Woodward v. Kokor
ORDER DISMISSING ACTION for Failure to State a Claim signed by Magistrate Judge Barbara A. McAuliffe on 10/16/2017. CASE CLOSED. (Jessen, A)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
DANIEL H. WOODWARD,
Case No. 1:17-cv-00722-BAM (PC)
SCREENING ORDER DISMISSING ACTION
FOR FAILURE TO STATE A CLAIM
(ECF No. 10)
15 W. KOKOR, et al.,
Plaintiff Daniel H. Woodward (“Plaintiff”) is a state prisoner proceeding pro se and in forma
19 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On June 14, 2017, the Court
20 dismissed Plaintiff’s complaint with leave to amend. (ECF No. 7.) Plaintiff has consented to the
21 magistrate judge jurisdiction. (ECF No. 6.) Plaintiff’s first amended complaint, filed on July 26,
22 2017, is currently before the Court for screening. (ECF No. 10.)
The Court is required to screen complaints brought by prisoners seeking relief against a
25 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. §
26 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous or
27 malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief
1 from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2); 28 U.S.C. §
A complaint must contain “a short and plain statement of the claim showing that the pleader
4 is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but
5 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
6 do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009) (citing Bell
7 Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). While a plaintiff’s
8 allegations are taken as true, courts “are not required to indulge unwarranted inferences.” Doe I v.
9 Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation
Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings
12 liberally construed and to have any doubt resolved in their favor. Hebbe v. Pliler, 627 F.3d 338, 342
13 (9th Cir. 2010) (citations omitted). To survive screening, Plaintiff’s claims must be facially
14 plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each
15 named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949
16 (quotation marks omitted); Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).
17 The sheer possibility that a defendant acted unlawfully is not sufficient, and mere consistency with
18 liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949
19 (quotation marks omitted); Moss, 572 F.3d at 969.
Plaintiff is currently housed at the California Substance Abuse Treatment Facility (“SATF”)
22 in Corcoran, California. Plaintiff names the following defendants: (1) Dr. W. Kokor; (2) C. Cryer,
23 Chief Executive Officer, SATF; and (3) J. Lewis, Deputy Director, Policy and Risk Management,
24 California Correctional Health Care Services. Plaintiff’s allegations are as follows:
On approximately August 28, 2016, Plaintiff underwent orthoscopic surgery on his left knee.
26 Dr. Paik, an orthopedic surgeon, performed the surgery. Post-surgery, Dr. Paik prescribed Osteo
27 Bi-Flex, stating it would best promote the joint healing process. After not receiving the prescribed
28 medication, on September 9, 2016, Plaintiff submitted a CDC 7362 asking why he had not received
1 it. On September 10, 2016, Plaintiff received a reply from RN Lune, indication that Plaintiff “no
2 longer had an order for Osteo Bi-Flex.” (ECF No. 10 at p. 9.) The following day, Plaintiff went to
3 the E-Facility Health Clinic to inquire as to why he no longer had an order for Osteo Bi-Flex.
4 Plaintiff was informed that his primary care provider (“PCP”) had cancelled the order. In late
5 September, Plaintiff had a follow-up with Dr. Paik, during which he re-prescribed the Osteo Bi6 Flex.
In early October, Plaintiff met with his PCP, Dr. Kokor. During the meeting, Plaintiff asked
8 why he was no receiving the prescribed Osteo Bi-Flex. Dr. Kokor replied, “That’s holistic
9 medicine, and there’s no proof that it works. I don’t believe it works for joint health.” (ECF No. 10
10 at p. 9.) Plaintiff responded, “Even when it’s prescribed by my ortho specialist?” (Id.) Dr. Kokor
11 then seemed to become enraged, exclaiming “I’m the primary care physician!” (Id.)
On October 10, 2016, Plaintiff submitted a CDCR 602 HC Appeal, alleging, amongst other
13 things, that Dr. Kokor’s decision was not based on sound medical knowledge—especially given that
14 Osteo Bi-Flex had been deemed the appropriate treatment by not only Dr. Paik, but also the Board
15 of Orthopedic Surgeons, the American Medical Association and the American Medical Journal.
16 Plaintiff also alleged that Dr. Kokor’s denial was causing unnecessary pain and a reduction in
17 Plaintiff’s abilities to perform daily functions.
On December 6, 2016, Plaintiff was interviewed by M. Carrasquillo, RN. During the
19 interview, she stated her belief that she had seen a memo regarding Osteo Bi-Flex being banned by
20 the CDCR. Plaintiff asked to see the memo. RN Carrasquillo replied that she did not have a copy
21 and only thought she had seen it. Plaintiff asked to be provided a copy of the memo, and RN
22 Carrasquillo replied that she would make sure that Plaintiff received it. That never happened.
On December 9, 2016, Plaintiff’s health care appeal was denied at the Institutional Level by
24 C. Cryer, C.E.O. of SATF. The denial stated, amongst other things, that “[G]lucosamine, a key
25 ingredient component in Osteo Bi-Flex was banned for purchase by California Correctional Health
26 Care Services. There is no alternative supplement available that contains the components of Osteo
27 Bi-Flex (chondroitin and glucosamine).” (Id. at p. 10.) Plaintiff alleges that this statement was
28 made despite the fact that Osteo Bi-Flex and similar products containing glucosamine, such as
1 Ultimate Nutrition’s Glucosamine Chondroitin MSM, Mason Natural’s Glucosamine Active, and
2 Nature’s Blend Glucosamine Chondroitin Complex are readily available, without restriction,
3 through the quarterly package companies utilized by CDCR. Plaintiff also alleges that Defendant
4 Cryer stated “health care personnel not employed by this department are not authorized to order
5 treatment for an inmate-patient. Such persons may offer opinions and recommendations….” (Id.)
6 Plaintiff alleges that this statement was made even though Dr. Paik was a specialist contracted by
7 CDCR and was therefore employed by the department.
On December 27, 2016, Plaintiff resubmitted his appeal for a Headquarters’ Level
9 Response. On March 16, 2017, Plaintiff’s health care appeal was denied by J. Lewis, Deputy
10 Director of Policy and Risk Management Services. Defendant Lewis reiterated the assertion that
11 “glucosamine supplements, such as Osteo Bi-Flex, are considered banned over-the-counter
12 items…” (Id. at p. 11.)
Plaintiff asserts that the extreme intermittent pain he suffered post-surgery has progressed
14 into extreme constant pain. He is unable to exercise in a meaningful way because he cannot bend
15 his left knee past a 10% flexation without his entire leg collapsing. He also cannot climb into his
16 top bunk without experiencing excruciating pain. Plaintiff contends that post-surgery care directed
17 by Dr. Kokor included Tylenol, Naproxin and Motrin pain relievers, all of which Plaintiff
18 continually informed Dr. Kokor were ineffective and as evidence by Dr. Kokor continually
19 changing the medications. Dr. Kokor also prescribed limited physical therapy for three months,
20 which was equally ineffective.
Plaintiff alleges that despite having submitted numerous CDCR 7362s, Dr. Kokor saw
22 Plaintiff “only once since October, which occurred in late April.” (Id. at p. 11.) At this meeting,
23 Dr. Kokor refused to acknowledge that Plaintiff was in pain and dismissed his complaints as being
24 in his head. Plaintiff also reiterated his request for the Osteo Bi-Flex, suggesting that if the joint
25 healed properly it would alleviate the pain. At this, Dr. Kokor seemed to become enraged, stating “I
26 don’t want to hear about that holistic shit again.” (Id.)
Plaintiff alleges that Dr. Kokor violated his right to adequate health care with deliberate
28 indifference to Plaintiff’s serious medical needs by denying Plaintiff prescribed medications “based
1 on personal bias rather than sound medical knowledge and his want to assert his own authority.”
2 (Id. at p. 6.) Plaintiff alleges that Defendant Cryer violated “Plaintiff’s right to adequate health care
3 with deliberate indifference to Plaintiff’s serious medical needs by denying Plaintiff prescribed
4 medications based, wrongfully, on said medications being banned by the California Correctional
5 Health Care Services.” (Id.) Plaintiff further alleges that Defendant Lewis “violated Plaintiff’s right
6 to adequate health care with deliberate indifference to Plaintiff’s serious medical needs by denying
7 Plaintiff prescribed medications based, wrongfully, on said medications being non-formulary and
8 banned by the California Correctional Health Care Services.” (Id.)
As relief, Plaintiff seeks general and punitive damages, along with injunctive relief.
“[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate
12 must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091, 1096
13 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50 L.Ed.2d 251
14 (1976)). The two part test for deliberate indifference requires the plaintiff to show (1) “a ‘serious
15 medical need’ by demonstrating that failure to treat a prisoner’s condition could result in further
16 significant injury or the ‘unnecessary and wanton infliction of pain,’” and (2) “the defendant’s
17 response to the need was deliberately indifferent.” Jett, 439 F.3d at 1096; Wilhelm v. Rotman, 680
18 F.3d 1113, 1122 (9th Cir. 2012).
Deliberate indifference is shown where the official is aware of a serious medical need and
20 fails to adequately respond. Simmons v. Navajo Cty., Ariz., 609 F.3d 1011, 1018 (9th Cir. 2010).
21 “Deliberate indifference is a high legal standard.” Simmons, 609 F.3d at 1019; Toguchi v. Chung,
22 391 F.3d 1051, 1060 (9th Cir. 2004). The indifference must be substantial, and “[m]ere
23 ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this cause of action.”
24 Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980). The prison official must be aware of
25 facts from which he could make an inference that “a substantial risk of serious harm exists” and he
26 must make the inference. Farmer v. Brennan, 511 U.S. 825, 837 S. Ct. 1970 (1994).
Plaintiff fails to state a cognizable claim for deliberate indifference to serious medical needs
28 against Defendants Kokor, Cryer and Lewis for failing to prescribe Osteo Bi-Flex as recommended
1 by Dr. Paik. At best, Plaintiff has alleged a disagreement regarding the utility of Osteo Bi-Flex for
2 treatment of Plaintiff post-surgery “A difference of opinion between a physician and the prisoner –
3 or between medical professionals – concerning what medical care is appropriate does not amount to
4 deliberate indifference.” Snow v. McDaniel, 681 F.3d 978, 987 (9th Cir. 2012) (citing Sanchez, 891
5 F.2d 240, 242 (9th Cir. 1989)), overruled in part on other grounds, Peralta v. Dillard, 744 F.3d
6 1076, 1082–83 (9th Cir. 2014); Wilhelm v. Rotman, 680 F.3d 1113, 1122–23 (9th Cir. 2012) (citing
7 Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1986)). Rather, Plaintiff “must show that the course
8 of treatment the doctors chose was medically unacceptable under the circumstances and that the
9 defendants chose this course in conscious disregard of an excessive risk to [his] health.” Snow, 681
10 F.3d at 988 (citing Jackson, 90 F.3d at 332) (internal quotation marks omitted).
Plaintiff fails to show that course of treatment chosen by defendants was medically
12 unacceptable under the circumstances or in conscious disregard to an excessive risk to Plaintiff’s
13 health. Indeed, Plaintiff admits that Defendant Kokor prescribed various pain medications, along
14 with physical therapy to treat Plaintiff’s condition post-surgery. There is no indication that
15 Defendant Kokor or any other defendant failed to provide medical treatment for Plaintiff’s knee in
16 conscious disregard of an excessive risk to his health. Even assuming that defendants erred in their
17 treatment methods, however, an Eighth Amendment claim may not be premised on negligent
18 treatment by a physician. Estelle, 429 U.S. at 06; Wood v. Housewright, 900 F.2d 1332, 1334 (9th
19 Cir. 1990). Further, according to Plaintiff’s own allegations, Defendants Cryer and Lewis believed
20 that Osteo Bi-Flex was a non-formulary item banned by the California Department of Corrections
21 and Rehabilitation.
To the extent Plaintiff disagrees with the actions of Defendants Cryer and Lewis in response
23 to his inmate appeal, this is not sufficient to give rise to any claim for relief under section 1983.
24 “[A prison] grievance procedure is a procedural right only, it does not confer any substantive right
25 upon the inmates.” Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (citing Azeez v.
26 DeRobertis, 568 F. Supp. 8, 10 (N.D. Ill. 1982)). Actions in reviewing a prisoner’s administrative
27 appeal, without more, are not actionable under section 1983. Buckley, 997 F.2d at 495.
For the reasons identified above, the Court finds that Plaintiff fails to state a cognizable
Conclusion and Order
3 claim for deliberate indifference to serious medical needs against the named defendants. Despite
4 being provided with the relevant legal standards, Plaintiff has been unable to cure the deficiencies in
5 his complaint and further leave to amend is not warranted. Lopez v. Smith, 203 F.3d 1122, 1130
6 (9th Cir. 2000). Accordingly, this action is HEREBY DISMISSED based on Plaintiff’s failure to
7 state a cognizable claim for relief pursuant to 28 U.S.C. §1915A(b)(1). This terminates the action
8 in its entirety.
10 IT IS SO ORDERED.
October 16, 2017
UNITED STATES MAGISTRATE JUDGE
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