Bishop v. Salcedo et al

Filing 14

FINDINGS and RECOMMENDATIONS recommending that Certain Claims and Defendants be Dismissed re 1 Prisoner Civil Rights Complaint signed by Magistrate Judge Barbara A. McAuliffe on 1/29/2019. 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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ROBERT BISHOP,

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Plaintiff,

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v.

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SALCEDO, et al.,

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Case No. 1:18-cv-00714-DAD-BAM (PC)
FINDINGS AND RECOMMENDATIONS
REGARDING DISMISSAL OF CERTAIN
CLAIMS AND DEFENDANTS
(ECF Nos. 1, 11, 13)

Defendants.

FOURTEEN (14) DAY DEADLINE

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I.

Plaintiff Robert Bishop (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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Background

pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.

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On December 28, 2018, the Court screened Plaintiff’s complaint and found that Plaintiff

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stated a cognizable claim for deliberate indifference to serious medical needs in violation of the

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Eighth Amendment against Defendants Cross, Salcedo, Perez, and Nyugen, but failed to state any

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other cognizable claims. The Court ordered Plaintiff to either file a first amended complaint or

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notify the Court of his willingness to proceed only on the cognizable claims. (ECF No. 11.) On

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January 28, 2019, Plaintiff notified the Court of his willingness to proceed on the cognizable

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claims identified by the Court. (ECF 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

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or 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).

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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 (2009) (citing Bell

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Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken as

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true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc.,

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572 F.3d 677, 681 (9th Cir. 2009) (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 (quotation marks omitted); Moss v. U.S.

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Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted

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unlawfully is not sufficient, and mere consistency with liability falls short of satisfying the

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plausibility standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969.

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III.

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Allegations in Complaint
Plaintiff is currently housed at Kern Valley State Prison in Delano, California. The events

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

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Prison, Corcoran (“Corcoran”) in Corcoran, California. Plaintiff asserts two claims for deliberate

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indifference to serious medical needs in violation of the Eighth Amendment against the following

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defendants: (1) Officer F. Salcedo; (2) Officer A. Perez; (3) Sergeant J. Doe; (4) Registered Nurse

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Cross; and (5) Dr. Nyugen.

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Claim 1

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Plaintiff alleges that he was transferred to Corcoran on December 15, 2016. Upon

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Plaintiff’s arrival, Sergeant J. Doe confiscated his authorized medical device, a wrist brace.

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Plaintiff advised Defendant Doe that it was an authorized medical device which could only be

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taken away by a doctor and without it Plaintiff would be in severe pain. Defendant Doe replied,

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“I don’t care, it’s not allowed here.” (ECF No. 1 at 5.)

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Plaintiff was then escorted to medical screening. He was seen by Defendant Cross, who

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was given Plaintiff’s medical device by Defendant Doe and made to sign a receipt. Plaintiff

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explained to Defendant Cross that he needed his medical device, that he had wrist surgery and

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without it he would be in severe pain, and that his device could not be taken from him except by a

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doctor. Defendant Cross refused to return Plaintiff’s brace and had him taken from the office.

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Plaintiff was then housed in a cell. Plaintiff immediately and repeatedly advised

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Defendants Salcedo and Perez, who were building staff, that he was in severe pain and needed his

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prescribed medical device. Defendant Salcedo refused to return his medical device. Defendant

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Perez informed Plaintiff that he had Plaintiff’s brace but was not going to return it.

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Plaintiff was seen by Defendant Nyugen and explained that he needed his prescribed

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medical device, which was being denied and that he was in severe pain. Defendant Nyugen

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offered no assistance and only stated that when Plaintiff got his property (which would take

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approximately 45 days) to return with the medical chronos. Defendant Nyugen did not revoke

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Plaintiff’s ability to possess the medical device. Instead, he refused to have it issued to Plaintiff.

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Plaintiff asserts that he was denied his authorized and prescribed medical device for his

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entire duration at Corcoran and only had the device returned on the day of his transfer. Plaintiff

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further asserts that he was made to suffer severe, excruciating pain every day for approximately

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45 days, and he continued to suffer pain more than 12 months later due to being denied the

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prescribed medical device.

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Claim II

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Plaintiff alleges that at the time he was transferred to Corcoran on December 15, 2016, he

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was received wearing waist chain restraints that were ordered by a doctor due to Plaintiff’s recent
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surgery and ongoing nerve pain. On December 30, 2016, Defendant Salcedo refused to waist

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chain Plaintiff and instead forced him to submit to behind-the-back handcuffs. Plaintiff

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repeatedly advised Defendants Salcedo and Perez that he had a waist chain chrono, that it was

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documented in his medical file, he had been waist chained for the previous two weeks with no

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problems and he could not be cuffed behind the back because it caused severe excruciating and

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burning pain. Defendants Salcedo and Perez said that they did not care and that Plaintiff had to

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cuff up behind his back. This happened every time Plaintiff needed to leave his cell to go the

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yard, medical, law library, shower, etc.

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Plaintiff was seen by Defendant Nyugen and Plaintiff explained that he had a waist chain

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chrono, but was being forced to cuff behind the back. Defendant Nyugen refused to check

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Plaintiff’s medical file to stop this from happening and told Plaintiff to bring a copy of the chrono

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to him when Plaintiff was issued his property.

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Plaintiff asserts that he was forced to cuff up behind his back almost daily for nearly one

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month because these defendants denied him access to his property, which contained his medical

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chronos, and for failing to properly investigate Plaintiff’s medical file. Plaintiff alleges that he

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was forced to suffer severe and excruciating pain in his left wrist from being cuffed behind his

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back.

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Plaintiff seeks declaratory relief, along with compensatory and punitive damages.
IV.

Discussion

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A.

Eighth Amendment

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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

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

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

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The two-part test for deliberate indifference requires Plaintiff to show (1) “a ‘serious medical

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need’ by demonstrating that failure to treat a prisoner’s condition could result in further
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significant injury or the ‘unnecessary and wanton infliction of pain,’ ” and (2) “the defendant’s

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response to the need was 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.,

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

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is 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. In applying this

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standard, the Ninth Circuit has held that before it can be said that a prisoner’s civil rights have

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been abridged, “the indifference to his medical needs must be substantial. Mere ‘indifference,’

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‘negligence,’ or ‘medical malpractice’ will not support this cause of action.” Broughton v. Cutter

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Labs., 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 105–06).
At the pleading stage, the Court finds that Plaintiff’s complaint states a cognizable claim

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against Defendants Cross, Salcedo, Perez and Nyugen regarding the denial of his wrist brace

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while he was housed at Corcoran. However, Plaintiff’s complaint fails to state a cognizable claim

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for deliberate indifference to serious medical needs against Defendant Doe. At best, Plaintiff’s

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complaint alleges that Defendant Doe initially confiscated Plaintiff’s wrist brace, but provided it,

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apparently on the same day, to Defendant Cross during Plaintiff’s medical screening. Based on

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these allegations, Defendant Doe cannot be said to have exhibited deliberate indifference to

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Plaintiff’s medical needs by apparently escorting him to medical and providing the brace to a

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nurse.

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Further, the Court finds that Plaintiff’s complaint also does not state a cognizable claim

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for deliberate indifference to a serious medical need in violation of the Eighth Amendment related

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to the failure to use waist chains by any defendant. There is no indication that defendants knew

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that Plaintiff had a serious medical need for a waist chain, that he had such a chrono or that they

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knew the use of behind-the-back handcuffs would result in any injury or pain. Indeed, Plaintiff’s

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allegations do not suggest that he informed Defendants Salcedo or Perez that he was experiencing

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any pain or injury when leaving his cell or during escorts, nor did Plaintiff express any complaints
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of pain or injury to Defendant Nyugen regarding use of handcuffs. Plaintiff’s allegations do not

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foreclose a claim for excessive force in violation of the Eighth Amendment against Defendants

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Salcedo and Perez. The Court therefore provides the following legal standard.
“The objective component of an Eighth Amendment claim is ... contextual and responsive

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to contemporary standards of decency.” Hudson, 503 U.S. at 8 (internal quotation marks and

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citations omitted). A prison official’s use of force to maliciously and sadistically cause harm

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violates the contemporary standards of decency. Wilkins v. Gaddy, 559 U.S. 34, 37 (2010).

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However, “not ‘every malevolent touch by a prison guard gives rise to a federal cause of action.”

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Wilkins, 559 U.S. at 37 (quoting Hudson, 503 U.S. at 9). Factors that can be considered are “the

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need for the application of force, the relationship between the need and the amount of force that

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was used, [and] the extent of injury inflicted.” Whitley, 475 U.S. at 321; Marquez v. Gutierrez,

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322 F.3d 689, 692 (9th Cir. 2003).

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As currently pled, Plaintiff’s complaint does not state a cognizable excessive force claim

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regarding the use of waist chains. There is no indication from the allegations that any defendant

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used force maliciously and sadistically to cause harm. Instead, Plaintiff’s allegations suggest that

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handcuffs were applied to maintain discipline.

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B.

Declaratory Relief

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In addition to damages, Plaintiff seeks a declaration that his rights were violated. “A

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declaratory judgment, like other forms of equitable relief, should be granted only as a matter of

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judicial discretion, exercised in the public interest.” Eccles v. Peoples Bank of Lakewood Vill.,

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333 U.S. 426, 431 (1948). “Declaratory relief should be denied when it will neither serve a useful

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purpose in clarifying and settling the legal relations in issue nor terminate the proceedings and

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afford relief from the uncertainty and controversy faced by the parties.” United States v.

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Washington, 759 F.2d 1353, 1357 (9th Cir. 1985). In the event that this action reaches trial and

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the jury returns a verdict in favor of Plaintiff, the verdict will be a finding that Plaintiff’s

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constitutional rights were violated. Accordingly, a declaration that any defendant violated

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Plaintiff’s rights is unnecessary.

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V.

Conclusion and Recommendation
Plaintiff’s complaint states a cognizable claim for deliberate indifference to serious

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medical needs in violation of the Eighth Amendment against Defendants Cross, Salcedo, Perez,

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and Nyugen, but fails to state any other cognizable claims against any other defendants.

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Accordingly, it is HEREBY RECOMMENDED that:

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1. This action proceed on Plaintiff’s complaint, filed May 25, 2018, (ECF No. 1), against

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Defendants Cross, Salcedo, Perez, and Nyugen for deliberate indifference to serious

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medical needs in violation of the Eighth Amendment; and

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2. All other claims and defendants be dismissed based on Plaintiff’s failure to state claims
upon which relief may be granted.

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These Findings and Recommendations will be submitted to the United States District

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Judge assigned to the case, as required by 28 U.S.C. § 636(b)(l). Within fourteen (14) days after

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being served with these Findings and Recommendations, Plaintiff may file written objections

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

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and Recommendations.” Plaintiff is advised that the failure to file objections within the specified

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

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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

January 29, 2019

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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