Bradford v. Ogbuehi

Filing 19

ORDER Directing Clerk of Court to Assign District Judge - CASE ASSIGNED to District Judge Dale A. Drozd and Magistrate Judge Stanley A. Boone. New Case No. 1:17-cv-01128 DAD SAB (PC); FINDINGS and RECOMMENDATIONS to Dismiss Certain Claims and Defendants 13 , 17 , 18 , signed by Magistrate Judge Stanley A. Boone on 9/21/2018: 30-Day Deadline. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RAYMOND ALFORD BRADFORD,

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Plaintiff,

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v.
C. OGBUEHI, et al.

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Defendants.

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Case No.: 1:17-cv-01128-SAB (PC)
ORDER DIRECTING CLERK OF COURT TO
ASSIGN DISTRICT JUDGE
FINDINGS AND RECOMMENDATIONS TO
DISMISS CERTAIN CLAIMS AND
DEFENDANTS
(ECF Nos. 13, 17, 18)
THIRTY (30) DAY DEADLINE

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I.

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INTRODUCTION
Plaintiff Raymond Alford Bradford is a state prisoner proceeding pro se in this civil rights

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action pursuant to 42 U.S.C. § 1983.

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On January 18, 2018, the Court issued an order granting Plaintiff’s motion to proceed in forma

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pauperis pursuant to 28 U.S.C. § 1915(a), and screening his complaint. (ECF No. 9.) Plaintiff was

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found not to state any cognizable claim, but was granted leave to amend his complaint within thirty

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days. (Id. at 11.)

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Plaintiff filed a first amended complaint, on extension, on April 9, 2018. (ECF No. 13.) On

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August 28, 2018, the Court screened his complaint and found his first amended complaint states a

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cognizable claim against Defendants Usher, Rimbach, German, Ulit, Spaeth and Sao for violation of

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the Eighth Amendment based on Plaintiff’s allegations related to Valley Fever. However, he did not

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state a cognizable claim related to lack of adequate medical care for his DVT. (Id. at 5.) Therefore, he

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was ordered to notify the Court whether he wished to proceed on the claim found to be cognizable, or

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to file a second amended complaint, within thirty days. (Id at 6.)

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Currently before the Court is Plaintiff’s objection to the Court’s August 28, 2018 screening

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order, filed on September 19, 2018. (ECF No. 18.) In his objection, Plaintiff argues that he has

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sufficiently stated a cognizable claim against all named Defendants.

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As Plaintiff has elected to stand upon his first amended complaint, the Court issues these

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findings and recommendations that certain claims and defendants be dismissed from this action for the

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failure to state a cognizable claim.

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II.

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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 “fail[] to state a claim on which relief may be granted,” or that “seek[]

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monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).

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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 (2009) (citing Bell Atlantic Corp. v. Twombly,

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

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participated in the deprivation of Plaintiff’s rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir.

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2002).

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

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construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121

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(9th Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be facially plausible,

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which requires sufficient factual detail to allow the Court to reasonably infer that each named

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defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service,

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572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant has acted unlawfully” is not

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sufficient, and “facts that are ‘merely consistent with’ a defendant’s liability” falls short of satisfying

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the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.

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III.

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COMPLAINT ALLEGATIONS

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Plaintiff is currently incarcerated at R.J. Donovan Correctional Facility, in San Diego,

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California. His allegations concern events while he was incarcerated at Kern Valley State Prison

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(“KVSP”), in Delano, California.

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Correctional Counselor at KVSP; (2) S. Rimbach, the Acting Warden at KVSP; (3) K. Brown, the

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Chief Executive Officer at KVSP; (4) S. Lopez, the Chief Medical Officer at KVSP; (5) M. Spaeth, a

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physician at KVSP; (6) J. Wong, a physician at KVSP; (7) J. Sao, a physician at KVSP; (8) L. Gant,

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an LVN-RN at KVSP; (9) J. German, a RN at KVSP; (10) W. Ulit, a physician at KVSP; and (11) C.

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Ogbuehi, a physician at KVSP.

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capacities.

Plaintiff names the following defendants:

(1) I. Usher, a

Plaintiff sues these defendants in their individual and official

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Plaintiff alleges that he was classified as a high-risk inmate, and was exposed to cocci/Valley

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Fever. Plaintiff was later diagnosed with Valley Fever and pneumonia in his lungs. Separately,

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Plaintiff alleges that his sick call slip requesting treatment for his Deep Vein Thrombosis (“DVT”)

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was not processed. Plaintiff brings a claim under the Eighth Amendment.

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IV.

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DISCUSSION

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A.

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As noted above, Plaintiff seeks to sue all defendants in their official and individual capacities.

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Official Capacity Claims

He seeks compensatory and punitive damages, and no prospective relief. The Eleventh Amendment
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bars federal suits for violations of federal law against state officials sued in their official capacities for

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damages and other retroactive relief. Quern v. Jordan, 440 U.S. 332, 337 (1979); Peralta v. Dillard,

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744 F.3d 1076, 1084 (9th Cir. 2014) (en banc); Pena v. Gardener, 976 F.2d 469, 472 (9th Cir. 1992).
Eighth Amendment – Medical Care

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B.

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The Eighth Amendment protects against cruel and unusual punishment. U.S. Const. amend.

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VIII. To constitute cruel and unusual punishment in violation of the Eighth Amendment, prison

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conditions must involve “the wanton and unnecessary infliction of pain.” Rhodes v. Chapman, 452

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U.S. 337, 347 (1981). Under the Eighth Amendment, “prion officials are . . . prohibited from being

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deliberately indifferent to policies and practices that expose inmates to a substantial risk of serious

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harm.” Parsons v. Ryan, 754 F.3d 657, 677 (9th Cir. 2014); see also Hellings v. McKinney, 509 U.S.

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25, 35 (1993); Farmer v. Brennan, 511 U.S. 825, 847 (1994) (prison official violates Eighth

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Amendment if he or she knows of a substantial risk of serious harm to an inmate and fails to take

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reasonable measures to avoid the harm).

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Valley Fever

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Plaintiff first alleges that Defendants Usher, Rimbach, Brown, Ulit, German, Lopez, Spaeth,

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Sao, Wong, and Ogbuehi were deliberately indifferent with respect to Plaintiff’s exposure to Valley

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Fever. Where an inmate is challenging the conditions of confinement, he must show there was a

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deprivation “sufficiently serious” to form the basis of a violation and “the prison official acted “with a

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sufficiently culpable state of mind.” Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000) (quoting

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Wilson v. Seiter, 501 U.S. 294, 298 (1991)).

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deprivations are critical in determining whether the conditions complained of are grave enough to

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form the basis of a viable Eighth Amendment claim. Johnson, 217 F.3d at 731.

The circumstances, nature, and duration of the

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Plaintiff alleges that an auditor, M. Escobar, issued a CDCR-128-C3 medical classification

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chrono, dated October 2, 2014, indicating that Plaintiff is a high medical risk with specialized

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outpatient (“SOP”) and Cocci Area 2 ineligible. Defendant Usher and Defendant Rimbach had access

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to Plaintiff’s C-file with this information, and possessed the information pertaining to the Cocci Area 2

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ineligibility. Knowing this, they nevertheless subjected Plaintiff to Cocci exposure in his housing

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conditions. On or about September 6, 2015, Plaintiff complained to Defendant German, an RN, about
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his flu-like symptoms, chest pains, and severe weight loss, but was not given any treatment.

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Defendant German also failed to process Plaintiff’s sick call slips to see the doctor. Defendants Ulit,

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Spaeth and Sao also denied Plaintiff’s emergency medical appeals and 602 appeals requesting

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treatment for severe weight loss, chest pain, and for preventative measures to prevent Valley Fever. It

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was not until after submitting several additional sick call slips that Plaintiff was finally taken to a

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hospital on November 16, 2015, and was diagnosed with Valley Fever and pneumonia in his lungs.

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At the pleading stage, the Court finds that Plaintiff’s amended complaint is sufficient to state

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cognizable claim against Defendants Usher, Rimbach, German, Ulit, Spaeth and Sao for violation of

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the Eighth Amendment based on Plaintiff’s allegations. He has demonstrated facts showing their

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knowledge of serious risks to his health and the failure to act.

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However, Plaintiff has not stated any claim against Defendants Brown, Lopez, Wong, or

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Ogbuehi. Although Plaintiff alleges that Defendant Brown knew of his Cocci Area 2 ineligibility

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when he denied Plaintiff’s emergency medical appeal seeking to prevent the contraction of Valley

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Fever, he does not allege facts showing how Defendant Brown knew of his condition. Plaintiff also

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does not explain how Defendants Lopez, Wong, and Ogbuehi knew about Plaintiff’s condition or how

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they failed to protect him. Conclusory allegations without facts in support are insufficient. In order to

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form a basis for liability, the plaintiff must demonstrate that each defendant “participated in or directed

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the violations, or knew of the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d

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1040, 1045 (9th Cir. 1989).

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Deep Vein Thrombosis and Ulcers

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Plaintiff also alleges that from February 2016 to March 2017, he was suffering from swelling,

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soreness, and pain from DVT. Defendant Gant knew about Plaintiff’s condition, but failed obtain him

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treatment.

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It is not clear that Plaintiff’s claim against Defendant Gant is properly related to his other

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allegations in this case. Plaintiff may not bring unrelated claims against unrelated parties in a single

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action. Fed. R. Civ. P. 18(a), 20(a)(2); Owens v. Hinsley, 635 F.3d 950, 952 (7th Cir. 2011); George

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v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Plaintiff may bring a claim against multiple defendants

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so long as (1) the claim arises out of the same transaction or occurrence, or series of transactions and
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occurrences, and (2) there are commons questions of law or fact. Fed. R. Civ. P. 20(a)(2); Coughlin v.

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Rogers, 130 F.3d 1348, 1351 (9th Cir. 1997). The “same transaction” requirement refers to similarity

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in the factual background of a claim. Id. at 1349.

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Here, Plaintiff’s other claims all involve his exposure to and contraction of Valley Fever, and

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the resulting lack of treatment for his symptoms from that illness before he was diagnosed. This claim

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regarding his DVT does not appear to involve the same facts or circumstances. The mere fact that

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Plaintiff has multiple medical issues does not mean that all claims regarding his medical issues

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involving different Defendants are sufficiently related to bring in a single action. This claim appears

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to belong in a separate action.

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Also, Plaintiff has not sufficiently stated facts to state a claim against Defendant Gant.

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Assuming that his swelling, soreness, and pain from DVT presented a serious medical need, Plaintiff

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does not allege facts showing how Defendant Gant knew of his condition.

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C.

Retaliation

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Plaintiff alleges that Defendant Ulit also denied and delayed treatment to inflict pain and/or

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punish Plaintiff for filing 602 appeals. Such a conclusory sentence is insufficient to state any claim for

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retaliation in violation of the First Amendment. “Within the prison context, a viable claim of First

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Amendment retaliation entails five basic elements: (1) [a]n assertion that a state actor took some

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adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and that such

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action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not

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reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th

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Cir. 2005). Plaintiff has not pleaded facts to support these elements.

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D.

Declaratory Judgment

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Plaintiff seeks a declaration that his rights were violated. As Plaintiff has been previously

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informed, if this action reaches trial and a trier of fact returns a verdict in his favor, that will be a

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finding that his constitutional rights were violated. No declaratory judgment is necessary here. See

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Eccles v. Peoples Bank of Lakewood Village, 333 U.S. 426, 431 (1948) (equitable relief should only

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be granted as a matter of judicial discretion and in the public interest); United States v. Washington,

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759 F.2d 1353, 1357 (9th Cir. 1985) (declaratory relief should be denied when it will serve no useful

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purpose).

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V.

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SANCTIONABLE CONDUCT

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As discussed above, Plaintiff filed an objection to the Court’s screening order. (ECF No. 18.)

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In that order, Plaintiff used inappropriate language, referring to the Court as a “bonehead.” (Id. at 1.)

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Inappropriate language and harassing conduct will not be tolerated, and is sanctionable. The

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Court has had issues with Plaintiff making similar comments in other actions. See Raymond Alford

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Bradford v. E. Kvichko, Case No. 1:16-cv-01077-LJO-SAB (PC) (E.D. Cal.). This will be Plaintiff’s

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only warning that he must conduct himself respectfully and with decorum, or his action will be

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dismissed.

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VI.

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CONCLUSION
Accordingly, the Clerk of the Court is HEREBY DIRECTED to randomly assign a Fresno

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District Judge to this action.

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Further, for the reasons discussed above, IT IS HEREBY RECOMMENDED that:

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1.

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Ulit, Spaeth and Sao for violation of the Eighth Amendment, in their individual capacities; and
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This action proceed on Plaintiff’s claim against Defendants Usher, Rimbach, German,

All other claims and defendants be dismissed for failure to state a claim upon which

relief could be granted.

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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 provision of 28 U.S.C. §636 (b)(1)(B). Within thirty (30) days

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after being served with these Finding and Recommendations, Plaintiff may file written objections with

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the Court. The document should be captioned “Objections to Findings and Recommendations.”

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Plaintiff is advised that failure to file objections within the specified time may result in the

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waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.2d F.3d 834, 838-39 (9th Cir. 2014) (citing

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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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September 21, 2018
UNITED STATES MAGISTRATE JUDGE

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