Geils v. Rasheed et al

Filing 9

FINDINGS and RECOMMENDATIONS to Dismiss 1 Action, with Prejudice, for Failure to Obey Court Orders and Failure to Prosecute signed by Magistrate Judge Barbara A. McAuliffe on 2/9/2018. Referred to Judge Anthony W. Ishii. Objections to F&R due within Fourteen (14) Days. (Sant Agata, S)

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1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 EASTERN DISTRICT OF CALIFORNIA 12 13 ANDREW GEILS, 14 15 16 17 Plaintiff, v. 20 FINDINGS AND RECOMMENDATIONS TO DISMISS ACTION, WITH PREJUDICE, FOR FAILURE TO OBEY COURT ORDERS AND FAILURE TO PROSECUTE KARIM RASHEED, et al., (ECF No. 8) Defendants. FOURTEEN (14) DAY DEADLINE 18 19 Case No.: 1:17-cv-00287-AWI-BAM (PC) Plaintiff Andrew Geils is a state prisoner proceeding pro se and in forma pauperis in this civil action pursuant to 42 U.S.C. § 1983. 21 On December 22, 2017, the Court screened Plaintiff’s complaint, found that he had failed 22 to state any cognizable claim, and granted him leave to amend within thirty (30) days. (ECF No. 23 8.) The Court expressly warned Plaintiff that the failure to comply with that order would result in 24 this action being dismissed for the failure to obey a court order and the failure to state a claim 25 upon which relief may be granted. (Id. at 7.) 26 The deadline for Plaintiff to file an amended complaint has passed, and he has not 27 complied with the Court’s order. Accordingly, the Court recommends dismissal of Plaintiff’s 28 complaint, for the reasons explained below. 1 2 I. Failure to State a Claim A. Screening Requirement 3 The Court is required to screen complaints brought by prisoners seeking relief against a 4 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. § 5 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous or 6 malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary 7 relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2); 28 U.S.C. 8 § 1915(e)(2)(B)(ii). 9 A complaint must contain “a short and plain statement of the claim showing that the 10 pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 11 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 12 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 13 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1964-65 14 (2007)). While a plaintiff’s allegations are taken as true, courts “are not required to indulge 15 unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) 16 (internal quotation marks and citation omitted). 17 Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings 18 liberally construed and to have any doubt resolved in their favor. Hebbe v. Pliler, 627 F.3d 338, 19 342 (9th Cir. 2010) (citations omitted). To survive screening, Plaintiff’s claims must be facially 20 plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each 21 named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949 22 (quotation marks omitted); Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir. 23 2009). The sheer possibility that a defendant acted unlawfully is not sufficient, and mere 24 consistency with liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678, 25 129 S. Ct. at 1949 (quotation marks omitted); Moss, 572 F.3d at 969. 26 B. Summary of Complaint Allegations 27 Plaintiff is currently housed at the California Substance Abuse Treatment Facility 28 (“CSATF”) in Corcoran, California. The events in the complaint are alleged to have occurred 2 1 while Plaintiff was housed at Avenal State Prison, Valley State Prison and CSATF. Plaintiff 2 names the following defendants: (1) Karim Rasheed, M.D., O.D. at CSATF; (2) Ning Lin, M.D., 3 O.D at VSP; (3) Dr. Boyer, Optometrist at ASP; and (4) Dr. Wong, Optometrist at CSATF. 4 Plaintiff alleges the following: 5 9 Dr. Boyer-Optometrist-Avenal State Prison prescribed a pair of transition glasses for me on 4-27-15 because of my photophobia. Dr. Ning Lin-OD, MD-at Valley State Prison prescribed a pair of transition glasses for me on 3-8-16 because of my photophobia. Dr. Karim Rasheed-ophthalmologist, SATF-Corcoran State Prison denied to prescribed [sic] me transition glasses on 9-8-16 because he said I did not have the condition of photophobia. Dr. Wong-optometrist-at SATF-Corcoran State Prison denied to prescribe me transition glasses on 10-6-16 because he said I did not have the condition of photophobia. 10 (ECF No. 1 at p. 3.) Plaintiff further alleges that he suffers from constant headaches because of 11 extreme light sensitivity, blindness/distorted vision. (Id.) Plaintiff forwards claims for violation of 12 the Fifth, Sixth and Fourteenth Amendments to the United States Constitution, and seeks 13 injunctive relief solely in the form of his transitional glasses. (Id. at p. 4.) 6 7 8 14 C. Discussion 15 1. Section 1983 Linkage Requirement 16 The Civil Rights Act under which this action was filed provides: 17 Every person who, under color of [state law] … subjects, or causes to be subjected, any citizen of the United States … to the deprivation of any rights, privileges, or immunities secured by the Constitution … shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 18 19 20 42 U.S.C. §1983. The statute plainly requires that there be an actual connection or link between 21 the actions of the defendants and the deprivation alleged to have been suffered by Plaintiff. See 22 Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 98 S. Ct. 2018, 56 L.Ed.2d 611 (1978); Rizzo v. 23 Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976). The Ninth Circuit has held that “[a] 24 person ‘subjects’ another to the deprivation of a constitutional right, within the meaning of 25 section 1983, if he does an affirmative act, participates in another’s affirmative acts, or omits to 26 perform an act which he is legally required to do that causes the deprivation of which complaint is 27 made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 28 /// 3 1 Plaintiff has failed to link Defendants Boyer and Lin to any asserted constitutional 2 violation. According to his complaint, both Defendant Boyer and Defendant Lin prescribed him 3 the requested transitional glasses, and there are no factual allegations suggesting that either of 4 these defendants deprived him of any rights. 5 2. Fifth Amendment and Fourteenth Amendments 6 Although not entirely clear, it appears that Plaintiff is attempting to assert a due process 7 claim by invoking both the Fourteenth and Fifth Amendments to the United States Constitution. 8 However, Plaintiff’s purported due process claim is secured by the Fourteenth Amendment, not 9 the Fifth Amendment. Castillo v. McFadden, 399 F.3d 993, 1002 n. 5 (9th Cir. 2005) (“The Fifth 10 Amendment prohibits the federal government from depriving persons of due process, while the 11 Fourteenth Amendment explicitly prohibits deprivations without due process by the several 12 States.”); Consejo de Desarrollo Economico de Mexicali, A.C. v. United States, 482 F.3d 1157, 13 1170 n. 4 (9th Cir.2007) (Fifth Amendment’s Due Process Clause subjects the federal 14 government to constitutional limitations that are equivalent of those imposed on the states by the 15 Equal Protection Clause of the Fourteenth Amendment) (citations and quotations omitted). 16 Accordingly, Plaintiff cannot state a cognizable Fifth Amendment claim. 17 To the extent Plaintiff is attempting to pursue a claim for violation of the Fourteenth 18 Amendment, his allegations provide no indication that he suffered a due process or equal 19 protection violation. In fact, the allegations in Plaintiff’s complaint are insufficient for the Court 20 to determine the nature of any Fourteenth Amendment claim. 21 3. Sixth Amendment 22 Plaintiff also asserts a violation of the Sixth Amendment. However, the Sixth 23 Amendment only guarantees an accused certain rights related to a criminal prosecution. U.S. 24 Const. Amend. VI; see Wilson v. Beard, No. 2:15-CV-01481-AC P, 2017 WL 1650631, at *3 25 (E.D. Cal. May 2, 2017) (Sixth Amendment inapplicable to prisoner suits based on conditions of 26 confinement). Plaintiff’s allegations concerning his transitional glasses do not implicate the Sixth 27 Amendment. 28 /// 4 4. Eighth Amendment – Deliberate Indifference 1 2 Although Plaintiff’s complaint does not refer to the Eighth Amendment, his allegations 3 implicate a claim for deliberate indifference to serious medical needs. A prisoner’s claim of 4 inadequate medical care does not constitute cruel and unusual punishment in violation of the 5 Eighth Amendment unless the mistreatment rises to the level of “deliberate indifference to serious 6 medical needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 7 429 U.S. 97, 104 (1976)). The two part test for deliberate indifference requires Plaintiff to show 8 (1) “a ‘serious medical need’ by demonstrating that failure to treat a prisoner’s condition could 9 result in further significant injury or the ‘unnecessary and wanton infliction of pain,’ ” and (2) 10 “the defendant’s response to the need was deliberately indifferent.” Jett, 439 F.3d at 1096. 11 A defendant does not act in a deliberately indifferent manner unless the defendant “knows 12 of and disregards an excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 13 837 (1994). “Deliberate indifference is a high legal standard,” Simmons v. Navajo Cty. Ariz., 609 14 F.3d 1011, 1019 (9th Cir. 2010); Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004), and is 15 shown where there was “a purposeful act or failure to respond to a prisoner’s pain or possible 16 medical need” and the indifference caused harm. Jett, 439 F.3d at 1096. 17 In applying this standard, the Ninth Circuit has held that before it can be said that a 18 prisoner's civil rights have been abridged, “the indifference to his medical needs must be 19 substantial. Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this cause 20 of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 21 429 U.S. at 105–106). “[A] complaint that a physician has been negligent in diagnosing or 22 treating a medical condition does not state a valid claim of medical mistreatment under the Eighth 23 Amendment. Medical malpractice does not become a constitutional violation merely because the 24 victim is a prisoner.” Estelle, 429 U.S. at 106; see also Anderson v. County of Kern, 45 F.3d 25 1310, 1316 (9th Cir. 1995). Even gross negligence is insufficient to establish deliberate 26 indifference to serious medical needs. See Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 27 1990). 28 /// 5 1 Further, a “difference of opinion between a physician and the prisoner—or between 2 medical professionals—concerning what medical care is appropriate does not amount to 3 deliberate indifference.” Snow v. McDaniel, 681 F.3d 978, 987 (9th Cir. 2012) (citing Sanchez v. 4 Vild, 891 F.2d 240, 242 (9th Cir. 1989)), overruled in part on other grounds, Peralta v. Dillard, 5 744 F.3d 1076, 1082–83 (9th Cir. 2014); Wilhelm v. Rotman, 680 F.3d 1113, 1122–23 (9th Cir. 6 2012) (citing Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1986)). Rather, Plaintiff “must 7 show that the course of treatment the doctors chose was medically unacceptable under the 8 circumstances and that the defendants chose this course in conscious disregard of an excessive 9 risk to [his] health.” Snow, 681 F.3d at 988 (citing Jackson, 90 F.3d at 332) (internal quotation 10 marks omitted). 11 As currently pled, Plaintiff’s allegations suggest either negligence in diagnosing or 12 treating his photophobia by Defendants Rasheed and Wong, or a mere difference of opinion 13 regarding the appropriate course of medical treatment for Plaintiff’s condition. Neither of these 14 of is sufficient to state a cognizable claim for deliberate indifference to serious medical needs in 15 violation of the Eighth Amendment. 16 17 II. Failure to Prosecute and Failure to Obey a Court Order A. Legal Standards 18 Local Rule 110 provides that “[f]ailure . . . of a party to comply with these Rules or with 19 any order of the Court may be grounds for imposition by the Court of any and all sanctions . . . 20 within the inherent power of the Court.” District courts have the inherent power to control their 21 dockets and “[i]n the exercise of that power they may impose sanctions including, where 22 appropriate, . . . dismissal.” Thompson v. Hous. Auth., 782 F.2d 829, 831 (9th Cir. 1986). A court 23 may dismiss an action, with prejudice, based on a party’s failure to prosecute an action, failure to 24 obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 25 53–54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 26 1258, 1260–61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring 27 amendment of complaint); Malone v. U.S. Postal Serv., 833 F.2d 128, 130–33 (9th Cir. 1987) 28 (dismissal for failure to comply with court order). 6 1 In determining whether to dismiss an action, the Court must consider several factors: 2 (1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its 3 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 4 cases on their merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779 5 F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). 6 B. Discussion 7 Here, Plaintiff’s amended complaint is overdue, and he has not otherwise communicated 8 with the Court. The Court cannot effectively manage its docket if Plaintiff ceases litigating his 9 case. Thus, the Court finds that both the first and second factors weigh in favor of dismissal. 10 The third factor, risk of prejudice to defendant, also weighs in favor of dismissal, since a 11 presumption of injury arises from the occurrence of unreasonable delay in prosecuting an action. 12 Anderson v. Air W., 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor usually weighs against 13 dismissal because public policy favors disposition on the merits. Pagtalunan v. Galaza, 291 F.3d 14 639, 643 (9th Cir. 2002). However, “this factor lends little support to a party whose responsibility 15 it is to move a case toward disposition on the merits but whose conduct impedes progress in that 16 direction,” which is the case here. In re Phenylpropanolamine (PPA) Prod. Liab. Litig., 460 F.3d 17 1217, 1228 (9th Cir. 2006) (citation omitted). 18 Finally, the Court’s warning to a party that failure to obey the court’s order will result in 19 dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262; 20 Malone, 833 at 132–33; Henderson, 779 F.2d at 1424. The Court’s December 22, 2017 order 21 expressly warned Plaintiff that his failure to file an amended complaint would result in dismissal 22 of this action for failure to obey a court order and the failure to state a claim. (ECF No. 8 at 7.) 23 Thus, Plaintiff had adequate warning that dismissal could result from his noncompliance. 24 Additionally, at this stage in the proceedings there is little available to the Court that 25 would constitute a satisfactory lesser sanction while protecting the Court from further 26 unnecessary expenditure of its scarce resources. Plaintiff is proceeding in forma pauperis in this 27 action, making monetary sanctions of little use, and the preclusion of evidence or witnesses is 28 likely to have no effect given that Plaintiff has ceased litigating his case. 7 1 III. 2 For the reasons explained above, the Court HEREBY RECOMMENDS that this action be 3 dismissed, with prejudice, for the failure to state a claim, failure to obey a court order, and failure 4 to prosecute. Conclusion and Recommendation 5 These Findings and Recommendation will be submitted to the United States District Judge 6 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 7 (14) days after being served with these Findings and Recommendation, Plaintiff may file written 8 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 9 Findings and Recommendation.” Plaintiff is advised that failure to file objections within the 10 specified time may result in the waiver of the “right to challenge the magistrate’s factual 11 findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 12 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 13 14 15 IT IS SO ORDERED. Dated: /s/ Barbara February 9, 2018 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 8

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