Kelly v. Sao et al
Filing
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FINDINGS and RECOMMENDATIONS, Recommending that Plaintiff's Complaint be Dismissed with Prejudice for Failure to State a Claim, without Leave to Amend, signed by Magistrate Judge Erica P. Grosjean on 9/12/18. Referred to Judge Drozd. Objections to F&R Due Within Twenty-One Days. (Gonzalez, R)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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JAMES CARL KELLY,
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Plaintiff,
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v.
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DR. SAO, et al.,
Case No. 1:18-cv-00484-DAD-EPG
FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT PLAINTIFF’S
COMPLAINT BE DISMISSED WITH
PREJUDICE FOR FAILURE TO STATE A
CLAIM, WITHOUT LEAVE TO AMEND
(ECF No. 1)
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TWENTY-ONE (21) DAY DEADLINE
Defendants.
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James Carl Kelly (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis
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in this civil rights action pursuant to 42 U.S.C. § 1983. On April 9, 2018, Plaintiff commenced
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this action by filing a Complaint. (ECF No. 1). Plaintiff alleges that he suffers from chronic pain,
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but is not receiving adequate pain medication.
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The Court has screened the Complaint, and finds that it fails to state a cognizable federal
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claim for the reasons described below. This Court recommends that the District Judge dismiss
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the federal claim for deliberate indifference to serious medical needs under the Eighth
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Amendment with prejudice for failure to state a claim. The Court recommends that the District
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Judge dismiss any state law claims for medical malpractice without prejudice for lack of
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jurisdiction.
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If Plaintiff disagrees with this recommendation, he may file objections to this order within
21 days from the date of this order.
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I.
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SCREENING REQUIREMENT
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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As Plaintiff is proceeding in forma pauperis (ECF No. 9), the Court may also screen the
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complaint under 28 U.S.C. § 1915. “Notwithstanding any filing fee, or any portion thereof, that
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may have been paid, the court shall dismiss the case at any time if the court determines that the
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action or appeal fails to state a claim upon which relief may be granted.” 28 U.S.C.
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§ 1915(e)(2)(B)(ii).
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)). Plaintiff must set forth “sufficient factual
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matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting
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Twombly, 550 U.S. at 570). The mere possibility of misconduct falls short of meeting this
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plausibility standard. Id. at 679. While a plaintiff’s allegations are taken as true, courts “are not
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required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681
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(9th Cir. 2009) (internal quotation marks and citation omitted). Additionally, a plaintiff’s legal
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conclusions are not accepted as true. Iqbal, 556 U.S. at 678.
Pleadings of pro se plaintiffs “must be held to less stringent standards than formal
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pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding that
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pro se complaints should continue to be liberally construed after Iqbal).
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II.
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PLAINTIFF’S ALLEGATIONS IN HIS COMPLAINT
Plaintiff alleges that he is a victim of abuse including sodomy and rape. As a result of this
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abuse, Plaintiff received injuries such as degenerative disk disease with pinched nerves in his left
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buttock, left leg, and left heel. He uses a wheel chair for ambulation. It hurts when he walks. If
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the disk grinds all the way down, he will be “cripple.”
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Plaintiff states that Doctor Sao says it is too early for Tylenol 3 narcotic pain medications.
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Doctor Ulit also said no to Tylenol 3 and he doesn’t believe Plaintiff will be “crippled.” In 2003,
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Dr. S. Padons also said it was too early.
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Plaintiff is in chronic pain and cannot sleep all night. Plaintiff had to give up his walker
because of the pain.
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Plaintiff was on Tylenol 3 from 2003 until 2017, when doctors said they would not
reorder Tylenol 3 for him. Plaintiff claims the doctors will not alleviate his chronic pain.
Plaintiff states that “I want a judge to be the third person to make the decision.”
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III.
DISCUSSION
A.
Eighth Amendment
A prisoner can establish an Eighth Amendment violation arising from
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deficient medical care if he can prove that prison officials were deliberately indifferent to
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a serious medical need. Estelle v. Gamble, 429 U.S. 97, 104 (1976). Assuming
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the medical need is “serious,” a plaintiff must show that the defendant acted
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with deliberate indifference to that need. Id. “Deliberate indifference is a high legal
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standard.” Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). It entails something more
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than medical malpractice or even gross negligence. Id. Deliberate indifference exists when a
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prison official “knows of and disregards an excessive risk to inmate health or safety; the official
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must both be aware of the facts from which the inference could be drawn that a substantial risk
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of serious harm exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825,
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837 (1994). Deliberate indifference exists when a prison official “den[ies], delay[s] or
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intentionally interfere[s] with medical treatment, or it may be shown by the way in which prison
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officials provide medical care.” Crowley v. Bannister, 734 F.3d 967, 978 (9th Cir. 2013) (internal
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quotation marks and citation omitted).
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Critically, “a difference of opinion between a physician and the prisoner—or
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between medical professionals—concerning what medical care is appropriate does not amount
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to deliberate indifference.” Snow v. McDaniel, 681 F.3d 978, 987 (9th Cir. 2012) (citing Sanchez
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v. Vild, 891 F.2d 240, 242 (9th Cir. 1989)), overruled on other grounds by Peralta v. Dillard, 744
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F.3d 1076, 1083 (9th Cir. 2014). Instead, to establish deliberate indifference in the context of a
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difference of opinion between a physician and the prisoner or between medical providers,
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the prisoner “‘must show that the course of treatment the doctors chose
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was medically unacceptable under the circumstances’ and that the defendants ‘chose this course
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in conscious disregard of an excessive risk to plaintiffs health.’” Id. at 988 (quoting Jackson v.
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McIntosh, 90 F.3d 330, 332 (9th Cir. 1996)). In other words, where there has been some arguably
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appropriate treatment, deliberate indifference cannot be established merely by showing
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disagreement with the physician but only by showing that the defendant chose a course of
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treatment knowing that it was inappropriate. Put differently, a court cannot substitute its judgment
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for that of a medical professional, but it can examine a medical professional’s good faith in
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selecting a course of treatment.
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Plaintiff fails to state a claim for a violation of the Eighth Amendment for cruel and
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unusual punishment based on deliberate indifference to serious medical needs. Plaintiff alleges
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that he suffers from chronic pain. He used to receive Tylenol 3, which is a narcotic pain
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medication, but that was stopped in January 2017. It is clear that Plaintiff feels strongly that he
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needs this type of pain medication. However, Plaintiff has not alleged any facts indicating that
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his doctors agree. It is not enough to allege that Plaintiff disagrees with his doctors. In order to
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establish a constitutional claim, Plaintiff must allege facts indicating that his doctors believe that
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he needs the medication but refuse to provide it. It is not the Court’s role to decide the best
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medical treatment when there is a difference of opinion between Plaintiff and his doctors.
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Indeed, Plaintiff alleges that his doctors do not believe he needs the pain medication.
Plaintiff states that “Doctor SAO says it is too early for Tylenol 3 narcotic pain medication,” and
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“Doctor Ulit said no to Tylenol 3 and he don’t believe I will be cripple . . . .” (ECF No. 1, at p.
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3).
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For these reasons, Plaintiff fails to state a claim for unconstitutional treatment under the
Eighth Amendment.
B.
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Related State Law Claims
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Plaintiff also asserts a claim for medical malpractice. Because the Court recommends
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dismissing any federal claims, the Court does not reach the merits of any state law claims for
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medical malpractice. The Court recommends dismissing this claim without prejudice. 28 U.S.C.
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§ 1367(c)(3); Acri v. Varian Associates, Inc., 114 F.3d 999, 1001 (9th Cir. 1997) (“The Supreme
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Court has stated, and we have often repeated, that ‘in the usual case in which all federal law
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claims are eliminated before trial, the balance of factors ... will point towards declining to
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exercise jurisdiction over the remaining state-law claims’ ” (citation omitted)).
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IV.
CONCLUSION AND ORDER
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The Court has screened the complaint, and finds that it fails to state a federal claim under
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the relevant legal standards. The Court recommends dismissing the federal claim with prejudice
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for failure to state a claim, and dismissing the state claim without prejudice for lack of jurisdiction.
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The Court does not recommend granting leave to amend. Plaintiff clearly alleged the
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circumstances underlying his complaint, including that doctors did not believe he required the pain
medication he seeks, and the Court has found that those circumstances do not state a constitutional
violation for the reasons described in this order. For that reason, leave to amend would be futile.
Based on the foregoing, it is HEREBY RECOMMENDED that:
1. This case be DISMISSED for failure to state a claim; and
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2. The Clerk of Court be directed to CLOSE this case.
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These findings and recommendations are submitted to the district judge assigned to the case,
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pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within twenty-one (21) days after being
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served with these findings and recommendations, Plaintiff may file written objections with the
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court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and
Recommendations.” Plaintiff is advised that failure to file objections within the specified time may
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result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014)
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(quoting Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
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IT IS SO ORDERED.
Dated:
September 12, 2018
/s/
UNITED STATES MAGISTRATE JUDGE
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