Finney v. Phi et al

Filing 18

FINDINGS and RECOMMENDATIONS recommending that this Action be DISMISSED for Plaintiff's Failure to State a Claim Upon Which Relief May Be Granted re 17 First Amended Prisoner Civil Rights Complaint signed by Magistrate Judge Barbara A. McAuliffe on 7/19/2018. Referred to Judge Drozd. Objections to F&R due within fourteen (14) days. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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HARLEY FINNEY,

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Plaintiff,
v.
DR. B. PHI, et al.,

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Case No. 1:17-cv-01541-DAD-BAM (PC)
FINDINGS AND RECOMMENDATIONS
REGARDING DISMISSAL OF ACTION FOR
FAILURE TO STATE A CLAIM
(ECF No. 17)

Defendants.

FOURTEEN-DAY DEADLINE

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Findings and Recommendations

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Plaintiff Harley Finney (“Plaintiff”) is a state prisoner proceeding pro se, but not in forma

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pauperis, in this civil rights action under 42 U.S.C. § 1983. On June 15, 2018, the Court screened

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Plaintiff’s complaint and granted him leave to amend. (ECF No. 16.) Plaintiff’s first amended

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complaint, filed on July 18, 2018, is currently before the Court for screening. (ECF No. 17.)

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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

Screening Requirement and Standard

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from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b).

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A complaint must contain “a short and plain statement of the claim showing that the pleader

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is 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)). While a plaintiff’s allegations are taken as true, courts “are not required

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to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir.

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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 (quotation marks omitted); Moss v. U.S. Secret Serv.,

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

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sufficient, and mere consistency with liability falls short of satisfying the plausibility standard.

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Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969.
Plaintiff’s Allegations

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II.

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Plaintiff is currently housed at Pleasant Valley State Prison in Coalinga, California. The

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events in the complaint are alleged to have occurred while Plaintiff was housed at the California

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Substance Abuse Treatment Facility (“CSATF”). Plaintiff names Dr. Koker as the sole defendant

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in the amended complaint, and contends that Dr. Koker was deliberately indifferent to Plaintiff’s

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medical needs.

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Plaintiff alleges that on February 22, 2017, he appeared before Dr. Koker for a follow-up

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appointment after an outside orthopedic doctor visit. Dr. Koker did not know why Plaintiff was

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there to see him. Plaintiff explained his extensive knee injury, including bone fracturing, an

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unattached ACL and his meniscus torn off the bone. Dr. Koker did not inquire about Plaintiff’s

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pain level, but Plaintiff explained that his pain was as high as 10 on the pain scale while walking.

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Plaintiff told Dr. Koker that he was slipping in the wet weather on crutches. Plaintiff also told Dr.

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Koker that he had slipped in the dining hall on February 19, 2017, due to flooding, causing Plaintiff

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to injure his knee again.
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Plaintiff requested a wheelchair, but Dr. Koker denied the request. Dr. Koker also stated

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that he would not renew Plaintiff’s Tylenol 3 due to problems on the yard, but that Plaintiff would

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“get Tylenol 325mg, which is for fevers and minor pain, like headaches.” (ECF No. 17 at p. 4.)

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Plaintiff responded that his leg was broken, and walking was both painful and dangerous. Dr.

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Koker reportedly replied, “Shut up, in my country people deal with like men. Do what you have

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to do and stop complaining.” (Id.) On March 21, 2017, Plaintiff signed a form for a right knee

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fracture “fixature.” (Id.) The pre-surgery MRI showed degenerative bone disease (permanent)

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from Plaintiff walking on his broken leg to get meds and meals.

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As relief, Plaintiff seeks compensatory and punitive damages.

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III.

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.

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2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). Deliberate indifference may be shown

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by the denial, delay or intentional interference with medical treatment or by the way in which

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medical care is provided. Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988). The two-

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part test for deliberate indifference requires 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 or

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

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deliberately indifferent.” Jett, 439 F.3d at 1096.

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A defendant does not act in a deliberately indifferent manner unless the defendant “knows

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of and disregards an excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825,

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837 (1994). “Deliberate indifference is a high legal standard,” Simmons v. Navajo Cty. Ariz., 609

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F.3d 1011, 1019 (9th Cir. 2010); Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004), and is

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shown where there was “a purposeful act or failure to respond to a prisoner’s pain or possible

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medical need” 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

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prisoner’s civil rights have been abridged, “the indifference to his medical needs must be
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substantial. Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this cause

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of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429

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U.S. at 105–106). “[A] complaint that a physician has been negligent in diagnosing or treating a

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medical condition does not state a valid claim of medical mistreatment under the Eighth

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Amendment. Medical malpractice does not become a constitutional violation merely because the

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victim is a prisoner.” Estelle, 429 U.S. at 106; see also Anderson v. County of Kern, 45 F.3d 1310,

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1316 (9th Cir. 1995). Even gross negligence is insufficient to establish deliberate indifference to

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serious medical needs. See Wood v. Housewright, 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

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F.2d 240, 242 (9th Cir. 1989)), overruled in part on other grounds, Peralta v. Dillard, 744 F.3d 1076,

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1082–83 (9th Cir. 2014); Wilhelm v. Rotman, 680 F.3d 1113, 1122–23 (9th Cir. 2012) (citing

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Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1986)). Rather, Plaintiff “must show that the course

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of treatment the doctors chose was medically unacceptable under the circumstances and that the

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defendants chose this course in conscious disregard of an excessive risk to [his] health.” Snow, 681

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F.3d at 988 (citing Jackson, 90 F.3d at 332) (internal quotation marks omitted).

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Plaintiff fails to state a cognizable claim for deliberate indifference to serious medical needs

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against Dr. Koker. Plaintiff admits that he had crutches and that Dr. Koker prescribed pain

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medications for Plaintiff. Therefore, Plaintiff, at best, has alleged a disagreement with Dr. Koker

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regarding his need for a wheelchair and certain pain medication. Further, any assertion of

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negligence, even gross negligence, in relation to Dr. Koker’s treatment also is insufficient to state

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a cognizable claim.

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IV.

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Plaintiff’s amended complaint fails to state a cognizable claim for relief. Despite being

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provided with the relevant pleading and legal standards, Plaintiff has been unable to cure the

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deficiencies in his complaint and thus further leave to amend is not warranted. Lopez v. Smith,

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203 F.3d 1122, 1130 (9th Cir. 2000).

Conclusion and Recommendation

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Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed for
Plaintiff’s failure to state a claim upon which relief may be granted.

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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

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(14) days after being served with these Findings and Recommendation, Plaintiff 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.” Plaintiff is advised that failure to file objections within the

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specified time may result in the waiver of the “right to challenge the magistrate’s factual findings”

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on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923

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F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

/s/ Barbara

July 19, 2018

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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