Goods v. Virga et al

Filing 26

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 07/29/13 ORDERING the clerk of court randomly assign a United States District Judge to this action. U.S. District Judge Morrison C. England Jr. randomly assigned to this action. Also, RECOMMENDING that defendant's 12/10/12 motion to dismiss 19 be denied; and plaintiff's 03/11/13 motion for injunction 23 be denied. Motions 19 , 23 referred to Judge Morrison C. England Jr. Objections due within 14 days. (Plummer, 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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GREGORY GOODS,
Plaintiff,

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vs.

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No. 2:12-cv-01111 EFB P

TIM V. VIRGA, et al.,
ORDER AND
FINDINGS AND RECOMMENDATIONS

Defendants.

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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. The sole remaining defendant, Hamkar, has filed a motion to dismiss. ECF No.

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19. Also before the court is plaintiff’s motion for a preliminary injunction. ECF No. 23. For the

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reasons explained below, both motions must be denied.

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I.

The Complaint
This action proceeds on the verified complaint filed on April 16, 2012. ECF No. 1. In

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the amended complaint, plaintiff asserts that, on January 3, 2011, he was summoned to

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defendant’s office. Id. at 3. He showed defendant, a prison physician, that his left knee was

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swollen to four times its normal size. Id. at 3-4. Defendant responded that he had called

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plaintiff to his office to address plaintiff’s administrative grievance (“602”).1 Id. at 4. Defendant

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told plaintiff that he would respond to the grievance in writing but could not see him at that time

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about his knee. Id. This decision “was motivated by [plaintiff’s] 602 complaints.” Id.

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On January 10, 2011, defendant examined plaintiff and provided him with crutches,

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naproxen for swelling, and an appointment for an x-ray. Id. Plaintiff received the x-ray on

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January 12, 2011. Id. On reading the x-ray, a Dr. Bemrick concluded that plaintiff was “at risk

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for ligament damage.” Id. Defendant ignored Dr. Bemrick’s conclusion, however, and

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diagnosed plaintiff on January 24, 2011 with a knee strain, for which he prescribed physical

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therapy. Id. Plaintiff “voiced [his] concerns” at defendant’s diagnosis, because the x-ray would

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not reveal the ligament injuries which Dr. Bemrick had concluded plaintiff was at risk for. Id.

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Plaintiff wished for an MRI. Id.

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In mid-February 2011, a Dr. Dillion ordered an MRI for plaintiff. Id. Plaintiff was given

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the MRI in March 2011, which revealed that plaintiff had “major multiligamentous injuries” in

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his knee. Id. at 4, 8. Plaintiff was provided an orthopedic consultation with a Dr. Dowbak on

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April 18, 2011 at an outside hospital. Id. Dr. Dowbak told plaintiff he could address the knee

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injury either through surgery or through the combination of a double-hinged knee brace and

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physical therapy. Id. Plaintiff opted for the brace and therapy. Id.

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Plaintiff was told that he could not get the double-hinged brace, however, because the

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brace had metal in it, which triggered institutional security concerns. Id. at 4-5. Plaintiff claims

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that he was “singled out” for these concerns, because other inmates in the same yard allegedly

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had double-hinged knee braces with metal. Id. Dr. Dillion ordered plaintiff a neoprene brace

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with velcro on April 18, 2011. Id. at 5.

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Grievances are completed and filed by inmates on a California Department of
Corrections and Rehabilitation form 602 and are often referred to by inmates and prison staff as
602’s.
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On June 9, 2011, after plaintiff had submitted additional 602s, defendant summoned

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plaintiff to his office and said he would order the brace. Id. Defendant responded to one of

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plaintiff’s 602s on June 29, 2011 by saying again that he would order the brace. Id. Plaintiff did

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not receive the brace, however. Id. On September 21, 2011, R.N. Linggi responded to plaintiff’s

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interview request by telling him that defendant had changed his mind and would not order the

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brace. Id. On October 5, 2011, in response to another interview request, Linggi told plaintiff

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that defendant now felt that plaintiff’s knee condition did not “meet criteria of medical

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necessity.” Id.

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Plaintiff claims that defendant acted, or failed to act with “deliberate disregard” for

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plaintiff’s well-being by: (1) ignoring Dr. Bemrick’s conclusion that there was a risk that

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plaintiff had soft tissue ligament tears; (2) failing to follow Dr. Dowbak’s recommendation that

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plaintiff be given a double-hinged knee brace; and (3) not examining plaintiff’s obviously

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swollen knee on January 3, 2011. Id.

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II.

Rule 12(b)(6) Standard

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In order to survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a complaint must

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contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp.

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v. Twombly, 550 U.S. 544, 554-55, 562-63, 570 (2007) (stating that the 12(b)(6) standard that

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dismissal is warranted if plaintiff can prove no set of facts in support of his claims that would

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entitle him to relief “has been questioned, criticized, and explained away long enough,” and that

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having “earned its retirement,” it “is best forgotten as an incomplete, negative gloss on an

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accepted pleading standard”). Thus, the factual allegations of the complaint must amount to

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“more than labels and conclusions” or a “formulaic recitation of the elements of a cause of

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action. Id. at 1965. Instead, the “they must be enough to raise a right to relief above the

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speculative level on the assumption that all the allegations in the complaint are true (even if

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doubtful in fact).” Id. (internal citation omitted). Dismissal may be based either on the lack of

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cognizable legal theories or the lack of pleading sufficient facts to support cognizable legal

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theories. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).

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In assessing the sufficiency of the complaint it’s factual allegations are accepted as true.

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Church of Scientology of Cal. v. Flynn, 744 F.2d 694, 696 (9th Cir. 1984). The court construes

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the pleading in the light most favorable to plaintiff and resolves all doubts in plaintiff’s favor.

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Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). General allegations

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are presumed to include specific facts necessary to support the claim. Lujan v. Defenders of

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Wildlife, 504 U.S. 555, 561 (1992).

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The court may disregard allegations contradicted by the complaint’s attached exhibits.

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Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987); Steckman v. Hart Brewing,

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Inc., 143 F.3d 1293, 1295-96 (9th Cir.1998). Furthermore, the court is not required to accept as

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true allegations contradicted by judicially noticed facts. Sprewell v. Golden State Warriors, 266

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F.3d 979, 988 (9th Cir. 2001) (citing Mullis v. U.S. Bankr. Ct., 828 F.2d 1385, 1388 (9th Cir.

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1987)). The court may consider 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) (abrogated on other grounds by Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104

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(1991)). “[T]he court is not required to accept legal conclusions cast in the form of factual

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allegations if those conclusions cannot reasonably be drawn from the facts alleged.” Clegg v.

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Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994). Neither need the court accept

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unreasonable inferences, or unwarranted deductions of fact. Sprewell, 266 F.3d at 988.

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Pro se pleadings are held to a less stringent standard than those drafted by lawyers.

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Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Unless it is clear that no amendment can cure

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its defects, a pro se litigant is entitled to notice and an opportunity to amend the complaint before

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dismissal. Lopez v. Smith, 203 F.3d 1122, 1127-28 (9th Cir. 2000) (en banc); Noll v. Carlson,

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809 F.2d 1446, 1448 (9th Cir. 1987).

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III.

Analysis
Defendant advances two principal arguments in support of dismissal: (1) that plaintiff has

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failed to state a claim upon which relief may be granted and (2) that defendant is entitled to

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qualified immunity. Each argument will be addressed in turn.

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A.

Failure to State a Claim
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Eighth Amendment

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To succeed on an Eighth Amendment claim predicated on the denial of medical care, a

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plaintiff must establish that he had a serious medical need and that the defendant’s response to

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that need was deliberately indifferent. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); see

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also Estelle v. Gamble, 429 U.S. 97, 106 (1976). A serious medical need exists if the failure to

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treat plaintiff’s condition could result in further significant injury or the unnecessary and wanton

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infliction of pain. Jett, 439 F.3d at 1096. An officer has been deliberately indifferent if he was

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(a) subjectively aware of the serious medical need and (b) failed to adequately respond. Farmer

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v. Brennan, 511 U.S. 825, 828 (1994). Deliberate indifference may be manifested by a prison

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official’s intentional interference with a prisoner’s medical treatment. Jett, 439 F.3d at 1096.

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A defendant’s negligence does not constitute deliberate indifference (thus, conduct that

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falls within the standard of care also necessarily comports with the Eighth Amendment). Estelle,

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429 U.S. at 106. Nor does a plaintiff’s general disagreement with the treatment he received. Id.;

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Jackson v. McIntosh, 90 F.3d 330, 331 (9th Cir. 1996); Hutchinson v. United States, 838 F.2d

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390, 394 (9th Cir. 1988). Evidence that medical caregivers disagreed as to the need to pursue

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one course of treatment over another is also insufficient, by itself, to establish deliberate

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indifference. Jackson, 90 F.3d at 332. Rather, the plaintiff must show that defendants were

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aware of the risk of harm and that their response to the risk was medically unacceptable under

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the circumstances. Id.

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Defendant argues that plaintiff has failed to state sufficient facts that, if true, would

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establish an Eighth Amendment violation. First, defendant argues that plaintiff’s allegations that
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plaintiff presented to defendant with a swollen knee in need of treatment on January 3, 2011, but

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that defendant did not treat the knee until January 10, 2011, fails to state a claim because it

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merely asserts a delay in treatment that caused no harm to plaintiff. The argument understates

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the facts pleaded in the complaint. The complaint alleges that on January 3, 2011, plaintiff

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“could not walk” and his knee was swollen to four times its normal size. ECF No. 1 at 3.

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Defendant allegedly did not provide necessary treatment (naproxen for swelling and crutches)

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for seven days, instead leaving plaintiff with painful and swollen knee and an inability to walk

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for that time period. Id. at 4. These allegations suffice to show that defendant’s delay exposed

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plaintiff to needless suffering between January 3rd and January 11th. See Kimpel v. Walker, 472

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Fed. Appx. 656, 657 (9th Cir. 2012).
Defendant next argues that plaintiff has not stated facts that would show that he suffered

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from a serious medical need. According to defendant, “alleged swelling of the knee coupled

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with a conclusory allegation that any lay person would easily recognize the necessity for a

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doctor’s attention” does not show a condition posing a substantial risk of harm. ECF No. 19-1 at

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5. Again, the argument unduly minimizes the facts alleged in the complaint. Plaintiff alleges

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that his knee was swollen to four times its normal size and that he could no longer walk. These

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facts, if true, establish a condition that, if left untreated, was likely to result in further significant

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injury or the unnecessary and wanton infliction of pain.

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Defendant argues that plaintiff has failed to allege that his condition was “left

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unattended.” Id. This argument is premised on a misunderstanding of the deliberate indifference

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standard. Plaintiff is not required to allege that he received no attention for his medical need.

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Rather, to state facts showing that he had a serious medical need, plaintiff must allege that he

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suffered from a condition that, if left unattended, could result in further significant injury or the

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unnecessary and wanton infliction of pain. Plaintiff has done so here.

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Lastly, defendant argues that plaintiff’s allegations, if taken as true, establish only that he
disagreed with defendant’s diagnosis and other doctors disagreed with defendant’s diagnosis or
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prescribed treatment. It is true that plaintiff alleges that he wanted, and other doctors

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recommended, different treatment. It is not clear at this stage in the proceedings, however,

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whether the evidence will show that this was a simple disagreement over two reasonable courses

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of treatment or whether these other doctors disagreed with defendant’s treatment because that

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treatment was not reasonable under the circumstances.

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Plaintiff’s complaint alleges facts sufficient to show that he suffered from a serious

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medical need of which defendant was aware and to which defendant did not adequately respond.

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Accordingly, defendant’s request to dismiss plaintiff’s Eighth Amendment claim against him

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should be denied.

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2.

First Amendment

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To state a viable First Amendment retaliation claim, a prisoner must allege five elements:

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“(1) An assertion that a state actor took some adverse action against an inmate (2) because of (3)

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that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his

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First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional

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goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). Conduct protected by the

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First Amendment includes communications that are “part of the grievance process.” Brodheim v.

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Cry, 584 F.3d 1262, 1271 n.4 (9th Cir. 2009).

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Defendant first argues that plaintiff has failed to state a viable retaliation claim because

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plaintiff’s allegations show that defendant’s refusal to provide plaintiff with a metal-hinged knee

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brace served the legitimate correctional goal of preserving institutional security. Plaintiff

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alleges, however, that other inmates were provided such braces. “[P]rison officials may not

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defeat a retaliation claim on summary judgment simply by articulating a general justification for

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a neutral process, when there is a genuine issue of material fact as to whether the action was

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taken in retaliation for the exercise of a constitutional right.” Bruce v. Ylst, 351 F.3d 1283, 1289

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(9th Cir. 2003). Here, plaintiff’s allegation that other inmates were provided metal-hinged

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braces, if taken as true and left unexplained, raises the inference that retaliation rather than
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institutional security motivated the choice to deny plaintiff such a brace. While defendant

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undoubtedly contends that a legitimate purpose, not retaliation, motivated the decision to deny

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plaintiff (and presumable other inmates) metal-hinged braces, plaintiff’s contrary allegations are

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sufficient to state a claim.

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Defendant next argues that plaintiff has not alleged that defendant’s refusal to treat his

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knee on January 3, 2011 was substantially motivated by plaintiff’s grievances. Defendant

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confoundingly argues that “Plaintiff cannot allege that his action of filing a grievance was a

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substantial motivating factor in Defendant’s failure to see him for his knee injury on January 3,

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2011 where responding to his grievance was, by his own admission, the very purpose of

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Defendant’s request to see Plaintiff.” ECF No. 19-1 at 9. It is certainly possible that, having

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called plaintiff to his office on January 3rd to address plaintiff’s grievance, defendant refused to

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evaluate plaintiff’s swollen knee because he felt animosity toward plaintiff for having filed the

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grievance he was in the process of responding to. This is precisely what plaintiff alleges. ECF

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No. 1 at 4 (alleging that defendant’s refusal to evaluate his swollen knee was “motivated by my

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602 complaint”). Understandably, defendant denies the allegation. But defendant has not shown

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that plaintiff’s allegations are insufficient to state a claim for retaliation in violation of the First

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Amendment.

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B.

Qualified Immunity

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Lastly, defendant argues that he should be afforded qualified immunity. The doctrine of

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qualified immunity shields government officials from liability for damages for conduct that does

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not violate a clearly established federal right of which a reasonable person would have known.

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Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

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Defendant’s argument for qualified immunity is predicated on defendant’s denial that

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plaintiff’s rights were ever violated and the insistence that plaintiff has failed to state a claim.

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Because plaintiff has alleged facts sufficient to state claims that defendant violated plaintiff’s

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First and Eighth Amendment rights, defendant’s argument that he should be given qualified

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immunity in the context of this Rule 12(b)(6) motion because he did not violate plaintiff’s rights

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necessarily fails.

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IV.

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Motion for Preliminary Injunction
Plaintiff has filed a motion for preliminary injunction, asking for an order directing

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“defendants Tim Virga, Dr. Hamad, P. Kemp, J.R. Bradford, [and] A. Nappi” from enforcing a

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50-page photocopy limit apparently in place at plaintiff’s institution. ECF No. 23. None of

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these individuals are defendants in the instant action. (Virga was named a defendant but was

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terminated on August 20, 2012 by the court’s screening order.). Plaintiff argues that the page

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limit has inhibited his pursuit of a petition for writ of habeas corpus since October 2012. Id. at 2.

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A preliminary injunction will not issue unless necessary to prevent threatened injury that

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would impair the courts ability to grant effective relief in a pending action. Sierra On-Line, Inc.

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v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984); Gon v. First State Ins. Co., 871

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F.2d 863 (9th Cir. 1989). A preliminary injunction represents the exercise of a far reaching

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power not to be indulged except in a case clearly warranting it. Dymo Indus. v. Tapeprinter,

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Inc., 326 F.2d 141, 143 (9th Cir. 1964). In order to be entitled to preliminary injunctive relief, a

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party must demonstrate “that he is likely to succeed on the merits, that he is likely to suffer

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irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor,

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and that an injunction is in the public interest.” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127

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(9th Cir. 2009) (citing Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 129 S. Ct. 365, 172

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L. Ed. 2d 249 (2008)). The Ninth Circuit has also held that the “sliding scale” approach it

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applies to preliminary injunctions—that is, balancing the elements of the preliminary injunction

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test, so that a stronger showing of one element may offset a weaker showing of

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another—survives Winter and continues to be valid. Alliance for Wild Rockies v. Cottrell, 622

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F.3d 1045, 1050 (9th Cir. 2010). “In other words, ‘serious questions going to the merits,’ and a
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hardship balance that tips sharply toward the plaintiff can support issuance of an injunction,

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assuming the other two elements of the Winter test are also met.” Id. In cases brought by

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prisoners involving conditions of confinement, any preliminary injunction “must be narrowly

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drawn, extend no further than necessary to correct the harm the court finds requires preliminary

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relief, and be the least intrusive means necessary to correct the harm.” 18 U.S.C. § 3626(a)(2).

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Here, the injunction must be denied for the simple fact that it challenges conduct that is

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not a subject of this action and that allegedly occurred well after this action was initiated in April

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2012. Plaintiff’s motion for preliminary injunction does not shown serious questions going to

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the merits of this action (concerning medical care for plaintiff’s knee) because it relates solely to

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entirely different events (plaintiff’s inability to copy the entirety of a petition for writ of habeas

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corpus). The allegations contained in the motion for preliminary injunction should either be the

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subject of another lawsuit or be raised in plaintiff’s habeas action. The court cannot adjudicate

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the allegations in this action, where they cannot be properly exhausted through the

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administrative appeals process pre-filing and where the parties whom plaintiff seeks to enjoin are

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not before the court. See McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002) (per

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curiam) and Rhodes v. Robinson, 621 F.3d 1002, 1004-07 (9th Cir. 2010) (together holding that

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claims must be exhausted prior to the filing of the original or supplemental complaint); Jones v.

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Felker, No. CIV S-08-0096 KJM EFB P, 2011 U.S. Dist. LEXIS 13730, at *11-15 (E.D. Cal.

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Feb. 11, 2011). Accordingly, plaintiff's motion for preliminary injunctive relief must be denied.

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V.

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Order and Recommendation
Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court randomly assign a

United States District Judge to this action.

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Further, IT IS HEREBY RECOMMENDED that:

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1. Defendant’s December 10, 2012 motion to dismiss (ECF No. 19) be denied; and

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2. Plaintiff’s March 11, 2013 motion for injunction (ECF No. 23) be denied.

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These findings and recommendations are 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 days

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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.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Turner v.

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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: July 29, 2013.

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