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)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DENNIS CURTIS HISLE,

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Plaintiff,

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v.
MARLYN CONANON, et al.,

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Defendants.

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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

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pursuant to 42 U.S.C. § 1983.
Currently before the Court is Plaintiff’s motion to amend, filed August 3, 2018.

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I.

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RELEVANT BACKGROUND

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This action is proceeding against Defendants Marlyn Conanon and John Doe (at Mercy

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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,

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the Court issued the discovery and scheduling order.

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The John Doe Defendant has not yet been identified or served with process.

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As previously stated, on August 3, 2018, Plaintiff filed a motion to amend the complaint.

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(ECF No. 27.) Defendant filed an opposition on August 13, 2018. Plaintiff did not file a reply and the

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time period to do so has expired. Local Rule 230(l). Accordingly, Plaintiff’s motion to amend is

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deemed submitted for review without oral argument. (Id.)

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II.

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LEGAL STANDARD

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Under Rule 15(a) of the Federal Rules of Civil Procedure, a party may amend the party=s

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pleading once as a matter of course twenty-one days after serving, or if a response was filed, within

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twenty-one days after service of the response. Fed. R. Civ. P. 15(a)(1). Otherwise, a party may

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amend only by leave of the court or by written consent of the adverse party, and leave shall be freely

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given when justice so requires. Fed. R. Civ. P. 15(a)(2).

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Rule 15(a) is very liberal and leave to amend ‘shall be freely given when justice so requires.’”

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AmerisourceBergen Corp. v. Dialysis West, Inc., 465 F.3d 946, 951 (9th Cir. 2006) (quoting Fed. R.

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Civ. P. 15(a)). However, courts “need not grant leave to amend where the amendment: (1) prejudices

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the opposing party; (2) is sought in bad faith; (3) produces an undue delay in the litigation; or (4) is

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futile.” AmerisourceBergen Corp., 465 F.3d at 951. Relevant to the futility factor, a plaintiff may not

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bring unrelated claims against unrelated parties in a single action. Fed. R. Civ. P. 18(a), 20(a)(2);

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Owens v. Hinsley, 635 F.3d 950, 952 (7th Cir. 2011); George v. Smith, 507 F.3d 605, 607 (7th Cir.

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2007). The burden to demonstrate prejudice falls upon the party opposing the amendment. DCD

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Programs, Ltd. v. Leighton, 833 F.2d 183, 187 (9th Cir. 1987). Absent prejudice, or a strong showing

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of any of the remaining three factors, a presumption exists under Rule 15(a) in favor of granting leave

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to amend. Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). Further,

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undue delay alone is insufficient to justify denial of a motion to amend. Bowles v. Reade, 198 F.3d

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752, 758 (9th Cir. 1999).

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III.

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DISCUSSION

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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
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terminate the John Doe Defendant. Plaintiff contends that Young can be held liable because of his

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supervisory role over Defendant Conanon as the CEO and his role in signing off at the second-level

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review of Plaintiff’s administrative grievance.

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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

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care, the Eighth Amendment is violated only when a prison official acts with deliberate indifference to

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an inmate’s serious medical needs. Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012), overruled

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in part on other grounds, Peralta v. Dillard, 744 F.3d 1076, 1082-83 (9th Cir. 2014); Wilhelm v.

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Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012); Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006).

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Plaintiff “must show (1) a serious medical need by demonstrating that failure to treat [his] condition

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could result in further significant injury or the unnecessary and wanton infliction of pain,” and (2) that

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“the defendant’s response to the need was deliberately indifferent.” Wilhelm, 680 F.3d at 1122 (citing

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Jett, 439 F.3d at 1096). Deliberate indifference is shown by “(a) a purposeful act or failure to respond

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to a prisoner’s pain or possible medical need, and (b) harm caused by the indifference.” Wilhelm, 680

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F.3d at 1122 (citing Jett, 439 F.3d at 1096). The requisite state of mind is one of subjective

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recklessness, which entails more than ordinary lack of due care. Snow, 681 F.3d at 985 (citation and

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quotation marks omitted); Wilhelm, 680 F.3d at 1122.

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Supervisory personnel, such as CEO Young, may not be held liable under section 1983 for the

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actions of subordinate employees based on respondeat superior, or vicarious liability. Crowley v.

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Bannister, 734 F.3d 967, 977 (9th Cir. 2013); accord Lemire v. California Dep’t of Corr. and Rehab.,

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726 F.3d 1062, 1074-75 (9th Cir. 2013); Lacey v. Maricopa County, 693 F.3d 896, 915-16 (9th Cir.

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2012) (en banc). “A supervisor may be liable only if (1) he or she is personally involved in the

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constitutional deprivation, or (2) there is a sufficient causal connection between the supervisor’s

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wrongful conduct and the constitutional violation.”

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McDaniel, 681 F.3d 978, 989 (9th Cir. 2012) (internal quotation marks omitted); accord Lemire, 726

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F.3d at 1074-75; Lacey, 693 F.3d at 915-16. “Under the latter theory, supervisory liability exists even

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without overt personal participation in the offensive act if supervisory officials implement a policy so
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Crowley, 734 F.3d at 977 (citing Snow v.

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deficient that the policy itself is a repudiation of constitutional rights and is the moving force of a

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constitutional violation.” Crowley, 734 F.3d at 977 (citing Hansen v. Black, 885 F.2d 642, 646 (9th

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Cir. 1989)) (internal quotation marks omitted).

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Plaintiff’s claim against CEO Young is based solely on his participation in the administrative

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grievance process and because he is in charge of the prison’s medical operations. (Mot. to Amend at

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4-7, ECF No. 27.) Plaintiff alleges Young’s signature on the second-level inmate appeal response is

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“complete approval of plaintiff Hisle’s level of care, the (CEO) supports, oversaw and delegation each

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daily huddle the type and measure of care given to plaintiff Hisle.” (Id. at 4.)

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In general, denying a prisoner’s administrative grievance does not cause or contribute to the

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underlying violation. George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007); Hernandez v. Cate, 918

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F.Supp.2d 987, 1018 (C.D. Cal. 2013). However, if an appellate reviewer denies an appeal of an on-

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going medical issue it may subject him/her to liability for deliberate indifference under the Eighth

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Amendment. Jett v. Penner, 439 F.3d 1091, 1098 (9th Cir. 2006). Nonetheless, if the prison official

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merely signed off on an appeal of a discrete medical issue, such an allegation does not, by itself,

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constitute deliberate indifference. See Peralta v. Dillard, 744 F.3d 1076, 1086-87 (9th Cir. 2014)

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(finding no liability for a prison official who reviewed plaintiff’s inmate appeal, even though the

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official was a supervisor of dental staff, this official did not independently review plaintiff’s claims or

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read plaintiff’s medical charts before signing off on plaintiff’s second-level review).

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Plaintiff has failed to state a cognizable claim based on Young’s supervisory position. In

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support of his motion to amend, Plaintiff attaches the denial of his health care appeal No. PVSP HC

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16052007, which was signed by Young on February 27, 2017. (Mot. to Amend, Ex. A 1.) Plaintiff

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has not and cannot state a cognizable claim against Young based merely on executing the duties of his

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position as CEO of the Health Care Services. Indeed, Plaintiff’s injuries were sustained sometime at

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the end of April 2016, and Plaintiff’s allegations demonstrate that he received surgery for those

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injuries in June 2016. (Pl. Am. Compl. at 4, ECF No. 7.) Further, Plaintiff has not presented facts that

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CEO Young provided direct medical care to him or saw him for treatment. Rather, Plaintiff

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summarily asserts that he knew through the grievance process of the inadequate medical treatment.

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However, Young’s only personal involvement had to do with his decision to sign off on the second4

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level review of Plaintiff’s health care appeal, which occurred on February 27, 2017, appropriately

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eight months after the events at issue in this action.

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Plaintiff also fails to state a cognizable claim against Young based on the mere fact that he

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signed off on the second-level review appeal because such decision does not demonstrate deliberate

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indifference. In addition, CEO Young was not and could not be deliberately indifferent when he relied

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on the opinions of qualified medical staff in responding to Plaintiff’s medical grievance. See Peralta,

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744 F.3d at 1087; see also Doyle v. California Department of Corrections and Rehabilitation, et.al.,

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No. 12-cv-2769-YGR, 2015 WL 5590728, at *9 (N.D. Cal. Sept. 23, 2015) (“[i]t simply cannot be

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said that, by signing off on the denials at the second and third level, defendants Ellis and Zamora

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disregarded a substantial risk of harm to Mr. Doyle’s health by failing to take reasonable steps to abate

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it.”) Young was not a medical professional and relied on the medical opinions of staff doctors who

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investigated Plaintiff’s complaints and already signed off on the treatment plan. Peralta, 744 F.3d at

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1086-87. Therefore, because Young denied an appeal concerning events that had already happened,

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Young had no subjective awareness of an alleged ongoing medical need and was not deliberately

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indifferent to Plaintiff’s requests for help when he denied Plaintiff’s appeal at the second level of

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review. Accordingly, Plaintiff’s motion to amend the complaint should be denied.

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It is further noted that Plaintiff previously attempted to state a claim against CEO Young and

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was notified of the deficiencies and granted leave to amend. In the original complaint, Plaintiff

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identified “C. Yang” as a Defendant and alleged that he was the CEO. (Pl.’s Compl. at 2, ECF No. 1.)

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In the Court’s initial screening order, the Court found that Plaintiff failed to state a cognizable claim

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against the CEO because he did not link that individual to an affirmative act of misconduct.

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(Screening Order at 4, ECF No. 6.) Plaintiff subsequently filed a first amended complaint on

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November 22, 2017. The Court screened the first amended complaint and found that Plaintiff stated a

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cognizable claim against Defendants Dr. Conanon and John Doe (at Mercy Hospital), but Plaintiff

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failed to state a cognizable claim against the CEO or Chief Medical Officer at PVSP. (Findings and

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Recommendation, ECF No. 11.) The Findings and Recommendations were adopted in full on January

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4, 2018. (ECF No. 13.) Therefore, Plaintiff has been previously advised of the deficiencies and

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granted leave to amend to cure such deficiencies.
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IV.

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RECOMMENDATION
Based on the foregoing, it is HEREBY RECOMMENDED that Plaintiff’s motion to amend the

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complaint to add CEO Young as a Defendant be denied.
This 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 28 U.S.C. § 636(b)(l). Within twenty-one (21)

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days after being served with this Findings and Recommendation, the parties may file written

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objections with the Court. The document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendation.” The parties are advised that failure to file objections within the

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specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-

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39 (9th Cir. 2014) (citing 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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August 31, 2018
UNITED STATES MAGISTRATE JUDGE

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