Yglesias v. Patel et al

Filing 11

FINDINGS and RECOMMENDATIONS recommending that this case be dismissed, with prejudice, for failure to state a claim re 10 signed by Magistrate Judge Gary S. Austin on 5/22/2019. Referred to Judge Lawrence J. O'Neill. Objections to F&R due within 14-Days. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RAY YGLESIAS,

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Plaintiff,

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v.

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ISMAEL PATEL,

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Defendant.

1:17-cv-01282-LJO-GSA-PC
FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT THIS CASE BE
DISMISSED, WITH PREJUDICE, FOR
FAILURE TO STATE A CLAIM
(ECF No. 10.)
OBJECTIONS, IF ANY, DUE IN FOURTEEN
DAYS

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I.

BACKGROUND

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Ray Yglesias (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis

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with this civil rights action pursuant to 42 U.S.C. § 1983. On September 27, 2017, Plaintiff filed

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the Complaint commencing this action. (ECF No. 1.) On July 17, 2018, the court screened the

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Complaint and issued an order dismissing the Complaint for failure to state a claim, with leave

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to amend. (ECF No. 9.) On August 18, 2018, Plaintiff filed the First Amended Complaint, which

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is now before the court for screening. 28 U.S.C. § 1915A.

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II.

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 upon which relief may be granted, or that seek
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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).

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“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall

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dismiss the case at any time if the court determines that the action or appeal fails to state a claim

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upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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A complaint is required to contain “a short and plain statement of the claim showing that

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the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not

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

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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken

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as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores,

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Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). To state

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a viable claim, Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim

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to relief that is plausible on its face.’” 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). While factual allegations are accepted as true, legal

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conclusions are not.

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plausibility standard. Id.

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III.

Id.

The mere possibility of misconduct falls short of meeting this

SUMMARY OF FIRST AMENDED COMPLAINT

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Plaintiff is a state prisoner incarcerated at California State Prison-Los Angeles County in

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Lancaster, California. The events at issue in the First Amended Complaint allegedly occurred at

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Kern Valley State Prison in Delano, California, when Plaintiff was incarcerated there in the

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custody of the California Department of Corrections and Rehabilitation. Plaintiff names one

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defendant, Ismael Patel (M.D.) (“Defendant”).

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Plaintiff’s allegations in the First Amended Complaint follow, in their entirety.

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I asked Dr. Ismael Patel to do a “Nerve Conduction” Test on me. Dr. Patel
said there is no such thing. I did not get a Nerve Conduction Test until I got to
Lancaster State Prison in 2018.

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I contend that if Dr. Patel ran tests, the tests that I notified him of instead
of tests that he (being a capable doctor) should have known was going to come
back as negative, I would not be impaired at this time. At the time that I notified
him I walked, talked, and wrote on my own. At this time I need a walker to walk.
I went from walking on my own to a cane, to getting denied a wheelchair (which
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I am sure I “will” need in the future). I am sure this violates my Eighth
Amendment rights.

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Plaintiff requests $100,000 in monetary damages.

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IV.

PLAINTIFF’S MEDICAL CLAIM UNDER THE EIGHTH AMENDMENT

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The Civil Rights Act under which this action was filed provides:

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Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to
be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress . . . .

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42 U.S.C. § 1983. “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely

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provides ‘a method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 490

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U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see also

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Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los Angeles,

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697 F.3d 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 2012);

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Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006).

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To state a claim under section 1983, a plaintiff must allege that (1) the defendant acted

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under color of state law and (2) the defendant deprived him of rights secured by the Constitution

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or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); see also

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Marsh v. Cnty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing “under color of

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state law”). A person deprives another of a constitutional right, “within the meaning of § 1983,

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‘if he does an affirmative act, participates in another’s affirmative act, or omits to perform an act

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which he is legally required to do that causes the deprivation of which complaint is made.’”

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Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007) (quoting

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Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite causal connection may be

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established when an official sets in motion a ‘series of acts by others which the actor knows or

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reasonably should know would cause others to inflict’ constitutional harms.” Preschooler II, 479

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F.3d at 1183 (quoting Johnson, 588 F.2d at 743). This standard of causation “closely resembles

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the standard ‘foreseeability’ formulation of proximate cause.” Arnold v. Int’l Bus. Mach. Corp.,

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637 F.2d 1350, 1355 (9th Cir. 1981); see also Harper v. City of Los Angeles, 533 F.3d 1010,

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1026 (9th Cir. 2008).

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“[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate

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must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091,

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1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two-part test for

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deliberate indifference requires the plaintiff to show (1) “‘a serious medical need’ by

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demonstrating that ‘failure to treat a prisoner=s condition could result in further significant injury

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or the unnecessary and wanton infliction of pain,’” and (2) “the defendant=s response to the need

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was deliberately indifferent.” Jett, 439 F.3d at 1096 (quoting McGuckin v. Smith, 974 F.2d 1050,

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1059 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133,

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1136 (9th Cir. 1997) (en banc) (internal quotations omitted)). Deliberate indifference is shown

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by “a purposeful act or failure to respond to a prisoner’s pain or possible medical need, and harm

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caused by the indifference.” Id. (citing McGuckin, 974 F.2d at 1060). Deliberate indifference

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may be manifested “when prison officials deny, delay or intentionally interfere with medical

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treatment, or it may be shown by the way in which prison physicians provide medical care.” Id.

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Where a prisoner is alleging a delay in receiving medical treatment, the delay must have led to

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further harm in order for the prisoner to make a claim of deliberate indifference to serious medical

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needs. McGuckin at 1060 (citing Shapely v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404,

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407 (9th Cir. 1985)).

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“Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051,

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1060 (9th Cir. 2004). “Under this standard, the prison official must not only ‘be aware of the

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facts from which the inference could be drawn that a substantial risk of serious harm exists,’ but

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that person ‘must also draw the inference.’” Id. at 1057 (quoting Farmer v. Brennan, 511 U.S.

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825, 837 (1994)). “‘If a prison official should have been aware of the risk, but was not, then the

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official has not violated the Eighth Amendment, no matter how severe the risk.’” Id. (quoting

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Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)). “A showing of

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medical malpractice or negligence is insufficient to establish a constitutional deprivation under

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the Eighth Amendment.” Id. at 1060. “[E]ven gross negligence is insufficient to establish a
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constitutional violation.” Id. (citing Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990)).

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“A difference of opinion between a prisoner-patient and prison medical authorities regarding

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treatment does not give rise to a § 1983 claim.” Franklin v. Oregon, 662 F.2d 1337, 1344 (9th

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Cir. 1981) (internal citation omitted).

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Plaintiff alleges that he has a medical condition causing him to need a walker to ambulate.

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This is sufficient to demonstrate a serious medical need. However, Plaintiff alleges that at the

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time he notified defendant Dr. Patel that he needed tests, Plaintiff “walked, talked, and wrote on

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his own,” and it was not until later that he became impaired and needed a walker. Compl. at 4.

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Plaintiff’s allegations do not show that he demonstrated a serious medical need when he saw Dr.

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Patel. Moreover, Plaintiff’s allegations against defendant Dr. Patel do not meet the standard for

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deliberate indifference. Plaintiff has not alleged facts showing that Dr. Patel knew that Plaintiff

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had a serious medical need and yet failed to respond appropriately, disregarding a substantial risk

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of serious harm to Plaintiff and causing him harm. Further, Plaintiff’s allegations show a

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difference of opinion between a prisoner-patient and a prison medical authority regarding

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treatment, which does not give rise to a § 1983 claim. Franklin, 662 F.2d at 1344. Therefore,

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the court finds that Plaintiff fails to state a medical claim against defendant Dr. Patel.

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V.

CONCLUSION AND RECOMMENDATIONS

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The court finds that Plaintiff’s First Amended Complaint fails to state any claim upon

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which relief may be granted under § 1983. The court previously granted Plaintiff leave to amend

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the complaint, with ample guidance by the court. Plaintiff has now filed two complaints without

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stating any claims upon which relief may be granted under § 1983. The court finds that the

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deficiencies outlined above are not capable of being cured by amendment, and therefore further

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leave to amend should not be granted. 28 U.S.C. ' 1915(e)(2)(B)(ii); Lopez v. Smith, 203 F.3d

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1122, 1127 (9th Cir. 2000).

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Therefore, based on the foregoing, IT IS HEREBY RECOMMENDED that:

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1.

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This case be DISMISSED, with prejudice, for failure to state a claim upon which
relief may be granted under § 1983;

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2.

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This dismissal be subject to the “three strikes” provision set forth in 28 U.S.C. §
1915(g); and

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3.

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These findings and recommendations are 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

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(14) days from the date of service of these findings and recommendations, Plaintiff may file

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written objections with the court.

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Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file

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objections within the specified time may result in the waiver of rights on appeal. Wilkerson v.

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Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394

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(9th Cir. 1991)).

The Clerk be ordered to CLOSE this case.

Such a document should be captioned “Objections to

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IT IS SO ORDERED.
Dated:

May 22, 2019

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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