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)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ASAD LEWIS,

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Case No. 1:16-cv-00603-BAM (PC)
Plaintiff,

ORDER DISMISSING ACTION FOR
FAILURE TO STATE A CLAIM

v.
I. OGBEUHI, et al.

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Defendants.

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I.

Screening Requirement and Standard

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Plaintiff Asad Lewis (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action under 42 U.S.C. § 1983. Plaintiff consented to magistrate judge

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jurisdiction. (ECF No. 5.) On January 17, 2017, the Court dismissed Plaintiff’s complaint with

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leave to amend. (ECF No. 6.) Plaintiff’s first amended complaint, filed on March 2, 2017, is

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currently before the Court for screening. (ECF No. 9.)

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

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governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. §

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1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous or

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malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary

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relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2); Id. §

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1915(e)(2)(B)(ii).
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A complaint must contain “a short and plain statement of the claim showing that the

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pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not

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required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken as

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true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc.,

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

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To survive screening, Plaintiff’s claims must be facially plausible, which requires

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sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable

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for the misconduct alleged. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949 (quotation marks omitted);

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Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that

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a defendant acted unlawfully is not sufficient, and mere consistency with liability falls short of

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satisfying the plausibility standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572

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F.3d at 969.
Plaintiff’s Allegations

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II.

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Plaintiff is currently incarcerated at Deuel Vocational Institution in Tracy, California. The

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events in the complaint are alleged to have occurred while he was incarcerated at Pleasant Valley

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State Prison in Coalinga, California. Plaintiff names the following defendants in their individual

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and official capacities: (1) Nurse Practitioner I. Ogbeuhi; (2) Sergeant J. Benavides; (3) Chief

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Physician A. Ola; and (4) Licensed Vocational Nurse R. Hanson.

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Plaintiff alleges the following:

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On May 23, 2014, Plaintiff submitted a CDCR Form 1824 Reasonable Modification or

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Accommodation Request in order to mitigate his lower back pain. On the same date, Plaintiff

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complained to Defendant I. Ogbeuhi that he had been and was still suffering from severe lower

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back pain, and requested a back brace. Defendant acknowledged his suffering and sent him to

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therapy for lower back pain. However, even after Plaintiff completed therapy, Defendant I.

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Ogbeuhi refused to issue Plaintiff a back brace despite telling Plaintiff to complete therapy first.

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Defendant I. Ogbeuhi became upset and hostile to Plaintiff for requesting that Defendant issue a
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back brace to lessen lower back pain.

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Shortly thereafter, Plaintiff submitted another request for medical attention. Plaintiff was

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seen by Defendant I. Ogbeuhi, who was hostile when Plaintiff continued to complain of lower

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back and needing a back brace. Defendant I. Ogbeuhi stated, “We don’t give back braces, what

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we do is give pills!” As Plaintiff tried to inform Defendant I. Ogbeuhi of his pain and need,

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Defendant I. Ogbeuhi exclaimed, “I don’t do that!” Defendant I. Ogbeuhi eventually approved a

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back brace for Plaintiff, but never issued it.

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Approximately four months later, Defendant I. Ogbeuhi sent Defendant Benevides to

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Plaintiff’s cell to collect the back brace that was never issued. Defendant Benevides pressured

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Plaintiff to produce a back brace and threatened to search Plaintiff’s cell. Defendant Benevides

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then ordered Plaintiff to remain standing in the dayroom as he left for the medical office.

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Plaintiff stood with a cane for approximately 30 minutes until Defendant Benevides returned.

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Plaintiff then was escorted to the medical office where a back brace was issued.

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On September 29, 2014, Plaintiff alleges that Defendant R. Hanson issued a back brace at

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the order of Defendant I. Ogbeuhi. Defendant Hanson asked Plaintiff to sign a receipt. As

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Plaintiff signed, Defendant Hanson stated, “This is to prove we complied and accommodated

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you.” On September 30, 2014, Defendant Hanson called Plaintiff to the medical office and took

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the back brace from Plaintiff without reason.

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Plaintiff submitted several requests for medical services that went unanswered.

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At some point, one of the defendants placed a phone call to the chief medical officer in

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Plaintiff’s presence and discussed Plaintiff’s lower back issue. Plaintiff asserts that this makes it

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clear that the Chief Medical Officer A. Ola was aware of Plaintiff’s condition and Defendant I.

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Ogbeuhi’s actions regarding the back brace.

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Plaintiff claims that Defendant I. Ogbeuhi was deliberately indifferent to his medical

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condition by refusing him a back brace after Plaintiff completed therapy for lower back pain and

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continued to suffer pain. Plaintiff claims that Defendant R. Hanson demonstrated deliberate

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indifference by taking the back brace from Plaintiff twenty-four (24) hours after issuing it.

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Plaintiff claims that Defendant Ola showed deliberate indifference because he was made aware of
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Plaintiff’s lower back pain and request for back brace, but did not act to remedy the problem.

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Plaintiff claims that Defendant Benevides demonstrated deliberate indifference to Plaintiff’s

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medical issue by demanding that Plaintiff remain standing for approximately 30 minutes when

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Plaintiff has limits on standing for no longer than 15 minutes at a time. Defendant Benevides

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knew of the 15 minute limit because he held a copy of the medical information in his hand and

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had read it to Plaintiff just minutes before.

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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

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Section 1983 authorizes a federal civil rights action against any “person” who acts under

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color of state law. 42 U.S.C. § 1983. “Persons” who may be sued under Section 1983 do not

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include a state or its entities, or state employees acting in their official capacities. See Will v.

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Michigan Dept. of State Police, 491 U.S. 58, 71 (1989); see also Kentucky v. Graham, 473 U.S.

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159 (1985) (the Eleventh Amendment bars federal damages action against a state and its entities).

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Claims for damages against the state, its agencies or its officers for actions performed in

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their official capacities are barred under the Eleventh Amendment, unless the state waives its

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immunity. Kentucky, 473 U.S. at 169; see also Will, 491 U.S. at 71 (neither a state nor its officials

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acting in their official capacities are persons under § 1983). Section 1983 does not abrogate the

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states’ Eleventh Amendment immunity from suit. See Quern v. Jordan, 440 U.S. 332, 344-45

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(1979); see also Hafer v. Melo, 502 U.S. 21, 30 (1991) (clarifying that the Eleventh Amendment

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does not bar suits against state officials sued in their individual capacities).

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Therefore, Plaintiff may not pursue his claims damages against the Defendants in their

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official capacities. However, Plaintiff may pursue claims for damages under section 1983 against

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the Defendants in their individual capacities.

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B. Supervisory Liability

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Plaintiff does not allege that Defendant Ola, the Chief Physician, provided treatment or

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examined him on any occasion. Instead, Plaintiff’s Eighth Amendment claim against Defendant
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Ola appears to arise out of Defendant Ola’s role as a supervising physician.

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Liability may not be imposed on supervisory personnel for the actions or omissions of

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their subordinates under the theory of respondeat superior. Iqbal, 556 U.S. at 676–77; Simmons v.

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Navajo County, Ariz., 609 F.3d 1011, 1020–21 (9th Cir. 2010); Ewing v. City of Stockton, 588

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F.3d 1218, 1235 (9th Cir. 2009); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).

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Supervisors may be held liable only if they “participated in or directed the violations, or knew of

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the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.

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1989); accord Starr v. Baca, 652 F.3d 1202, 1205–06 (9th Cir. 2011); Corales v. Bennett, 567

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F.3d 554, 570 (9th Cir. 2009). Thus, a supervisor’s participation can include his “own culpable

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action or inaction in the training, supervision, or control of his subordinates,” “his acquiescence in

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the constitutional deprivations of which the complaint is made,” or “conduct that showed a

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reckless or callous indifference to the rights of others.” Starr, 652 F.3d at 1205–06.

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Although Plaintiff alleges that Defendant Ola was aware of his lower back issue and

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Defendant Ogbeuhi’s action regarding the back brace, this allegation is not sufficient to state a

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cognizable claim. There is no indication that Defendant Ola examined Plaintiff or knew that

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Plaintiff required a back brace. Further, Plaintiff’s allegations confirm that he received treatment

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for his back, which included physical therapy and a subsequent order for a back brace.

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C. Deliberate Indifference to Serious Medical Needs

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“[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate

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must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091,

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1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 291 (1976)).

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The two part test for deliberate indifference requires the plaintiff to show (1) “a ‘serious medical

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need’ 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,’” and (2) “the defendant’s

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response to the need was deliberately indifferent.” Jett, 439 F.3d at 1096.

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Deliberate indifference is shown where the official is aware of a serious medical need and

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fails to adequately respond. Simmons, 609 F.3d at 1018. “Deliberate indifference is a high legal

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standard.” Id. at 1019; Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). The prison official
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must be aware of facts from which he could make an inference that “a substantial risk of serious

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harm exists” and he must make the inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994).

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Mere difference of medical opinion is insufficient to state a claim for deliberate indifference.

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Toguchi, 391 F.3d at 1058.

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Defendant Ogbeuhi

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Plaintiff fails to state a claim for deliberate indifference against Defendant Ogbeuhi. As

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alleged, Defendant Ogbeuhi offered pills, ordered physical therapy and subsequently ordered a

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back brace to treat Plaintiff’s lower back pain. Given Defendant Ogbeuhi’s provision of various

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treatment modalities, Plaintiff cannot maintain a claim of deliberate indifference to serious
Further, Plaintiff’s allegations that Defendant Ogbeuhi ordered Defendant

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medical needs.

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Benevides to collect the back brace suggest that Defendant Ogbeuhi was unaware that a back

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brace had not been issued. Absent such knowledge, Defendant Ogbeuhi could not have been

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deliberately indifferent based on the failure to issue a back brace.

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As a final matter, Plaintiff appears to allege that Defendant Ogbeuhi’s request for return of

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the back brace showed deliberate indifference. However, the fact that Defendant Ogbeuhi asked

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that the back brace be returned is not sufficient to state a cognizable claim for deliberate

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indifference. At most, Plaintiff has raised a difference of medical opinion regarding his need for

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a back brace. A difference of opinion does not amount to a deliberate indifference to Plaintiff’s

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serious medical needs. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989).

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Defendant Benavides

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Plaintiff fails to state a claim for deliberate indifference against Defendant Benavides.

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First, Plaintiff’s allegation that Defendant Benevides pressured Plaintiff to produce a back brace

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and threatened to search Plaintiff’s cell is not sufficient to support an Eighth Amendment claim.

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Mere threats do not violate the Eighth Amendment. See Corales, 567 F.3d at 564-65 (citation

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omitted).

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Second, Plaintiff’s claim that Defendant Benevides demanded that Plaintiff remain

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standing for approximately 30 minutes despite being aware that Plaintiff was limited to fifteen

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minutes of standing is not sufficient to support a deliberate indifference claim. Plaintiff fails to
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allege facts suggesting he incurred any form of harm because of Defendant Benevides’ actions.

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Third, and finally, Plaintiff fails to allege facts evidencing that Defendant Benevides was

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aware of Plaintiff’s alleged need for a back brace. At best, Plaintiff’s allegations indicate that

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Defendant Benevides was merely following the directive of Plaintiff’s treating provider to

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recover the back brace.

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Defendant Hanson

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Plaintiff claims that Defendant R. Hanson demonstrated deliberate indifference by taking

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the back brace from Plaintiff twenty-four (24) hours after issuing it. This is insufficient to

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support a cognizable deliberate indifference claim. As admitted by Plaintiff, Defendant Ogbeuhi

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originally ordered the collection of Plaintiff’s back brace, and Plaintiff has demonstrated, at most,

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a disagreement with his medical provider regarding the need for a back brace. Sanchez, 891 F.2d

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at 242.

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D. Conclusion and Order
For the reasons stated, Plaintiff’s first amended complaint fails to state a claim upon

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which relief may be granted.

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standards, Plaintiff has been unable to cure the deficiencies identified by the Court, and further

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leave to amend is not warranted. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).

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Despite being provided with the relevant legal and pleading

Accordingly, Plaintiff’s complaint is HEREBY DISMISSED for failure to state a
cognizable claim.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

May 3, 2017

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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