Ayobi v. Adams et al

Filing 16

ORDER Directing Office of the Clerk to Randomly Assign a District Judge to This Action; FINDINGS and RECOMMENDATIONS recommending that Defendant Adams be Dismissed re 7 Amended Prisoner Civil Rights Complaint signed by Magistrate Judge Stanley A. Boone on 12/4/2017. This case has been assigned to District Judge Dale A. Drozd and Magistrate Judge Stanley A. Boone. The new case number is 1:17-cv-00693-DAD-SAB (PC). Referred to Judge Drozd. Objections to F&R due within twenty-one (21) days. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SHAJIA AYOBI,

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Plaintiff,

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v.
DERRAL G. ADAMS, et al.,

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Defendants.

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Case No.: 1:17-cv-00693-SAB (PC)
ORDER DIRECTING OFFICE OF THE CLERK
TO RANDOMLY ASSIGN A DISTRICT JUDGE
TO THIS ACTION
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSAL OF
DEFENDANT ADAMS
[ECF Nos. 7, 8]

Plaintiff Shajia Ayobi is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.

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Plaintiff consented to United States Magistrate Judge jurisdiction on June 1, 2017. (ECF No.

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5.) To date, Defendant has not consented or declined to United States Magistrate Judge jurisdiction.

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On August 14, 2017, the Court found that Plaintiff’s first amended complaint stated a

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cognizable claim against Defendant Showalter for deliberate indifference to a serious medical need in

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violation of the Eighth Amendment, and dismissed Defendant Adams for failure to state a cognizable

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claim for relief. (ECF No. 8.) The Court indicated that jurisdiction existed under 28 U.S.C. § 636(c)

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based on the fact that Plaintiff had consented to Magistrate Judge jurisdiction and no other parties had

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yet appeared. (Id.)

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On November 9, 2017, the Ninth Circuit Court of Appeals ruled that 28 U.S.C. § 636(c)(1)

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requires the consent of all named plaintiffs and defendants, even those not served with process, before

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jurisdiction may vest in a Magistrate Judge to dispose of a civil case. Williams v. King, __ F.3d __,

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Case No. 15-15259, 2017 WL 5180205, *3 (9th Cir. Nov. 9, 2017). Accordingly, the Court did not

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have jurisdiction to dismiss the claims in its August 14, 2017 order.

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Based upon the foregoing, the undersigned will now recommend to the District Judge that this

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case continue to proceed only on Plaintiff’s cognizable claims, and that the claims described below be

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dismissed, for the reasons explained herein.1

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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

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

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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that “fails to state a claim on which relief may be granted,” or that “seeks

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monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).
A complaint must contain “a short and plain statement of the claim showing that the pleader is

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entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but

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

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do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly,

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550 U.S. 544, 555 (2007)). Plaintiff must demonstrate that each named defendant personally

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participated in the deprivation of his rights. Iqbal, 556 U.S. at 676-677; Simmons v. Navajo County,

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Ariz., 609 F.3d 1011, 1020-1021 (9th Cir. 2010).

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Prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings

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liberally construed and to have any doubt resolved in their favor, but the pleading standard is now

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higher, Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted), and to survive

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screening, Plaintiff’s claims must be facially plausible, which requires sufficient factual detail to allow

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The Court notes that filed on December 4, 2017, Plaintiff’s motion to amend the complaint was denied, without
prejudice. (ECF No. 15.)

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the Court to reasonably infer that each named defendant is liable for the misconduct alleged. Iqbal,

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556 U.S. at 678-79; Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The “sheer

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possibility that a defendant has acted unlawfully” is not sufficient, and “facts that are ‘merely

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consistent with’ a defendant’s liability” falls short of satisfying the plausibility standard. Iqbal, 556

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U.S. at 678; Moss, 572 F.3d at 969.

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II.

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COMPLAINT ALLEGATIONS

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Plaintiff is in the custody of Central California Women’s Facility (“CCWF”) in Chowchilla,

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California. Plaintiff brings this civil rights action against Defendant B. Showalter, for failing to

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provide adequate medical care and against Defendant Warden Darrel G. Adams, for failing to

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supervise Defendant Showalter. Plaintiff is seeking compensatory and punitive damages.

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Plaintiff alleges that Defendant Showalter was her Primary Care Physician during the relevant

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times and failed to properly prescribe Plaintiff cholesterol medication that would not cause serious and

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permanent side effects. Throughout the course of Plaintiff’s medical treatment, Defendant Showalter

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prescribed Lipitor to help reduce and control Plaintiff’s cholesterol.

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Plaintiff was hesitant about taking prescribed medication, being aware of Lipitor’s possible side

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effects and pending lawsuits against the manufacturer. Upon being prescribed Lipitor by Defendant

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Showalter, Plaintiff made her concerns known and questioned the direction of her medical treatment.

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Plaintiff was informed by Defendant Showalter that some of the claims of possible side effects are

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simply not true. Defendant Showalter proceeded to discuss Plaintiff’s possible side effects, explaining

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she may experience some pain and discomfort in her arms and knees.

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assurance prompted Plaintiff to take the prescribed medication.

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treatment, Plaintiff began experiencing pain in her arms and legs, which limited her daily activities.

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This prompted Plaintiff to schedule another doctor visit, where Defendant Showalter ordered lab work.

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Prior to receiving the results, Defendant Showalter called Plaintiff into her office attempting to

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subdue Plaintiff’s concerns about taking Lipitor. Defendant Showalter explained that only patients

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who have a family history of diabetes have a potential risk of being diagnosed with Type II diabetes

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on this medication. Plaintiff replied that Defendant was aware of her family history of diabetes.
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From the initial visitation,

Defendant Showalter’s

After beginning her course of

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Plaintiff alleges that Defendant Showalter acted with deliberate indifference by knowingly and

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intentionally prescribing Lipitor to Plaintiff knowing of her family history of diabetes. Defendant

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Showalter instructed Plaintiff to stop taking the medication, but Plaintiff asserts it was too late as the

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damage was already done. Once the lab results returned, Plaintiff’s suspicions were confirmed; the

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medication had caused her to become a Type II diabetic. As a result, Plaintiff is currently taking 500

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mg of Metformin twice a daily and Niacin, which is known to be hard on the liver and kidneys.

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III.

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DISCUSSION

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A.

Deliberate Indifference to a Serious Medical Need

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

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punishment in violation of the Eighth Amendment unless the mistreatment rises to the level of

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“deliberate 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 (1976)). The two part test for deliberate indifference

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requires Plaintiff to show (1) “a ‘serious medical need’ by demonstrating that failure to treat a

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prisoner’s condition could result in further significant injury or the ‘unnecessary and wanton infliction

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of pain,’ ” and (2) “the defendant’s response to the need was deliberately indifferent.” Jett, 439 F.3d

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at 1096. A defendant does not act in a deliberately indifferent manner unless the defendant “knows of

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and disregards an excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 837

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(1994). “Deliberate indifference is a high legal standard,” Simmons v. Navajo County Ariz., 609 F.3d

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1011, 1019 (9th Cir. 2010); Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004), and is shown

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where there was “a purposeful act or failure to respond to a prisoner’s pain or possible medical need”

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and the indifference caused harm, Jett, 439 F.3d at 1096.

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Negligence or medical malpractice does not rise to the level of deliberate indifference.

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Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 105-

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106). “[A] complaint that a physician has been negligent in diagnosing or treating a medical condition

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does not state a valid claim of medical mistreatment under the Eighth Amendment.

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malpractice does not become a constitutional violation merely because the victim is a prisoner.”

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Estelle, 429 U.S. at 106; see also Anderson v. County of Kern, 45 F.3d 1310, 1316 (9th Cir. 1995).
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Medical

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Even gross negligence is insufficient to establish deliberate indifference to serious medical needs. See

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Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990).

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

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claim of deliberate indifference. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). “A difference of

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opinion between a prisoner-patient and prison medical authorities regarding treatment does not give

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rise to a [section] 1983 claim.” Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981) (internal

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citation omitted); accord Snow v. McDaniel, 681 F.3d 978, 987-88 (9th Cir. 2012); Wilhelm, 680 F.3d

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at 1122-1123. To prevail, plaintiff “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 plaintiff’s health.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir.

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1986) (internal citations omitted); accord Snow, 681 F.3d at 987-88.

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At the pleading stage, Plaintiff’s allegation that Defendant Showalter intentionally prescribed

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medication that caused serious and permanent side effects supports a cognizable claim under the

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Eighth Amendment. Plaintiff maintains that by prescribing Lipitor Defendant Showalter acted with

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deliberate indifference. Plaintiff alleges that she told Defendant Showalter that she was apprehensive

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about taking the medication and that Plaintiff had a family medical history of diabetes. Plaintiff also

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contends that Defendant Showalter knew that the manufacturer has pending lawsuits due to patients

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that have taken the medication and who are susceptible to diabetes and are now being diagnosed with

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Type II diabetes. Plaintiff’s allegation that Defendant Showalter prescribed a medication knowing it

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was contraindicated by Plaintiff’s family history, and Plaintiff developed the side effect, is sufficient

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to state a claim that Defendant Showalter was deliberately indifferent in violation of the Eighth

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Amendment.

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B.

Supervisory Liability

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Section 1983 provides a cause of action for the violation of a plaintiff’s constitutional or other

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federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 1087, 1092

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(9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); Jones, 297 F.3d

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at 934. To state a claim under section 1983, Plaintiff is required to show that (1) each defendant acted

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under color of state law and (2) each defendant deprived him of rights secured by the Constitution or
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federal law. Long, 442 F.3d at 1185. There is no respondeat superior liability under section 1983, and

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therefore, each defendant is only liable for his or her own misconduct. Iqbal, 556 U.S. at 677. To

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state a claim, Plaintiff must demonstrate that each defendant personally participated in the deprivation

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of his rights. Jones, 297 F.3d at 934.

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Plaintiff names Defendant Warden Adams as a Defendant in this action; however the

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complaint is devoid of any factual allegations regarding any conduct by Defendant Adams. Rather, it

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appears that Plaintiff seeks to hold Defendant Adams liable based upon his position as warden at

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CCWF. As there is no respondeat superior liability under section 1983, Plaintiff has failed to state a

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claim against Defendant Adams and Defendant Adams must be dismissed for failure to state a

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cognizable claim.

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IV.

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RECOMMENDATIONS

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Based on the foregoing, it is HEREBY RECOMMENDED that:

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1.

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for deliberate indifference to a serious medical need;
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This action on Plaintiff’s claims for monetary damages against Defendant Showalter

Defendant Warden Adams be dismissed from the action for failure to state a

cognizable claim for relief; and

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The Office of the Clerk is directed to randomly assign this action to a District Judge.

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These Findings and Recommendations will be submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one (21)

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days after being served with these Findings and Recommendations, the parties may file written

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objections with the Court. The document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendations.” The parties are advised that failure to file objections within the

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specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-

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39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.

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Dated:

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December 4, 2017
UNITED STATES MAGISTRATE JUDGE

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