White v. Smyers et al

Filing 24

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 8/27/2013 RECOMMENDING that service is appropriate for defendants Miranda, Mayes, Schmidt, Lee, Pomazal, Rofling, Lankford, and Swingle; this case proceed on the 23 first a mended complaint on plaintiff's claims for violations of the Eighth Amendment by each defendant named above, and on a claim under the ADA against defendant Swingle in his official capacity; and all other defendants and claims should be dismissed from this action. Referred to Judge Morrison C. England, Jr.; Objections due within 21 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WALTER HOWARD WHITE,

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Plaintiff,

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No. 2:12-cv-2868 MCE AC P

v.

FINDINGS & RECOMMENDATIONS

D. SMYERS, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action filed

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pursuant to 42 U.S.C. § 1983. By order filed December 13, 2012, plaintiff’s original complaint

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was dismissed with leave to file an amended complaint. Plaintiff’s first amended complaint is

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before the court.
The first amended complaint states cognizable claims for relief under 42 U.S.C. § 1983

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and 28 U.S.C. § 1915A(b) as follows:

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(1) Deliberate indifference to serious medical needs in violation of the Eighth Amendment,

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against defendants Miranda, Mayes, Schmidt, Lee, Pomazal, Rofling, Lankford, and

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Swingle; and
(2) Violation of the Americans with Disabilities Act (“ADA”), against defendant Swingle in

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his official capacity.

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As discussed in the court’s previous screening order, the ADA authorizes suits by private

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citizens for money damages against public entities only; individual liability is precluded. See

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ECF No. 11 at 8-10. Accordingly, plaintiff shall proceed with his ADA claim against defendant

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Swingle in his official capacity only. Defendant Swingle is the Chief Medical Officer at High

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Desert State Prison. There is no need for plaintiff’s ADA claim to proceed against any other

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named defendant.

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In addition, the first amended complaint fails to state a cognizable claim under the First

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Amendment. To prevail under section 1983 with a claim for a violation of the Free Exercise

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Clause, a prisoner must allege facts plausibly showing that the defendants denied him a

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reasonable opportunity of pursuing his faith comparable to the opportunity afforded fellow

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prisoners who adhere to conventional religious precepts. Cruz v. Beto, 405 U.S. 319, 322 (1972).

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The Free Exercise Clause is implicated only when a prison practice burden’s an inmate’s

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sincerely-held religious beliefs. Shakur v. Schriro, 514 F.3d 878, 884-85 (9th Cir. 2008). If a

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prison regulation “substantially burden[s]” a prisoner’s exercise of religion, then the regulation

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must serve a “compelling governmental interest” and must be the “least restrictive means of

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furthering that” interest. See 42 U.S.C. § 2000bb-1; Malik v. Brown, 71 F.3d 724, 729 (9th Cir.

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1995).

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In his first amended complaint, plaintiff alleges that he has a religious need to abstain

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from blood transfusions. ECF No. 23 at 14. On October 15, 2012, a contracted orthopedic

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physician told plaintiff that his religious need to abstain from blood transfusions would be

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accommodated with a blood-transfusion-alternative, if necessary, during his knee surgery. Id.

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On December 5, 2012, plaintiff visited the contract orthopedic surgeon for knee surgery,

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however, the surgeon told him that he would have to receive blood in the event of any blood loss.

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Id. at 15. Plaintiff told the surgeon he would not undergo surgery without a blood-transfusion

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alternative. Id. The surgeon told plaintiff he was being “too difficult” and declined to proceed

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with the surgery. Id. The surgeon recommended to HDSP officials that plaintiff follow up with

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another orthopedic surgeon. Id. Defendants Schmidt, Rofling and Swingle failed to ensure that

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plaintiff saw another orthopedic specialist. Id. Plaintiff states that his cause of action for
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“religious discrimination” is brought against defendants Miranda and Swingle. Id. at 16.

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Plaintiff has adequately alleged that abstention from receiving blood is a sincerely-held

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religious belief. He has not, however, adequately alleged facts plausibly showing that any named

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defendant burdened his right to abstain from receiving blood. To the extent he alleges that any of

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defendants failed to ensure that he saw another orthopedic specialist for medical treatment, such

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allegations are actionable under the Eighth Amendment, rather than the First Amendment. A

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conclusory allegation that the alleged deprivation of treatment was based on “religious

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discrimination” will not suffice to state a cognizable claim under the Free Exercise Clause. See

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Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009) (“Threadbare recitals of the elements of a cause of

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action, supported by mere conclusory statements, do not suffice.”).

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If the allegations of the amended complaint are proven, plaintiff has a reasonable

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opportunity to prevail on the merits of his claims brought under the Eighth Amendment and the

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ADA. In accordance with the above, IT IS RECOMMENDED that:

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1. Service is appropriate for defendants Miranda, Mayes, Schmidt, Lee, Pomazal,

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Rofling, Lankford, and Swingle;

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2. This case proceed on plaintiff’s first amended complaint filed July 15, 2013 (ECF No.

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23) on plaintiff’s claims for violations of the Eighth Amendment by each defendant

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named in (1) above, and on a claim under the ADA against defendant Swingle in his

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official capacity.

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3. All other defendants and claims should be dismissed from this action.

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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 twenty-one days

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after being served with these findings and recommendations, plaintiff may file written objections

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with the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings

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and Recommendations.” Plaintiff is advised that failure to file objections within the specified

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time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153

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(9th Cir. 1991).

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DATED: August 27, 2013

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