Gardner v. California Forensics Medical Group et al

Filing 12

FINDINGS and RECOMMENDATIONS recommending that Plaintiff be Permitted to Proceed on Cognizable Claims and that Non-Cognizable Claim be Dismissed With Leave to Amend re 1 Prisoner Civil Rights Complaint signed by Magistrate Judge Jeremy D. Peterson on 4/12/2019. Referred to Judge O'Neill. Objections to F&R due within fourteen (14) days. (Jessen, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JEREMY MICHAEL GARDNER,
Plaintiff,

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v.

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CALIFORNIA FORENSICS MEDICAL
GROUP, et al.,

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Defendants.

Case No. 1:18-cv-00800-LJO-JDP
SCREENING ORDER
FINDINGS AND RECOMMENDATIONS
THAT PLAINTIFF BE PERMITTED TO
PROCEED ON COGNIZABLE CLAIMS
AND THAT NON-COGNIZABLE CLAIM
BE DISMISSED WITH LEAVE TO AMEND

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OBJECTIONS, IF ANY, DUE IN 14 DAYS

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ECF No. 1

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Plaintiff Jeremy Michael Gardner is a state prisoner proceeding without counsel in this

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civil rights action brought under 42 U.S.C. § 1983. Plaintiff’s complaint is before the court for

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screening under 28 U.S.C. § 1915A. The court finds that plaintiff has stated cognizable deliberate

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indifference claims against defendants Chua and Holly. The court will recommend that plaintiff’s

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remaining claim against California Forensics Medical Group be dismissed without prejudice and

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that he be granted leave to amend the complaint.

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I.

SCREENING AND PLEADING REQUIREMENTS
A district court is required to screen a prisoner’s complaint seeking relief against a

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governmental entity, its officer, or its employee. See 28 U.S.C. § 1915A(a). The court must

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identify any cognizable claims and dismiss any portion of a complaint that is frivolous or
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malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a

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

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A complaint must contain a short and plain statement that plaintiff is entitled to relief,

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Fed. R. Civ. P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its

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face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard does not

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require detailed allegations, but legal conclusions do not suffice. See Ashcroft v. Iqbal, 556 U.S.

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662, 678 (2009). If the allegations “do not permit the court to infer more than the mere

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possibility of misconduct,” the complaint states no claim. Id. at 679. The complaint need not

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identify “a precise legal theory.” Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024,

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1038 (9th Cir. 2016) (quoting Skinner v. Switzer, 562 U.S. 521, 530 (2011)). Instead, what

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plaintiff must state is a “claim”—a set of “allegations that give rise to an enforceable right to

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relief.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1264 n.2 (9th Cir. 2006) (en banc)

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(citations omitted).

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The court must construe a pro se litigant’s complaint liberally. See Haines v. Kerner, 404

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U.S. 519, 520 (1972) (per curiam). The court may dismiss a pro se litigant’s complaint only “if it

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appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which

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would entitle him to relief.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017)

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(quoting Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014)).

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II.

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COMPLAINT1
Plaintiff is currently incarcerated at the Substance Abuse Treatment Facility (“SATF”) in

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Corcoran, California, and claims constitutional violations arising out of his incarceration at

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Stanislaus County Public Safety Center (“PSC”). ECF No. 1 at 1. Plaintiff names three

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defendants: (1) California Forensics Medical Group, a medical organization contracted by the

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sheriff’s department; (2) Family Nurse Practitioner (“FNP”) Holly, a registered medical nurse at

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PSC; and (3) Dr. Chua, a registered doctor in psychology at PSC. Id. at 2.

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The court draws the facts of this section from plaintiff’s complaint, ECF No. 1, and accepts
them as true for screening purposes.
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Plaintiff has been diagnosed with Post Traumatic Concussion Syndrome. Id. at 3, 5. He

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suffers a variety of severe symptoms: migraines, sensitivity to light, sleep deprivation, difficulty

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concentrating, and inability to exercise. Id. at 3, 11. While plaintiff was incarcerated at PSC, Dr.

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Sidhu prescribed plaintiff a medication called “Amitriptyline Hydrochloride” or “Elavil.” Id. at

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5. This replaced an ineffective pain medication that he had been taking. Id. at 6. Plaintiff started

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receiving Elavil each evening, and he found it to be effective in treating his symptoms. Id. at 7.

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At plaintiff’s next appointment with Dr. Sidhu, plaintiff stated that the Elavil was effective and

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requested that he be allowed to take it in the mornings rather than the evenings. Id. at 7. Dr.

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Sidhu agreed with this change. Id. at 8.

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One week later, FNP Holly came to plaintiff’s cell and informed him that she disagreed

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with recent decisions of Dr. Sidhu and one of plaintiff’s other doctors. Id. at 8. She stated that

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“she was going [to] discontinue the prescribed adjustments made by Dr. Sidhu immediately.” Id.

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Plaintiff tried to convince her that Elavil was an effective treatment for him, but he was

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unsuccessful. Id. Plaintiff “could not understand her actions as being justifiable.” Id. at 8-9.

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Accordingly, plaintiff contends, “Because [Holly’s actions] weren’t justified, they were

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committed with malice and conducted out of spite.” Id. at 9. FNP Holly indicated that Elavil

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posed some danger to the client, but plaintiff informed her that “nowhere within the clinical

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studies have they found [Elavil] to have an adverse, or negative effect.” Id. Plaintiff avers that

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“[h]er suggestions were foolish.” Id.

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FNP Holly returned to plaintiff’s cell on June 2, 2017 and informed him that she had

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shared her opinion with Dr. Chua. Id. Dr. Chua, under the influence of FNP Holly and without

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concern for plaintiff’s symptoms, concluded that plaintiff must choose to take one of two drugs:

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Elavil or “Remeron (Mirtazapine).” Id. Plaintiff observes that both of these medications were

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“crucially needed” for him and that they were initially prescribed by three doctors. Id. at 9-10.

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Plaintiff again attempted to reason with FNP Holly, but she refused to consider plaintiff’s health

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and well-being. Id. at 10.

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At a later date, plaintiff “was met by Dr. Chua and made to abandon one of the two
medications (Amitriptyline [and] Mirtazapine) or else lose them both as he suggested would
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happen.” Id. As a result of Dr. Chua and FNP Holly’s actions, plaintiff suffered “severe pain,

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emotional distress, and absolute discomfort.” Id. at 11. Plaintiff contends that both Dr. Chua and

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FNP Holly were deliberately indifferent to his medical needs. Id. at 10.

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III.

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DISCUSSION
A. Requirements Under 42 U.S.C. § 1983
Section 1983 allows a private citizen to sue for the deprivation of a right secured by

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federal law. See 42 U.S.C. § 1983; Manuel v. City of Joliet, Ill., 137 S. Ct. 911, 916 (2017). To

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state a claim under § 1983, a plaintiff must show that a defendant acting under color of state law

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caused an alleged deprivation of a right secured by federal law. See 42 U.S.C. § 1983; Soo Park

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v. Thompson, 851 F.3d 910, 921 (9th Cir. 2017). The plaintiff can satisfy the causation

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requirement by showing either (1) the defendant’s “personal involvement” in the alleged

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deprivation or (2) a “sufficient causal connection” between the defendant’s conduct as a

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supervisor and the alleged deprivation. See King v. Cty. of Los Angeles, 885 F.3d 548, 559 (9th

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Cir. 2018). As for the second method, the plaintiff can establish a causal connection by showing

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that the defendant “set[] in motion a series of acts by others, or by knowingly refus[ing] to

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terminate a series of acts by others,” which the defendant “knew or reasonably should have

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known would cause others to inflict a constitutional injury.” Id.

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Defendants are state-prison employees and an organization contracted by the state that,

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accepting plaintiff’s allegations as true, can be inferred to have acted under color of state law.

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See Paeste v. Gov’t of Guam, 798 F.3d 1228, 1238 (9th Cir. 2015) (“[G]enerally, a public

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employee acts under color of state law while acting in his official capacity or while exercising his

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responsibilities pursuant to state law.” (quoting West v. Atkins, 487 U.S. 42, 50 (1988))). We next

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consider whether plaintiff sufficiently alleged facts to satisfy the causation requirement.

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Plaintiff has plausibly alleged that defendants Holly and Chua personally participated in

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or caused the alleged deprivations. Plaintiff alleges that both Holly and Chua personally withheld

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medications from him that he required.

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Plaintiff does not plausibly allege that defendant California Forensics Medical Group
personally participated in or caused the alleged deprivations; instead, plaintiff relies on an
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insufficient theory of vicarious liability. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948 (2009)

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(“[V]icarious liability is inapplicable to Bivens and § 1983 suits[;] a plaintiff must plead that each

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Government-official defendant, through the official’s own individual actions, has violated the

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Constitution.”). Accordingly, defendant California Forensics Medical Group must be dismissed.

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The remaining question is whether defendants Holly and Chua’s alleged actions violated

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federal law.

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B. Deliberate Indifference to Serious Medical Needs

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“[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate

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must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091,

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1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two-part test for

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deliberate indifference requires the 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

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or the unnecessary and wanton infliction of pain,’” and (2) that “the defendant’s response to the

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need was deliberately indifferent.” Jett, 439 F.3d at 1096 (quoting McGuckin v. Smith, 974 F.2d

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1050, 1059 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d

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1133, 1136 (9th Cir. 1997) (en banc) (internal quotation marks omitted)). “This second prong—

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defendant’s response to the need was deliberately indifferent—is satisfied by 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.” Id. (citing McGuckin, 974 F.2d at 1060). Indifference may be

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manifest “when prison officials deny, delay or intentionally interfere with medical treatment, or it

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may be shown by the way in which prison physicians provide medical care.” Id. When a

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prisoner alleges a delay in receiving medical treatment, the delay must have led to further harm

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for the prisoner to make a claim of deliberate indifference to serious medical needs. See

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McGuckin, 974 F.2d at 1060 (citing Shapely v. Nevada Bd. of State Prison Comm’rs, 766 F.2d

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404, 407 (9th Cir. 1985)).

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“Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051,

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1060 (9th Cir. 2004). “Under this standard, the prison official must not only ‘be aware of the

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facts from which the inference could be drawn that a substantial risk of serious harm exists,’ but
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that person ‘must also draw the inference.’” Id. at 1057 (quoting Farmer, 511 U.S. at 837). “If a

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prison official should have been aware of the risk, but was not, then the official has not violated

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the Eighth Amendment, no matter how severe the risk.” Id. (quoting Gibson v. County of

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Washoe, 290 F.3d 1175, 1188 (9th Cir. 2002)). “A showing of medical malpractice or negligence

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is insufficient to establish a constitutional deprivation under the Eighth Amendment.” Id. at 1060.

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“[E]ven gross negligence is insufficient to establish a constitutional violation.” Id. (citing Wood

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v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990)). Additionally, a difference of opinion

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between an inmate and prison medical personnel—or between medical professionals—on

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appropriate medical diagnosis and treatment is not enough to establish a deliberate indifference

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claim. See Toguchi, 391 F.3d at 1058; Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989).
Here, accepting plaintiff’s allegations as true, the court finds that he has stated deliberate

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indifference claims against defendants Holly and Chua. Plaintiff’s allegations satisfy the first

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prong because his Post Traumatic Concussion Syndrome constitutes a serious medical need.

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Plaintiff’s allegations satisfy the second prong because defendants were aware of plaintiff’s need,

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but nonetheless decided to withhold effective medical treatment. Defendants’ actions caused

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plaintiff harm.

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IV.

CONCLUSION
The court has screened plaintiff’s complaint and finds that plaintiff has stated deliberate

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indifference claims against defendants Chua and Holly. The court will recommend that plaintiff’s

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remaining claim against California Forensics Medical Group be dismissed without prejudice and

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that he be granted leave to amend the complaint.

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Should plaintiff choose to amend the complaint, the amended complaint should be brief,

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Fed. R. Civ. P. 8(a), but must state what each named defendant did that led to the deprivation of

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plaintiff’s constitutional or other federal rights. See Iqbal, 556 U.S. at 678; Jones v. Williams,

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297 F.3d 930, 934 (9th Cir. 2002). Plaintiff must set forth “sufficient factual matter . . . to ‘state a

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claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S.

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at 570). There is no respondeat superior liability, and each defendant is only liable for his or her

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own misconduct. See id. at 677. Plaintiff must allege that each defendant personally participated
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in the deprivation of his rights. Jones, 297 F.3d at 934 (emphasis added). Plaintiff should note

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that a short, concise statement of the allegations in chronological order will assist the court in

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identifying his claims. Plaintiff should name each defendant and explain what happened,

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describing personal acts by the individual defendant that resulted in the violation of plaintiff’s

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rights. Plaintiff should also describe any harm he suffered from the violation of his rights.

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Plaintiff should not fundamentally alter his complaint or add unrelated issues. See Fed. R. Civ. P.

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18; George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (“Unrelated claims against different

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defendants belong in different suits . . . .”).

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Any amended complaint will supersede the original complaint, Lacey v. Maricopa

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County, 693 F. 3d 896, 907 n.1 (9th Cir. 2012) (en banc), and it must be complete on its face

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without reference to the prior, superseded pleading, see E.D. Cal. Local Rule 220. Once an

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amended complaint is filed, the original complaint no longer serves any function in the case.

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Therefore, in an amended complaint, as in an original complaint, each claim and the involvement

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of each defendant must be sufficiently alleged. The amended complaint should be titled “First

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Amended Complaint,” refer to the appropriate case number, and be an original signed under

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penalty of perjury.

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V.

RECOMMENDATIONS

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Under 28 U.S.C. § 636(c)(1), all parties named in a civil action must consent to a

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magistrate judge’s jurisdiction before that jurisdiction vests for “dispositive decisions.” Williams

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v. King, 875 F.3d 500, 504 (9th Cir. 2017). No defendant has appeared or consented to a

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magistrate judge’s jurisdiction, so any dismissal of a claim requires an order from a district judge.

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Id. Thus, the undersigned submits the following findings and recommendations to a United

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States District Judge under 28 U.S.C. § 636(b)(l):

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1. Plaintiff states deliberate indifference claims against defendants Chua and Holly.

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2. Plaintiff’s remaining claim against California Forensics Medical Group should be

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dismissed without prejudice, and plaintiff should be granted leave to amend the

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complaint.

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3. If plaintiff files an amended complaint, defendants Chua and Holly should not be

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required to respond until the court screens the amended complaint.

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Within fourteen days of service of these findings and recommendations, plaintiff may file

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written objections with the court. If plaintiff files such objections, he should do so in a document

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captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is

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advised that failure to file objections within the specified time may result in the waiver of rights

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on appeal. See Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (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.

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Dated:
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April 12, 2019
UNITED STATES MAGISTRATE JUDGE

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