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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SHAJIA AYOBI, 12 Plaintiff, 13 14 v. DERRAL G. ADAMS, et al., 15 Defendants. 16 17 18 ) ) ) ) ) ) ) ) ) ) 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. 19 Plaintiff consented to United States Magistrate Judge jurisdiction on June 1, 2017. (ECF No. 20 5.) To date, Defendant has not consented or declined to United States Magistrate Judge jurisdiction. 21 On August 14, 2017, the Court found that Plaintiff’s first amended complaint stated a 22 cognizable claim against Defendant Showalter for deliberate indifference to a serious medical need in 23 violation of the Eighth Amendment, and dismissed Defendant Adams for failure to state a cognizable 24 claim for relief. (ECF No. 8.) The Court indicated that jurisdiction existed under 28 U.S.C. § 636(c) 25 based on the fact that Plaintiff had consented to Magistrate Judge jurisdiction and no other parties had 26 yet appeared. (Id.) 27 /// 28 /// 1 On November 9, 2017, the Ninth Circuit Court of Appeals ruled that 28 U.S.C. § 636(c)(1) 1 2 requires the consent of all named plaintiffs and defendants, even those not served with process, before 3 jurisdiction may vest in a Magistrate Judge to dispose of a civil case. Williams v. King, __ F.3d __, 4 Case No. 15-15259, 2017 WL 5180205, *3 (9th Cir. Nov. 9, 2017). Accordingly, the Court did not 5 have jurisdiction to dismiss the claims in its August 14, 2017 order. 6 Based upon the foregoing, the undersigned will now recommend to the District Judge that this 7 case continue to proceed only on Plaintiff’s cognizable claims, and that the claims described below be 8 dismissed, for the reasons explained herein.1 9 I. 10 SCREENING REQUIREMENT 11 The Court is required to screen complaints brought by prisoners seeking relief against a 12 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 13 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 14 “frivolous or malicious,” that “fails to state a claim on which relief may be granted,” or that “seeks 15 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 16 17 entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 18 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, 19 do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 20 550 U.S. 544, 555 (2007)). Plaintiff must demonstrate that each named defendant personally 21 participated in the deprivation of his rights. Iqbal, 556 U.S. at 676-677; Simmons v. Navajo County, 22 Ariz., 609 F.3d 1011, 1020-1021 (9th Cir. 2010). 23 Prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings 24 liberally construed and to have any doubt resolved in their favor, but the pleading standard is now 25 higher, Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted), and to survive 26 screening, Plaintiff’s claims must be facially plausible, which requires sufficient factual detail to allow 27 1 28 The Court notes that filed on December 4, 2017, Plaintiff’s motion to amend the complaint was denied, without prejudice. (ECF No. 15.) 2 1 the Court to reasonably infer that each named defendant is liable for the misconduct alleged. Iqbal, 2 556 U.S. at 678-79; Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The “sheer 3 possibility that a defendant has acted unlawfully” is not sufficient, and “facts that are ‘merely 4 consistent with’ a defendant’s liability” falls short of satisfying the plausibility standard. Iqbal, 556 5 U.S. at 678; Moss, 572 F.3d at 969. 6 II. 7 COMPLAINT ALLEGATIONS 8 Plaintiff is in the custody of Central California Women’s Facility (“CCWF”) in Chowchilla, 9 California. Plaintiff brings this civil rights action against Defendant B. Showalter, for failing to 10 provide adequate medical care and against Defendant Warden Darrel G. Adams, for failing to 11 supervise Defendant Showalter. Plaintiff is seeking compensatory and punitive damages. 12 Plaintiff alleges that Defendant Showalter was her Primary Care Physician during the relevant 13 times and failed to properly prescribe Plaintiff cholesterol medication that would not cause serious and 14 permanent side effects. Throughout the course of Plaintiff’s medical treatment, Defendant Showalter 15 prescribed Lipitor to help reduce and control Plaintiff’s cholesterol. 16 Plaintiff was hesitant about taking prescribed medication, being aware of Lipitor’s possible side 17 effects and pending lawsuits against the manufacturer. Upon being prescribed Lipitor by Defendant 18 Showalter, Plaintiff made her concerns known and questioned the direction of her medical treatment. 19 Plaintiff was informed by Defendant Showalter that some of the claims of possible side effects are 20 simply not true. Defendant Showalter proceeded to discuss Plaintiff’s possible side effects, explaining 21 she may experience some pain and discomfort in her arms and knees. 22 assurance prompted Plaintiff to take the prescribed medication. 23 treatment, Plaintiff began experiencing pain in her arms and legs, which limited her daily activities. 24 This prompted Plaintiff to schedule another doctor visit, where Defendant Showalter ordered lab work. 25 Prior to receiving the results, Defendant Showalter called Plaintiff into her office attempting to 26 subdue Plaintiff’s concerns about taking Lipitor. Defendant Showalter explained that only patients 27 who have a family history of diabetes have a potential risk of being diagnosed with Type II diabetes 28 on this medication. Plaintiff replied that Defendant was aware of her family history of diabetes. 3 From the initial visitation, Defendant Showalter’s After beginning her course of 1 Plaintiff alleges that Defendant Showalter acted with deliberate indifference by knowingly and 2 intentionally prescribing Lipitor to Plaintiff knowing of her family history of diabetes. Defendant 3 Showalter instructed Plaintiff to stop taking the medication, but Plaintiff asserts it was too late as the 4 damage was already done. Once the lab results returned, Plaintiff’s suspicions were confirmed; the 5 medication had caused her to become a Type II diabetic. As a result, Plaintiff is currently taking 500 6 mg of Metformin twice a daily and Niacin, which is known to be hard on the liver and kidneys. 7 III. 8 DISCUSSION 9 A. Deliberate Indifference to a Serious Medical Need 10 A prisoner’s claim of inadequate medical care does not constitute cruel and unusual 11 punishment in violation of the Eighth Amendment unless the mistreatment rises to the level of 12 “deliberate indifference to serious medical needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) 13 (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two part test for deliberate indifference 14 requires Plaintiff to show (1) “a ‘serious medical need’ by demonstrating that failure to treat a 15 prisoner’s condition could result in further significant injury or the ‘unnecessary and wanton infliction 16 of pain,’ ” and (2) “the defendant’s response to the need was deliberately indifferent.” Jett, 439 F.3d 17 at 1096. A defendant does not act in a deliberately indifferent manner unless the defendant “knows of 18 and disregards an excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 837 19 (1994). “Deliberate indifference is a high legal standard,” Simmons v. Navajo County Ariz., 609 F.3d 20 1011, 1019 (9th Cir. 2010); Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004), and is shown 21 where there was “a purposeful act or failure to respond to a prisoner’s pain or possible medical need” 22 and the indifference caused harm, Jett, 439 F.3d at 1096. 23 Negligence or medical malpractice does not rise to the level of deliberate indifference. 24 Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 105- 25 106). “[A] complaint that a physician has been negligent in diagnosing or treating a medical condition 26 does not state a valid claim of medical mistreatment under the Eighth Amendment. 27 malpractice does not become a constitutional violation merely because the victim is a prisoner.” 28 Estelle, 429 U.S. at 106; see also Anderson v. County of Kern, 45 F.3d 1310, 1316 (9th Cir. 1995). 4 Medical 1 Even gross negligence is insufficient to establish deliberate indifference to serious medical needs. See 2 Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990). 3 Additionally, a prisoner’s mere disagreement with diagnosis or treatment does not support a 4 claim of deliberate indifference. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). “A difference of 5 opinion between a prisoner-patient and prison medical authorities regarding treatment does not give 6 rise to a [section] 1983 claim.” Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981) (internal 7 citation omitted); accord Snow v. McDaniel, 681 F.3d 978, 987-88 (9th Cir. 2012); Wilhelm, 680 F.3d 8 at 1122-1123. To prevail, plaintiff “must show that the course of treatment the doctors chose was 9 medically unacceptable under the circumstances . . . and . . . that they chose this course in conscious 10 disregard of an excessive risk to plaintiff’s health.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 11 1986) (internal citations omitted); accord Snow, 681 F.3d at 987-88. 12 At the pleading stage, Plaintiff’s allegation that Defendant Showalter intentionally prescribed 13 medication that caused serious and permanent side effects supports a cognizable claim under the 14 Eighth Amendment. Plaintiff maintains that by prescribing Lipitor Defendant Showalter acted with 15 deliberate indifference. Plaintiff alleges that she told Defendant Showalter that she was apprehensive 16 about taking the medication and that Plaintiff had a family medical history of diabetes. Plaintiff also 17 contends that Defendant Showalter knew that the manufacturer has pending lawsuits due to patients 18 that have taken the medication and who are susceptible to diabetes and are now being diagnosed with 19 Type II diabetes. Plaintiff’s allegation that Defendant Showalter prescribed a medication knowing it 20 was contraindicated by Plaintiff’s family history, and Plaintiff developed the side effect, is sufficient 21 to state a claim that Defendant Showalter was deliberately indifferent in violation of the Eighth 22 Amendment. 23 B. Supervisory Liability 24 Section 1983 provides a cause of action for the violation of a plaintiff’s constitutional or other 25 federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 1087, 1092 26 (9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); Jones, 297 F.3d 27 at 934. To state a claim under section 1983, Plaintiff is required to show that (1) each defendant acted 28 under color of state law and (2) each defendant deprived him of rights secured by the Constitution or 5 1 federal law. Long, 442 F.3d at 1185. There is no respondeat superior liability under section 1983, and 2 therefore, each defendant is only liable for his or her own misconduct. Iqbal, 556 U.S. at 677. To 3 state a claim, Plaintiff must demonstrate that each defendant personally participated in the deprivation 4 of his rights. Jones, 297 F.3d at 934. 5 Plaintiff names Defendant Warden Adams as a Defendant in this action; however the 6 complaint is devoid of any factual allegations regarding any conduct by Defendant Adams. Rather, it 7 appears that Plaintiff seeks to hold Defendant Adams liable based upon his position as warden at 8 CCWF. As there is no respondeat superior liability under section 1983, Plaintiff has failed to state a 9 claim against Defendant Adams and Defendant Adams must be dismissed for failure to state a 10 cognizable claim. 11 IV. 12 RECOMMENDATIONS 13 Based on the foregoing, it is HEREBY RECOMMENDED that: 14 1. 15 for deliberate indifference to a serious medical need; 2. 16 17 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 18 3. The Office of the Clerk is directed to randomly assign this action to a District Judge. 19 These Findings and Recommendations will be submitted to the United States District Judge 20 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one (21) 21 days after being served with these Findings and Recommendations, the parties may file written 22 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 23 Findings and Recommendations.” The parties are advised that failure to file objections within the 24 /// 25 /// 26 /// 27 /// 28 /// 6 1 specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838- 2 39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 3 4 IT IS SO ORDERED. 5 Dated: 6 December 4, 2017 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7

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