(PC) Cortinas v. Gates et al

Filing 19

ORDER DIRECTING Clerk of the Court to Assign District Judge; FINDINGS and RECOMMENDATIONS to Dismiss Action for Failure to State a Claim re 17 Amended Prisoner Civil Rights Complaint, signed by Magistrate Judge Sheila K. Oberto on 10/15/2020. Referred to Judge Drozd; Objections to F&R due within 21 days. (Rivera, O)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LARRY WILLIAM CORTINAS,

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Plaintiff,

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v.

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S. GATES, et al.,

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Case No. 1:19-cv-01709-SKO (PC)
FINDINGS AND RECOMMENDATIONS
TO DISMISS ACTION FOR FAILURE TO
STATE A CLAIM
21-DAY DEADLINE

Defendants.

Clerk of the Court to Assign District Judge

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Plaintiff Larry William Cortinas alleges the defendants were deliberately indifferent to his

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serious medical needs. (Doc. 17.) The Court finds that Plaintiff’s second amended complaint fails

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to state a claim on which relief can be granted. Given that Plaintiff has received two opportunities

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to amend his complaint (see Docs. 12, 14), the Court finds that further amendment would be

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futile. See Akhtar v. Mesa, 698 F.3d 1202, 1212-13 (9th Cir. 2012). Accordingly, the Court

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recommends 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 complaint is frivolous or malicious,

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fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant

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immune from such relief. 28 U.S.C. § 1915A(b). The Court should dismiss a complaint if it lacks

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a cognizable legal theory or fails to allege sufficient facts to support a cognizable legal theory.

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See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 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).
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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III.

DISCUSSION

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A. Plaintiff’s Allegations

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Plaintiff alleges he “filed numerous health care grievances between 2016 and 2019.”

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(Doc. 17 at 4.) According to Plaintiff, in processing these grievances, healthcare appeals directors

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Gates and Lewis “reviewed Plaintiff’s medical file at least 50 times.” (Id. at 3-4) Plaintiff’s

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grievances stemmed from his disagreement with his physicians’ treatment of his spinal injuries

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and associated chronic pain. (See id. at 4-5.) Plaintiff alleges that, at times, physicians would

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prescribe methadone for his pain; and, at other times, without any improvement in his condition,

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physicians would halt his pain medication without providing alternative treatment. (Id. at 5.)

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Plaintiff alleges that Gates and Lewis never conducted an interview in response to his grievances

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and “would just go with whatever the institution did.” (Id.) Plaintiff states that he also wrote

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letters to the defendants asking why “pain specialist recommendations were not being followed.”

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(Id. at 6.) He alleges that the defendants “have the authority and duty to correct medical

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problems,” but failed to do so. (Id.)

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B. Claims for Relief

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“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
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).
“Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 1060

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(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 significant and chronic pain due to spinal injuries,

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which limits his daily activities. (Doc. 17 at 4-6.) These allegations satisfy the first, objective

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prong of an Eighth Amendment claim. See Colwell, 763 F.3d at 1066.

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Plaintiff’s allegations, however, do not satisfy the second, subjective prong. The

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allegations fail to show that Gates or Lewis purposefully failed to respond to Plaintiff’s pain or

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medical needs. See Wilhelm, 680 F.3d at 1122. The fact that Plaintiff filed numerous

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administrative grievances, and that Defendants denied those grievances, is insufficient to show

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that Defendants “drew the inference” that he was at a substantial risk of serious harm and failed to

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take reasonable measures to abate it. See Farmer, 511 U.S. at 847; Toguchi, 391 F.3d at 1057.

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Moreover, Plaintiff does not show that Gates’ or Lewis’ actions or inactions caused the

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harm or deprivation of which he complains. See Johnson, 588 F.2d at 743; Wilhelm, 680 F.3d at

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1122. Plaintiff’s claims are based solely on the defendants’ denials of his administrative appeals

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and failure to conduct an interview of Plaintiff in response to those appeals. (See Doc. 17 at 4-6.)

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Inmates, however, “lack a … constitutional entitlement to … specific prison grievance

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procedure[s].” Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (citation omitted). Plaintiff’s

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allegations regarding the processing of his appeals thus fail to establish a cognizable claim under

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the Eighth Amendment.

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IV.

CONCLUSION AND ORDER

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For the reasons set forth above, Plaintiff’s second amended complaint (Doc. 17) fails to

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state a claim on which relief can be granted. Given Plaintiff’s two prior opportunities to amend,
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the Court finds that further amendment would be futile. See Akhtar v. Mesa, 698 F.3d 1202, 1212-

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13 (9th Cir. 2012). Accordingly, the Court RECOMMENDS that this action be dismissed for

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failure to state a claim. The Court DIRECTS the Clerk of the Court to assign a district judge to

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this action.

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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:

October 15, 2020

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

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