Rivera v. Relevante

Filing 15

ORDER DIRECTING Clerk of Court to Randomly Assign District Judge (The new case number is 1:17-cv-1615-AWI-BAM); FINDINGS and RECOMMENDATIONS Regarding Dismissal of Action for Failure to State a Claim, signed by Magistrate Judge Barbara A. McAuliffe on 5/4/18. Objections to F&R Due Within Fourteen Days. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RUBEN RIVERA,

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Plaintiff,

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C. RELEVANTE,

ORDER DIRECTING CLERK OF COURT TO
RANDOMLY ASSIGN DISTRICT JUDGE

v.

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Case No. 1:17-cv-01615-BAM (PC)

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FINDINGS AND RECOMMENDATIONS
REGARDING DISMISSAL OF ACTION FOR
FAILURE TO STATE A CLAIM
Defendant.
(ECF No. 13)

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FOURTEEN-DAY DEADLINE

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I.

Introduction

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Plaintiff Ruben Rivera (“Plaintiff”), a state prisoner, is proceeding pro se and in forma

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pauperis in this civil rights action under 42 U.S.C. § 1983. Plaintiff initiated this action on

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December 5, 2017. (ECF No. 1.) On December 28, 2017, the then-assigned magistrate judge

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screened Plaintiff’s complaint and granted him leave to amend. (ECF No. 12.) Plaintiff’s first

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amended complaint, filed on January 16, 2018, is currently before the Court for screening. (ECF

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No. 13.)

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II.

Screening Requirement and Standard

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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

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relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2); 28 U.S.C.

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§ 1915(e)(2)(B)(ii).

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

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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, 129 S.Ct. 1937,

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1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65

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(2007)). While a plaintiff’s allegations are taken as true, courts “are not required to indulge

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unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009)

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(internal quotation marks and citation omitted).

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To survive screening, Plaintiff’s claims must be facially plausible, which requires

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sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable

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for the misconduct alleged. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks omitted);

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Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility

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that a defendant acted unlawfully is not sufficient, and mere consistency with liability falls short

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of satisfying the plausibility standard. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks

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omitted); Moss, 572 F.3d at 969.

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A. Plaintiff’s Allegations

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Plaintiff is confined at Kern Valley State Prison (“KVSP”), where the events in the

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complaint are alleged to have occurred. Plaintiff names C. Relevante, a physician’s assistant at

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KVSP, as the sole defendant.

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Plaintiff asserts a violation of the Eighth Amendment for deliberate indifference to serious
medical needs. In the amended complaint, Plaintiff alleges as follows:
I’m linking “Physician Assistant” C. Relevante to an affirmative act which caused
me both physical and mental harm due to his “deliberate indifference” towards
my serious medical need. On 2-6-17 C. Relevante performed an unsuccessfull
[sic] surgical procedure on my head in an attempt to remove a 2-inch cyst. He
was aware of the fact that prison does not have the equiptment [sic] necessary to
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perform the surgical procedure and that refferal [sic] to the hospital was
necessary. He caused me uneccesary [sic] and wanton infliction of pain. Prior to
the surgical procedure I advised C. Relevante to review my previous medical
records which clearly state that the exact same surgical procedure had been
unsuccessfully done to me at CCI back in 8-21-2013 but was unsuccessfull [sic]
due to “too much bleeding” and lack of equiptment [sic]. However, C. Relevante
conciously [sic] and maliciously insisted that referral to a hospital was not
necessary and did the procedure himself putting my life at risk the surgical
procedure once again turned out to be unsuccessfull [sic]. I was left with scars,
physical pain, mental anguish and went through yet another unecessary [sic]
recovery process due to the medical malpractice, my eighth amendment was
violated.

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(ECF No. 13 at 3-4.) Plaintiff seeks monetary damages, and possible revocation of Defendant

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Relevante’s license.

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B. 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)). The two part test for deliberate

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indifference requires Plaintiff to show (1) “a ‘serious medical need’ by demonstrating that failure

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to treat a prisoner’s condition could result in further significant injury or the ‘unnecessary and

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

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

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treating a 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

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1310, 1316 (9th Cir. 1995). Even gross negligence is insufficient to establish deliberate

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indifference to serious medical needs. See Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir.

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1990).

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Further, a “difference of opinion between a physician and the prisoner—or between

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medical professionals—concerning what medical care is appropriate does not amount to

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deliberate indifference.” Snow v. McDaniel, 681 F.3d 978, 987 (9th Cir. 2012) (citing Sanchez v.

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Vild, 891 F.2d 240, 242 (9th Cir. 1989)), overruled in part on other grounds, Peralta v. Dillard,

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744 F.3d 1076, 1082–83 (9th Cir. 2014); Wilhelm v. Rotman, 680 F.3d 1113, 1122–23 (9th Cir.

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2012) (citing Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1986)). Rather, Plaintiff “must

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show that the course of treatment the doctors chose was medically unacceptable under the

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circumstances and that the defendants chose this course in conscious disregard of an excessive

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risk to [his] health.” Snow, 681 F.3d at 988 (citing Jackson, 90 F.3d at 332) (internal quotation

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marks omitted).

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Here, Plaintiff’s allegations suggest that Defendant Relevante negligently treated

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Plaintiff’s cyst or committed medical malpractice, which are insufficient to establish deliberate

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indifference to serious medical needs. Defendant Relevante attempted to address Plaintiff’s cyst,

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but was unsuccessful. That Plaintiff may have disagreed with the manner of attempted removal

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of the cyst demonstrates, at most, a difference of opinion between Plaintiff and Defendant

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Relevante regarding the appropriate course of medical treatment. That such a procedure was

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unsuccessful at a different prison when performed by another medical provider several years prior

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does not establish that the procedure was medically unacceptable or that Defendant Relevante

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chose this course of treatment in conscious disregard to an excessive risk to Plaintiff’s health.

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III.

Conclusion and Recommendation

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Plaintiff’s first amended complaint fails 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).

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Accordingly, the Court HEREBY DIRECTS the Clerk of the Court to randomly assign a
district judge to this action.
Further, the Court HEREBY RECOMMENDS that Plaintiff’s complaint be dismissed for
failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e).
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

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

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Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

/s/ Barbara

May 4, 2018

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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