Nguyen v. California Prison Health Service, et al.

Filing 48

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 8/2/2016 DENYING plaintiff's 43 motion to appoint co-counsel. IT IS RECOMMENDED that defendant Elam's 32 motion to dismiss be granted and that plaintiff be granted an opportunity to amend his claim against defendant Elam within 30 days of any order adopting this recommendation. Referred to Judge Morrison C. England, Jr.; Objections to F&R due within 14 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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NAM BA NGUYEN,

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No. 2:13-cv-963-MCE-EFB P

Plaintiff,
v.

ORDER AND FINDINGS AND
RECOMMENDATIONS

CALIFORNIA PRISON HEALTH
SERVICE, et al.,,
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. He alleges that the named defendants violated his Eight Amendment rights by
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deliberate indifference to his medical needs. ECF No. 15. Pending before the court are plaintiff’s
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motion for appointment of counsel, ECF No. 43, and defendant Nathanial K. Elam’s motion to
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dismiss, ECF No. 32.1 For the reasons stated below, plaintiff’s motion to appoint counsel is

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denied and it is recommended that defendant Elam’s motion to dismiss be granted.
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I.

Background

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Plaintiff alleges that he suffered various injuries after being attacked by one of his
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cellmates on May 21, 2010. ECF No. 15 at 5-6. The next day, he complained to medical staff
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Plaintiff has filed a response to the motion, ECF No. 41, and defendant Elam has filed a
reply, ECF No. 42.
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that the pain in his jaw and face made chewing food difficult. Id. at 8. He told an unidentified

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nurse at the unit clinic that he believed his jaw and at least one other facial bone were broken. Id.

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Between June 2, 2010 and August 31, 2010, plaintiff alleges that medical staff inappropriately

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delayed prescribing x-rays and a soft meal diet. Id. at 9-13. He also claims that he was denied

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adequate pain medication for a shoulder injury that predated the May assault. Id. at 12.

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On August 31, 2010, plaintiff received a first level response to an appeal he had filed

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regarding the purported inadequacies in his medical care. Id. at 13. Unsatisfied, he appealed to

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level two on September 19, 2010 and, on October 18, 2010, received a denial from defendant

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Elam which stated that his care was adequate and that money damages – which plaintiff’s appeal

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sought to recover – were beyond the scope of the appeals process. Id. at 14, 85-86. Now,

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plaintiff alleges that defendant Elam violated his rights by failing to provide him with a soft meal

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diet, failing to remedy the misconduct of his subordinates, and failing to “provide evidence upon

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request” in his appeal response. Id. at 16, 22-23.

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II.

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Plaintiff argues that his lack of legal training and formal education hamper his ability to

Plaintiff’s Motion to Appoint Counsel

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successfully prosecute this case. ECF No. 43 at 2-3. Accordingly, he requests that the court

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appoint counsel to assist him in doing so. Id. District courts lack authority to require counsel to

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represent indigent prisoners in section 1983 cases, however. Mallard v. United States Dist.

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Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an attorney

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to voluntarily to represent such a plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935

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F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).

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When determining whether “exceptional circumstances” exist, the court must consider the

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likelihood of success on the merits as well as the ability of the plaintiff to articulate his claims pro

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se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970

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(9th Cir. 2009). Having considered those factors, the court finds there are no exceptional

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circumstances in this case and plaintiff’s motion is denied.

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III.

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Defendant Elam’s Motion to Dismiss
A.

Legal Standards

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To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a

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

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

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

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

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enough,” and that having “earned its retirement,” it “is best forgotten as an incomplete, negative

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gloss on an accepted pleading standard”). Thus, the grounds must amount to “more than labels

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and conclusions” or a “formulaic recitation of the elements of a cause of action. Id. at 555.

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Instead, the “[f]actual allegations must be enough to raise a right to relief above the speculative

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

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

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

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

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The complaint’s factual allegations are accepted as true. Church of Scientology of Cal. v.

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Flynn, 744 F.2d 694, 696 (9th Cir. 1984). The court construes the pleading in the light most

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favorable to plaintiff and resolves all doubts in plaintiff’s favor. Parks Sch. of Bus., Inc. v.

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Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). General allegations are presumed to include

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specific facts necessary to support the claim. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561

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(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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In general, pro se pleadings are held to a less stringent standard than those drafted by

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lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). The court has an obligation to construe

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such pleadings liberally. Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc).

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However, the court’s liberal interpretation of a pro se complaint may not supply essential

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elements of the claim that were not pled. Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266,

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268 (9th Cir. 1982); see also Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992).

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B.

Analysis

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As a preliminary matter, the court notes that plaintiff has raised new allegations in his

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opposition which were not included in his first amended complaint. ECF No. 41 at 4-7. Any

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claims not raised in the first amended complaint will not be considered at this time. See

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Schneider v. Cal. Dep't of Corr., 151 F.3d 1194, 1197 n. 1 (9th Cir. 1998) (“In determining the

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propriety of a Rule 12(b)(6) dismissal, a court may not look beyond the complaint to a plaintiff's

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moving papers, such as a memorandum in opposition to a defendant's motion to dismiss.”).

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Plaintiff may, however, move separately to amend his allegations. Moss v. U.S. Secret Service,

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572 F.3d 962, 972 (9th Cir. 2009) (holding that “dismissal without leave to amend is improper

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unless it is clear, upon de novo review, that the complaint could not be saved by any

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amendment”).

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Plaintiff identifies defendant Elam as the Chief Executive Officer of Clinical Services at

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the California Medical Facility. ECF No. 15 at 22. He does not allege that defendant Elam had

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had any direct personal involvement in his medical care. Rather, his allegations center on the

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manner in which defendant Elam responded to and ultimately denied his administrative appeal.

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An inmate has no right to a specific grievance or appeal procedure. See Ramirez v. Galaza, 334

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F.3d 850, 860 (9th Cir. 2003); see also Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988).
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Accordingly, plaintiff may not pursue a constitutional claim against defendant Elam for failing to

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provide sufficient answers or evidence in his appeal response. Nor does ruling against a prisoner

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in an administrative appeal give rise to a constitutional violation in itself. See Wilson v.

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Woodford, No. 05-560, 2009 U.S. Dist. LEXIS 25749, at * 20 (E.D. Cal. March 27, 2009).

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Finally, plaintiff’s own allegations indicate that the issues complained of in his appeal had already

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been resolved, albeit in a delayed manner, by the time defendant Elam received plaintiff’s second

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level appeal in September of 2010. Plaintiff had x-rays taken on July 19, 2010, his pain

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medication was upgraded from Tylenol to Gabapentin on July 23, 2010, and he was prescribed a

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soft diet on August 10, 2010. ECF No. 15 at 11-13, 81. A reviewing official’s failure to act does

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not amount to deliberate indifference if the conduct he is investigating can no longer be remedied

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at the time of review. Galik v. Nangalama, No. 09-152, 2012 U.S. Dist. LEXIS 122439, at *30-

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32 (E.D. Cal. Aug. 27, 2012).2

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Plaintiff’s claims that defendant Elam failed to correct his subordinates’ misconduct also

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do not, as currently alleged, state a viable Eighth Amendment claim. A supervisory defendant

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cannot be held liable based solely on a theory of respondeat superior. Ashcroft v. Iqbal, 556 U.S.

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662, 677 (2009) (“officials may not be held liable for the unconstitutional conduct of their

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subordinate under a theory of respondeat superior”). Nor will general allegations about a

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defendant’s supervisory authority suffice. Henry A. v. Willden, 678 F.3d 991, 1004 (9th Cir.

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2012). In both his complaint and his opposition, plaintiff vaguely alleges that defendant Elam

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had the power to alter policy and to control subordinate medical staff. ECF No. 15 at 23; ECF

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No. 41 at 7-11. These allegations never allude to any specific instances of supervisory

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misconduct, however, and fail on that basis. See Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)

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(holding that “a plaintiff's obligation to provide the grounds of his entitle[ment] to relief requires

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Plaintiff argues that Galik is distinguishable from this case insofar as the administrator in
Galik provided additional specificity in his appeal response and took “full responsibility” for
investigating the claimant’s concerns. ECF No. 41 at 15. Accepting these contentions as true,
they do nothing to alter the proposition for which this case has been cited. Plaintiff may wish that
either the form of defendant Elam’s response or the manner in which he conducted his
investigation were different, but these complaints do not give rise to viable constitutional claims.
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more than labels and conclusions, and a formulaic recitation of a cause of action's elements will

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not do.”) (internal quotations omitted).

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IV.

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Accordingly, it is ORDERED that plaintiff’s motion to appoint co-counsel (ECF No. 43)

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Order and Recommendation

is DENIED.
Further, it is RECOMMENDED that defendant Elam’s motion to dismiss (ECF No. 32)

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be GRANTED and that plaintiff be granted an opportunity to amend his claim against defendant

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Elam within 30 days of any order adopting this recommendation.3

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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: August 2, 2016.

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Any amended complaint, however, must include all intended claims for relief because an
amended complaint supersedes any earlier filed complaint, and once an amended complaint is
filed, the earlier filed complaint no longer serves any function in the case. See Forsyth v.
Humana, 114 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original,
the latter being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th
Cir. 1967)).
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