing Plaintiff’s sentence, he had a minimum of four years from the date of

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the incidents at issue to file suit. The events Plaintiff alleges in Claim #1 occurred while he was

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at PVSP, before he was transferred to CTF on January 8, 2004. (Doc. 25, pp. 3-4.) Thus, the

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latest that Plaintiff could have filed an action on this claim was January 8, 2008. Plaintiff did not

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file this action until September 1, 2015, (Doc. 1-2, p. 2), which was over seven years too late.

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Claim #1 is barred by the statute of limitations.

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B.

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In his second claim, for deliberate indifference to his serious medical condition, Plaintiff

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alleges that while housed at CTF, he was not properly diagnosed with Valley Fever and when it

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was diagnosed, he did not receive proper medical attention. (Doc. 25, pp. 4-5.)

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Claim #2

To maintain an Eighth Amendment claim based on medical care in prison, a plaintiff must

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first “show a serious medical need by demonstrating that failure to treat a prisoner’s condition

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could result in further significant injury or the unnecessary and wanton infliction of pain. Second,

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the plaintiff must show the defendants’ response to the need was deliberately indifferent.”

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Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (quoting Jett v. Penner, 439 F.3d 1091,

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1096 (9th Cir. 2006) (quotation marks omitted)).

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The existence of a condition or injury that a reasonable doctor would find important and

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worthy of comment or treatment, the presence of a medical condition that significantly affects an

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individual’s daily activities, and the existence of chronic or substantial pain are indications of a

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serious medical need. Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (citing McGuckin v.

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Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc.

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v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc)) (quotation marks omitted); Doty v.

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County of Lassen, 37 F.3d 540, 546 n.3 (9th Cir. 1994). For screening purposes, Plaintiff's

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allegation that he has Valley Fever is accepted as a serious medical need.

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Deliberate indifference is “a state of mind more blameworthy than negligence” and

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“requires ‘more than ordinary lack of due care for the prisoner’s interests or safety.’” Farmer,

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511 U.S. at 835 (quoting Whitley, 475 U.S. at 319). “Deliberate indifference is a high legal

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standard.” Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir.2004). “Under this standard, the

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prison official must not only ‘be aware of the facts from which the inference could be drawn that

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a substantial risk of serious harm exists,’ but that person ‘must also draw the inference.’” Id. at

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1057 (quoting Farmer, 511 U.S. at 837). “‘If a prison official should have been aware of the risk,

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but was not, then the official has not violated the Eighth Amendment, no matter how severe the

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risk.’” Id. (quoting Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)).

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Plaintiff alleges that he saw “the doctor” and described “feeling really bad” a number of

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times. Plaintiff alleges that one time he was seen by the doctor, Plaintiff asked him why he would

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not do a blood test. Plaintiff does not allege what the doctor’s response was, but in the next

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sentence Plaintiff alleges: “Later I went back to see the doctor to tell me that the blood analysis

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showed nothing was wrong that I was fine.” (Doc. 25, p. 5.) Plaintiff provides no explanation of

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what he had, or how he should have been treated in light of negative blood analysis. Plaintiff

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alleges that he continued to suffer with symptoms and “feel bad” and that the doctor continued to

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prescribe pain pills for him -- which does not show deliberate indifference or a lack of treatment

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for Plaintiff’s condition. Plaintiff alleges that he continued to submit requests for medical

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services and that one time he had to go to the emergency room for a fever, severe body aches and

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pain, that it even hurt to walk, and that his head and eyes ache from “the heat or fever” . . . “from

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the inside,” but that his body temperature was normal. But Plaintiff fails to provide any

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explanation as to what medical need he had that was not attended to by a defendant in this action.

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Plaintiff does not name or even mention any of the defendants he has named in this action in his

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factual allegations to link them to deprivation of his rights as required under § 1983. Plaintiff

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merely refers to “the doctor” or “the Psychologist” throughout the Second Amended Complaint,

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which is insufficient to show that any of the defendants were aware he had Valley Fever and

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acted with deliberate indifference to the risks that it posed to Plaintiff. In fact, though Plaintiff

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alludes that he has contracted Valley Fever, he does not state that any diagnosis has been made, or

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that medical findings indicative of Valley Fever were known for the defendants to have

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responded with deliberate indifference.

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III.

CONCLUSION

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Plaintiff’s Second Amended Complaint fails to state a cognizable claim against any of the

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named Defendants. Given Plaintiff’s attempt to include a claim that is clearly time-barred and his

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persistence in not naming a single defendant in his factual allegations, it appears futile to allow

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further amendment and leave need not be extended. Akhtar v. Mesa, 698 F.3d 1202, 1212-13 (9th

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Cir. 2012).

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Accordingly, the Court RECOMMENDS that this action be dismissed with prejudice.

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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 Title 28 U.S.C. ' 636(b)(l). Within 30-

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days after being served with these Findings and Recommendations, Plaintiff may file written

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objections with the Court. The document should be captioned AObjections to Magistrate Judge=s

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Findings and Recommendations.@ Plaintiff is advised that failure to file objections within the

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specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834,

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839 (9th Cir. Nov. 18, 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

April 28, 2017

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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