Ellis v. Hill et al
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 11/7/11 RECOMMENDING that 18 MOTION to DISMISS be GRANTED. Motion referred to Judge Garland E. Burrell, Jr.; Objections to F&R due within 21 days. (Dillon, M)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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ROBERT ELLIS,
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Plaintiff,
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vs.
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CIV No. S-11-0363 GEB CKD
REDDY (Doctor),
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FINDINGS & RECOMMENDATIONS
Defendants.
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/
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Plaintiff, a state prisoner proceeding pro se, has filed a civil rights action pursuant
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to 42 U.S.C. § 1983. This action is proceeding on the original complaint, filed February 9, 2011.
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(Dkt. No. 1 (“Cmplt.”).) The complaint alleges that defendant was deliberately indifferent to
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plaintiff’s serious medical needs in violation of the Eighth Amendment. Pending before the
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court is defendant’s June 20, 2011 motion to dismiss the complaint for failure to state a claim
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against the sole remaining defendant, Dr. Reddy, pursuant to Rule 12(b)(6) of the Federal Rules
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of Civil Procedure. (Dkt. No. 18 (“Mot.”).) Plaintiff filed an opposition to the motion, and
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defendant filed a reply. (Dkt. Nos. 20, 21.) For the reasons set forth below, the undersigned will
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recommend that defendant’s motion to dismiss be granted.
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BACKGROUND
Plaintiff, an inmate at Folsom State Prison, alleges that he suffered from
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hemorrhoids for three years. Doctors at FSP thought that plaintiff had a problem with his
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prostate and gave him prostate medication. Some time later, FSP doctors “got the findings right
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and found a bump” on plaintiff’s sphincter. Plaintiff was given Anusol (a topical corticosteriod),
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stool softener, and Fiber One. However, he has “complained for a couple of years that this
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medication doesn’t work.” He alleges that Dr. Reddy “continues to tell me that I’ll just continue
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to have this problem and there’s nothing we can do.” (Cmplt. at 3.) Plaintiff alleges that he
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experiences significant pain, swelling, and difficulty with his excretory functions due to Dr.
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Reddy’s failure to effectively treat this problem. (Id. at 4; see also Dkt. No. 20 (“Opp.”) at 1.)
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He claims that “this lack of relief,” along with Dr. Reddy’s failure to refer him to an outside
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specialist, violates his rights under the Eighth Amendment. (Id.; Opp. at 1.) In addition to
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damages, plaintiff seeks injunctive relief in the form of “up to date medication” and a referral to
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another doctor. (Id.)
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DISCUSSION
I. Legal Standard
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In order to survive dismissal for failure to state a claim pursuant to Rule 12(b)(6),
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a complaint must contain more than a “formulaic recitation of the elements of a cause of action;”
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it must contain factual allegations sufficient to “raise a right to relief above the speculative
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level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). “The pleading must contain
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something more...than...a statement of facts that merely creates a suspicion [of] a legally
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cognizable right of action.” Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure
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§ 1216, pp. 235-236 (3d ed. 2004). “[A] complaint must contain sufficient factual matter,
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accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, ___
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U.S. ___, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). “A
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claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw
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the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
In considering a motion to dismiss, the court must accept as true the allegations of
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the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740
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(1976), construe the pleading in the light most favorable to the party opposing the motion and
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resolve all doubts in the pleader’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421, reh’g denied,
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396 U.S. 869, 90 S. Ct. 35 (1969). The court will “‘presume that general allegations embrace
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those specific facts that are necessary to support the claim.’” National Organization for Women,
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Inc. v. Scheidler, 510 U.S. 249, 256 (1994), quoting Lujan v. Defenders of Wildlife, 504 U.S.
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555, 561 (1992). Moreover, pro se pleadings are held to a less stringent standard than those
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drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972).
The court may consider facts established by exhibits attached to the complaint.
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Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). The court may also
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consider facts which may be judicially noticed, Mullis v. United States Bankruptcy Ct., 828 F.2d
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1385, 1388 (9th Cir. 1987); and matters of public record, including pleadings, orders, and other
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papers filed with the court, Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir.
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1986). The court need not accept legal conclusions “cast in the form of factual allegations.”
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Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).
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II. Eighth Amendment Claim
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Plaintiff’s cause of action against defendant is for deliberate indifference to
plaintiff’s serious medical needs in violation of the Eighth Amendment.
Denial or delay of medical care for a prisoner’s serious medical needs may
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constitute a violation of the prisoner’s Eighth and Fourteenth Amendment rights. Estelle v.
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Gamble, 429 U.S. 97, 104-05 (1976). An individual is liable for such a violation only when the
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individual is deliberately indifferent to a prisoner’s known serious medical needs. Id.; see Jett v.
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Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir.
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2002); Lopez v. Smith, 203 F.3d 1122, 1131-32 (9th Cir. 2000). To establish deliberate
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indifference, an individual defendant must have “purposefully ignore[d] or fail[ed] to respond to
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a prisoner’s pain or possible medical need.” McGuckin v. Smith, 974 F.2d 1050, 1060 (9th Cir.
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1992) overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir.
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1997). “Mere negligence in diagnosing or treating a medical condition, without more, does not
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violate a prisoner’s Eighth Amendment rights.” Id. at 1059. “A difference of opinion between a
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prisoner-patient and prison medical authorities regarding treatment does not give rise to a § 1983
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claim.” Franklin v. Or. State Welfare Div., 662 F.2d 1337, 1344 (9th Cir. 1981). Furthermore,
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where a prisoner alleges that delay of medical treatment evinces deliberate indifference, the
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prisoner must show that the delay caused “significant harm and that Defendants should have
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known this to be the case.” Hallett, 296 F.3d at 745-46; see McGuckin, 974 F.2d at 1060. Mere
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delay of medical treatment, “without more, is insufficient to state a claim of deliberate medical
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indifference.” Shapley v. Nev. Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985).
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Here, assuming arguendo that plaintiff’s problem constitutes a serious medical
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need, his allegations do not amount to a showing of deliberate indifference. Rather, they show
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that Dr. Reddy attempted to treat plaintiff’s symptoms through the use of common over-the-
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counter medications (Anusol, stool softener, and Fiber One) and concluded that nothing more
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could be done to improve plaintiff’s condition. Plaintiff’s apparent belief that some other,
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unspecified treatment could successfully ease his symptoms reflects “a difference of opinion
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between a prisoner-patient and prison medical authorities regarding treatment,” which does not
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give rise to a constitutional claim of deliberate indifference. Franklin, 662 F. 2d at 1344.
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Moreover, a prison inmate has no independent constitutional right to outside medical care, as
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plaintiff seeks here. Roberts v. Spalding, 783 F.2d 867, 870 (9th Cir. 1986). Thus, the court will
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recommend that defendant’s motion to dismiss the complaint for failure to state a claim be
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granted.
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Accordingly, IT IS HEREBY RECOMMENDED that defendant’s June 20, 2011
motion to dismiss (Dkt. No. 18) be granted.
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These findings and recommendations are submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-
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one days after being served with these findings and recommendations, any party may file written
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objections with the court and serve a copy on all parties. Such a document should be captioned
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“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections
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shall be served and filed within fourteen days after service of the objections. The parties are
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advised that failure to file objections within the specified time may waive the right to appeal the
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District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
Dated: November 7, 2011
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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
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