Kilgore v. Grannis et al

Filing 29

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 08/11/14 recommending that defendants' motion to dismiss 25 be denied. MOTION to DISMISS 25 referred to Judge Troy L. Nunley. Objections due within 14 days. (Plummer, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 IVAN KILGORE, 12 Plaintiff, 13 14 No. 2:11-CV-01745-TLN-DAD P v. FINDINGS AND RECOMMENDATIONS DIRECTOR, et al., 15 Defendants. 16 Plaintiff is a state prisoner proceeding pro se with a civil rights action seeking relief under 17 18 42 U.S.C. § 1983. Defendants Auer, Freitas, King, Molina, Mwai, Okoroike, and Riggs have 19 filed a motion to dismiss plaintiff’s amended complaint pursuant to Rule 12(b)(6) of the Federal 20 Rules of Civil Procedure. (ECF No. 25.) Plaintiff filed an opposition to the motion, (ECF No. 21 27), and defendants filed a reply (ECF No. 28). BACKGROUND 22 On September 18, 2013, the court screened plaintiff’s amended complaint pursuant to 28 23 24 U.S.C. § 1915A(a) and found that it stated a cognizable claim against defendants Auer, Freitas, 25 King, Molina, Mwai, Okoroike, and Riggs based upon their alleged failure to adequately treat 26 plaintiff’s pain. (ECF No. 17.) 27 ///// 28 ///// 1 PLAINTIFF’S AMENDED COMPLAINT 1 2 In his amended complaint plaintiff alleges as follows. He underwent a lateral rhinotomy1 3 surgical procedure at the University of California, Davis (“UCD”) Medical Center on March 15, 4 2010. (ECF No. 12 at 21.) The following day, he returned to the Outpatient Housing Unit 5 (“OHU”) at California State Prison, Sacramento. (Id. at 23.) Defendants Auer, Freitas, King, 6 Molina, Mwai, Okoroike, and Riggs are employed at that prison. (Id. at 5, 7-10.) 7 On March 17, plaintiff informed defendant Riggs, a nurse practitioner, that he needed 8 sterile cleaning supplies (cotton swabs and antibiotic ointment), a pain assessment evaluation, 9 adequate pain medication, and to see a doctor. (Id. at 25.) Defendant Riggs ignored plaintiff. 10 (Id.) As a result, plaintiff experienced “torturous pain and suffering” and had to clean his surgical 11 incision with toilet paper and his finger. (Id.) The surgical incision eventually became infected. 12 (Id.) 13 Later that day, plaintiff notified another registered nurse that his pain medication had 14 worn off and that he was in extreme pain. (Id. at 25-26.) After nearly four hours of “excruciating 15 pain and suffering,” plaintiff learned that his pain medication had been updated to two Tylenol 3 16 tablets every six hours. (Id. at 26.) Prison staff provided that dose but the medication did not 17 have a lasting effect; plaintiff’s complications worsened over the next twenty-four hours. (Id.) 18 On March 19, plaintiff informed defendant Okoroike, a registered nurse, that the pain 19 medication he was receiving was ineffective and that he was in severe pain. (Id.) Despite 20 plaintiff’s request, defendant Okoroike refused to contact a doctor. (Id.) On March 20, plaintiff 21 submitted an administrative appeal regarding his care to Okoroike, who left work that day without 22 contacting a doctor for plaintiff. (Id. at 26-27.) 23 At approximately 6:00 p.m. on March 20, defendant Auer (a correctional officer) and 24 defendant Mwai (a nurse) visited plaintiff’s cell and attempted to administer the ineffective pain 25 medication. (Id. at 9, 27.) When plaintiff complained that the medication was ineffective, 26 defendants Auer and Mwai became argumentative with him and closed the tray slot on plaintiff’s 27 28 1 A lateral rhinotomy is a surgical procedure which provides exposure to the inside of the nasal cavity for purposes of removing impacted foreign bodies or tumors from sinuses. 2 1 cell, stating that plaintiff had refused the medication. (Id. at 28.) 2 Five hours later, defendant Molina, a registered nurse, purposefully sought to frustrate 3 plaintiff by falsely claiming that defendant Mwai had documented that plaintiff had taken his 4 evening dose of pain medication and that plaintiff’s medication had expired. (Id. at 8, 28.) 5 Defendant Molina responded to plaintiff’s complaints of pain by sarcastically commenting that he 6 had surgery before “and knew all the bullshit that prisoners ran on staff to get their dope.” (Id. at 7 28.) Defendant Molina refused to call the doctor until the following morning because he did not 8 want to “get in bad favor by waking [the doctor] up in the middle of the night.” (Id. at 29.) 9 Defendant Molina then “haggled” with plaintiff to take the medication. (Id.) The medication 10 11 provided some relief, but did not completely alleviate plaintiff’s pain. (Id. at 30.) On March 21, plaintiff complained of pain to defendant King, a registered nurse. (Id. at 8, 12 30.) Defendant King measured plaintiff’s vitals, which indicated that plaintiff’s body was in 13 distress. (Id. at 30.) King was subsequently approved to issue plaintiff a tab of quick-release 14 morphine every twelve hours, in addition to the Tylenol 3 that plaintiff was receiving two tabs at 15 a time, three times per day. (Id.) That combination of medication provided plaintiff with pain 16 relief for a few hours. (Id. at 31.) 17 On March 22, plaintiff complained of pain when defendant Okoroike brought him Tylenol 18 3. (Id.) Later that night, plaintiff had a follow-up appointment to remove stitches at the UCD 19 ENT Clinic. (Id.) The ENT physician prescribed Vicodin and cleaning supplies. (Id.) When 20 plaintiff returned to OHU, defendant Riggs discarded plaintiff’s Vicodin prescription, claiming 21 the prison pharmacy did not offer Vicodin, and provided plaintiff Tylenol 3 and quick release 22 morphine. (Id. at 32.) Defendant Freitas, a prison pharmacist, failed to provide alternative pain 23 medications and plaintiff suffered unwarranted pain as a result. (Id. at 10, 32.) 24 On March 23, plaintiff received the requested and prescribed sterile cleaning supplies. 25 (Id. at 34.) Later that evening, OHU nursing staff measured plaintiff’s vitals and offered him the 26 ineffective pain medications. (Id. at 35.) A corrections officer then demanded that the nurse get a 27 doctor, as plaintiff had been in OHU complaining of pain for eight days. (Id.) The nurse gave 28 plaintiff two Motrin and contacted a doctor immediately. (Id.) “Thereafter, [the nurse] returned 3 1 . . . to administer the appropriate pain medications (morphine ‘time release’) which had 2 effectively controlled [p]laintiff’s pain complications and had been noted in his medical file since 3 the 2007 previous lateral rhinotomy procedure.” (Id. at 35-36.) DEFENDANTS’ MOTION TO DISMISS 4 5 In the pending motion defense counsel argues that the court should dismiss plaintiff’s 6 amended complaint because it fails to allege sufficient facts to state an Eighth Amendment 7 deliberate indifference claim and because defendants are entitled to qualified immunity. (ECF 8 No. 25-1 at 2.) In support of the first argument, defense counsel emphasizes that: defendants 9 provided plaintiff the prescribed Tylenol 3; in response to plaintiff’s reports of pain and the 10 ineffectiveness of Tylenol 3, defendants secured and provided quick-release morphine; in 11 response to plaintiff’s request to see a doctor, prison staff took plaintiff to the UCD ENT Clinic 12 on March 22; most of the defendant nurses attended to plaintiff for just one or two days; neither 13 the defendant nurses nor defendant correctional officer Auer had the authority to provide plaintiff 14 with pain medication not prescribed by a physician; and plaintiff’s amended complaint simply 15 expresses disagreement with the prescribed course of medical treatment. (Id. at 6-8.) With 16 respect to qualified immunity, defense counsel contends that not only has plaintiff alleged “no 17 facts” that the named defendants violated a constitutional right, but also that “[a] reasonable 18 person in their position would have believed that not providing different pain medication over the 19 course of one week for [plaintiff’s] post-operative pain was lawful, because it was not medically 20 necessary.” (Id. at 9.) 21 22 23 APPLICABLE LEGAL STANDARDS I. Motion to Dismiss Pursuant to Rule 12(b)(6) A motion to dismiss brought pursuant to Rule 12(b)(6) tests the sufficiency of the 24 complaint. North Star Int’l v. Arizona Corp. Comm’n, 720 F.2d 578, 581 (9th Cir. 1983). 25 Dismissal of the complaint, or any claim within it, “can be based on the lack of a cognizable legal 26 theory or the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. 27 Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). See also Robertson v. Dean Witter 28 Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984). In order to survive dismissal for failure to 4 1 state a claim, a complaint must contain more than “a formulaic recitation of the elements of a 2 cause of action”; it must contain factual allegations sufficient “to raise a right to relief above the 3 speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). 4 In determining whether a pleading states a claim, the court accepts as true all material 5 allegations in the complaint and construes those allegations, as well as the reasonable inferences 6 that can be drawn from them, in the light most favorable to the plaintiff. Hishon v. King & 7 Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg. Co. v. Trustees of Rex Hosp., 425 U.S. 738, 740 8 (1976); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). In the context of a motion to 9 dismiss, the court also resolves doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 10 411, 421 (1969). However, the court need not accept as true conclusory allegations, unreasonable 11 inferences, or unwarranted deductions of fact. W. Mining Council v. Watt, 643 F.2d 618, 624 12 (9th Cir. 1981). 13 In general, pro se pleadings are held to a less stringent standard than those drafted by 14 lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). The court has an obligation to construe 15 such pleadings liberally. Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc). 16 However, the court’s liberal interpretation of a pro se complaint may not supply essential 17 elements of the claim that were not pled. Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 18 266, 268 (9th Cir. 1982); see also Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992). 19 II. The Eighth Amendment and Inadequate Medical Care The Eighth Amendment prohibits the infliction of “cruel and unusual punishments.” U.S. 20 21 Const. amend. VIII. The “unnecessary and wanton infliction of pain” constitutes cruel and 22 unusual punishment prohibited by the United States Constitution. Whitley v. Albers, 475 U.S. 23 312, 319 (1986). See also Ingraham v. Wright, 430 U.S. 651, 670 (1977); Estelle v. Gamble, 429 24 U.S. 97, 105-06 (1976). Neither accident nor negligence constitutes cruel and unusual 25 punishment, as “[i]t is obduracy and wantonness, not inadvertence or error in good faith, that 26 characterize the conduct prohibited by the Cruel and Unusual Punishments Clause.” Whitley, 475 27 U.S. at 319. 28 ///// 5 1 What is needed to show unnecessary and wanton infliction of pain “varies according to 2 the nature of the alleged constitutional violation.” Hudson v. McMillian, 503 U.S. 1, 5 (1992) 3 (citing Whitley, 475 U.S. at 320). To prevail on an Eighth Amendment claim the plaintiff must 4 allege and ultimately show that objectively he suffered a “sufficiently serious” deprivation. 5 Farmer v. Brennan, 511 U.S. 825, 834 (1994); Wilson v. Seiter, 501 U.S. 294, 298-99 (1991). 6 The plaintiff must also allege and show that subjectively each defendant had a culpable state of 7 mind in allowing or causing the plaintiff’s deprivation to occur. Farmer, 511 U.S. at 834. It is well established that “deliberate indifference to serious medical needs of prisoners 8 9 constitutes ‘unnecessary and wanton infliction of pain.’” Estelle, 429 U.S. at 104; McGuckin v. 10 Smith, 974 F.2d 1050, 1059 (9th Cir. 1991), overruled on other grounds by WMX Techs., Inc. v. 11 Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc). In general, deliberate indifference may be 12 shown when prison officials deny, delay, or intentionally interfere with medical treatment, or may 13 be shown by the way in which prison officials provide medical care. Hutchinson v. United States, 14 838 F.2d 390, 393-94 (9th Cir. 1988). Before it can be said that a prisoner’s civil rights have 15 been abridged with regard to medical care, however, “the indifference to his medical needs must 16 be substantial. Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this 17 cause of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing 18 Estelle, 429 U.S. at 105-06). 19 III. Qualified Immunity 20 Government officials enjoy qualified immunity from civil damages unless their conduct 21 violates clearly established statutory or constitutional rights. Jeffers v. Gomez, 267 F.3d 895, 910 22 (9th Cir. 2001). When a court is presented with a qualified immunity defense, the central 23 questions for the court are: (1) whether the facts alleged, taken in the light most favorable to the 24 plaintiff, demonstrate that the defendant’s conduct violated a statutory or constitutional right; and 25 (2) whether the right at issue was “clearly established.” Saucier v. Katz, 533 U.S. 194, 201 26 (2001). 27 28 The United States Supreme Court has held that “while the sequence set forth there is often appropriate, it should no longer be regarded as mandatory.” Pearson v. Callahan, 555 U.S. 223, 6 1 236 (2009). If a court decides that plaintiff’s allegations do not make out a statutory or 2 constitutional violation, “there is no necessity for further inquiries concerning qualified 3 immunity.” Saucier, 533 U.S. at 201. Likewise, if a court determines that the right at issue was 4 not clearly established at the time of the defendant’s alleged misconduct, the court may end 5 further inquiries concerning qualified immunity at that point without determining whether the 6 allegations in fact make out a statutory or constitutional violation. Pearson, 555 U.S. 236-242. 7 “A government official’s conduct violate[s] clearly established law when, at the time of 8 the challenged conduct, ‘[t]he contours of [a] right [are] sufficiently clear’ that every ‘reasonable 9 official would have understood that what he is doing violates that right.’” Ashcroft v. al-Kidd, 10 ___U.S. ___, ___, 131 S. Ct. 2074, 2083 (2011) (quoting Anderson v. Creighton, 483 U.S. 635, 11 640 (1987)). In this regard, “existing precedent must have placed the statutory or constitutional 12 question beyond debate.” Id. See also Clement v. Gomez, 298 F.3d 898, 906 (9th Cir. 2002) 13 (“The proper inquiry focuses on . . . whether the state of the law [at the relevant time] gave ‘fair 14 warning’ to the officials that their conduct was unconstitutional.”) (quoting Saucier, 533 U.S. at 15 202). The inquiry must be undertaken in light of the specific context of the particular case. 16 Saucier, 533 U.S. at 201. Because qualified immunity is an affirmative defense, the burden of 17 proof initially lies with the official asserting the defense. Harlow, 457 U.S. at 812. 18 19 ANALYSIS The undersigned finds that, accepting plaintiff’s allegations as true and construing those 20 allegations in the light most favorable to plaintiff, plaintiff has sufficiently stated a cognizable 21 Eighth Amendment claim against defendants Auer, Freitas, King, Molina, Mwai, Okoroike, and 22 Riggs. There are sufficient factual allegations in the amended complaint to put defendants on 23 notice as to the nature of plaintiff’s claim that he was provided constitutionally inadequate 24 medical care. Specifically, plaintiff has alleged facts concerning the dates of the alleged 25 inadequate medical treatment, the involvement of each defendant in the alleged constitutional 26 violation, and the pain plaintiff experienced as a result. 27 The undersigned also finds that defendants are not entitled to qualified immunity. 28 Viewing the facts alleged in plaintiff’s amended complaint in the light most favorable to plaintiff, 7 1 a reasonable jury could conclude that these defendants were deliberately indifferent to his serious 2 medical needs. Moreover, at the time of the alleged constitutional violations in this case, “the 3 general law regarding the medical treatment of prisoners was clearly established,” and “it was 4 also clearly established that [prison staff] could not intentionally deny or delay access to medical 5 care.” Clement, 298 F.3d at 906. In this regard, at the time of the alleged incidents the 6 defendants knew, or certainly should have known, that failing to provide plaintiff with adequate 7 and effective pain medication following his surgery would violate the Eighth Amendment. 8 Accordingly, defendants’ motion to dismiss plaintiff’s amended complaint based on the 9 affirmative defense of qualified immunity should be rejected as well. 10 On a motion to dismiss, “‘[t]he issue is not whether a plaintiff will ultimately prevail but 11 whether the claimant is entitled to offer evidence to support the claims. Indeed, it may appear on 12 the face of the pleadings that a recovery is very remote and unlikely but that is not the test.’” 13 Jackson v. Carey, 353 F.3d 750, 755 (9th Cir. 2003) (quoting Scheuer v. Rhodes, 416 U.S. 232, 14 236 (1974)). In this case, the court finds that, liberally construed, plaintiff’s complaint alleges 15 sufficient facts to plausibly suggest that he is entitled to relief under the Eighth Amendment. See 16 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“A claim has facial plausibility when the plaintiff 17 pleads factual content that allows the court to draw the reasonable inference that the defendant is 18 liable for the misconduct alleged.”); Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (“we 19 continue to construe pro se filings liberally when evaluating them under Iqbal”); al-Kidd v. 20 Ashcroft, 580 F.3d 949, 977 (9th Cir. 2009) (“‘Asking for plausible grounds to infer’ the 21 existence of a claim for relief ‘does not impose a probability requirement at the pleading stage; it 22 simply calls for enough fact[s] to raise a reasonable expectation that discovery will reveal 23 evidence’ to prove that claim.”) (quoting Twombly, 550 U.S. at 556), rev’d on other grounds by 24 Ashcroft v. al-Kidd, ___U.S. ___, 131 S. Ct. 2074 (2011). 25 If plaintiff proves the factual allegations of his amended complaint to be true, he has a 26 reasonable opportunity to prevail on the merits of this action. See Estelle, 429 U.S. at 104-05 27 (1976) (deliberate indifference may manifest “by prison doctors in their response to the prisoner’s 28 needs or by prison guards in intentionally denying or delaying access to medical care or 8 1 intentionally interfering with the treatment once prescribed”); Lopez v. Smith, 203 F.3d 1122, 2 1132 (9th Cir. 2000) (en banc) (“A prisoner need not prove that he was completely denied 3 medical care.”); Ortiz v. City of Imperial, 884 F.2d 1312, 1314 (9th Cir. 1989) (“‘access to 4 medical staff is meaningless unless that staff is competent and can render competent care’”) 5 (quoting Cabrales v. County of Los Angeles, 864 F.2d 1454, 1461 (9th Cir. 1988), vacated on 6 other grounds by County of Los Angeles v. Cabrales, 490 U.S. 1087 (1989), reinstated 886 F.2d 7 235 (9th Cir. 1989)). 8 9 Accordingly, defendant’s motion to dismiss plaintiff’s amended complaint for failure to state a cognizable Eight Amendment deliberate indifference claim should be denied. 10 11 12 13 CONCLUSION Accordingly, IT IS HEREBY RECOMMENDED that defendants’ motion to dismiss (ECF No. 25) be denied. These findings and recommendations are submitted to the United States District Judge 14 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 15 after being served with these findings and recommendations, any party may file written 16 objections with the court and serve a copy on all parties. Such a document should be captioned 17 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 18 objections shall be filed and served within seven days after service of the objections. The parties 19 are advised that failure to file objections within the specified time may waive the right to appeal 20 the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 21 Dated: August 11, 2014 22 23 24 25 Dad1.civilrights Kilgore11cv1745.mtd 26 27 28 9

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