(PC) Kern v. Alphonso

Filing 9

FINDINGS and RECOMMENDATION Recommending Dismissal of Action for Failure to State a Cognizable Claim for Relief re: 8 Amended Prisoner Civil Rights Complaint, signed by Magistrate Judge Stanley A. Boone on 11/25/2024. Referred to Judge Sherriff; Objections to F&R due within fourteen (14) days. (Rivera, O)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAMES CURTIS KERN,

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No. 1:24-cv-01195-KES-SAB (PC)

Plaintiff,

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v.

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A.F. ALPHONSO,

FINDINGS AND RECOMMENDATION
RECOMMENDING DISMISSAL OF ACTION
FOR FAILURE TO STATE A COGNIZABLE
CLAIM FOR RELIEF
(ECF No. 8)

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Defendant.

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Plaintiff is proceeding pro se and in forma pauperis in this action filed pursuant to 42
U.S.C. § 1983.
Currently before the Court is Plaintiff’s first amended complaint, filed November 4, 2024.

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I.

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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 officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that “fail[] to state a claim on which relief may be granted,” or that

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“seek[] monetary relief against a defendant who is immune from such relief.” 28 U.S.C. §

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1915(e)(2)(B); see also 28 U.S.C. § 1915A(b).

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A complaint must contain “a short and plain statement of the claim showing that the

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pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not

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required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate

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that each defendant personally participated in the deprivation of Plaintiff’s rights. Jones v.

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Williams, 297 F.3d 930, 934 (9th Cir. 2002).

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Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings

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liberally construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d

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1113, 1121 (9th Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be

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facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer

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that each named defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss

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v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant

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has acted unlawfully” is not sufficient, and “facts that are ‘merely consistent with’ a defendant’s

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liability” falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d

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at 969.

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II.

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SUMMARY OF ALLEGATIONS

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The Court accepts Plaintiff’s allegations in the complaint as true only for the purpose of
the screening requirement under 28 U.S.C. § 1915.
Plaintiff names correctional officer Gonzales and Dr. Alphonso, as Defendants.

On

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May 3, 2024, during dayroom at North Kern State Prison (NKSP) in Building D02 at

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approximately 4:00 p.m. Officer Gonzales was on shift and was fully aware that water in a large

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size puddle had been spilled on the floor. Gonzales failed to place a wet floor sign and failed to

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see that the water was cleaned up. Plaintiff slipped and fell, banging his right hip very hard.

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Several inmates witnessed Gonzales observe the incident and found humor from it, instead of

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warning Plaintiff. After Plaintiff fell, Gonzales stated to hurry and get the wet floor sign and

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place it by the puddle. Plaintiff suffered a concussion and change in mental state. Plaintiff was
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rushed to the outside hospital emergency room, and his sister received a call from a lieutenant

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explaining what happened. Plaintiff stayed overnight at the hospital having testing done. When

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Plaintiff returned to NKSP, several inmates wrote letters and signed statements saying they saw

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the whole incident. Witnesses state that Gonzales was aware of the puddle and failed to take

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action. Later, Plaintiff was called to get mail from officer Gonzales who stated “Man Kern, now I

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had to make an incident report in the Log.”

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Dr. Alphonso was avoiding Plaintiff’s schedule for pre-op consult, delayed treatment, and

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failed to inform him of the seriousness of his prior injuries. When Plaintiff returned from the

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hospital, Dr. Alphonso stated everything was fine and Plaintiff needed to get to the mainline. Dr.

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Alphonso never advised Plaintiff that he suffered a concussion and did not give him instructions

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or medical advice. Dr. Alphonso never examined Plaintiff even though he passed out on the yard.

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III.

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DISCUSSION

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A.

Slippery Floor

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The “ ‘treatment a prisoner receives in prison and the conditions under which he is

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confined are subject to scrutiny under the Eighth Amendment.’ ” Farmer v. Brennan, 511 U.S.

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825, 832 (1994). The Eighth Amendment requires prison officials to “ensure that inmates receive

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adequate food, clothing, shelter, and medical care,” and to “ ‘take reasonable measures to

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guarantee the safety of the inmates.’ ” Id.

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To establish an Eighth Amendment claim on a condition of confinement, such as an

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excessive risk to health or safety, a prisoner-plaintiff must show: (1) an objectively, sufficiently

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serious, deprivation, and (2) that the official was, subjectively, deliberately indifferent to the

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inmate's health or safety. Id. at 834. The objective prong may be satisfied by the existence of a

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serious medical need if the failure to address that need “could result in further significant injury

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or the unnecessary and wanton infliction of pain.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir.

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2006) (internal quotation marks omitted). A defendant is deliberately indifferent if he knows that

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an inmate faces a substantial risk of serious harm and disregards that risk by failing to take

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reasonable steps to abate it. Farmer, 511 U.S. at 837. The defendant must not only “be aware of
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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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he “must also draw the inference.” Id. There must be “harm caused by the indifference,” although

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the harm does not need to be substantial. See Jett, 439 F.3d at 1096.

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Case law is clear that a single defective condition – such as a slippery floor, a leaking

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roof, or a broken oven – by itself without additional conditions contributing to a threat to an

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inmate’s safety does not create an objectively sufficient and serious condition to implicate the

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Eighth Amendment. Osolinski v. Kane, 92 F.3d 934, 938 (9th Cir. 1996). The Ninth Circuit has

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held that claims regarding slippery floors, without more, “do not state even an arguable claim for

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cruel and unusual punishment.” Jackson v. Arizona, 885 F.2d 639, 641 (9th Cir. 1989),

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superseded by statute on other grounds as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th

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Cir. 2000). The Ninth Circuit repeatedly has affirmed dismissals of a pro se prisoner’s action,

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where the prisoner complained only of a leaking roof and the resulting accumulation of water on

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a cell floor. See, e.g., Pickett v. Nooth, No. 17-35305, 2017 WL 4541428, at *1 (9th Cir. July 28,

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2017) (dismissing appeal as frivolous where plaintiff claimed, inter alia, that he slipped and fell in

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a puddle caused by a leaky roof); Winnop v. Deschutes Cnty., 471 F. App’x 602 (9th Cir. 2012)

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(same); Gilman v. Woodford, 269 F. App’x 756 (9th Cir. 2008) (“The district court properly

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determined that the allegations in Gilman’s second amended complaint failed to demonstrate that

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prison officials’ conduct in maintaining the prison roof and floors violated the Eighth

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Amendment.”).

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The Ninth Circuit finds conditions such as a wet and slippery floor to be “minor safety

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hazards,” which do not violate the Eighth Amendment unless there is some “exacerbating

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condition[ ] ... which render[s] [the prisoner] unable to ‘provide for [his] own safety.’ ” Osolinski,

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92 F.3d at 938. In order to state a cognizable claim for relief, there must be some exacerbating

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condition in addition to the slippery floor. See Frost v. Agnos, 152 F.3d 1124, 1129 (9th Cir.

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1998) (“[s]lippery floors without protective measures could create a sufficient danger to warrant

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relief” when an inmate alleges facts that exacerbate the danger resulting from such conditions).

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For example, in Frost, the prisoner-plaintiff was forced to traverse a wet and slippery shower

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floor while on crutches, and thus was unable to balance himself as well as an uninjured person.
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See Frost, 152 F.3d at 1129. The Ninth Circuit held that the failure to “provide handicapped-

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accessible accommodations for a pretrial detainee who wears a leg cast and relies on crutches,”

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combined with the risk posed by the wet shower floor, was sufficient to state an Eighth

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Amendment violation. Id.

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Here, as with Plaintiff’s original complaint, there is no suggestion in the first amended

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complaint that there was some exacerbating condition contributing to the slippery floor such that

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Plaintiff was unable to observe the water or was otherwise unable to provide for his own safety.

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Although Plaintiff claims that Defendant Gonzales was aware of the puddle of water prior to his

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slip and fall and failed to remedy the condition, he again alleges no facts or exacerbating

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circumstances that could elevate this simple negligence claim into a federal civil rights claim. See

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Frost, 152 F.3d at 1129; Farmer, 511 U.S. at 835-36 & n.4; Osolinski, 92 F.3d at 938. Without

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something more than a slippery floor, no prison official could not have known about an

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objectively serious condition creating a substantial risk of serious harm. Osolinski, 92 F.3d at

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938; Mancinas v. Brown, No. 2:16-cv-2806-EFB P, 2018 WL 1109673, at *2 (E.D. Cal. Mar. 1,

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2018) (dismissing prisoner’s § 1983 claim that known, ongoing leak caused puddle, resulting in

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slip and fall). Because Ninth Circuit precedent requires something more than a slippery wet floor,

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and Plaintiff does not present anything more, his Eighth Amendment claim.

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Even if Defendant Gonzales was aware of the puddle of water prior to Plaintiff’s slip and

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fall, there are insufficient facts to establish that Gonzales purposely ignored a known risk to

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Plaintiff’s safety in the common area. See, e.g., Collier v. Garcia, No. 17-CV-05841 LHK (PR),

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2018 WL 659014 (N.D. Cal. Jan. 31, 2018) (rejecting claim regarding a slip and fall, even where

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plaintiff alleges that defendants had notice of the slippery conditions); Peterson v. Stewart, No.

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2:23-cv-00692-DJC-JDP (PC), 2024 WL 2023668, at *1 (E.D. Cal. May 7, 2024) (allegation that

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defendants failed to address a slippery floor that caused inmate to fall and suffer injury has

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routinely been held to sound only in negligence); Wallace v. Haythorne, No. 06-1697 MCE GGH

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P, 2007 WL 3010755, at *2-4 (E.D. Cal. 2007) (finding no Eighth Amendment violation when

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prisoner fell after his foot slipped into a hole in the floor caused by a missing tile, even if

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defendants were aware that a non-prisoner employee had previously tripped on one of the holes),
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aff’d by No. 07-17364, 2009 WL 2015051 (9th Cir. July 2, 2009) (unpublished memorandum

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disposition). Accordingly, Plaintiff fails to state a cognizable claim against Defendant Gonzales.

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B.

Medical Treatment

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Under 42 U.S.C. § 1983, to maintain an Eighth Amendment claim based on prison

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medical treatment, an inmate must show “deliberate indifference to serious medical needs.”

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Estelle v. Gamble, 429 U.S. 97, 104 (1976). In the Ninth Circuit, the test for deliberate

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indifference consists of two parts. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (internal

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citations omitted). First, the plaintiff must show a serious medical need by demonstrating that

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failure to treat a prisoner’s condition could result in further significant injury or the unnecessary

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and wanton infliction of pain. Id. (internal citations and quotations omitted.) Second the plaintiff

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must show that the defendant's response to the need was deliberately indifferent. Id. The second

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prong is satisfied by showing “(a) a purposeful act or failure to respond to a prisoner’s pain or

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possible medical need and (b) harm caused by the indifference.” Id. Indifference “may appear

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when prison officials deny, delay or intentionally interfere with medical treatment, or it may be

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shown by the way in which prison physicians provide medical care.” Id. (internal citations

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omitted). However, an inadvertent or negligent failure to provide adequate medical care alone

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does not state a claim under § 1983. Id.

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“A difference of opinion between a physician and the prisoner – or between medical

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professionals – concerning what medical care is appropriate does not amount to deliberate

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indifference.” Snow v. McDaniel, 681 F.3d 978, 987 (9th Cir. 2012) (citing Sanchez v. Vild, 891

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F.2d 240, 242 (9th Cir. 1989), overruled in part on other grounds, Peralta v. Dillard, 744 F.3d

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1076, 1082-83 (9th Cir. 2014); Wilhelm v. Rotman, 680 F.3d 1113, 1122-23 (9th Cir. 2012)

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(citing Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1986). Rather, Plaintiff “must show that

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the course of treatment the doctors chose was medically unacceptable under the circumstances

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and that the defendants chose this course in conscious disregard of an excessive risk to [his]

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health.” Snow, 681 F.3d at 988 (citing Jackson, 90 F.3d at 332) (internal quotation marks

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omitted).) In addition, “[m]edical malpractice does not become a constitutional violation merely

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because the victim is a prisoner.” Estelle, 429 U.S. at 106; Snow, 681 F.3d at 987-88, overruled in
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part on other grounds, Peralta, 744 F.3d at 1082-83; Wilhelm, 680 F.3d at 1122.
It is clear from the complaint that immediately following Plaintiff slip and fall on May 3,

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2024, he was transferred to an outside hospital for testing and treatment. Although Plaintiff

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alleges that he sustained a concussion on May 3, 2024, he does not allege that the concussion

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resulted in an objectively serious medical condition at the time that Plaintiff was seeking medical

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care from Dr. Alphonso, or that Dr. Alphonso was subjectively aware of any serious medical

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condition that resulted from the concussion May 3, 2024. Further, Plaintiff does not support his

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conclusory allegation that Dr. Alphonso treated him with deliberate indifference with factual

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allegations. In determining whether Plaintiff’s first amended complaint raises a plausible claim

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against Dr. Alphonso, the Court does not credit conclusory statements that are unsupported by

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specific factual allegations. See, e.g., Chavez v. United States, 683 F.3d 1102, 1108 (9th Cir.

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2012) (“a court discounts conclusory statements, which are not entitled to the presumption of

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truth, before determining whether a claim is plausible”). As the Supreme Court has held, in order

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to state a plausible claim, plaintiff must allege more than “bare assertions.” Twombly, 550 U.S. at

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556. Here, the first amended complaint merely alleges bare assertions unsupported by any factual

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allegations that show that Dr. Alphonso ever refused to respond to a request by Plaintiff for

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medical treatment. Plaintiff does not allege any specific incident in which Dr. Alphonso (or any

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other specific medical worker) intentionally denied, delayed, or interfered with any medical

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treatment for plaintiff's serious medical need. General allegations that an official “refused”

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treatment on unspecified occasions for unspecified complaints are insufficient to state a federal

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constitutional claim.

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The Court is mindful that, because plaintiff is appearing pro se, the Court must construe

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the allegations of the pleading liberally and must afford him the benefit of any doubt. That said,

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the Supreme Court has made clear that the Court has “no obligation to act as counsel or paralegal

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to pro se litigants.” Pliler v. Ford, 542 U.S. 225, 231 (2004); see also Noll v. Carlson, 809 F.2d

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1446, 1448 (9th Cir. 1987) (“courts should not have to serve as advocates for pro se litigants”).

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Although plaintiff need not set forth detailed factual allegations, he must plead “factual content

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that allows the court to draw the reasonable inference that the defendant is liable for the
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misconduct alleged.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555-56). That said,

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Plaintiff’s first amended complaint fails to plead sufficient factual allegations to raise a

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reasonable inference that Dr. Alphonso is liable for providing constitutionally inadequate medical

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care. The Court therefore finds that Plaintiff’s factual allegations, as presently alleged in the first

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amended complaint, even accepted as true and construed in the light most favorable to Plaintiff,

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are insufficient to nudge any federal civil rights claim against any named defendant “across the

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line from conceivable to plausible.” Twombly, 550 U.S. at 570.

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C.

Further Leave to Amend

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If the court finds that a complaint or claim should be dismissed for failure to state a claim,

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the court has discretion to dismiss with or without leave to amend. Leave to amend should be

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granted if it appears possible that the defects in the complaint could be corrected, especially if a

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plaintiff is pro se. Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc); Cato v.

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United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (“A pro se litigant must be given leave to

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amend his or her complaint, and some notice of its deficiencies, unless it is absolutely clear that

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the deficiencies of the complaint could not be cured by amendment.” (citation omitted).

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However, if, after careful consideration, it is clear that a claim cannot be cured by amendment,

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the Court may dismiss without leave to amend. Cato, 70 F.3d at 1105-06.

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In light of Plaintiff’s failure to provide additional information about his claims despite

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specific instructions from the Court, further leave to amend would be futile and the first amended

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complaint should be dismissed without leave to amend. Hartmann v. CDCR, 707 F.3d 1114, 1130

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(9th Cir. 2013) (“A district court may deny leave to amend when amendment would be futile.”).

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Here, Plaintiff’s allegations, at most, allege negligence by Defendants which is clearly

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insufficient to state a constitutional violation. For this reason, further leave to amend the

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complaint should be denied.

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IV.

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RECOMMENDATION

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Based on the foregoing, it is HEREBY RECOMMENDED that the instant action be

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dismissed, without further leave to amend, for failure to state a cognizable claim for relief.
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This Findings and Recommendation will be submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14)

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days after being served with this Findings and Recommendation, Plaintiff may file written

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objections with the Court, limited to 15 pages in length, including exhibits. The document should

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be captioned “Objections to Magistrate Judge’s Findings and Recommendation.” 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. 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.
Dated:

November 25, 2024
STANLEY A. BOONE
United States Magistrate Judge

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