(PC) McCardie v. California State Prison Corcoran
Filing
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ORDER Directing Clerk of Court to Randomly Assign District Judge to Action; FINDINGS and RECOMMENDATIONS Regarding Dismissal of Action 19 , with Prejudice, For Failure to State a Claim, signed by Magistrate Judge Barbara A. McAuliffe on 04/23/2021. Referred to Judge Unassigned DJ. Objections to F&R due within fourteen-days. (Maldonado, C)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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FREDDY MCCARDIE,
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Plaintiff,
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v.
CALIFORNIA STATE PRISON,
CORCORAN,
Defendant.
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Case No.: 1:20-cv-01623-BAM (PC)
ORDER DIRECTING CLERK OF COURT TO
RANDOMLY ASSIGN DISTRICT JUDGE TO
ACTION
FINDINGS AND RECOMMENDATION
REGARDING DISMISSAL OF ACTION,
WITH PREJUDICE, FOR FAILURE TO
STATE A CLAIM
(ECF No. 19)
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FOURTEEN (14) DAY DEADLINE
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Plaintiff Freddy McCardie (“Plaintiff”) is a state prisoner proceeding pro se and in forma
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pauperis in this civil action pursuant to 42 U.S.C. § 1983. The Court screened Plaintiff’s
complaint and granted Plaintiff leave to amend. Plaintiff’s first amended complaint, filed on April
16, 2021, is currently before the Court for screening. (Doc. 19.)
I.
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
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).
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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Atlantic 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. Secret
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Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully
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is not sufficient, and mere consistency with liability falls short of satisfying the plausibility
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standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969.
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II.
Plaintiff’s Allegations
Plaintiff is currently housed at California State Prison in Corcoran (“Corcoran”).where the
events in the complaint are alleged to have occurred. Plaintiff names the following defendants:
(1) Dr. Pearce, Corcoran, and (2) C. McCabe, surgeon at Reasonable Accommodation Panel,
California State Prison, Corcoran.
Plaintiff alleges that his ADA was taken away. They took his cane, vest and lower/lower
chrono. Plaintiff alleges as follows:
“He said that he seen me play handball because it was a black man with
dreads. I said how do you know that it was me. It cloud of been anybody on the yard
that black with dreads. And he didn’t say anything at that. So he said for my to turn
my vest and cane. And they made me not A.D.A. anymore. Then the building officer
took my cane and vest. Then the next shift give it back which is third watch. Then
the next day they took it again. And my lower lower which is suppose to be permite.
Then I just started putting in 1824 because at the time I was A.D.A. And I had the
guy from San Quaniten prison of law office name, Pattirick Booth. And I talked to
him on the phone twice a week. He was trying to get me a cane and a walker. And
that’s when I was targeted and they took away my cane and my vest. And they never
give me my cain and vest.” (Doc. 19, p. 3-4 (unedited text).)
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Plaintiff does not indicate what he seeks as remedies.
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The allegations in the complaint are unclear so the Court has referred to documents
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Plaintiff attached to the amended complaint. At various times between October 25, 2017 to
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October 25, 2018, Plaintiff was given disability status. On March 28, 2019, Plaintiff was given
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disability accommodation of canes, mobility impaired disability vest, eyeglass frames and knee
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braces. (Doc. 19, p. 9.) As of December 20, 2019, Plaintiff had special cuffing, transport vehicle
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with lift, bottom bunk and ground floor. (Doc. 19, p. 12.) As of that same date, his medical
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equipment included eyeglass frames, foot orthoses, knee braces, therapeutic shoes, and wrist
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support. In an undated document entitled “basis for headquarters’ level disposition,” it was
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reported that Plaintiff’s primary care physician observed Plaintiff ambulating without any
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difficulty and without any signs of discomfort or gait issues. (Doc. 1, p.13.) This unknown
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health care provider conducted an assessment of Plaintiff and noted that the knee had full range of
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motion without any significant restrictions and did not indicate that a cane, mobility impaired
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vest, or bottom bunk/ground floor accommodated was reasonably necessary. On May 28, 2020,
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the Reasonable Accommodation Panel (RAP) responded to Plaintiff’s request for pain medication
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for back and knee pain/walker after meeting and referred Plaintiff for chronic pain care. (Doc. 1,
p. 14.)
III.
Discussion
Plaintiff’s complaint fails to comply with Federal Rule of Civil Procedure 8 and fails to
state a cognizable claim under 42 U.S.C. § 1983. Despite being provided relevant legal and
pleading standards, Plaintiff has been unable to cure the deficiencies.
A. Federal Rule of Civil Procedure 8
Pursuant to Federal Rule of Civil Procedure 8, a complaint must contain “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). Detailed
factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citation
omitted). Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570,
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127 S.Ct. at 1974). While factual allegations are accepted as true, legal conclusions are not. Id.;
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see also Twombly, 550 U.S. at 556–557.
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Although Plaintiff's complaint is short, it is not a plain statement of his claims. As a basic
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matter, the complaint does not clearly state what happened, when it happened or who was
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involved. Plaintiff’s allegations in the amended complaint are less clear than in the original
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complaint. Plaintiff’s allegations must be based on facts as to what happened and not
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conclusions. Despite being informed of what must be alleged, Plaintiff does not allege why the
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DME were removed and what Dr. Pearce told Plaintiff why the DME were removed. He does not
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identify what Defendant C. McCabe did or did not do, even though the Court has reviewed the
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documents attached to the complaint. Plaintiff has been unable to cure the deficiency.
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B.
Deliberate Indifference to Serious Medical Needs
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While the Eighth Amendment of the United States Constitution entitles Plaintiff to
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medical care, the Eighth Amendment is violated only when a prison official acts with deliberate
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indifference to an inmate’s serious medical needs. Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir.
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2012), overruled in part on other grounds, Peralta v. Dillard, 744 F.3d 1076, 1082-83 (9th Cir.
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2014); Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012); Jett v. Penner, 439 F.3d 1091,
1096 (9th Cir. 2006). Plaintiff “must show (1) a serious medical need by demonstrating that
failure to treat [his] condition could result in further significant injury or the unnecessary and
wanton infliction of pain,” and (2) that “the defendant’s response to the need was deliberately
indifferent.” Wilhelm, 680 F.3d at 1122 (citing Jett, 439 F.3d at 1096). Deliberate indifference is
shown by “(a) a purposeful act or failure to respond to a prisoner’s pain or possible medical need,
and (b) harm caused by the indifference.” Wilhelm, 680 F.3d at 1122 (citing Jett, 439 F.3d at
1096). The requisite state of mind is one of subjective recklessness, which entails more than
ordinary lack of due care. Snow, 681 F.3d at 985 (citation and quotation marks omitted); Wilhelm,
680 F.3d at 1122.
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A serious medical need exists if the failure to treat the condition could result in further
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significant injury or the unnecessary and wanton infliction of pain. Jett v. Penner, 439 F.3d 1091,
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1096 (9th Cir. 2006). To act with deliberate indifference, a prison official must both be aware of
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facts from which the inference could be drawn that a substantial risk of serious harm exists, and
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he must also draw the inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). Thus, a defendant
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is liable if he knows that plaintiff faces “a substantial risk of serious harm and disregards that risk
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by failing to take reasonable measures to abate it.” Id. at 847. “It is enough that the official acted
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or failed to act despite his knowledge of a substantial risk of harm.” Id. at 842.
In applying this standard, the Ninth Circuit has held that before it can be said that a
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prisoner’s civil rights have been abridged, “the indifference to his medical needs must be
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substantial. Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this cause
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of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle v
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Gamble, 429 U.S. 97, 105–06 (1976)). “[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 of medical mistreatment
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under the Eighth Amendment. Medical malpractice does not become a constitutional violation
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merely because the victim is a prisoner.” Estelle, 429 U.S. at 106; see also Anderson v. County of
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Kern, 45 F.3d 1310, 1316 (9th Cir. 1995). Even gross negligence is insufficient to establish
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deliberate indifference to serious medical needs. See Wood v. Housewright, 900 F.2d 1332, 1334
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(9th Cir. 1990). Additionally, a prisoner’s mere disagreement with diagnosis or treatment does
not support a claim of deliberate indifference. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989).
A difference of opinion between an inmate and prison medical personnel—or between
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medical professionals—regarding appropriate medical diagnosis and treatment is not enough to
establish a deliberate indifference claim. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989);
Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir 2004). Additionally, “a complaint that a
physician has been negligent in diagnosing or treating a medical condition does not state a valid
claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not
become a constitutional violation merely because the victim is a prisoner.” Estelle, 429 U.S. at
106.
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The allegations do not allege deliberate indifference. As alleged, the removal of the DME
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shows a difference of opinion between an inmate and medical personnel. The documents attached
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to the complaint show that Plaintiff’s primary care physician examined Plaintiff after the
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physician observed Plaintiff ambulating without any difficulty and without signs of discomfort or
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gait issues. The physician conducted physical assessment noted that that the knee had full range
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of motions without any significant restricting. At most, Plaintiff alleges a difference of opinion
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with the primary care physician and mere disagreement with diagnosis or treatment. Plaintiff has
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been unable to cure this deficiency.
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IV.
Conclusion and Order
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Plaintiff’s amended complaint fails to state a cognizable federal claim for relief. Despite
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being provided with relevant pleading and legal standards, Plaintiff has been unable to cure the
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deficiencies in his complaint by amendment, and thus further leave to amend is not warranted.
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Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).
Accordingly, the Court HEREBY DIRECTS the Clerk of the Court to randomly assign a
district judge to this action.
Furthermore, IT IS HEREBY RECOMMENDED that this action be dismissed, with
prejudice, for failure to state a cognizable claim upon which relief may be granted.
These Findings and Recommendation will be submitted to the United States District Judge
assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen
(14) days after being served with these Findings and Recommendation, Plaintiff may file written
objections with the Court. The document should be captioned “Objections to Magistrate Judge’s
Findings and Recommendation.” Plaintiff is advised that failure to file objections within the
specified time may result in the waiver of the “right to challenge the magistrate’s factual
findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v.
Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
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IT IS SO ORDERED.
Dated:
/s/ Barbara
April 23, 2021
A. McAuliffe
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UNITED STATES MAGISTRATE JUDGE
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