Brothers, II v. Buenafe et al

Filing 28

SCREENING ORDER; FINDINGS and RECOMMENDATIONS that Plaintiff Proceed On Cognizable Claims and that Non-Cognizable Claims be Dismissed without Leave to Amend re 24 , signed by Magistrate Judge Jeremy D. Peterson on 3/8/19. Referred to Judge O'Neill. Objections to F&R Due Within Fourteen Days. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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AUBREY LEE BROTHERS, II,

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Plaintiff,
v.
CHITA BUENAFE, N. FLORES, and
EDGAR CLARK,
Defendants.

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Case No. 1:17-cv-00607-LJO-JDP
SCREENING ORDER
FINDINGS AND RECOMMENDATIONS
THAT PLAINTIFF PROCEED ON
COGNIZABLE CLAIMS AND THAT NONCOGNIZABLE CLAIMS BE DISMISSED
WITHOUT LEAVE TO AMEND
OBJECTIONS DUE IN 14 DAYS
ECF No. 24

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Plaintiff is a state prisoner proceeding without counsel in this civil rights action brought

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under 42 U.S.C. § 1983. Plaintiff’s Third Amended Complaint, filed May 10, 2018, is before the

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court for screening under 28 U.S.C. § 1915A. We find that plaintiff has stated a cause of action

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against defendants Buenafe and Flores for medical deliberate indifference, but that plaintiff has

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failed to state a claim against defendant Clark. We recommend that the cognizable claims against

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defendants Buenafe and Flores be allowed to proceed and that all other claims be dismissed with

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prejudice. The court will authorize service of the complaint as to defendants Buenafe and Flores

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by separate order.

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I.

SCREENING AND PLEADING REQUIREMENTS

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A district court is required to screen a prisoner’s complaint that seeks relief against a

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governmental entity, its officer, or its employee. See 28 U.S.C. § 1915A(a). The court must

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identify any cognizable claims and dismiss any portion of the complaint that is frivolous or

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

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

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court must construe an unrepresented litigant’s complaint liberally. Haines v. Kerner, 404 U.S.

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519, 520 (1972) (per curiam).

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A complaint must contain a short and plain statement that plaintiff is entitled to relief,

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Fed. R. Civ. P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its

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face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The short and plain statement “need

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only give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.”

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Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Twombly, 550 U.S. at 555 (internal

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quotation marks omitted)). The complaint need not identify “a precise legal theory.” Kobold v.

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Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 1038 (9th Cir. 2016) (quoting Skinner v.

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Switzer, 562 U.S. 521, 530 (2011)). The plausibility standard does not require detailed

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allegations, but legal conclusions do not suffice. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

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If the allegations “do not permit the court to infer more than the mere possibility of misconduct,”

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the complaint states no claim. Id. at 679.

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II.

FACTUAL ALLEGATIONS

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In 2014, Plaintiff was incarcerated at California State Prison, Corcoran (“CSPC”).

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Plaintiff brings this action against defendants Chita Buenafe, a dentist, N. Flores, a dental

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assistant, and Edgar Clark, a medical doctor who reviewed plaintiff’s inmate appeals. On March

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10, 2014, defendants Buenafe and Flores performed dental surgery on plaintiff. ECF No. 24 at 3.

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The surgery caused plaintiff to suffer a left orbital wall fracture. Id. Plaintiff informed

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defendants Buenafe and Flores of the fracture as he felt it, just before he blacked out and fell.

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Id. at 4. Defendants Buenafe and Flores told plaintiff to “put in a dental request to reduce pain

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and fix injury,” and plaintiff submitted dental requests on March 10 and March 11, 2014. Id.
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Plaintiff was seen again by defendants Buenafe and Flores on March 11, 2014, but they would not

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provide plaintiff with pain relief, instead instructing plaintiff to submit more medical requests. Id.

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Plaintiff submitted medical requests about his continuing pain and other symptoms but was not

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treated. Id. at 5, 13-15. Plaintiff suffered from “excruciating brain pain” that worsened over

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time. Id. at 17. Plaintiff also experienced hot and cold flashes and temporary losses of vision,

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which, together with the pain, caused discomfort and loss of concentration. Id. at 18. Plaintiff

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was in pain and discomfort for six months while defendants Buenafe and Flores refused to treat

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him. Id. at 6.

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In May and July, plaintiff submitted inmate appeal grievances related to his healthcare,

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including the dental work and subsequent pain. Id. at 17-27. On September 22, 2014, defendant

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Clark reviewed plaintiff’s appeals, then ordered an MRI of the brain and follow-up with

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plaintiff’s “yard physician.” Id. at 36. On October 6, 2014, plaintiff had an MRI that revealed

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“an old left medial orbital wall fracture.” Id. at 11.

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III.

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DISCUSSION
Section 1983 allows a private citizen to sue for the deprivation of a right secured by

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federal law. See 42 U.S.C. § 1983; Manuel v. City of Joliet, Ill., 137 S. Ct. 911, 916 (2017). To

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state a claim under 42 U.S.C. § 1983, a plaintiff must (1) allege the deprivation of a right secured

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by the U.S. Constitution and laws of the United States, and (2) show that the alleged deprivation

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was committed by a person acting under color of state law. See West v. Atkins, 487 U.S. 42, 48

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(1988). A person deprives another of a constitutional right, “within the meaning of § 1983, ‘if he

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does an affirmative act, participates in another’s affirmative act, or omits to perform an act which

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he is legally required to do that causes the deprivation of which complaint is made.’”

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Preschooler II v. Clark Cty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007) (quoting

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Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)).

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At the outset, we recognize that allegations of medical negligence are insufficient to state

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a claim for deliberate indifference to serious medical needs. See Clement v. Gomez, 298 F.3d

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898, 904 (9th Cir. 2002). Additionally, a difference of opinion concerning the judgment of

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treating medical professionals falls outside of § 1983. See Sanchez v. Vild, 891 F.2d 240, 242
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(9th Cir. 1989). However, plaintiff’s allegations against defendants Buenafe and Flores, liberally

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construed, go beyond mere negligence. Plaintiff alleges that defendants Buenafe and Flores

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caused a bone fracture during a dental procedure, the refused to treat the fracture. He alleges that

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their refusal to treat caused him harm in the form of increasing dysfunction and pain. Plaintiff’s

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allegations state a cognizable claim for violation of plaintiff’s Eighth Amendment rights against

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defendant Buenafe and Flores. See Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (a

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deliberate indifference to serious medical needs claim consists of two parts: (1) a “serious

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medical need” demonstrated by a failure to treat a prisoner’s medical condition that could result

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in further significant injury or the unnecessary and wanton infliction of pain; and (2) “deliberate

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indifference” —demonstrated by (a) a purposeful act or failure to respond to a prisoner’s pain or

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possible medical need and (b) harm caused by the indifference). Accordingly, the court will

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allow plaintiff’s claims to proceed against defendants Buenafe and Flores.

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The factual circumstances regarding defendant Clark, however, are different. Clark was a

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reviewing physician on plaintiff’s inmate appeal who recommended an MRI and follow-up with

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plaintiff’s treating physician. Plaintiff has failed to allege facts that, even liberally construed,

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could support a finding of deliberate indifference on the part of defendant Clark. See Jett, 439

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F.3d at 1096. Plaintiff has been given multiple opportunities to amend his complaint; further

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amendment would be futile. Therefore, plaintiff’s claim against defendant Clark should be

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dismissed with prejudice.

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IV.

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RECOMMENDATIONS
The undersigned has screened plaintiff’s complaint and finds that plaintiff states claims

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against defendants Buenafe and Flores for medical deliberate indifference in violation of the

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Eighth Amendment. We recommend that the court allow plaintiff to proceed on these claims and

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dismiss with prejudice all other claims, namely plaintiff’s claims against defendant Clark for

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medical deliberate indifference.

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These findings and recommendations are submitted to the U.S. district judge presiding
over the case under 28 U.S.C. § 636(b)(1)(B) and Local Rule 304. Within fourteen days of the

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service of the findings and recommendations, the parties may file written objections to the

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findings and recommendations with the court and serve a copy on all parties. That document

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must be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The

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presiding district judge will then review the findings and recommendations under 28 U.S.C. §

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636(b)(1)(C).

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IT IS SO ORDERED.

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Dated:

March 8, 2019
UNITED STATES MAGISTRATE JUDGE

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No. 204

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