Ramirez v. Frauenhem et al

Filing 11

ORDER DISMISSING this Action for Failure to State a Claim upon which relief could be Granted and that this action Count as a Strike pursuant to 28:1915(g), signed by Magistrate Judge Barbara A. McAuliffe on 10/11/2016. CASE CLOSED (Strike) (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOSE RAMIREZ,

Case No. 1:15-cv-01931-BAM-PC

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Plaintiff,

ORDER DISMISSING THIS ACTION FOR
FAILURE TO STATE A CLAIM UPON
WHICH RELIEF COULD BE GRANTED
AND THAT THIS ACTION COUNT AS A
STRIKE PURSUANT TO 28 U.S.C. §
1915(g)

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v.
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S. FRAUENHEIM, et al.,
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Defendants.
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Plaintiff is a state prisoner proceeding pro se and in forma pauperis pursuant to 42 U.S.C.
§ 1983. Plaintiff has consented to magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c). 1
Currently before the Court is Plaintiff’s June 9, 2016, first amended complaint, filed in response
to the May 24, 2016, order, dismissing the original complaint for failure to state a claim for relief
and granting Plaintiff leave to file an amended complaint. (ECF No. 9.)

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I.

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SCREENING REQUIREMENT

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The Court is required to screen complaints brought by prisoners seeking relief against a
governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a).
The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are
legally “frivolous or malicious,” that “fail to state a claim on which relief may be granted,” or
that “seek monetary relief against a defendant who is immune from such relief.” 28 U.S.C. §
1915(e)(2)(B)(ii).

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Plaintiff filed a consent to proceed before a magistrate judge on February 25, 2016. (ECF No. 8.)

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

2 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not
3 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere
4 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(citing Bell
5 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken
6 as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores,
7 Inc., 572 F.3d 677, 681 (9th Cir. 2009)(internal quotation marks and citations omitted).
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Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings

9 liberally construed and to have any doubt resolved in their favor. Hebbe v. Pliler, 627 F.3d 338,
10 342 (9th Cir. 2010)(citations omitted). To survive screening, Plaintiff’s claims must be facially
11 plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each
12 named defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss v. U.S.
13 Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant has
14 acted unlawfully” is not sufficient, and “facts that are ‘merely consistent with’ a defendant’s
15 liability” falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572
16 F.3d at 969.
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II.

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COMPLAINT ALLEGATIONS

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

20 Rehabilitation (CDCR) at Pleasant Valley State Prison (PVSP), brings this lawsuit against
21 Defendant correctional officials employed by the CDCR at PVSP. Plaintiff names the following
22 individual Defendants: Warden S. Frauenheim; Chief Dentist, Dental Authorization Review
23 Committee (DAR); Chief Dentist, Policy and Risk Management, Dental Program Health Care
24 Review Committee (DPHRC), and three John Doe dentists. Plaintiff’s claim stems from his
25 dental treatment.
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On June 2, 2012, Plaintiff was housed at Kern Valley State Prison. Plaintiff requested

27 dental treatment because he was experiencing pain around his temple whenever he ate. Plaintiff
28 was seen by a dentist, who suggested that Plaintiff may be grinding his teeth, and issued Plaintiff

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1 a mouth guard. Plaintiff explained that he was not grinding his teeth, and asked to be seen by
2 specialist.

Plaintiff alleges that the DAR approved an appointment with a specialist.

On

3 November 29, 2012, Plaintiff was seen by a specialist, Dr. McQuirter, who recommended
4 surgery in combination with orthodontics.
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Plaintiff was subsequently transferred to Pleasant Valley State Prison. The DAR at

6 Pleasant Valley denied the recommendation by the specialist.

Plaintiff continued to inform

7 officials of the pain and headaches. Plaintiff alleges that on June 17, 2015, he was seen by
8 another specialist “on accident.” (ECF No. 10, p. 4.) The specialist, Dr. Norris, diagnosed
9 Plaintiff with a malocclusion (severe underbite), and recommended treatment similar to that
10 prescribed by Dr. McQuirter. The DAR and DPHRC denied the proposed treatment plan. On
11 August 10, 2015, Plaintiff filed an institutional appeal. Plaintiff’s appeal was bypassed to the
12 second level, and was denied at the third and final level on the ground that the treatment was not
13 covered “under policy and procedure.” (Id. p. 6.)
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III.

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DISCUSSION

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A.

Eighth Amendment

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While the Eighth Amendment of the United States Constitution entitles Plaintiff to

18 medical care, the Eighth Amendment is violated only when a prison official acts with deliberate
19 indifference to an inmate’s serious medical needs. Snow v. McDaniel, 681 F.3d 978, 985 (9th
20 Cir. 2012), overruled in part on other grounds, Peralta v. Dillard, 744 F.3d 1076, 1082-83 (9th
21 Cir. 2014); Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012); Jett v. Penner, 439 F.3d
22 1091, 1096 (9th Cir. 2006). Plaintiff “must show (1) a serious medical need by demonstrating
23 that failure to treat [his] condition could result in further significant injury or the unnecessary and
24 wanton infliction of pain,” and (2) that “the defendant’s response to the need was deliberately
25 indifferent.” Wilhelm, 680 F.3d at 1122 (citing Jett, 439 F.3d at 1096). Deliberate indifference
26 is shown by “(a) purposeful act or failure to respond to a prisoner’s pain or possible medical
27 need, and (b) harm caused by the indifference.” Wilhelm, 680 F.3d at 1122 (citing Jett, 439 F.3d
28 at 1096). The requisite state of mind is one of subjective recklessness, which entails more than

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1 ordinary lack of due care. Snow, 681 F.3d at 985 (citation and quotation marks omitted)
2 Wilhelm, 680 F.3d at 1122.
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“A difference of opinion between a physician and the prisoner – or between medical

4 professionals – concerning what medical care is appropriate does not amount to deliberate
5 indifference.” Snow, 681 F.3d at 987 (citing Sanchez v. Vild, 891 F.2d 240, 242 ((9th Cir.
6 1989)), overruled in part on other grounds, Peralta, 744 F.3d at 1082-83; Wilhelm, 680 F.3d at
7 122-23 (citing Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1986)). Rather, Plaintiff “must
8 show that the course of treatment the doctors chose was medically unacceptable under the
9 circumstances and that the defendants chose this course in conscious disregard of an excessive
10 risk to [his] health.” Snow, 681 F.3d at 988 (citing Jackson, 90 F.3d at 332 (internal quotation
11 marks omitted).
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Here, Plaintiff alleges at most a disagreement with the conclusions of the Dental

13 Authorization Review Committee, and the Dental Program Health Care Review Committee. In
14 order to hold an individual defendant liable, Plaintiff must name the individual defendant,
15 describe where that defendant is employed and in what capacity, and explain how that defendant
16 acted under color of state law.

Plaintiff must allege facts indicating that the individual

17 defendants were aware of an objectively serious medical or dental condition, and acted with
18 deliberate indifference to that condition. Plaintiff has failed to do so here. The facts alleged
19 indicate that, in the view of the medical professionals, Plaintiff’s condition did not merit the
20 treatment that Plaintiff sought.

Plaintiff’s subjective belief that he should be afforded the

21 treatment that he sought does not subject Defendants to liability. In the May 24, 2016, order
22 dismissing the original complaint, Plaintiff was advised that he must allege facts that “show that
23 the course of treatment the doctors chose was medically unacceptable under the circumstances
24 and the defendants chose this course in conscious disregard of an excessive risk to [his] health.”
25 Snow, 681 F.3d at 988 (citing Jackson, 90 F.3d at 332 (internal quotation marks omitted). (ECF
26 No. 9 at 5:11-13.) Plaintiff has failed to do so here. Plaintiff’s Eighth Amendment deliberate
27 indifference claim should therefore be dismissed for failure to state a claim upon which relief
28 may be granted.

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B.

Supervisory Liability

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Section 1983 provides a cause of action for the violation of Plaintiff’s constitutional or

3 other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d
4 1087, 1092 (9th Cir. 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir.
5 2006); Jones v. Williams, 297 F.3d 930, 943 (9th Cir. 2002). To state a claim, Plaintiff must
6 demonstrate that each defendant personally participated in the deprivation of his rights.
7 Aschfroft v. Iqbal, 556 U.S. 662, 673 (2009); Simmons v. Navajo County, Ariz., 609 F.3d 1011,
8 1020-21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones,
9 297 F.3d at 934.
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The only identified Defendants in this action are the Warden and Chief Dentists.

11 Liability may not be imposed on supervisory personnel for the acts or omissions of their
12 subordinates under the theory of respondeat superior. Iqbal, 556 U.S. at 672-673; Simmons, 609
13 F.3d at 1020-21; Ewing, 588 F.3d at 1235; Jones, 297 F.3d at 934. Supervisors may be held
14 liable only if they “participated in or directed the violations, or knew of the violations and failed
15 to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); accord Starr v.
16 Baca, 625 F.3d 1202, 1205-06 (9th Cir. 2011); Corales v. Bennett, 567 F.3d 554, 570 (9th Cir.
17 2009); Preschooler II v. Clark County School Board of Trustees, 479 F.3d 1175, 1182 (9th Cir.
18 2007); Harris v. Roderick, 126 F.3d 1189, 1204 (9th Cir. 1997).
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The only other Defendants are the two committees that rejected Plaintiff’s request.

20 Plaintiff may not allege conduct by a committee or group of defendants, and hold that group of
21 defendants liable. Plaintiff must allege conduct as to each individual Defendant. Plaintiff is also
22 advised that the Court cannot order service of process on unidentified defendants. Plaintiff must
23 identify each defendant, and must state the acts or omissions of each individual defendant that
24 caused the constitutional violation alleged. Plaintiff’s allegations must contain sufficient factual
25 detail to state a plausible claim that the individual defendant personally participated in the
26 violation of Plaintiff’s rights.

Plaintiff’s general conclusory allegations fail to state any

27 cognizable claims for relief.
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IV.

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CONCLUSION AND ORDER

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Plaintiff was previously notified of the applicable legal standard and the deficiencies in

4 his pleading, and despite guidance from the Court, Plaintiff’s June 9, 2016, first amended
5 complaint is largely identical to the original complaint. Based upon the allegations in Plaintiff’s
6 original and first amended complaint, the Court is persuaded that Plaintiff is unable to allege any
7 additional facts that would support a claim for deliberate indifference to a serious medical need
8 in violation of the Eighth Amendment, and further amendment would be futile. See Hartmann v.
9 CDCR, 707 F.3d 1114, 1130 (9th Cir. 2013) (“A district court may deny leave to amend when
10 amendment would be futile.”)

Based on the nature of the deficiencies at issue, the Court finds

11 that further leave to amend is not warranted. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir.
12 2000); Noll v. Carlson, 809 F.2d 1446-1449 (9th Cir. 1987).
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Accordingly, IT IS HEREBY ORDERED that:

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1. This action is dismissed for failure to state a claim upon which relief could be
granted;

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2. This action counts as a strike pursuant to 28 U.S.C. § 1915(g); and

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3. The Clerk’s Office is directed to close this case.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

October 11, 2016

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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