Hisle v. Conanon, et al.
Filing
31
FINDINGS and RECOMMENDATIONS recommending that 27 Plaintiff's Motion to Amend the Complaint to Add CEO Young as a Defendant be DENIED re 7 Amended Prisoner Civil Rights Complaint signed by Magistrate Judge Stanley A. Boone on 8/31/2018. Referred to Judge O'Neill. Objections to F&R due within twenty-one (21) days. (Jessen, A)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
EASTERN DISTRICT OF CALIFORNIA
10
11
DENNIS CURTIS HISLE,
12
Plaintiff,
13
14
v.
MARLYN CONANON, et al.,
15
Defendants.
16
Case No. 1:17-cv-01400-LJO-SAB (PC)
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DENIAL OF PLAINTIFF’S
MOTION TO AMEND THE COMPLAINT
[ECF No. 27]
Plaintiff Dennis Curtis Hisle is appearing pro se and in forma pauperis in this civil rights action
17
18
)
)
)
)
)
)
)
)
)
)
pursuant to 42 U.S.C. § 1983.
Currently before the Court is Plaintiff’s motion to amend, filed August 3, 2018.
19
20
I.
21
RELEVANT BACKGROUND
22
This action is proceeding against Defendants Marlyn Conanon and John Doe (at Mercy
23
Hospital) for deliberate indifference to a serious medical need.1
On April 10, 2018, Defendant Conanon filed an answer to the complaint. On April 11, 2018,
24
25
the Court issued the discovery and scheduling order.
26
///
27
28
1
The John Doe Defendant has not yet been identified or served with process.
1
1
As previously stated, on August 3, 2018, Plaintiff filed a motion to amend the complaint.
2
(ECF No. 27.) Defendant filed an opposition on August 13, 2018. Plaintiff did not file a reply and the
3
time period to do so has expired. Local Rule 230(l). Accordingly, Plaintiff’s motion to amend is
4
deemed submitted for review without oral argument. (Id.)
5
II.
6
LEGAL STANDARD
7
Under Rule 15(a) of the Federal Rules of Civil Procedure, a party may amend the party=s
8
pleading once as a matter of course twenty-one days after serving, or if a response was filed, within
9
twenty-one days after service of the response. Fed. R. Civ. P. 15(a)(1). Otherwise, a party may
10
amend only by leave of the court or by written consent of the adverse party, and leave shall be freely
11
given when justice so requires. Fed. R. Civ. P. 15(a)(2).
12
Rule 15(a) is very liberal and leave to amend ‘shall be freely given when justice so requires.’”
13
AmerisourceBergen Corp. v. Dialysis West, Inc., 465 F.3d 946, 951 (9th Cir. 2006) (quoting Fed. R.
14
Civ. P. 15(a)). However, courts “need not grant leave to amend where the amendment: (1) prejudices
15
the opposing party; (2) is sought in bad faith; (3) produces an undue delay in the litigation; or (4) is
16
futile.” AmerisourceBergen Corp., 465 F.3d at 951. Relevant to the futility factor, a plaintiff may not
17
bring unrelated claims against unrelated parties in a single action. Fed. R. Civ. P. 18(a), 20(a)(2);
18
Owens v. Hinsley, 635 F.3d 950, 952 (7th Cir. 2011); George v. Smith, 507 F.3d 605, 607 (7th Cir.
19
2007). The burden to demonstrate prejudice falls upon the party opposing the amendment. DCD
20
Programs, Ltd. v. Leighton, 833 F.2d 183, 187 (9th Cir. 1987). Absent prejudice, or a strong showing
21
of any of the remaining three factors, a presumption exists under Rule 15(a) in favor of granting leave
22
to amend. Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). Further,
23
undue delay alone is insufficient to justify denial of a motion to amend. Bowles v. Reade, 198 F.3d
24
752, 758 (9th Cir. 1999).
25
III.
26
DISCUSSION
27
28
Plaintiff seeks leave to amend the complaint to add Charles E. Young, Chief Executive Officer
(CEO) of Health Care Services at Pleasant Valley State Prison, as a Defendant in this action and
2
1
terminate the John Doe Defendant. Plaintiff contends that Young can be held liable because of his
2
supervisory role over Defendant Conanon as the CEO and his role in signing off at the second-level
3
review of Plaintiff’s administrative grievance.
4
5
6
Defendant opposes Plaintiff’s request and argues amendment is futile because Plaintiff fails to
state a cognizable claim for relief against CEO Young.
While the Eighth Amendment of the United States Constitution entitles Plaintiff to medical
7
care, the Eighth Amendment is violated only when a prison official acts with deliberate indifference to
8
an inmate’s serious medical needs. Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012), overruled
9
in part on other grounds, Peralta v. Dillard, 744 F.3d 1076, 1082-83 (9th Cir. 2014); Wilhelm v.
10
Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012); Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006).
11
Plaintiff “must show (1) a serious medical need by demonstrating that failure to treat [his] condition
12
could result in further significant injury or the unnecessary and wanton infliction of pain,” and (2) that
13
“the defendant’s response to the need was deliberately indifferent.” Wilhelm, 680 F.3d at 1122 (citing
14
Jett, 439 F.3d at 1096). Deliberate indifference is shown by “(a) a purposeful act or failure to respond
15
to a prisoner’s pain or possible medical need, and (b) harm caused by the indifference.” Wilhelm, 680
16
F.3d at 1122 (citing Jett, 439 F.3d at 1096). The requisite state of mind is one of subjective
17
recklessness, which entails more than ordinary lack of due care. Snow, 681 F.3d at 985 (citation and
18
quotation marks omitted); Wilhelm, 680 F.3d at 1122.
19
Supervisory personnel, such as CEO Young, may not be held liable under section 1983 for the
20
actions of subordinate employees based on respondeat superior, or vicarious liability. Crowley v.
21
Bannister, 734 F.3d 967, 977 (9th Cir. 2013); accord Lemire v. California Dep’t of Corr. and Rehab.,
22
726 F.3d 1062, 1074-75 (9th Cir. 2013); Lacey v. Maricopa County, 693 F.3d 896, 915-16 (9th Cir.
23
2012) (en banc). “A supervisor may be liable only if (1) he or she is personally involved in the
24
constitutional deprivation, or (2) there is a sufficient causal connection between the supervisor’s
25
wrongful conduct and the constitutional violation.”
26
McDaniel, 681 F.3d 978, 989 (9th Cir. 2012) (internal quotation marks omitted); accord Lemire, 726
27
F.3d at 1074-75; Lacey, 693 F.3d at 915-16. “Under the latter theory, supervisory liability exists even
28
without overt personal participation in the offensive act if supervisory officials implement a policy so
3
Crowley, 734 F.3d at 977 (citing Snow v.
1
deficient that the policy itself is a repudiation of constitutional rights and is the moving force of a
2
constitutional violation.” Crowley, 734 F.3d at 977 (citing Hansen v. Black, 885 F.2d 642, 646 (9th
3
Cir. 1989)) (internal quotation marks omitted).
4
Plaintiff’s claim against CEO Young is based solely on his participation in the administrative
5
grievance process and because he is in charge of the prison’s medical operations. (Mot. to Amend at
6
4-7, ECF No. 27.) Plaintiff alleges Young’s signature on the second-level inmate appeal response is
7
“complete approval of plaintiff Hisle’s level of care, the (CEO) supports, oversaw and delegation each
8
daily huddle the type and measure of care given to plaintiff Hisle.” (Id. at 4.)
9
In general, denying a prisoner’s administrative grievance does not cause or contribute to the
10
underlying violation. George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007); Hernandez v. Cate, 918
11
F.Supp.2d 987, 1018 (C.D. Cal. 2013). However, if an appellate reviewer denies an appeal of an on-
12
going medical issue it may subject him/her to liability for deliberate indifference under the Eighth
13
Amendment. Jett v. Penner, 439 F.3d 1091, 1098 (9th Cir. 2006). Nonetheless, if the prison official
14
merely signed off on an appeal of a discrete medical issue, such an allegation does not, by itself,
15
constitute deliberate indifference. See Peralta v. Dillard, 744 F.3d 1076, 1086-87 (9th Cir. 2014)
16
(finding no liability for a prison official who reviewed plaintiff’s inmate appeal, even though the
17
official was a supervisor of dental staff, this official did not independently review plaintiff’s claims or
18
read plaintiff’s medical charts before signing off on plaintiff’s second-level review).
19
Plaintiff has failed to state a cognizable claim based on Young’s supervisory position. In
20
support of his motion to amend, Plaintiff attaches the denial of his health care appeal No. PVSP HC
21
16052007, which was signed by Young on February 27, 2017. (Mot. to Amend, Ex. A 1.) Plaintiff
22
has not and cannot state a cognizable claim against Young based merely on executing the duties of his
23
position as CEO of the Health Care Services. Indeed, Plaintiff’s injuries were sustained sometime at
24
the end of April 2016, and Plaintiff’s allegations demonstrate that he received surgery for those
25
injuries in June 2016. (Pl. Am. Compl. at 4, ECF No. 7.) Further, Plaintiff has not presented facts that
26
CEO Young provided direct medical care to him or saw him for treatment. Rather, Plaintiff
27
summarily asserts that he knew through the grievance process of the inadequate medical treatment.
28
However, Young’s only personal involvement had to do with his decision to sign off on the second4
1
level review of Plaintiff’s health care appeal, which occurred on February 27, 2017, appropriately
2
eight months after the events at issue in this action.
3
Plaintiff also fails to state a cognizable claim against Young based on the mere fact that he
4
signed off on the second-level review appeal because such decision does not demonstrate deliberate
5
indifference. In addition, CEO Young was not and could not be deliberately indifferent when he relied
6
on the opinions of qualified medical staff in responding to Plaintiff’s medical grievance. See Peralta,
7
744 F.3d at 1087; see also Doyle v. California Department of Corrections and Rehabilitation, et.al.,
8
No. 12-cv-2769-YGR, 2015 WL 5590728, at *9 (N.D. Cal. Sept. 23, 2015) (“[i]t simply cannot be
9
said that, by signing off on the denials at the second and third level, defendants Ellis and Zamora
10
disregarded a substantial risk of harm to Mr. Doyle’s health by failing to take reasonable steps to abate
11
it.”) Young was not a medical professional and relied on the medical opinions of staff doctors who
12
investigated Plaintiff’s complaints and already signed off on the treatment plan. Peralta, 744 F.3d at
13
1086-87. Therefore, because Young denied an appeal concerning events that had already happened,
14
Young had no subjective awareness of an alleged ongoing medical need and was not deliberately
15
indifferent to Plaintiff’s requests for help when he denied Plaintiff’s appeal at the second level of
16
review. Accordingly, Plaintiff’s motion to amend the complaint should be denied.
17
It is further noted that Plaintiff previously attempted to state a claim against CEO Young and
18
was notified of the deficiencies and granted leave to amend. In the original complaint, Plaintiff
19
identified “C. Yang” as a Defendant and alleged that he was the CEO. (Pl.’s Compl. at 2, ECF No. 1.)
20
In the Court’s initial screening order, the Court found that Plaintiff failed to state a cognizable claim
21
against the CEO because he did not link that individual to an affirmative act of misconduct.
22
(Screening Order at 4, ECF No. 6.) Plaintiff subsequently filed a first amended complaint on
23
November 22, 2017. The Court screened the first amended complaint and found that Plaintiff stated a
24
cognizable claim against Defendants Dr. Conanon and John Doe (at Mercy Hospital), but Plaintiff
25
failed to state a cognizable claim against the CEO or Chief Medical Officer at PVSP. (Findings and
26
Recommendation, ECF No. 11.) The Findings and Recommendations were adopted in full on January
27
4, 2018. (ECF No. 13.) Therefore, Plaintiff has been previously advised of the deficiencies and
28
granted leave to amend to cure such deficiencies.
5
1
IV.
2
RECOMMENDATION
Based on the foregoing, it is HEREBY RECOMMENDED that Plaintiff’s motion to amend the
3
4
complaint to add CEO Young as a Defendant be denied.
This Findings and Recommendation will be submitted to the United States District Judge
5
6
assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one (21)
7
days after being served with this Findings and Recommendation, the parties may file written
8
objections with the Court. The document should be captioned “Objections to Magistrate Judge’s
9
Findings and Recommendation.” The parties are advised that failure to file objections within the
10
specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-
11
39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
12
13
IT IS SO ORDERED.
14
Dated:
15
August 31, 2018
UNITED STATES MAGISTRATE JUDGE
16
17
18
19
20
21
22
23
24
25
26
27
28
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?