Quezada v. Sherman et al
Filing
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FINDINGS and RECOMMENDATIONS Recommending that this Case be Dismissed with Prejudice 22 ; Referred to Judge Dale A. Drozd, signed by Magistrate Judge Jennifer L. Thurston on 11/18/2019. 21 DAY DEADLINE. (Orozco, A)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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ALVARO QUEZADA,
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Plaintiff,
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v.
FINDINGS AND RECOMMENDATION
TO DISMISS ACTION
(Doc. 22)
SHERMAN, et al.,
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Case No.: 1:18-cv-00797-DAD-JLT (PC)
21-DAY DEADLINE
Defendants.
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Mr. Quezada alleges that the defendants failed to provide him adequate medical care and
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accommodation and retaliated against him because he engaged in protected conduct. (Doc. 22). In
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his original complaint and first amended complaint, (Docs. 1, 15), the Court found that Plaintiff
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failed to state a cognizable claim for relief. (Docs. 13, 19.) The Court provided Plaintiff with the
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pleading requirements and legal standards for his alleged claims and granted him leave to amend.
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(Id.) Despite these opportunities, Plaintiff still fails to state a cognizable claim in his second
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amended complaint (“SAC”). The Court thus finds that Plaintiff is unable to cure the deficiencies
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in his pleading, see Akhtar v. Mesa, 698 F.3d 1202, 1212-13 (9th Cir. 2012), and recommends
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that this action be DISMISSED.
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I.
SCREENING REQUIREMENT
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The Court is required to screen complaints brought by prisoners seeking relief against a
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governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a).
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The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are
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legally frivolous or malicious, fail to state a claim upon which relief may be granted, or seek
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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b). The
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Court should dismiss a complaint if it lacks a cognizable legal theory or fails to allege sufficient
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facts to support a cognizable legal theory. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696,
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699 (9th Cir. 1990).
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II.
PLEADING REQUIREMENTS
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A. Federal Rule of Civil Procedure 8(a)
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“Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited
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exceptions.” Swierkiewicz v. Sorema N. A., 534 U.S. 506, 513 (2002). A complaint must contain
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“a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R.
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Civ. Pro. 8(a)(2). “Such a statement must simply give the defendant fair notice of what the
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plaintiff's claim is and the grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512 (internal
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quotation marks and citation omitted).
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Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a
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cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556
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U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must
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set forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.’”
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Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). Factual allegations are accepted as
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true, but legal conclusions are not. Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555).
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The Court construes pleadings of pro se prisoners liberally and affords them the benefit of
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any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citation omitted). However, “the
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liberal pleading standard … applies only to a plaintiff’s factual allegations,” not his legal theories.
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Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989). Furthermore, “a liberal interpretation of a civil
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rights complaint may not supply essential elements of the claim that were not initially pled,”
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Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (internal quotation
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marks and citation omitted), and courts “are not required to indulge unwarranted inferences.” Doe
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I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and
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citation omitted). The “sheer possibility that a defendant has acted unlawfully” is not sufficient to
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state a cognizable claim, and “facts that are merely consistent with a defendant’s liability” fall
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short. Iqbal, 556 U.S. at 678 (internal quotation marks and citation omitted).
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B. Linkage and Causation
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Section 1983 provides a cause of action for the violation of constitutional or other federal
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rights by persons acting under color of state law. See 42 U.S.C. § 1983. To state a claim under
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Section 1983, a plaintiff must show a causal connection or link between the actions of the
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defendants and the deprivation alleged to have been suffered by the plaintiff. See Rizzo v. Goode,
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423 U.S. 362, 373-75 (1976). The Ninth Circuit has held that “[a] person ‘subjects’ another to the
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deprivation of a constitutional right, within the meaning of section 1983, if he does an affirmative
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act, participates in another’s affirmative acts, or omits to perform an act which he is legally
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required to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588
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F.2d 740, 743 (9th Cir. 1978) (citation omitted).
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To state a claim for relief, Plaintiff must link each named defendant with some affirmative
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act or omission that caused a violation of Plaintiff’s federal rights. Plaintiff must clearly identify
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which defendant he believes is responsible for each violation of his rights and set forth the
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supporting factual basis for these claims. His complaint must put each defendant on notice of
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Plaintiff’s claims against him or her. See Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004).
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III.
DISCUSSION
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A. Plaintiff’s Allegations
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In its Second Screening Order, the Court informed Plaintiff that his first amended
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complaint (“FAC”) was excessively long and replete with legal jargon and conclusory phrases,
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and the Court ordered Plaintiff to limit his SAC to 20 pages or less. (Doc. 19 at 1, 4, 5, 14.)
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Despite this order, Plaintiff’s SAC is 27 pages in length, not including the 269 pages of exhibits,
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and is again filled with conclusory statements, legal jargon, and repetition. From this SAC, the
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Court gleans the following relevant factual allegations:
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On April 26, 2017, Plaintiff was transferred to the Substance Abuse Treatment Facility in
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Corcoran, California. (Doc. 22 at 7.) Upon arrival, he informed SATF staff that he was suffering
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from degenerative disk disease (“DDD”) and spinal stenosis that caused severe pain and limited
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his ability to stand and walk. (Id.) Correctional officers informed Plaintiff that the “SOMS” did
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not document his medical condition, and thus he must produce medical “chronos” or report his
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condition to medical staff. (Id. at 7-8.)
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On May 11, 2017, Defendant-Dr. Akabike evaluated Plaintiff and declined to update his
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medical file or provide Plaintiff “adequate pain medication.” (Id. at 9.) On June 4, 2017, Plaintiff
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filed a reasonable accommodation request that he not be assigned to dining duties. (Id.) Plaintiff
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asserts that his request was denied because Dr. Akabike refused to update his “misinformed
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medical file.” (Id.)
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On June 28, 2017, Plaintiff fell twice while walking down the stairs from his cell. (Id. at
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10.) Plaintiff states that he fell because his right leg gave out due to his DDD and stenosis. (Id.)
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After his fall, SATF staff took Plaintiff to “CIC” to treat his injury and pain. (Id.) Plaintiff
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requested a cane from Dr. Metts, who replied that only Dr. Akabike could grant this request. (Id.)
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Plaintiff’s first fall occurred during “2nd watch.” (Id. at 13.) During “3rd watch,”
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Plaintiff’s cellmate and “care taker,” Cruz, informed Defendant Harris that Plaintiff had fallen
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that morning while he was walking down from “top tier.” (Id.) Given Plaintiff’s disability, Cruz
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requested that both he and Plaintiff be moved to a “lower bunk.” (Id.) Instead, Defendants Harris
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and Ceja decided to move Cruz to a lower bunk, but not Plaintiff. (Id. at 13, 17.) Defendants
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Harris and Ceja then instructed Cruz to “roll up his property” so that he could move to the lower
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bunk. (Id. at 13, 17.) The defendants then conducted a search of Plaintiff’s pod. (Id. at 17.)
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During the search, Defendant Ceja ordered Plaintiff to walk down the stairs from his pod.
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(Id.) Plaintiff informed Ceja that he could not walk down due to his condition; Ceja responded by
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telling Plaintiff that he would be sanctioned if he did not. (Id.) Plaintiff “under duress went down
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the stairs,” and his right leg gave out again and he fell the second time. (Id.) Defendant Ceja then
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walked over to the edge of the top tier to look down at Plaintiff and stated that he was “faking,”
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and he instructed other correctional officers to continue their search of the top-tier pod. (Id.)
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When Defendant Harris entered the room, he activated the alarm for medical emergency. (Id. at
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18.) Plaintiff was again transported to CIC and treated for his injuries. (Id.)
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Plaintiff alleges that Defendant Harris issued a rules violation report (“RVR”) against him
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to “punish[] plaintiff for seeking medical attention after plaintiff was forced under duress of being
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punished if plaintiff did not go down the top tier stairs.” (Id. at 14.) In the RVR, Defendant Harris
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“falsely asserted” that he “had advised I/M Quezada that [he] had no available bunks for him at
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the moment.” (Id.) During the RVR hearing, Defendant Ceja testified that he had been “[w]arned
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by 2nd watch that plaintiff was faking” his condition and that this was the reason that he did
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activate the medical alarm. (Id. at 18.)
After the falls, Dr. Akabike still refused to update Plaintiff’s medical file to reflect his
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DDD and stenosis, which prevented him from being housed on a lower bunk or being reassigned
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from dining duties. (Id. at 11, 12.) Plaintiff asserts that Dr. Akabike continued to refuse to treat
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his medical condition, provide “proper pain medications,” or provide a mobility device such as a
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cane or wheelchair. (Id. at 10, 12.)
Plaintiff alleges that Defendants “harbored animus” against him and were
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“systematically” punishing him for “maintaining several federal suits … against CDCR agents,
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for filing numerous CNs’, 602s, 22-forms, and/or having plaintiff’s loved one[s] file complaints
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on behalf of plaintiff.” (Id. at 25.) Plaintiff contends that Defendants Harris and Ceja filed the
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“false RVR,” denied Plaintiff’s request to move to a lower bunk and denied Plaintiff medical
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attention after his second fall because he engaged in these protected activities. (Id. at 26.) He
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states that Defendant-Warden Sherman denied Plaintiff’s appeal and failed to correct his
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subordinates’ constitutional violations due to this same retaliatory motive. (Id. at 25.)
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On July 11, 2017, Plaintiff underwent an MRI scan, from which Dr. Tung concluded that
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Plaintiff required surgery. (Id. at 18-19; see also Doc. 15 at 17.) The “Utilization Management
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Committee,” however, denied the request for surgery. (Doc. 22 at 151.) On July 28, 2017,
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Plaintiff was transferred to Richard J. Donovan Correctional Facility in San Diego. (Id.) On
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September 29, 2017, in response to Plaintiff’s health care appeal, Correctional Health Care
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Services granted Plaintiff’s requests for a cane, a back brace, and “accommodations for ground
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floor-no stairs and lower/bottom bunk.” (Id. at 151, 154.)
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B. Claims for Relief
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1. Deliberate Indifference to Medical Needs
“Prison officials violate the Eighth Amendment if they are ‘deliberate[ly] indifferen[t] to
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[a prisoner’s] serious medical needs.’” Peralta v. Dillard, 744 F.3d 1076, 1081 (9th Cir. 2014)
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(quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). “This is true whether the indifference is
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manifested by prison doctors in their response to the prisoner’s needs or by prison guards in
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intentionally denying or delaying access to medical care….” Estelle, 429 U.S. at 104-05. “A
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medical need is serious if failure to treat it will result in significant injury or the unnecessary and
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wanton infliction of pain.” Peralta, 744 F.3d at 1081 (internal quotation marks and citations
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omitted). “A prison official is deliberately indifferent to that need if he ‘knows of and disregards
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an excessive risk to inmate health.’” Id. at 1082 (quoting Farmer v. Brennan, 511 U.S. 825, 837
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(1994)).
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The test for deliberate indifference to medical need is thus two-pronged and has objective
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and subjective components. See Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012). To
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establish such a claim, a prisoner must first “show a serious medical need by demonstrating that
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failure to treat [the] prisoner’s condition could result in further significant injury or the
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unnecessary and wanton infliction of pain. Second, the plaintiff must show the defendants’
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response to the need was deliberately indifferent.” Id. (internal quotation marks and citation
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omitted).
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As to the first, objective prong, “[i]ndications that a plaintiff has a serious medical need
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include ‘[t]he existence of an injury that a reasonable doctor or patient would find important and
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worthy of comment or treatment; the presence of a medical condition that significantly affects an
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individual's daily activities; or the existence of chronic and substantial pain.’” Colwell v.
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Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014) (citation omitted).
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As to the second, subjective prong, deliberate indifference “describes a state of mind more
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blameworthy than negligence” and “requires more than ordinary lack of due care for the
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prisoner’s interests or safety.” Farmer v. Brennan, 511 U.S. 825, 835 (1994) (internal quotation
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marks and citation omitted). Deliberate indifference exists where a prison official “knows that
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[an] inmate[] face[s] a substantial risk of serious harm and disregards that risk by failing to take
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reasonable measures to abate it.” Id. at 847. In medical cases, this requires showing, “(a) a
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purposeful act or failure to respond to a prisoner’s pain or possible medical need and (b) harm
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caused by the indifference.” Wilhelm, 680 F.3d at 1122 (citation omitted). “A prisoner need not
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show his harm was substantial; however, such would provide additional support for the inmate’s
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claim that the defendant was deliberately indifferent to his needs.” Jett v. Penner, 439 F.3d 1091,
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1096 (9th Cir. 2006) (citation omitted).
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“Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 1060
(9th Cir. 2004). “Under this standard, the prison official must not only ‘be aware of facts from
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which the inference could be drawn that a substantial risk of serious harm exists,’ but [he] ‘must
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also draw the inference.’” Id. at 1057 (quoting Farmer, 511 U.S. at 837). “If a [prison official]
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should have been aware of the risk, but was not, then the [official] has not violated the Eighth
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Amendment, no matter how severe the risk.’” Id. (internal quotation marks and citation omitted).
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Plaintiff alleges that he suffers from degenerative disk disease and spinal stenosis, which
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affect his ability to walk and stand and cause significant pain. (Doc. 22 at 7.) The Court finds that
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this satisfies the objective prong, since it is a condition that a reasonable patient would find
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worthy of treatment, affects Plaintiff’s daily activities, and causes substantial pain. See Colwell,
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763 F.3d at 1066.
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Plaintiff’s allegations do not satisfy the subjective prong. With respect to Dr. Akabike,
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Plaintiff alleges that the doctor misdiagnosed him and failed to update his medical chart to reflect
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his DDD and stenosis. (Doc. 22 at 9-12.) However, a misdiagnosis does not amount to deliberate
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indifference. See Estelle, 429 U.S. at 106 (“a complaint that a physician has been negligent in
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diagnosing or treating a medical condition does not state a valid claim … under the Eighth
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Amendment”). Furthermore, Plaintiff received an MRI; and, based on its results, Dr. Tung
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prescribed surgery. (Doc. 22 at 18-19.) Plaintiff does not state whether Dr. Akabike ordered the
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MRI or referred him to Dr. Tung; but these facts reveal that he continued to receive treatment.
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Plaintiff thus fails to show that Dr. Akabike was deliberately indifferent to his medical needs.
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With respect to Defendant Ceja, Plaintiff alleges that the correctional officer failed to
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move him to a lower bunk and forced him to walk down stairs after Cruz informed the officer that
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Plaintiff had fallen. (Doc. 22 at 13, 17.) When Plaintiff fell a second time, Ceja waived him off
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and did not alert medical personnel. (Id. at 17.) Defendant Harris activated the medical alarm
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when he arrived. (Id.) Ceja testified during an RVR hearing that he had been “[w]arned by 2nd
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watch that plaintiff was faking” and that this was the reason that he did not activate the medical
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alarm. (Id. at 18.) This corresponds with Plaintiff’s allegation that Ceja told Plaintiff he was
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faking immediately after he fell. (Id. at 17.)
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Although potentially negligent, Ceja’s actions do not amount to deliberate indifference;
not only must Ceja have been aware of facts from which he could infer that Plaintiff had a serious
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medical condition that would cause him to fall, he must have also drawn that inference. See
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Farmer, 511 U.S. at 837. Plaintiff does not show that Ceja drew this inference, particularly when
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he kept stating that Plaintiff was “faking.” Moreover, at this point, Plaintiff’s medical file did not
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reflect diagnosis of DDD or stenosis. (Doc. 22 at 9-12.) See Maciel v. Rowland, 145 F.3d 1339
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(9th Cir. 1998) (prison guards not deliberately indifferent when they relied on doctors’
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recommendations). Plaintiff thus fails to show that Defendant Ceja was deliberately indifferent to
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his medical needs.
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With respect to Defendant Harris, Plaintiff alleges that he also failed to move him to a
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lower bunk after Cruz informed him that Plaintiff had fallen. (Doc. 22 at 13, 17.) For the reasons
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given above, this does not amount to deliberate indifference. Plaintiff also alleges that Harris
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falsified an RVR when he asserted that he “advised I/M Quezada that [he] had no available bunks
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for him.” (Id. at 14.) This allegation is irrelevant to the claim of deliberate indifference to medical
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needs; it does not show that Harris knew of Plaintiff’s condition and acted indifferently thereto.
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Lastly, with respect to Defendant-Warden Sherman, Plaintiff alleges that he is liable
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because he denied Plaintiff’s administrative appeals. (Id. at 20.) Such allegation does nothing to
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show Warden Sherman’s state of mind or that he was deliberately indifferent.
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2. Retaliation
A claim for retaliation has five elements. Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir.
2012). First, a plaintiff must allege that he engaged in protected activity. Id. For example, filing
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an inmate grievance is protected, Rhodes v. Robinson, 408 F.3d 559, 568 (9th Cir. 2005), as is the
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right to access the courts. Bounds v. Smith, 430 U.S. 817, 821 (1977); see also Rizzo v. Dawson,
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778 F.2d 527, 531-32 (9th Cir. 1985). Second, the plaintiff must show that the defendant took
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adverse action against him. Watison, 668 F.3d at 1114 (citation omitted). “Third, the plaintiff
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must allege a causal connection between the adverse action and the protected conduct.” Id. In
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other words, the plaintiff must claim the defendant subjected him to an adverse action because of
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his engagement in protected activity. Rhodes, 408 F.3d at 567. “Fourth, the plaintiff must allege
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that the official’s acts would chill or silence a person of ordinary firmness from future [protected]
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activities.” Watison, 668 F.3d at 1114 (internal quotation marks and citation omitted). “Fifth, the
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plaintiff must allege ‘that the prison authorities’ retaliatory action did not advance legitimate
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goals of the correctional institution….’” Id. (quoting Rizzo, 778 F.2d at 532).
Plaintiff has filed “several federal suits against CDCR agents,” among other actions. (Doc.
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22 at 25.) In addition, Plaintiff’s relatives have filed complaints against CDCR on Plaintiff’s
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behalf. (Id.) Plaintiff alleges that Defendants Harris and Ceja filed a false RVR, failed to move
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him to a lower bunk, and denied him medical attention in retaliation. (Id. at 26.) Plaintiff states
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that Defendant Sherman denied his administrative grievances or appeals for the same reason. (Id.
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at 25.)
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Although Plaintiff engaged in protected conduct, he does not state a cognizable retaliation
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claim because he fails to show a causal connection between the protected conduct and
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Defendants’ actions. For example, Plaintiff does not allege that Defendants were aware of his
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prior lawsuits; and, he does not show that Defendants denied his request to move to a lower bunk,
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failed to provide him medical attention, or rejected his appeals because of his lawsuits.
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Plaintiff also states that Defendants Ceja and Harris issued the RVR to punish him for
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requesting to move to a lower bunk and seeking medical attention after he fell. (Id. at 26.) Aside
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from this conclusion, Plaintiff provides no factual bases for finding that Defendants issued the
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RVR in retaliation for his requests for housing accommodation or medical assistance. See
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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare recitals of the elements of a cause of
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action, supported by mere conclusory statements, do not suffice.”).
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IV.
CONCLUSION AND RECOMMENDATION
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Though Plaintiff has been provided multiple opportunities to amend his pleading,
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Plaintiff’s second amended complaint fails to state a claim on which relief can be granted. Given
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the prior opportunities to amend, the Court finds that further amendment would be futile.
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Accordingly, the Court RECOMMENDS that this action be dismissed with prejudice.
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These Findings and Recommendations will be submitted to the United States District
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Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 21 days
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of the date of service of these Findings and Recommendations, 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 Recommendations.” Plaintiff’s failure to file objections within the specified time
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may result in waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir.
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2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
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IT IS SO ORDERED.
Dated:
November 18, 2019
/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE
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