Burell v. Lozovoy et al

Filing 18

ORDER DISMISSING 14 First Amended Complaint, WITH LEAVE TO AMEND, for Failure to State a Cognizable Claim for Relief; Amended Complaint due within Thirty Days signed by Magistrate Judge Stanley A. Boone on 4/19/2017. (Attachments: # 1 Amended Complaint Form)(Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ANGEE BURRELL,

Case No. 1:16-cv-01118-SAB (PC)

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ORDER DISMISSING FIRST AMENDED
COMPLAINT, WITH LEAVE TO AMEND,
FOR FAILURE TO STATE A
COGNIZABLE CLAIM FOR RELIEF

Plaintiff,
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v.
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RUSLAN LOZOVOY, et al.,

(ECF No. 14)

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Defendants.

THIRTY DAY DEADLINE

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Plaintiff Angee Burrell is a state prisoner appearing pro se and in forma pauperis in this

18 civil rights action pursuant to 42 U.S.C. § 1983.

Plaintiff has consented to magistrate

19 jurisdiction pursuant to 28 U.S.C. § 636(c)(1). (ECF No. 10.)
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On August 2, 2016, Plaintiff filed the original complaint in this case. (ECF No. 1.) On

21 March 27, 2017, the Court dismissed the original complaint for failure to state a cognizable
22 claim upon which relief may be granted, with leave to amend. (ECF No. 13.)
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Currently before the Court is Plaintiff’s first amended complaint, filed on April 10, 2017.

24 (ECF No. 14.)
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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

28 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a).

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1 The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are
2 legally “frivolous or malicious,” that “fail[] to state a claim on which relief may be granted,” or
3 that “seek[] monetary relief against a defendant who is immune from such relief.” 28 U.S.C. §
4 1915(e)(2)(B).
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A complaint must contain “a short and plain statement of the claim showing that the

6 pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not
7 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere
8 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell
9 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must demonstrate that each
10 named defendant personally participated in the deprivation of his rights. Iqbal, 556 U.S. at 67611 677; Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1020-1021 (9th Cir. 2010).
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Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings

13 liberally construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d
14 1113, 1121 (9th Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be
15 facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer
16 that each named defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss
17 v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant
18 has acted unlawfully” is not sufficient, and “facts that are ‘merely consistent with’ a defendant’s
19 liability” fall short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d
20 at 969.
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II.

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COMPLAINT ALLEGATIONS

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Plaintiff is a state inmate in the custody of the California Department of Corrections and

24 Rehabilitation (“CDCR”). Plaintiff is currently incarcerated at the Correctional Training Facility
25 in Soledad, California. The events at issue here occurred when Plaintiff was incarcerated at Kern
26 Valley State Prison (“KVSP”).
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Plaintiff names the following individuals as defendants: Pfeiffer, Warden at KVSP;

28 Ruslan Lozovoy, a nurse practitioner at KVSP; Jeff Sao, a primary care provider at KVSP; S.

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1 Bozarth, a health specialist at KVSP; Dr. Dileo, a medical doctor at KVSP; and Karen Brown,
2 Chief Executive Officer (“CEO”) of KVSP.
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Plaintiff alleges as follows: Plaintiff was the victim of a drive-by shooting in 1986.

4 Among other injuries, he was shot in the head and lost hearing activity in the left hear. The
5 incident allowed only little hearing in the left ear.
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When Plaintiff arrived at San Quentin State Prison (“San Quentin”) in 2002, he was seen

7 by a physician and diagnosed by Dr. M. Trina. Soon after that, Plaintiff was fitted for a hearing
8 aid.
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While at California Men’s Colony (“CMC”) State Prison in 2015, Plaintiff’s hearing aid

10 was going out. On April 24, 2015, Plaintiff was transferred to Kern Valley State Prison.
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In May 2015, Plaintiff was seen by Defendant Lozovoy, a nurse practitioner, about the

12 hearing aid not working. After Defendant Lozovoy examined Plaintiff, Plaintiff tried speaking so
13 that he could tell Lozovoy that his hearing aid was not working. Defendant Lozovoy stated, “he
14 did not want to hear nothing I had to say” and that “nothing I said matter” and Plaintiff was
15 being rushed during that whole new arrival visit.
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On July 22, 2015, Plaintiff was examined by Dr. Dileo. Plaintiff explained that his

17 hearing aid was not working. Dr. Dileo then put in an order to have Plaintiff’s hearing aid
18 repaired or replaced. On July 23, 2015, the request was denied.
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On August 24, 2015, Plaintiff was seen by Defendant Bozarth, after Plaintiff had taken

20 steps to put in a 602 appeal to get his hearing aid fixed or replaced. Defendant Bozarth made
21 attempts to impede Plaintiff’s 602 appeal. Defendant Bozarth interviewed Plaintiff and then
22 broke Plaintiff’s health care appeal into three parts, beyond the scope of the screening process.
23 Plaintiff made attempts to explain the situation about his hearing aid.
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On August 26, 2015, Plaintiff was sent to KVSP CTC, and was seen by Defendant Sao,

25 the primary care provider. Plaintiff tried to explain to Defendant Sao, the same as he told
26 Defendant Lozovy and Defendant Bozarth, that his hearing aid was not working. Defendant Soa
27 ignored everything that Plaintiff said, and asked Plaintiff to remove his hearing aid from his left
28 ear so that he could do an evaluation. Plaintiff did as instructed, and Defendant Soa placed his

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1 fingers behind Plaintiff’s left ear, and then wiggled his fingers, and asked Plaintiff if he could
2 hear his fingers moving. Plaintiff told Defendant Soa that he did not hear the fingers moving, and
3 Defendant Soa ignored Plaintiff’s response. Defendant Soa got aggressive with Plaintiff because
4 Plaintiff tried to explain to him that he cannot hear, and that he should not have to write a health
5 care appeal to get his hearing aid fixed. Defendant Soa stated that “that’s the only way you got to
6 do and write it up.”
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Plaintiff also alleges that Defendant Pfeiffer is responsible for all medical staff that works

8 at KVSP, and that Karen Brown, CEO, is responsible for denying Dr. Dileo’s order on July 22,
9 2015.
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Plaintiff seeks declaratory relief, a preliminary and permanent injunction ordering no

11 retaliation, prior strength hearing treatment, and permanent medical chronos for medical
12 appliances to be honored. Plaintiff also seeks compensatory and punitive damages, and
13 attorney’s fees.
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Plaintiff cites declarations and exhibits A through Q in support, which were filed

15 separately. (ECF No. 15.) The exhibits were reference in Plaintiff’s original complaint, but were
16 not filed prior to the Court’s prior screening order. The exhibits include medical records
17 discussing that in 2002, Plaintiff had hearing loss in his left ear and engaged in “lip reading at
18 times.” (ECF No. 15, p. 9.) The records also discuss that on August 26, 2015, Defendant Soa
19 determined that Plaintiff could hear normally out of his right ear, and his hearing was not
20 impaired to the extent that normal conversation was impaired, and therefore the medical
21 necessity for a hearing aid was not met. (Id. at pp. 33-34, 37-38.)
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III.

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DISCUSSION

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A.

Supervisory Liability

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

26 their subordinates under the theory of respondeat superior. Iqbal, 556 U.S. at 676-77; Ewing v.
27 Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Simmons, 609 F.3d at 1020-21; Jones, 297 F.3d
28 at 934. Supervisors may be held liable only if they “participated in or directed the violations, or

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1 knew of the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045
2 (9th Cir. 1989); accord Starr v. Baca, 652 F.3d 1202, 1205-06 (9th Cir. 2011); Corales v.
3 Bennett, 567 F.3d 554, 570 (9th Cir. 2009).
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Plaintiff allegation that Warden Pfeiffer is responsible for all medical staff working at

5 KVSP is insufficient to state a claim.

Plaintiff fails to allege facts that Warden directly

6 participated in any actions or inactions that violated Plaintiff’s constitutional right. Warden
7 Pfeiffer cannot be liable based solely on her supervisory role as a warden.
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B.

Deliberate Indifference to Serious Medical Need

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A prisoner’s claim of inadequate medical care does not constitute cruel and unusual

10 punishment in violation of the Eighth Amendment unless the mistreatment rises to the level of
11 “deliberate indifference to serious medical needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir.
12 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two part test for deliberate
13 indifference requires Plaintiff to show (1) “a ‘serious medical need’ by demonstrating that failure
14 to treat a prisoner’s condition could result in further significant injury or the ‘unnecessary and
15 wanton infliction of pain,’ ” and (2) “the defendant’s response to the need was deliberately
16 indifferent.” Jett, 439 F.3d at 1096. A defendant does not act in a deliberately indifferent
17 manner unless the defendant “knows of and disregards an excessive risk to inmate health or
18 safety.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). “Deliberate indifference is a high legal
19 standard,” Simmons, 609 F.3d at 1019; Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004),
20 and is shown where there was “a purposeful act or failure to respond to a prisoner’s pain or
21 possible medical need” and the indifference caused harm. Jett, 439 F.3d at 1096.
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In applying this standard, the Ninth Circuit has held that before it can be said that a

23 prisoner’s civil rights have been abridged, “the indifference to his medical needs must be
24 substantial. Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this
25 cause of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing
26 Estelle, 429 U.S. at 105-106). “[A] complaint that a physician has been negligent in diagnosing
27 or treating a medical condition does not state a valid claim of medical mistreatment under the
28 Eighth Amendment. Medical malpractice does not become a constitutional violation merely

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1 because the victim is a prisoner.” Estelle, 429 U.S. at 106; see also Anderson v. County of Kern,
2 45 F.3d 1310, 1316 (9th Cir. 1995). Even gross negligence is insufficient to establish deliberate
3 indifference to serious medical needs. See Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir.
4 1990).

Additionally, a prisoner’s mere disagreement with diagnosis or treatment does not

5 support a claim of deliberate indifference. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989).
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“Whether a prison official had the requisite knowledge of a substantial risk is a question

7 of fact subject to demonstration in the usual ways, including inference from circumstantial
8 evidence.” Farmer, 511 U.S. at 842. A fact finder may conclude that an official knew of a
9 substantial risk from the fact that the risk was obvious. Id. at 843 n.8. Moreover, “turning a
10 blind eye to the relevant surrounding facts will not shield a prison official from liability.” Swan
11 v. United States, 159 F.Supp.2d 1174, 1182 (N.D. Cal. 2001). “Farmer’s subjective standard
12 does not invite prison supervisors to bury their heads in the sand.” Walton v. Dawson, 752 F.3d
13 1109, 1119 (8th Cir. 2014) (citing Farmer, 511 U.S. at 843 n.8) (finding that liability may be
14 imposed “if the evidence showed that [a prison official] merely refused to verify underlying facts
15 that he [or she] strongly suspected to be true, or declined to confirm inferences of risk that he [or
16 she] strongly suspected to exist”)).
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Plaintiff alleges that he saw Defendant Lozovoy about his hearing aid not working, but

18 Defendant Lozovoy did not want to listen to Plaintiff’s statements about the defectiveness of his
19 hearing aid. However, as previously explained to Plaintiff, he must state facts showing how the
20 hearing aid was defective or how the defective hearing aid affected him, such as he could not
21 hear at all, he could only slightly hear, it was uncomfortable, it hurt his ear, etc. His allegations
22 remain insufficient to state a claim against Defendant Lozovoy.
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Regarding Defendant Dileo, Plaintiff only alleges that he explained to Defendant Dileo

24 that his hearing aid was not working, and that the doctor put in an order to have it replaced or
25 repaired. There are no allegations showing that Plaintiff had a serious medical need that
26 Defendant Dileo was deliberately indifferent towards, causing any injury.
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Plaintiff also alleges that Defendant Brown was responsible for denying Dr. Dileo’s

28 request for Plaintiff’s hearing aid to be repaired or replaced. This is insufficient to state a claim

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1 against Defendant Brown, as Plaintiff has not alleged facts showing that his need for his hearing
2 aid to be repaired or replaced was a serious medical need, that Defendant Brown was aware of
3 that need, and that she denied the request despite her knowledge of his medical condition.
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Plaintiff also does not sufficiently allege a serious medical need that Defendant Sao was

5 deliberately indifferent in treating or failing to treat. According to Plaintiff’s allegations and
6 documentation submitted as exhibits to his first amended complaint, Defendant Sao examined
7 Plaintiff’s hearing and determined that there was not a medical necessity for a hearing aid.
8 Although Plaintiff may have disagreed with Defendant Sao’s medical assessment, and found
9 Defendant Soa’s attitude to be too rough or aggressive when treating him, these allegations are
10 not sufficient to state a claim against Defendant Sao.
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Plaintiff must allege facts showing that Defendant Sao’s response to Plaintiff’s medical

12 need amounted to a refusal to provide him with adequate medical care in keeping with Eighth
13 Amendment standards. In other words, Plaintiff must show that Defendant Sao was on notice of
14 a serious medical need that was not being met, and that the denial of adequate care would cause
15 significant injury. See, e.g., Edwards v. Hsieh, 2016 WL 1604762, at *2 (E.D. Cal. Apr. 22,
16 2016), report and recommendation adopted, 2016 WL 3356279 (E.D. Cal. June 16, 2016)
17 (discussing cases). That standard has not been met here.
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C.

Grievance/Health Care Appeals Process

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Plaintiff alleges that Defendant Bozarth violated his rights by interviewing him in relation

20 to his 602 appeal, and breaking his health care appeal into three parts.
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“[A prison] grievance procedure is a procedural right only, it does not confer any

22 substantive right upon the inmates.” Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993)
23 (citing Azeez v. DeRobertis, 568 F. Supp. 8, 10 (N.D. Ill. 1982)); see also Ramirez v. Galaza,
24 334 F.3d 850, 860 (9th Cir. 2003) (no liberty interest in processing of appeals because no
25 entitlement to a specific grievance procedure); Massey v. Helman, 259 F.3d 641, 647 (7th Cir.
26 2001) (existence of grievance procedure confers no liberty interest on prisoner); Mann v. Adams,
27 855 F.2d 639, 640 (9th Cir. 1988). “Hence, it does not give rise to a protected liberty interest
28 requiring the procedural protections envisioned by the Fourteenth Amendment.” Azeez v.

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1 DeRobertis, 568 F. Supp. at 10; Spencer v. Moore, 638 F. Supp. 315, 316 (E.D. Mo. 1986).
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Actions in reviewing prisoner’s administrative appeal cannot serve as the basis for

3 liability under a § 1983 action. Buckley, 997 F.2d at 495. The argument that anyone who knows
4 about a violation of the Constitution, and fails to cure it, has violated the Constitution himself is
5 not correct. “Only persons who cause or participate in the violations are responsible. Ruling
6 against a prisoner on an administrative complaint does not cause or contribute to the violation. A
7 guard who stands and watches while another guard beats a prisoner violates the Constitution; a
8 guard who rejects an administrative complaint about a completed act of misconduct does not.”
9 George v. Smith, 507 F.3d 605, 609-10 (7th Cir. 2007) citing Greeno v. Daley, 414 F.3d 645,
10 656-57 (7th Cir. 2005); Reed v. McBride, 178 F.3d 849, 851-52 (7th Cir. 1999); Vance v. Peters,
11 97 F.3d 987, 992-93 (7th Cir. 1996).
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Plaintiff has alleged that Defendant Bozarth is a “health specialist.” Plaintiff may be able

13 to prove the elements for a claim under the Eight Amendment for deliberate indifference to his
14 serious medical needs against Defendant Bozarth if he can plead facts showing that Defendant
15 Bozarth had both medical training and the authority to intercede on Plaintiff’s behalf.
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If Plaintiff meets his burden of proof as to the elements of a claim against medical

17 personnel for deliberate indifference to his serious medical needs, he may be able to meet his
18 burden of proof as to the elements of a claim against defendants with medical training if they
19 reviewed and ruled against Plaintiff in his medical appeals on that same issue. However, as
20 discussed above, Plaintiff has not stated a cognizable claim for deliberate indifference to his
21 serious medical needs against any defendant. Nor has he pleaded that Defendant Bozarth had the
22 authority to intercede on Plaintiff’s behalf and yet did not do so. Thus, he fails to state a claim
23 against Defendant Bozarth for failing to take corrective action via the inmate appeals process.
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D.

Equitable Relief

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As in his prior complaint, Plaintiff seeks a declaratory judgment that his Eighth

26 Amendment rights were violated and an injunction ordering Defendants to honor Plaintiff’s prior
27 hearing treatment and permanent medical chronos for medical appliances. Plaintiff also seeks an
28 order that he will not be retaliated against.

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“A declaratory judgment, like other forms of equitable relief, should be granted only as a

2 matter of judicial discretion, exercised in the public interest.”

Eccles v. Peoples Bank of

3 Lakewood Village, 333 U.S. 426, 431 (1948). “Declaratory relief should be denied when it will
4 neither serve a useful purpose in clarifying and settling the legal relations in issue nor terminate
5 the proceedings and afford relief from the uncertainty and controversy faced by the parties.”
6 United States v. Washington, 759 F.2d 1353, 1357 (9th Cir. 1985).
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In the event that this action reaches trial and the jury returns a verdict in favor of Plaintiff,

8 that verdict will be a finding that Plaintiff’s constitutional rights were violated. Accordingly, a
9 declaration that any Defendant violated Plaintiff’s rights is unnecessary, and Plaintiff’s request
10 for a declaratory judgment will be dismissed, without leave to amend.
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Further, because Plaintiff is no longer incarcerated at KVSP, he lacks standing to pursue

12 his claims for injunctive relief against KVPS officials. Summers v. Earth Island Institute, 555
13 U.S. 488, 493 (2009); Mayfield v. United States, 599 F.3d 964, 969-73 (9th Cir. 2010); Nelson v.
14 Heiss, 271 F.3d 891, 897 (9th Cir. 2001). Accordingly, Plaintiff’s request for injunctive relief
15 will be dismissed as moot.
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IV.

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CONCLUSION AND ORDER

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For the reasons stated, Plaintiff’s first amended complaint fails to state a claim upon

19 which relief may be granted. Plaintiff is granted one final opportunity to file an amended
20 complaint to attempt to cure the deficiencies outlined above.
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Plaintiff’s second amended complaint must be filed within thirty (30) days of the date of

22 service of this order. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff may not
23 change the nature of this suit by adding new, unrelated claims in his amended complaint. George
24 v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” complaints).
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Plaintiff’s second amended complaint should be brief. Fed. R. Civ. P. 8(a). Plaintiff

26 must identify how each individual defendant caused the deprivation of Plaintiff’s constitutional
27 or other federal rights: “The inquiry into causation must be individualized and focus on the
28 duties and responsibilities of each individual defendant whose acts or omissions are alleged to

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1 have caused a constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988).
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With respect to exhibits, while they are permissible if incorporated by reference, Fed. R.

3 Civ. P. 10(c), they are not necessary in the federal system of notice pleading, Fed. R. Civ. P.
4 8(a). In other words, it is not necessary at this stage to submit evidence to prove the allegations
5 in Plaintiff’s complaint because at this stage Plaintiff’s factual allegations will be accepted as
6 true. If Plaintiff wishes to direct the Court’s attention to any specific exhibits in support of his
7 allegations, he must do so by specific reference.
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Although Plaintiff’s factual allegations will be accepted as true and “the pleading

9 standard Rule 8 announces does not require ‘detailed factual allegations,’” “a complaint must
10 contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
11 face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). “A claim has facial
12 plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
13 inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing
14 Twombly, 550 U.S. at 556).
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An amended complaint supersedes the original complaint. Forsyth v. Humana, Inc., 114

16 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Plaintiff’s
17 second amended complaint must be “complete in itself without reference to the prior or
18 superseded pleading.” Local Rule 220. Plaintiff is warned that “[a]ll causes of action alleged in
19 an original complaint which are not alleged in an amended complaint are waived.” King, 814
20 F.2d at 567 (citing London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981)); accord
21 Forsyth, 114 F.3d at 1474. Finally, Plaintiff is advised that he may not bring unrelated claims in
22 the same action.
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Based on the foregoing, it is HEREBY ORDERED that:

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1.

Plaintiff’s requests for declaratory relief and injunctive relief are dismissed,
without leave to amend;

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2.

The Clerk’s Office shall send Plaintiff a civil rights complaint form;

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3.

Plaintiff’s first amended complaint, filed April 10, 2017, is dismissed for failure

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to state a claim;

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4.

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Within thirty (30) days from the date of service of this order, Plaintiff shall file a
second amended complaint or a notice of voluntary dismissal; and

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5.

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If Plaintiff fails to comply with this order, this action will be dismissed.

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IT IS SO ORDERED.

6 Dated:

April 19, 2017
UNITED STATES MAGISTRATE JUDGE

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