Lewis v. Ogbeuhi, et al.

Filing 10

ORDER DISMISSING ACTION for Failure to State a Claim signed by Magistrate Judge Barbara A. McAuliffe on 5/3/2017. CASE CLOSED. (Jessen, A)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ASAD LEWIS, 12 13 14 Case No. 1:16-cv-00603-BAM (PC) Plaintiff, ORDER DISMISSING ACTION FOR FAILURE TO STATE A CLAIM v. I. OGBEUHI, et al. 15 Defendants. 16 17 I. Screening Requirement and Standard 18 Plaintiff Asad Lewis (“Plaintiff”) is a state prisoner proceeding pro se and in forma 19 pauperis in this civil rights action under 42 U.S.C. § 1983. Plaintiff consented to magistrate judge 20 jurisdiction. (ECF No. 5.) On January 17, 2017, the Court dismissed Plaintiff’s complaint with 21 leave to amend. (ECF No. 6.) Plaintiff’s first amended complaint, filed on March 2, 2017, is 22 currently before the Court for screening. (ECF No. 9.) 23 The Court is required to screen complaints brought by prisoners seeking relief against a 24 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. § 25 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous or 26 malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary 27 relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2); Id. § 28 1915(e)(2)(B)(ii). 1 1 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 as 6 true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 7 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 8 To survive screening, Plaintiff’s claims must be facially plausible, which requires 9 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable 10 for the misconduct alleged. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949 (quotation marks omitted); 11 Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that 12 a defendant acted unlawfully is not sufficient, and mere consistency with liability falls short of 13 satisfying the plausibility standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 14 F.3d at 969. Plaintiff’s Allegations 15 II. 16 Plaintiff is currently incarcerated at Deuel Vocational Institution in Tracy, California. The 17 events in the complaint are alleged to have occurred while he was incarcerated at Pleasant Valley 18 State Prison in Coalinga, California. Plaintiff names the following defendants in their individual 19 and official capacities: (1) Nurse Practitioner I. Ogbeuhi; (2) Sergeant J. Benavides; (3) Chief 20 Physician A. Ola; and (4) Licensed Vocational Nurse R. Hanson. 21 Plaintiff alleges the following: 22 On May 23, 2014, Plaintiff submitted a CDCR Form 1824 Reasonable Modification or 23 Accommodation Request in order to mitigate his lower back pain. On the same date, Plaintiff 24 complained to Defendant I. Ogbeuhi that he had been and was still suffering from severe lower 25 back pain, and requested a back brace. Defendant acknowledged his suffering and sent him to 26 therapy for lower back pain. However, even after Plaintiff completed therapy, Defendant I. 27 Ogbeuhi refused to issue Plaintiff a back brace despite telling Plaintiff to complete therapy first. 28 Defendant I. Ogbeuhi became upset and hostile to Plaintiff for requesting that Defendant issue a 2 1 back brace to lessen lower back pain. 2 Shortly thereafter, Plaintiff submitted another request for medical attention. Plaintiff was 3 seen by Defendant I. Ogbeuhi, who was hostile when Plaintiff continued to complain of lower 4 back and needing a back brace. Defendant I. Ogbeuhi stated, “We don’t give back braces, what 5 we do is give pills!” As Plaintiff tried to inform Defendant I. Ogbeuhi of his pain and need, 6 Defendant I. Ogbeuhi exclaimed, “I don’t do that!” Defendant I. Ogbeuhi eventually approved a 7 back brace for Plaintiff, but never issued it. 8 Approximately four months later, Defendant I. Ogbeuhi sent Defendant Benevides to 9 Plaintiff’s cell to collect the back brace that was never issued. Defendant Benevides pressured 10 Plaintiff to produce a back brace and threatened to search Plaintiff’s cell. Defendant Benevides 11 then ordered Plaintiff to remain standing in the dayroom as he left for the medical office. 12 Plaintiff stood with a cane for approximately 30 minutes until Defendant Benevides returned. 13 Plaintiff then was escorted to the medical office where a back brace was issued. 14 On September 29, 2014, Plaintiff alleges that Defendant R. Hanson issued a back brace at 15 the order of Defendant I. Ogbeuhi. Defendant Hanson asked Plaintiff to sign a receipt. As 16 Plaintiff signed, Defendant Hanson stated, “This is to prove we complied and accommodated 17 you.” On September 30, 2014, Defendant Hanson called Plaintiff to the medical office and took 18 the back brace from Plaintiff without reason. 19 Plaintiff submitted several requests for medical services that went unanswered. 20 At some point, one of the defendants placed a phone call to the chief medical officer in 21 Plaintiff’s presence and discussed Plaintiff’s lower back issue. Plaintiff asserts that this makes it 22 clear that the Chief Medical Officer A. Ola was aware of Plaintiff’s condition and Defendant I. 23 Ogbeuhi’s actions regarding the back brace. 24 Plaintiff claims that Defendant I. Ogbeuhi was deliberately indifferent to his medical 25 condition by refusing him a back brace after Plaintiff completed therapy for lower back pain and 26 continued to suffer pain. Plaintiff claims that Defendant R. Hanson demonstrated deliberate 27 indifference by taking the back brace from Plaintiff twenty-four (24) hours after issuing it. 28 Plaintiff claims that Defendant Ola showed deliberate indifference because he was made aware of 3 1 Plaintiff’s lower back pain and request for back brace, but did not act to remedy the problem. 2 Plaintiff claims that Defendant Benevides demonstrated deliberate indifference to Plaintiff’s 3 medical issue by demanding that Plaintiff remain standing for approximately 30 minutes when 4 Plaintiff has limits on standing for no longer than 15 minutes at a time. Defendant Benevides 5 knew of the 15 minute limit because he held a copy of the medical information in his hand and 6 had read it to Plaintiff just minutes before. 7 8 9 10 Plaintiff seeks compensatory and punitive damages in the amount of $30,000.00 from each defendant, plus costs, and any other relief the Court finds proper. III. Discussion A. Eleventh Amendment – Official Capacity 11 Section 1983 authorizes a federal civil rights action against any “person” who acts under 12 color of state law. 42 U.S.C. § 1983. “Persons” who may be sued under Section 1983 do not 13 include a state or its entities, or state employees acting in their official capacities. See Will v. 14 Michigan Dept. of State Police, 491 U.S. 58, 71 (1989); see also Kentucky v. Graham, 473 U.S. 15 159 (1985) (the Eleventh Amendment bars federal damages action against a state and its entities). 16 Claims for damages against the state, its agencies or its officers for actions performed in 17 their official capacities are barred under the Eleventh Amendment, unless the state waives its 18 immunity. Kentucky, 473 U.S. at 169; see also Will, 491 U.S. at 71 (neither a state nor its officials 19 acting in their official capacities are persons under § 1983). Section 1983 does not abrogate the 20 states’ Eleventh Amendment immunity from suit. See Quern v. Jordan, 440 U.S. 332, 344-45 21 (1979); see also Hafer v. Melo, 502 U.S. 21, 30 (1991) (clarifying that the Eleventh Amendment 22 does not bar suits against state officials sued in their individual capacities). 23 Therefore, Plaintiff may not pursue his claims damages against the Defendants in their 24 official capacities. However, Plaintiff may pursue claims for damages under section 1983 against 25 the Defendants in their individual capacities. 26 B. Supervisory Liability 27 Plaintiff does not allege that Defendant Ola, the Chief Physician, provided treatment or 28 examined him on any occasion. Instead, Plaintiff’s Eighth Amendment claim against Defendant 4 1 Ola appears to arise out of Defendant Ola’s role as a supervising physician. 2 Liability may not be imposed on supervisory personnel for the actions or omissions of 3 their subordinates under the theory of respondeat superior. Iqbal, 556 U.S. at 676–77; Simmons v. 4 Navajo County, Ariz., 609 F.3d 1011, 1020–21 (9th Cir. 2010); Ewing v. City of Stockton, 588 5 F.3d 1218, 1235 (9th Cir. 2009); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). 6 Supervisors may be held liable only if they “participated in or directed the violations, or knew of 7 the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 8 1989); accord Starr v. Baca, 652 F.3d 1202, 1205–06 (9th Cir. 2011); Corales v. Bennett, 567 9 F.3d 554, 570 (9th Cir. 2009). Thus, a supervisor’s participation can include his “own culpable 10 action or inaction in the training, supervision, or control of his subordinates,” “his acquiescence in 11 the constitutional deprivations of which the complaint is made,” or “conduct that showed a 12 reckless or callous indifference to the rights of others.” Starr, 652 F.3d at 1205–06. 13 Although Plaintiff alleges that Defendant Ola was aware of his lower back issue and 14 Defendant Ogbeuhi’s action regarding the back brace, this allegation is not sufficient to state a 15 cognizable claim. There is no indication that Defendant Ola examined Plaintiff or knew that 16 Plaintiff required a back brace. Further, Plaintiff’s allegations confirm that he received treatment 17 for his back, which included physical therapy and a subsequent order for a back brace. 18 C. Deliberate Indifference to Serious Medical Needs 19 “[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate 20 must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091, 21 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 291 (1976)). 22 The two part test for deliberate indifference requires the plaintiff to show (1) “a ‘serious medical 23 need’ by demonstrating that failure to treat a prisoner’s condition could result in further 24 significant injury or the ‘unnecessary and wanton infliction of pain,’” and (2) “the defendant’s 25 response to the need was deliberately indifferent.” Jett, 439 F.3d at 1096. 26 Deliberate indifference is shown where the official is aware of a serious medical need and 27 fails to adequately respond. Simmons, 609 F.3d at 1018. “Deliberate indifference is a high legal 28 standard.” Id. at 1019; Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). The prison official 5 1 must be aware of facts from which he could make an inference that “a substantial risk of serious 2 harm exists” and he must make the inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). 3 Mere difference of medical opinion is insufficient to state a claim for deliberate indifference. 4 Toguchi, 391 F.3d at 1058. 5 Defendant Ogbeuhi 6 Plaintiff fails to state a claim for deliberate indifference against Defendant Ogbeuhi. As 7 alleged, Defendant Ogbeuhi offered pills, ordered physical therapy and subsequently ordered a 8 back brace to treat Plaintiff’s lower back pain. Given Defendant Ogbeuhi’s provision of various 9 treatment modalities, Plaintiff cannot maintain a claim of deliberate indifference to serious Further, Plaintiff’s allegations that Defendant Ogbeuhi ordered Defendant 10 medical needs. 11 Benevides to collect the back brace suggest that Defendant Ogbeuhi was unaware that a back 12 brace had not been issued. Absent such knowledge, Defendant Ogbeuhi could not have been 13 deliberately indifferent based on the failure to issue a back brace. 14 As a final matter, Plaintiff appears to allege that Defendant Ogbeuhi’s request for return of 15 the back brace showed deliberate indifference. However, the fact that Defendant Ogbeuhi asked 16 that the back brace be returned is not sufficient to state a cognizable claim for deliberate 17 indifference. At most, Plaintiff has raised a difference of medical opinion regarding his need for 18 a back brace. A difference of opinion does not amount to a deliberate indifference to Plaintiff’s 19 serious medical needs. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). 20 Defendant Benavides 21 Plaintiff fails to state a claim for deliberate indifference against Defendant Benavides. 22 First, Plaintiff’s allegation that Defendant Benevides pressured Plaintiff to produce a back brace 23 and threatened to search Plaintiff’s cell is not sufficient to support an Eighth Amendment claim. 24 Mere threats do not violate the Eighth Amendment. See Corales, 567 F.3d at 564-65 (citation 25 omitted). 26 Second, Plaintiff’s claim that Defendant Benevides demanded that Plaintiff remain 27 standing for approximately 30 minutes despite being aware that Plaintiff was limited to fifteen 28 minutes of standing is not sufficient to support a deliberate indifference claim. Plaintiff fails to 6 1 allege facts suggesting he incurred any form of harm because of Defendant Benevides’ actions. 2 Third, and finally, Plaintiff fails to allege facts evidencing that Defendant Benevides was 3 aware of Plaintiff’s alleged need for a back brace. At best, Plaintiff’s allegations indicate that 4 Defendant Benevides was merely following the directive of Plaintiff’s treating provider to 5 recover the back brace. 6 Defendant Hanson 7 Plaintiff claims that Defendant R. Hanson demonstrated deliberate indifference by taking 8 the back brace from Plaintiff twenty-four (24) hours after issuing it. This is insufficient to 9 support a cognizable deliberate indifference claim. As admitted by Plaintiff, Defendant Ogbeuhi 10 originally ordered the collection of Plaintiff’s back brace, and Plaintiff has demonstrated, at most, 11 a disagreement with his medical provider regarding the need for a back brace. Sanchez, 891 F.2d 12 at 242. 13 14 D. Conclusion and Order For the reasons stated, Plaintiff’s first amended complaint fails to state a claim upon 15 which relief may be granted. 16 standards, Plaintiff has been unable to cure the deficiencies identified by the Court, and further 17 leave to amend is not warranted. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). 18 19 Despite being provided with the relevant legal and pleading Accordingly, Plaintiff’s complaint is HEREBY DISMISSED for failure to state a cognizable claim. 20 21 22 IT IS SO ORDERED. Dated: /s/ Barbara May 3, 2017 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 7

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?