Cofield v. Unknown

Filing 31

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 2/19/14 ORDERING that the second amended complaint (ECF No. 29 ) states potentially cognizable Eighth Amendment deliberate indifference to medical needs claims ag ainst defendants Miranda, Rahman, and Lee. With this order the Clerk of the Court shall provide to plaintiff a blank summons, a copy of the November 25, 2013 second amended complaint, three USM-285 forms and instructions for service of process on d efendants. Within 30 days of service of this order plaintiff may return the attached Notice of Submission of Documents, along with sufficient copies of the documents listed therein. Claims against defendants Robertson and Garbutt be dismissed from this action for failure to state a claim upon which relief may be granted and claims against defendants Young, Alkier, Bauer, and Maydole be dismissed as improperly joined. Plaintiffs motion for injunctive relief (ECF No. 24 ) be denied. Referred to Judge Kimberly J. Mueller; Objections to F&R due within 14 days. (Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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VINCENT E. COFIELD,

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Plaintiff,

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No. 2:12-cv-3060-KJM-EFB P

v.

ORDER AND FINDINGS AND
RECOMMENDATIONS

UNKNOWN,

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Defendant.

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Plaintiff is a state prisoner proceeding pro se with this civil rights action under 42 U.S.C.

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§ 1983. Plaintiff’s second amended complaint (ECF No. 29) is before the court for screening.

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Additionally, plaintiff moves for a preliminary injunction (ECF No. 24).

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I.

Screening Requirement and Standards

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Federal courts must engage in a preliminary screening of cases in which prisoners seek

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redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion

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of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which

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relief may be granted,” or “seeks monetary relief from a defendant who is immune from such

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relief.” Id. § 1915A(b).

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A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a)

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of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and

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plain statement of the claim showing that the pleader is entitled to relief, in order to give the

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defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v.
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Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)).

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While the complaint must comply with the “short and plaint statement” requirements of Rule 8,

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its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 129 S.

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Ct. 1937, 1949 (2009).

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To avoid dismissal for failure to state a claim a complaint must contain more than “naked

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assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of

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action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of

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a cause of action, supported by mere conclusory statements do not suffice.” Ashcroft v. Iqbal,

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129 S. Ct. at 1949.

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Furthermore, a claim upon which the court can grant relief must have facial plausibility.

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Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual

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content that allows the court to draw the reasonable inference that the defendant is liable for the

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misconduct alleged.” Iqbal, 129 S. Ct. at 1949. When considering whether a complaint states a

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claim upon which relief can be granted, the court must accept the allegations as true, Erickson v.

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Pardus, 127 S. Ct. 2197, 2200 (2007), and construe the complaint in the light most favorable to

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the plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

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II.

Background

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After a dismissal of the original complaint pursuant to § 1915A, plaintiff filed a first

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amended complaint. ECF No. 20. On October 8, 2013, the court screened that complaint as

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follows:

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Plaintiff names eleven individuals as defendants. Seven of the defendants
(Swingle Rahman, Lee, Garbutt, Sampson, Miranda, and Robertson) are alleged to
be medical professionals. Four of the defendants (Young, Bauer, Maydole, and
Alkier) are alleged to be prison guards who harassed and retaliated against
plaintiff. The court finds that for the limited purposes of § 1915A screening, and
liberally construed, the complaint states potentially cognizable Eighth Amendment
deliberate indifference to medical needs claims against defendants Miranda and
Rahman for their alleged roles in depriving plaintiff of various medical appliances
and/or treatment for various medical conditions, including asthma, a knee
condition, and sleep apnea. As explained below, claims against the remaining
defendants must be dismissed.
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As for the five remaining medical defendants – Swingle, Lee, Garbutt,
Robertson, and Sampson – plaintiff has not alleged acts or omissions sufficiently
harmful to evidence deliberate indifference to serious medical needs. As for
defendants Swingle, Lee, and Garbutt, plaintiff merely alleges that they were
involved in processing his administrative appeals. Plaintiff claims that in denying
those appeals, they relied on defendant Rahman’s apparently false representation
that certain medical appliances or treatments were not medically indicated for
plaintiff. These allegations are not enough to show that defendants Swingle, Lee,
and Garbutt acted with the requisite deliberate indifference.
Moreover, there are no constitutional requirements regarding how a
grievance system is operated. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir.
2003) (holding that prisoner’s claimed loss of a liberty interest in the processing of
his appeals does not violate due process because prisoners lack a separate
constitutional entitlement to a specific prison grievance system). Thus, plaintiff
may not impose liability on a defendant simply he or she played a role in
processing plaintiff’s inmate appeals. See Buckley v. Barlow, 997 F.2d 494, 495
(8th Cir. 1993) (an administrative “grievance procedure is a procedural right only,
it does not confer any substantive right upon the inmates.”).
In addition, plaintiff’s allegation that defendant Robertson fabricated a
medical record is too vague and conclusory to state a cognizable claim for relief
under the deliberate indifference standard explained above.
With respect to defendant Sampson, plaintiff claims that she provided his
medical records to defendant prison guards Young, Alkier, Bauer, and Maydole, to
assist them in harassing plaintiff. Plaintiff claims that in retaliation for filing
administrative grievances, the defendant guards moved plaintiff into a cell with no
electricity and poor ventilation and plumbing. They allegedly subjected plaintiff
to retaliatory cell searches and false accusations. The allegations against Sampson
and the four prison guards are not related to the allegations of deliberate
indifference against defendants Miranda and Rahman. Thus, they cannot be
properly joined with the claims against Miranda and Rahman because they do not
arise out the same occurrence and involve a common question of law or fact.1 See
Fed. R. Civ. P. 20(a)(2). Plaintiff should pursue such claims in a new, separate
lawsuit.
For these reasons, plaintiff may proceed with his Eighth Amendment
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Federal Rule of Civil Procedure 20(a)(2) allows a plaintiff to join multiple defendants to
a lawsuit where the right to relief arises out of the same “transaction, occurrence, or series of
transactions or occurrences” and “any question of law or fact common to all defendants will arise
in the action.” Thus, unrelated claims against different defendants must be pursued in separate
lawsuits. See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). This rule is intended “not only
to prevent the sort of morass [a multiple claim, multiple defendant] suit produce[s], but also to
ensure that prisoners pay the required filing fees– for the Prison Litigation Reform Act limits to 3
the number of frivolous suits or appeals that any prisoner may file without prepayment of the
required fees. 28 U.S.C. § 1915(g).” Id.
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claims against defendants Miranda and Rahman, or he may amend his complaint to
attempt to cure the deficiencies identified above. Plaintiff is not obligated to
amend his complaint.

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ECF No. 26 at 2-5.
III.

Second Amended Complaint
The second amended complaint names Rahman, Miranda, Lee, Garbutt, Robertson,

Young, Alkier, Bauer, and Maydole as defendants. As explained below, plaintiff will be
permitted to proceed on claims against Rahman, Miranda, and Lee. Plaintiff has not, however,
cured the defects in his claims against Garbutt, Robertson, Young, Alkier, Bauer, and Maydole.
Claims against these defendants should therefore be dismissed without further leave to amend.
Once again, plaintiff alleges that defendant Miranda took “all” of plaintiff’s “medications,
asthma inhalers, and medical appliance[s],” upon plaintiff’s arrival on March 28, 2012 at High
Desert State Prison (HDSP). ECF No. 29 at 5-6. Plaintiff claims it took five days for his asthma
inhalers to be re-issued, that his administrative appeal for the return of his medical appliances and
treatment was denied, and that as a result, he experienced various “medical strains on his health.”
Id. at 6-7. Liberally construed, plaintiff may proceed on an Eighth Amendment deliberate
indifference to medical needs claim against defendant Miranda.
As for defendants Rahman and Lee, plaintiff claims that they refused to follow the
recommendations of [a] pulmonary specialist.” Id. at 8. Plaintiff claims that Rahman and Lee
also refused to give plaintiff a needed x-ray of his left knee and lower back, and also refused to do
any kind of examination. Id. at 15. Plaintiff also claims that Lee interfered with his medical
treatment by cancelling a sleep study and titration that Rahman had ordered. Id. at 17. Liberally
construed, plaintiff may also proceed on an Eighth Amendment deliberate indifference to medical
needs claims against defendants Rahman and Lee.
Plaintiff alleges that defendant Robertson, a physician’s assistant, “drill[ed] plaintiff with
a battery of questions” regarding plaintiff’s grievance. Id. at 9. Plaintiff claims that Robertson
did not answer plaintiff’s questions and later “fabricated his case notes.” Id. at 9-10. Plaintiff
claims that defendant Garbutt, a nurse, denied his medical grievance, and in doing so, found that

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plaintiff’s need for three asthma inhalers and high blood pressure medication did not pose a

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serious or imminent threat to plaintiff’s health or safety. Id. at 12. These allegations merely

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touch on how Robertson and Garbutt processed plaintiff’s administrative appeals. They are not

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enough to show that either defendant acted with the deliberate indifference required to state a

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colorable Eighth Amendment claim. The court previously informed plaintiff of the deficiencies

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in his claims against Robertson and Garbutt. Plaintiff was unable to correct those deficiencies in

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his amended complaint. Further leave to amend appears to be futile.

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Plaintiff also claims that “because of his medical grievances[,] he has been retaliated and
harassed” by correctional officer defendants Young, Alkier, Bauer, and Maydole. Id. at 11.

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Plaintiff again claims that they forced him to live in a cell for 46 days with no electricity, poor

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ventilation, and poor plumbing. Id. at 11. Defendant Bauer also allegedly told plaintiff he was

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being placed in isolation because he files too many grievances. Id. at 21. The court previously

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informed plaintiff that these claims could not be properly joined with the claims against Miranda

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and Rahman because they did not arise out the same occurrence and involve a common question

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of law or fact. Plaintiff has not cured this defect through amendment. Claims against these

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defendants must be dismissed and pursued in a separate lawsuit, if at all.

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Accordingly, plaintiff may proceed only on the claims identified herein against defendants

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Miranda, Rahman, and Lee, and the court recommends that all remaining claims and defendants

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be dismissed without leave to amend. See Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000)

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(“Under Ninth Circuit case law, district courts are only required to grant leave to amend if a

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complaint can possibly be saved. Courts are not required to grant leave to amend if a complaint

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lacks merit entirely.”); see also Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995) (“[A]

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district court should grant leave to amend even if no request to amend the pleading was made,

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unless it determines that the pleading could not be cured by the allegation of other facts.”).

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IV.

Motion for Injunctive Relief

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Plaintiff seeks preliminary injunctive relief. ECF No. 24. He alleges in his motion that

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his asthma and chronic obstructive pulmonary disease are “terrible.” He claims to be afraid of

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these chronic conditions because his sister died from an asthma attack, caused by the over5

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prescription of asthma medications. He requests injunctive relief in the form of a court order

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requiring that he be transferred to an institution at sea level. For the reasons that follow,

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plaintiff’s motion must be denied.

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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, Inc.,

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

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

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

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injunction is in the public interest.” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir.

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2009) (citing Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008)). The Ninth Circuit has

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also held that the “sliding scale” approach it applies to preliminary injunctions—that is, balancing

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the elements of the preliminary injunction test, so that a stronger showing of one element may

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offset a weaker showing of another—survives Winter and continues to be valid. Alliance for Wild

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Rockies v. Cottrell, 622 F.3d 1045, 1050 (9th Cir. 2010). “In other words, ‘serious questions

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going to the merits,’ and a hardship balance that tips sharply toward the plaintiff can support

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issuance of an injunction, assuming the other two elements of the Winter test are also met.” Id.

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In cases brought by prisoners involving conditions of confinement, any preliminary injunction

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“must be narrowly drawn, extend no further than necessary to correct the harm the court finds

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requires preliminary relief, and be the least intrusive means necessary to correct the harm.” 18

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U.S.C. § 3626(a)(2).

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Here, plaintiff has not shown a likelihood of success on the merits. To prove a section

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1983 claim for violation of the Eighth Amendment based on inadequate medical care, plaintiff

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must show “acts or omissions sufficiently harmful to evidence deliberate indifference to serious

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medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). Apart from plaintiff’s unsupported

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allegations, there is no evidence establishing that plaintiff is likely to prevail on his Eighth
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Amendment claims, or that the injunction sought is necessary to preserve the court’s ability to

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grant effective relief on those claims and that it is the least intrusive means for doing so. While

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plaintiff believes his medical conditions would be better controlled if he were housed at sea level,

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his belief in this regard does not support a finding of deliberate indifference on the part of any

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defendant. Nor does it support a finding that plaintiff will suffer irreparable harm if he is not

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transferred as requested.

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V.

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Order & Recommendation
Accordingly, IT IS HEREBY ORDERED that:

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1. For purposes of §1915A, and liberally construed, the second amended complaint

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(ECF No. 29) states potentially cognizable Eighth Amendment deliberate

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indifference to medical needs claims against defendants Miranda, Rahman, and

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Lee.

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2. With this order the Clerk of the Court shall provide to plaintiff a blank summons, a

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copy of the November 25, 2013 second amended complaint, three USM-285 forms

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and instructions for service of process on defendants. Within 30 days of service of

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this order plaintiff may return the attached Notice of Submission of Documents,

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along with sufficient copies of the documents listed therein. The court will

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transmit the documents to the United States Marshal for service of process

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pursuant to Rule 4 of the Federal Rules of Civil Procedure. Defendants Miranda,

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Rahman, and Lee will be required to respond to plaintiff’s allegations within the

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deadlines stated in Rule 12(a)(1) of the Federal Rules of Civil Procedure. Failure

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to comply with this order may result in this action being dismissed.

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Further, it is hereby RECOMMENDED that:

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1. Claims against defendants Robertson and Garbutt be dismissed from this action for

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failure to state a claim upon which relief may be granted and claims against

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defendants Young, Alkier, Bauer, and Maydole be dismissed as improperly joined.

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/////

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2. Plaintiff’s motion for injunctive relief (ECF No. 24) 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: February 19, 2014.

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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VINCENT E. COFIELD,

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Plaintiff,

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No. 2:12-cv-3060-KJM-EFB P

v.

NOTICE OF SUBMISSION OF
DOCUMENTS

UNKNOWN,

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Defendant.

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Plaintiff hereby submits the following documents in compliance with the court’s
Screening Order:

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completed summons form

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completed forms USM-285

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copies of the endorsed November 25, 2013 second amended

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complaint

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Dated:

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____________________________
Plaintiff

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