Santana v. McCoy et al
Filing
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FINDINGS and RECOMMENDATIONS Regarding Dismissal of 12 Action for Failure to State a Claim signed by Magistrate Judge Barbara A. McAuliffe on 4/9/2018. Referred to Judge Anthony W. Ishii. Objections to F&R due within Fourteen (14) Days. (Sant Agata, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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GERARDO GARCIA SANTANA,
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Plaintiff,
v.
M. MCCOY, et al.
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Defendants.
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Case No.: 1:17-cv-00941-AWI-BAM (PC)
FINDINGS AND RECOMMENDATIONS
REGARDING DISMISSAL OF ACTION FOR
FAILURE TO STATE A CLAIM
(ECF No. 12)
FOURTEEN-DAY DEADLINE
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Plaintiff Gerardo Garcia Santana (“Plaintiff”) is a state prisoner of the California Department
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of Corrections and Rehabilitation (“CDCR”), proceeding pro se and in forma pauperis in this civil
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rights action pursuant to 42 U.S.C. § 1983. On February 20, 2018, the Court screened Plaintiff’s
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complaint and granted him leave to amend. (ECF No. 8.) Plaintiff’s first amended complaint, filed on
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March 29, 2018, is currently before the Court for screening. (ECF No. 12.)
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I.
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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 relief
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from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).
Screening Requirement and Standard
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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, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atl.
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Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). While a plaintiff’s allegations
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are taken as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart
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Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted).
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To survive screening, Plaintiff’s claims must be facially plausible, which requires sufficient
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factual detail to allow the Court to reasonably infer that each named defendant is liable for the
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misconduct alleged. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks omitted); Moss v. U.S.
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Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).
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unlawfully is not sufficient, and mere consistency with liability falls short of satisfying the plausibility
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standard. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks omitted); Moss, 572 F.3d at 969.
The sheer possibility that a defendant acted
Plaintiff’s Allegations
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I.
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Plaintiff is currently housed Calipatria State Prison in Calipatria, California. The events in the
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complaint are alleged to have occurred while Plaintiff was housed at the California Substance Abuse
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and Treatment Facility in Corcoran, California. Plaintiff names the following defendants: (1) M.
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McCoy, R.N.; (2) R. Davidson, L.V.N.; (3) Julian Metts, Facility Doctor; and (4) David G. Smith,
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Orthopedic Doctor.
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Plaintiff alleges as follows: On December 4, 2015, Plaintiff was in the recreation yard playing
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flag football. He stumbled on a pothole and fell onto another inmate, hitting his right hand and fingers
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on the inmate’s foot/shoe. Plaintiff immediately felt a sharp pain in his right hand on his middle,
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fourth and pinky fingers. When Plaintiff saw how crooked and abnormal his finger looked, along with
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the sharp pain, Plaintiff walked off the field and went directly to the facility medical clinic as a
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medical emergency.
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At the C-Facility clinic, Plaintiff expressed to an unidentified correctional officer his
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emergency, including the pain, possibility of a broken finger and need for immediate medical
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attention.
The correctional officer told him to wait outside the clinic until he was called.
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Approximately 10 minutes later, Plaintiff was let inside the clinic at met by two facility nurses,
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Defendant McCoy and Defendant Davidson. Plaintiff expressed to the defendants that he was in
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severe pain and was in shock at how his finger looked. When Defendants McCoy and Davidson
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examined Plaintiff’s hand, Plaintiff asked if his finger was broken or dislocated. Defendant McCoy
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said it was more likely dislocated. Plaintiff then asked if the doctor was still in so he could put it back
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in place. Defendant McCoy said the doctor had already gone home. Plaintiff then asked Defendants
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McCoy and Davidson if they could send him to Central Treatment Center so that he could see a doctor
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and get x-rays. Defendant McCoy refused, stating that all doctors had gone home due to shift change.
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Plaintiff alleges that CTC has a 24-hour on-call doctor for emergencies.
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Defendant Davidson began to write a medical report of the injury and then splinted and
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wrapped Plaintiff’s injured finger. While his finger was being wrapped, Plaintiff expressed the pain
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he was suffering and how sensitive his injured figure was to Defendant’s touch. Plaintiff asked if he
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could receive any pain relief medication. Defendant McCoy gave Plaintiff ten (10) Ibuprofen 200 mg
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pills and told him if his hand was still swollen in the next few days he should submit a sick call slip.
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Defendant McCoy then sent Plaintiff back to his cell.
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Plaintiff alleges that in the following days he was in severe pain, which began to affect his
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everyday functioning. The affected area was bruised, swollen and painful to touch, and limited the use
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of his right hand. After several days, the pain and swelling had not subsided. Plaintiff then submitted
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a sick call slip on December 8, 2015, four days after the injury.
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On December 10, 2015, Plaintiff was called to the medical clinic. Plaintiff was examined by
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Defendant McCoy. While filling out the Musculoskeletal Complaint form, Defendant McCoy asked
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Plaintiff his pain level, with 10 being the highest.
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responded sarcastically, saying “Oh . . . you’ve had child bearing before?” (ECF No. 12 at p. 5.)
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Plaintiff responded that he had never had child bearing before and had never experienced this severe
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pain. Plaintiff also explained that because of the pain, his hand was immobilized and he was unable to
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sleep.
When Plaintiff said 10, Defendant McCoy
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Plaintiff was then examined by Defendant Dr. Metts. Plaintiff told Defendant Dr. Metts that
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his finger had been in that condition since December 4. After Defendant Dr. Metts examined the right
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hand/finger, he told Plaintiff that the fourth finger on the right hand was probably dislocated. Plaintiff
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requested pain medication. Defendant Dr. Metts ordered Naproxen for pain and x-rays for Plaintiff’s
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right fourth finger.
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On December 11, 2015, Plaintiff was called to the medical facility clinic. Plaintiff was again
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seen by Defendant Dr. Metts. After examining Plaintiff’s x-rays, Defendant Dr. Metts determined that
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Plaintiff’s fourth finger was not broken, but was dislocated. Defendant Dr. Metts then decided to put
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the dislocated finger back in place. Defendant Dr. Metts injected Lidocaine to numb the finger. A
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minute later, Defendant Dr. Metts began to manipulate the dislocated finder back in its place. As
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Defendant Dr. Metts began to put the finger back in place, Plaintiff became lightheaded and nauseated.
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After attempting to put the finger back in place, Defendant Dr. Metts wrapped the finger and sent
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Plaintiff for another set of x-rays. Defendant Dr. Metts again prescribed Naproxen for pain.
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On December 17, 2015, Plaintiff was seen by Defendant Dr. Metts, who reviewed the x-rays
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from December 11, 2015. Defendant Dr. Metts determined that the fourth finger was still dislocated.
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Defendant Dr. Metts again attempted to put the finger back in its place. When the procedure was
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completed, Defendant Dr. Metts placed a splint under the fourth finger, wrapped it and sent Plaintiff
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for another set of x-rays. The same date, Plaintiff returned to the clinic to see Defendant Dr. Metts.
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After examining the x-rays, Defendant Dr. Metts concluded that the finger was still dislocated and
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ordered orthopedic to see Plaintiff as soon as possible.
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On December 18, 2015, Plaintiff was seen by Defendant Dr. Smith, an orthopedist, at the
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Central Treatment Center. Defendant Dr. Smith examined Plaintiff’s finger and opined that had his
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finger been treated immediately on the day of injury, then he would not have been going through this
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process. Defendant Dr. Smith numbed Plaintiff’s finger and attempted to relocate it. Following the
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procedure, Defendant Dr. Smith sent the Plaintiff for x-rays. After Defendant Dr. Smith examined the
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x-rays, he told Plaintiff that the finger was still dislocated and that surgery was necessary. Defendant
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Dr. Smith told Plaintiff that he would do the surgery and put in a pin to hold the joint of the finger in
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place. Defendant Dr. Smith cast Plaintiff’s hand and finger and sent him back to his cell. Plaintiff
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requested pain relief medication, but Defendant Dr. Smith refused.
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After suffering from pain and swelling for several days, Plaintiff submitted a sick call slip on
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December 19, 2015. On December 22, 2015, Plaintiff was seen by Nurse Practitioner L. Merritt.
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After listening to Plaintiff’s complaints, Nurse Merritt ordered Tylenol 3, three times a day for pain
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and sleep. After examining Plaintiff’s hand, Nurse Meritt became concerned and sent Plaintiff to the
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Central Treatment Center to see a doctor.
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At the treatment center, Dr. H. Chang examined Plaintiff and said nothing was wrong. Dr.
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Chang also said he was going to change the prescribed Tylenol 3 because the medicine had opiates,
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exposing Plaintiff to selling the pills in the facility and making him vulnerable to drug abuse.
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Although Plaintiff pleaded with Dr. Chang, he was prescribed Tylenol 3, 1 pill three times a day.
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On December 26, 2015, Plaintiff stopped at the medical clinic for his pain medication. The
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clinic was dark, but Plaintiff could see Defendant Davidson asleep with her head on her arms resting
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on the table. Plaintiff knocked several times on the clinic window, but Defendant Davison did not
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respond. Plaintiff left suffering from pain in his finger.
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On December 29, 2015, Plaintiff underwent surgery. Defendant Dr. Smith placed a pin in the
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finger to hold the joint in place. More than one month later, Defendant Dr. Smith removed the pin and
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recommended physical therapy. However, physical therapy was postponed because Plaintiff had an
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infection in his finger following removal of the pin. Plaintiff attended physical therapy in February,
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March, April, May and June 2016. During Plaintiff’s last visit with Defendant Dr. Smith, he told
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Plaintiff that he could not do anything about his finger and could offer no surgery to return full
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flexibility of his finger.
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Defendant Dr. Metts concluded that the finger was now normal. Plaintiff alleges that as of
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November 3, 2016, his finger is permanently diminished with limited flexibility, stiffness and sporadic
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moments of pain. Plaintiff claims that defendants violated his Eighth Amendment rights and were
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deliberately indifferent to his serious medical needs.
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compensatory and punitive damages.
He seeks declaratory relief, along with
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II.
Discussion
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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 at
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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 Cty. 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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In applying this standard, the Ninth Circuit has held that before it can be said that a prisoner’s
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civil rights have been abridged, “the indifference to his medical needs must be substantial. Mere
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‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this cause of action.” Broughton
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v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 105–106). “[A]
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complaint that a physician has been negligent in diagnosing or treating a medical condition does not
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state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does
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not become a constitutional violation merely because the victim is a prisoner.” Estelle, 429 U.S. at
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106; see also Anderson v. County of Kern, 45 F.3d 1310, 1316 (9th Cir. 1995). Even gross negligence
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is insufficient to establish deliberate indifference to serious medical needs. See Wood v. Housewright,
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900 F.2d 1332, 1334 (9th Cir. 1990).
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Further, a “difference of opinion between a physician and the prisoner—or between medical
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professionals—concerning what medical care is appropriate does not amount to deliberate
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indifference.” Snow v. McDaniel, 681 F.3d 978, 987 (9th Cir. 2012) (citing Sanchez v. Vild, 891 F.2d
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240, 242 (9th Cir. 1989)), overruled in part on other grounds, Peralta v. Dillard, 744 F.3d 1076, 1082–
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83 (9th Cir. 2014); Wilhelm v. Rotman, 680 F.3d 1113, 1122–23 (9th Cir. 2012) (citing Jackson v.
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McIntosh, 90 F.3d 330, 332 (9th Cir. 1986)). Rather, Plaintiff “must show that the course of treatment
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the doctors chose was medically unacceptable under the circumstances and that the defendants chose
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this course in conscious disregard of an excessive risk to [his] health.” Snow, 681 F.3d at 988 (citing
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Jackson, 90 F.3d at 332) (internal quotation marks omitted).
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As currently pled, Plaintiff’s allegations do not state a cognizable Eighth Amendment claim
against any of the named defendants in this action.
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Defendants McCoy and Davidson
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Plaintiff’s allegations indicate that Defendants McCoy and Davidson examined Plaintiff on the
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date of the injury, provided a splint and prescribed him pain medication. Defendants McCoy and
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Davidson also directed Plaintiff to submit a sick call slip if his hand was still swollen. Although
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Plaintiff suggests that these defendants were deliberately indifferent to his injury by failing to respond
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or otherwise delaying treatment, he has not stated a cognizable claim against them. At best, Plaintiff
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suggests a disagreement about the appropriate course of treatment on the day of his injury, which does
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not amount to deliberate indifference. To the extent Plaintiff complains that Defendant Davidson did
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not respond to him at the clinic window on one occasion, there is no indication that Defendant
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Davidson knew Plaintiff was there or that he had a medical need. Plaintiff has been unable to cure
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these deficiencies by amendment.
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Dr. Julian Metts
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Plaintiff’s allegations indicate that Defendant Metts provided treatment to Plaintiff at least four
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times between December 10 and December 17, 2015, and this treatment included multiple sets of x-
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rays, pain medication and multiple attempts to correct the dislocation of Plaintiff’s finger. After these
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attempts were unsuccessful, Defendant Metts referred Plaintiff for consultation with an orthopedist.
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There is no indication that Defendant Metts delayed in providing treatment or pain medication.
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Neither Plaintiff’s disagreement with the course of treatment nor any alleged negligence by Defendant
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Metts is sufficient to state a cognizable Eighth Amendment claim.
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Dr. David G. Smith
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Plaintiff’s allegations indicate that Defendant Smith evaluated Plaintiff, ordered x-rays, cast his
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hand and finger, performed surgery and ordered physical therapy. There is no suggestion in these
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allegations that Defendant Smith was deliberately indifferent to Plaintiff’s serious medical needs.
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Plaintiff’s assertions of pain during treatment are not sufficient to state a cognizable deliberate
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indifference claim. Although Plaintiff alleges that Defendant Dr. Smith did not respond to his request
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for pain medication, there is no indication that Plaintiff was not already receiving medication that had
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been prescribed previously by Dr. Metts.
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III.
Conclusion and Recommendation
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Plaintiff’s complaint fails to state a cognizable claim for relief. Despite be provided with the
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relevant pleading and legal standards, Plaintiff has been unable to cure the deficiencies of his
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complaint, and further leave to amend is no warranted. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir.
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2000).
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Accordingly, the Court HEREBY RECOMMENDS that Plaintiff’s complaint be dismissed for
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failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. §§ 1915A and 1915(e).
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These Findings and Recommendation will be submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen (14)
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days after being served with these Findings and Recommendation, Plaintiff may file written objections
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with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and
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Recommendation.” Plaintiff is advised that failure to file objections within the specified time may
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result in the waiver of the “right to challenge the magistrate’s factual findings” on appeal. Wilkerson v.
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Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir.
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1991)).
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IT IS SO ORDERED.
Dated:
/s/ Barbara
April 9, 2018
A. McAuliffe
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UNITED STATES MAGISTRATE JUDGE
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