Lavery v. Dhillon

Filing 135

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 06/08/17 ORDERING the clerk of the court shall add "John Doe" - a registered nurse at California Medical Facility - to the docket as a defendant. Plaintiff must identify "John Doe" within 60 days of this order's entry so that service may be attempted. Also, RECOMMENDING that plaintiff's Eighth Amendment claims for deliberate indifference toward a serious medical need against defendants Dhillon, Rading, Ditomas, and Clark be dismissed without leave to amend. Referred to Judge Morrison C. England Jr. Objections due within 21 days. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSEPH LAVERY,

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Plaintiff,

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No. 2:13-cv-02083 MCE AC P

v.

ORDER AND FINDINGS AND
RECOMMENDATIONS

B. DHILLON, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding in forma pauperis and with counsel in an action

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brought pursuant to 42 U.S.C. § 1983. On May 2, 2017, the court dismissed plaintiff’s first

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amended complaint (ECF No. 30) and granted leave to file a second amended complaint. ECF

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No. 131. Plaintiff, through his counsel, filed a second amended complaint on May 30, 2017.

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ECF No. 132. Defendants have requested that the court screen the newly filed complaint

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pursuant to §1915A. ECF Nos. 133 &134. The court will do so.

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I.

Screening Requirements
The court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).
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A claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.”

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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th

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Cir. 1984). “[A] judge may dismiss [in forma pauperis] claims which are based on indisputably

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meritless legal theories or whose factual contentions are clearly baseless.” Jackson v. Arizona,

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885 F.2d 639, 640 (9th Cir. 1989) (citation and internal quotations omitted), superseded by statute

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on other grounds as stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); Neitzke, 490

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U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded,

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has an arguable legal and factual basis. Id.

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“Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the

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claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of

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what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550

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U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

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However, in order to survive dismissal for failure to state a claim, a complaint must contain more

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than “a formulaic recitation of the elements of a cause of action;” it must contain factual

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allegations sufficient “to raise a right to relief above the speculative level.” Id. (citations

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omitted). “[T]he pleading must contain something more . . . than . . . a statement of facts that

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merely creates a suspicion [of] a legally cognizable right of action.” Id. (alteration in original)

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(quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1216 (3d

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ed. 2004)).

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“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to

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relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell

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Atl. Corp., 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.” Id. (citing Bell Atl. Corp., 550 U.S. at 556). In reviewing a complaint

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under this standard, the court must accept as true the allegations of the complaint in question,

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Hospital Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976), as well as construe the pleading

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in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, Jenkins v.

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McKeithen, 395 U.S. 411, 421 (1969).
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II.

Screening Order
Plaintiff alleges that on or about August 17, 2012 and while incarcerated at California

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Medical Facility (CMF), he was given a shot of muscle relaxant by defendant John Doe. ECF

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No. 132 at 3. The shot allegedly struck a sciatic nerve in his buttocks and left his right leg

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paralyzed. Id. Plaintiff alleges that his physicians misdiagnosed his injury and failed to provide

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him with proper treatment. Id. at 3-4. He claims that each of the named defendants violated his

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Eighth Amendment rights by exhibiting deliberate indifference toward his medical needs. Id. at

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4. After review of the complaint and its attached exhibits, the court finds that plaintiff has stated

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a potentially cognizable claim for deliberate indifference against defendant John Doe. All other

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defendants, for the reasons stated below, should be dismissed without leave to amend.

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A.

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Plaintiff’s claims against Dhillon are too vague to proceed. His allegations against this

B. Dhillon

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defendant are contained in a single sentence which states only that “Dr. Dhillon refused to

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provide Plaintiff with appropriate medication, a wheel chair, or crutches when requested.” Id. at

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4. Plaintiff does not recount any appointment dates or conversations he had with Dhillon

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regarding his care. He fails to describe what “appropriate medication” Dhillon declined to

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prescribe or how the medication that was provided (if any) was inadequate. The lack of

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specificity in the immediate complaint bears an unfortunate similarity to the first amended

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complaint in this case (ECF No. 30), which was dismissed for failure to state a claim (ECF

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No.131). In the first amended complaint, plaintiff alleged that Dhillon “denied me treatment that

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was needed (lay-ins, medication, crutches, and a whhelchair (sic).” ECF No. 30 at 3. These

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allegations were dismissed after Dhillon filed a motion to dismiss (ECF No. 124) and plaintiff

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declined to oppose it (ECF No. 130). The court sees little difference, in terms of clarity and

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specificity, between the claim in the first amended complaint and the one that is now before it.

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Further, the exhibits attached to the complaint indicate that plaintiff was provided with

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both medication and ambulatory aides. In an institutional response to plaintiff’s first level appeal,

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dated November 30, 2012, defendant Rading noted that Dhillon had given plaintiff pain

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medication, ordered crutches, and referred him to another physician for further evaluation. ECF
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No. 132-1 at 5. A health services request dated August 19, 2012 and signed by Nurse “S. Barker”

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states that plaintiff “actually came in on a wheelchair today . . . .” Id. at 18.

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B.

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Plaintiff alleges that these defendants denied his 602 prison appeals. He avers that Rading

Rading, Ditomas, and Clark

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and Ditomas denied an appeal for crutches. ECF No. 132 at 4. He alleges defendant Clark

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denied an appeal requesting that proper medical treatment be afforded. Id. Simple denial of a

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grievance, without more, does not give rise to a viable constitutional claim. See Ramirez v.

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Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (holding that “inmates lack a separate constitutional

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entitlement to a specific prison grievance procedure.”); see also Shehee v. Luttrell, 199 F.3d 295,

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300 (6th Cir. 1999) (finding no viable claim where plaintiff’s only allegation against defendants

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involved their denial of his grievances and an alleged failure to remedy the unconstitutional

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conduct of other staff).

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Additionally, the grievances attached to plaintiff’s complaint indicate that officials denied

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his request for crutches because he had already been provided with crutches. ECF No. 132-1 at

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26. Clark denied his request for “appropriate care” after determining that his care was already

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adequate. Id. at 8-9. Clearly plaintiff disputes the adequacy of his care, but there is no indication

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that Clark knew his treatment to be inadequate when she denied his appeal. See Toguchi v.

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Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (holding that a prison official acts with deliberate

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indifference only if she knows of and disregards an excessive risk to inmate health and safety).

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III.

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Leave to Amend
The court finds that the record weighs against giving plaintiff a third opportunity to amend

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for the purpose of stating cognizable claims against defendants Dhillon, Rading, Ditomas, and

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Clark. Plaintiff has already been afforded two opportunities to state cognizable claims against

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these defendants. Additionally, after defendants’ motions to dismiss were summarily granted

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(ECF No. 131), plaintiff and his counsel presumably understood the inadequacies in their

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pleading. The fact that the second amended complaint has not remedied those inadequacies

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suggests that further attempts at amendment would be futile. See Hartmann v. CDCR, 707 F.3d

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1114, 1130 (9th Cir. 2013) (“A district court may deny leave to amend when amendment would

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be futile.”).

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IV.

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Service of Doe Defendant
If the court’s recommendations are adopted, this action will proceed only against

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defendant John Doe. This defendant cannot be served until he is identified. This court will

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provide plaintiff with sixty days to provide an identity for this defendant. At the end of that

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deadline, if plaintiff has been unable to produce an identity for John Doe, he may submit a filing

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showing cause why this action should not be dismissed for failure to serve. That filing should

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detail the steps that he and his counsel have undertaken to discern this defendant’s identity and

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why an extension of time would not be futile.

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V.

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Conclusion
Accordingly, IT IS HEREBY ORDERED that:

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1. The clerk of court shall add “John Doe” – a registered nurse at California Medical

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Facility – to the docket as a defendant.

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2. Plaintiff must identify “John Doe” within sixty days of this order’s entry so that

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service may be attempted.

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Additionally, IT IS HEREBY RECOMMENDED that Plaintiff’s Eighth Amendment

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claims for deliberate indifference toward a serious medical need against defendants Dhillon,

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Rading, Ditomas, and Clark be dismissed without leave to amend.

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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, any party may file written

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objections with the court. The document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendations.” Any response to the objections shall be filed and served within

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fourteen days after service of the objections. Failure to file objections within the specified time

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may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th

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Cir. 1991).

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DATED: June 8, 2017

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