Clayton v. Smith et al

Filing 29

ORDER Directing Clerk of Court to Randomly Assign a District Judge - CASE ASSIGNED to District Judge Anthony W. Ishii and Magistrate Judge Barbara A. McAuliffe. New Case No. 1:17-cv-00309 AWI BAM (PC); FINDINGS and RECOMMENDATIONS to Dismiss Action, With Prejudice, for the Failure to State a Cognizable Claim, signed by Magistrate Judge Barbara A. McAuliffe on 6/29/2018: 14-Day Deadline. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BLAINE CLAYTON,

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Plaintiff,

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vs.
STEVEN SMITH, et al.,

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Defendants.

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Case No.: 1:17-cv-00309-BAM (PC)
ORDER DIRECTING CLERK OF COURT
TO RANDOMLY ASSIGN A DISTRICT
JUDGE
FINDINGS AND RECOMMENDATIONS
TO DISMISS ACTION, WITH PREJUDICE,
FOR THE FAILURE TO STATE A
COGNIZABLE CLAIM
(Doc. 28)
FOURTEEN (14) DAY DEADLINE

Plaintiff Blaine Clayton is a state prisoner proceeding pro se and in forma pauperis in

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this civil rights action pursuant to 42 U.S.C. § 1983.
Currently before the Court is Plaintiff’s second amended complaint, filed March 26,

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2018. (Doc. 28.)

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I.

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Screening Requirement and Standard
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); 28

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U.S.C. § 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, 129 S. Ct. 1937,

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1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1964-65

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(2007)). While a plaintiff’s allegations are taken as true, courts “are not required to indulge

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unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009)

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(internal quotation marks and citation omitted).
Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings

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liberally construed and to have any doubt resolved in their favor. Hebbe v. Pliler, 627 F.3d 338,

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342 (9th Cir. 2010) (citations omitted). To survive screening, Plaintiff’s claims must be facially

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plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each

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named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949

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(quotation marks omitted); Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir.

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2009). The sheer possibility that a defendant acted unlawfully is not sufficient, and mere

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consistency with liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at

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678, 129 S. Ct. at 1949 (quotation marks omitted); Moss, 572 F.3d at 969.

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II.

Plaintiff’s Allegations

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Plaintiff names the following defendants, employed at the Sierra Conservation Center

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(“SCC”): (1) Dr. Steven Smith, a physician at SCC; (2) Dr. Krpan, a supervising physician at

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SCC; (3) Dr. Lor, DDS, a dentist at SCC; and (4) Dr. T. McDow, a supervising dentist at SCC.

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Plaintiff alleges as follows: On May 30, 2014, Plaintiff was jumped by five other

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inmates and placed in ASU. Plaintiff complained to a nurse of extreme pain in the left lower

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jaw. Dr. Kapan ordered x-rays on June 2, 2014, and a follow-up doctor visit.

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On June 3, 2014, x-rays were taken, confirming a left sided mandibular fracture. The

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same day, Dr. Smith saw Plaintiff, stating, “Your jaw isn’t broken. You’re fine.” Plaintiff told

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Dr. Smith that the x-rays showed a fracture. Dr. Smith stated, “I could not see you for thirty

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days if I wanted. You’re lucky I’m even seeing you.”

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On June 4, 2014, Dr. Lor was the dentist on the yard, and saw Plaintiff, took x-rays, again

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showing a fractured jaw. Dr. Lor then told Plaintiff, “Your jaw needs to be plated or wired shut

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by an oral surgeon.” Dr. Lor called Dr. McDow to conspire with him. Dr. McDow talked with

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Dr. Lor about Plaintiff’s fractured jaw and agreed that the jaw needed to be treated by an oral

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surgeon, and set an appointment for June 6, 2014. Afterwards, the oral surgeon rescheduled for

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June 20, 2014.
On June 20, 2014, Plaintiff’s jaw was wired shut.

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III.

Deficiencies of Complaint
The Eighth Amendment protects prisoners from inhumane methods of punishment and

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from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir.

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2006). Although prison conditions may be restrictive and harsh, prison officials must provide

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prisoners with food, clothing, shelter, sanitation, medical care, and personal safety. Farmer v.

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Brennan, 511 U.S. 825, 832–33 (1994) (quotations omitted). “[T]o maintain an Eighth

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Amendment claim based on prison medical treatment, an inmate must show ‘deliberate

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indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006)

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(quoting Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 291, 50 L.Ed.2d 251 (1976)).

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

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medical 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; Wilhelm v. Rotman,

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680 F.3d 1113, 1122 (9th Cir. 2012). The prison official must be aware of facts from which he

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could make an inference that “a substantial risk of serious harm exists” and he must actually

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make the inference. Farmer, 511 U.S. at 837.

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“Deliberate indifference is a high legal standard.” Id. at 1019; Toguchi v. Chung, 391

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F.3d 1051, 1060 (9th Cir. 2004). The indifference must be substantial, and “[m]ere

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‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this cause of action.”

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Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980). Differences of medical

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opinion between the prisoner and health care providers also do not violate the Eighth

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Amendment. See Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996); Sanchez v. Vild, 891

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F.2d 240, 242 (9th Cir. 1989); Lyons v. Busi, 566 F. Supp. 2d 1172, 1191-1192 (E.D. Cal. 2008).

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Also, “a difference of opinion between a prisoner-patient and prison medical authorities

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regarding treatment does not give rise to a [§] 1983 claim.” Franklin v. Oregon, 662 F.2d 1337,

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1344 (9th Cir. 1981). To establish that such a difference of opinion amounted to deliberate

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indifference, the prisoner “must show that the course of treatment the doctors chose was

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medically unacceptable under the circumstances” and “that they chose this course in conscious

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disregard of an excessive risk to [the prisoner’s] health.” See Jackson v. McIntosh, 90 F.3d 330,

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332 (9th Cir. 1996).

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“Prison officials are deliberately indifferent to a prisoner’s serious medical needs when

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they ‘deny, delay, or intentionally interfere with medical treatment . . . . Mere negligence in

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diagnosing or treating a medical condition, without more, does not violate a prisoner’s Eighth

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Amendment rights.’” Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (quoting Hutchinson

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v. United States, 838 F.2d 390, 394 (9th Cir. 1998)). However, to establish a deliberate

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indifference claim arising from a delay in providing medical care, a plaintiff must allege facts

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showing that the delay led to further injury. See Hallett v. Morgan, 296 F.3d 732, 745-46 (9th

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Cir. 2002); McGuckin, 974 F.2d at 1060; Shapley v. Nevada Bd. of State Prison Comm’rs, 766

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F.2d 404, 407 (9th Cir. 1985) (per curiam). An “isolated exception” to the defendant’s “overall

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treatment” of the prisoner does not state a deliberate indifference claim. Jett, 439 F.3d at 1096.

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In this case, Plaintiff has previously filed a complaint and an amended complaint. The

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Court notes that although Plaintiff has made a short and plain statement in this current second

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amended complaint, he has omitted factual allegations from his original complaint and first

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amended complaint regarding treatments that he received. For example, Plaintiff has omitted

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facts previously alleged about medications, consultations and x-rays provided by Defendants.

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Although a plaintiff may make clarifications in an amended pleading, the Court is not required to

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ignore omissions of fact or contradictions of fact in later pleadings. See Gabarrete v. Hazel, No.

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1:11-CV-00324-MJS PC, 2012 WL 1966023, at *3 (E.D. Cal. May 31, 2012). Thus, the Court

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will consider omitted factual allegations in the previous pleadings.

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Here, Plaintiff asserts a claim based on Dr. Smith’s alleged statements at the June 3, 2014

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appointment, and based on his allegations that his jaw was not wired shut from June 3, 2014 until

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June 20, 2014. However, Plaintiff previously alleged that after Dr. Smith saw Plaintiff and made

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the statements, he contacted the CDCR Dental Department and arranged for a consultation. That

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department recommended that Plaintiff be placed on Clindamycin empirically until evaluation by

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an oral surgeon. These allegations do not show deliberate indifference by Dr. Smith. Plaintiff’s

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assertion that immediate care should have been performed at most this suggests a disagreement

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between him and the doctor regarding treatment.
Plaintiff also alleges that Dr. Krpan failed to ensure immediate medical care for

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Plaintiff’s jaw injury, but he has alleged here that ordered x-rays and a doctor’s visit, and has

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previously alleged that Dr. Krpan also ordered a pureed diet upon diagnosing him with a

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fracture. Thus, Plaintiff has not shown deliberate indifference by Dr. Krpan. Rather, Plaintiff’s

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allegations suggest that Plaintiff preferred a different treatment, which, as explained above, is not

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sufficient to state a claim for deliberate indifference to a serious medical need.
Finally, Plaintiff alleges that Drs. McDow and Lor are liable to him for failing to ensure

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that his surgery was not delayed until June 20, 2014. However, as noted above, Plaintiff

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affirmatively alleges that these dentists recommended a consultation and set an appointment with

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an oral surgeon. He also previously alleged that they recommended medication treatment.

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Plaintiff also alleges that the oral surgeon had to reschedule his clinic until June 20, 2014.

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Plaintiff does not allege how any defendant in this action were aware of or caused the delay in

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treatment to Plaintiff, and that they did so in conscious disregard of a known risk to Plaintiff’s

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health. Therefore, Plaintiff has not stated any cognizable claim against Drs. McDow or Lor.
CONCLUSION AND ORDER

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For the reasons discussed above, Plaintiff’s complaint fails to state a cognizable claim for

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relief. Despite being provided with the relevant pleading and legal standards, Plaintiff has been

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unable to cure the deficiencies by amendment, and thus further leave to amend is not warranted.

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Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).

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Accordingly, the Court HEREBY DIRECTS the Clerk of the Court to randomly assign a
district judge to this action.
Furthermore, for the reasons stated above, IT IS HEREBY RECOMMENDED that this

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action be dismissed for Plaintiff’s failure to state a claim upon which relief may be granted.

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These Findings and Recommendation will be submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within

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fourteen (14) days after being served with these Findings and Recommendation, Plaintiff may

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file written objections with the Court. The document should be captioned “Objections to

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Magistrate Judge’s Findings and Recommendation.” Plaintiff is advised that failure to file

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objections within the specified time may result in the waiver of the “right to challenge the

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magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir.

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2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

/s/ Barbara

June 29, 2018

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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