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)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11
JOSEPH LAVERY,
12
Plaintiff,
13
14
No. 2:13-cv-02083 MCE AC P
v.
ORDER AND FINDINGS AND
RECOMMENDATIONS
B. DHILLON, et al.,
15
Defendants.
16
Plaintiff is a state prisoner proceeding in forma pauperis and with counsel in an action
17
18
brought pursuant to 42 U.S.C. § 1983. On May 2, 2017, the court dismissed plaintiff’s first
19
amended complaint (ECF No. 30) and granted leave to file a second amended complaint. ECF
20
No. 131. Plaintiff, through his counsel, filed a second amended complaint on May 30, 2017.
21
ECF No. 132. Defendants have requested that the court screen the newly filed complaint
22
pursuant to §1915A. ECF Nos. 133 &134. The court will do so.
23
24
I.
Screening Requirements
The court is required to screen complaints brought by prisoners seeking relief against a
25
governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The
26
court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally
27
“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek
28
monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).
1
1
A claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.”
2
Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th
3
Cir. 1984). “[A] judge may dismiss [in forma pauperis] claims which are based on indisputably
4
meritless legal theories or whose factual contentions are clearly baseless.” Jackson v. Arizona,
5
885 F.2d 639, 640 (9th Cir. 1989) (citation and internal quotations omitted), superseded by statute
6
on other grounds as stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); Neitzke, 490
7
U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded,
8
has an arguable legal and factual basis. Id.
9
“Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the
10
claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of
11
what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550
12
U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
13
However, in order to survive dismissal for failure to state a claim, a complaint must contain more
14
than “a formulaic recitation of the elements of a cause of action;” it must contain factual
15
allegations sufficient “to raise a right to relief above the speculative level.” Id. (citations
16
omitted). “[T]he pleading must contain something more . . . than . . . a statement of facts that
17
merely creates a suspicion [of] a legally cognizable right of action.” Id. (alteration in original)
18
(quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1216 (3d
19
ed. 2004)).
20
“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to
21
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
22
Atl. Corp., 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual
23
content that allows the court to draw the reasonable inference that the defendant is liable for the
24
misconduct alleged.” Id. (citing Bell Atl. Corp., 550 U.S. at 556). In reviewing a complaint
25
under this standard, the court must accept as true the allegations of the complaint in question,
26
Hospital Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976), as well as construe the pleading
27
in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, Jenkins v.
28
McKeithen, 395 U.S. 411, 421 (1969).
2
1
2
II.
Screening Order
Plaintiff alleges that on or about August 17, 2012 and while incarcerated at California
3
Medical Facility (CMF), he was given a shot of muscle relaxant by defendant John Doe. ECF
4
No. 132 at 3. The shot allegedly struck a sciatic nerve in his buttocks and left his right leg
5
paralyzed. Id. Plaintiff alleges that his physicians misdiagnosed his injury and failed to provide
6
him with proper treatment. Id. at 3-4. He claims that each of the named defendants violated his
7
Eighth Amendment rights by exhibiting deliberate indifference toward his medical needs. Id. at
8
4. After review of the complaint and its attached exhibits, the court finds that plaintiff has stated
9
a potentially cognizable claim for deliberate indifference against defendant John Doe. All other
10
defendants, for the reasons stated below, should be dismissed without leave to amend.
11
A.
12
Plaintiff’s claims against Dhillon are too vague to proceed. His allegations against this
B. Dhillon
13
defendant are contained in a single sentence which states only that “Dr. Dhillon refused to
14
provide Plaintiff with appropriate medication, a wheel chair, or crutches when requested.” Id. at
15
4. Plaintiff does not recount any appointment dates or conversations he had with Dhillon
16
regarding his care. He fails to describe what “appropriate medication” Dhillon declined to
17
prescribe or how the medication that was provided (if any) was inadequate. The lack of
18
specificity in the immediate complaint bears an unfortunate similarity to the first amended
19
complaint in this case (ECF No. 30), which was dismissed for failure to state a claim (ECF
20
No.131). In the first amended complaint, plaintiff alleged that Dhillon “denied me treatment that
21
was needed (lay-ins, medication, crutches, and a whhelchair (sic).” ECF No. 30 at 3. These
22
allegations were dismissed after Dhillon filed a motion to dismiss (ECF No. 124) and plaintiff
23
declined to oppose it (ECF No. 130). The court sees little difference, in terms of clarity and
24
specificity, between the claim in the first amended complaint and the one that is now before it.
25
Further, the exhibits attached to the complaint indicate that plaintiff was provided with
26
both medication and ambulatory aides. In an institutional response to plaintiff’s first level appeal,
27
dated November 30, 2012, defendant Rading noted that Dhillon had given plaintiff pain
28
medication, ordered crutches, and referred him to another physician for further evaluation. ECF
3
1
No. 132-1 at 5. A health services request dated August 19, 2012 and signed by Nurse “S. Barker”
2
states that plaintiff “actually came in on a wheelchair today . . . .” Id. at 18.
3
B.
4
Plaintiff alleges that these defendants denied his 602 prison appeals. He avers that Rading
Rading, Ditomas, and Clark
5
and Ditomas denied an appeal for crutches. ECF No. 132 at 4. He alleges defendant Clark
6
denied an appeal requesting that proper medical treatment be afforded. Id. Simple denial of a
7
grievance, without more, does not give rise to a viable constitutional claim. See Ramirez v.
8
Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (holding that “inmates lack a separate constitutional
9
entitlement to a specific prison grievance procedure.”); see also Shehee v. Luttrell, 199 F.3d 295,
10
300 (6th Cir. 1999) (finding no viable claim where plaintiff’s only allegation against defendants
11
involved their denial of his grievances and an alleged failure to remedy the unconstitutional
12
conduct of other staff).
13
Additionally, the grievances attached to plaintiff’s complaint indicate that officials denied
14
his request for crutches because he had already been provided with crutches. ECF No. 132-1 at
15
26. Clark denied his request for “appropriate care” after determining that his care was already
16
adequate. Id. at 8-9. Clearly plaintiff disputes the adequacy of his care, but there is no indication
17
that Clark knew his treatment to be inadequate when she denied his appeal. See Toguchi v.
18
Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (holding that a prison official acts with deliberate
19
indifference only if she knows of and disregards an excessive risk to inmate health and safety).
20
III.
21
Leave to Amend
The court finds that the record weighs against giving plaintiff a third opportunity to amend
22
for the purpose of stating cognizable claims against defendants Dhillon, Rading, Ditomas, and
23
Clark. Plaintiff has already been afforded two opportunities to state cognizable claims against
24
these defendants. Additionally, after defendants’ motions to dismiss were summarily granted
25
(ECF No. 131), plaintiff and his counsel presumably understood the inadequacies in their
26
pleading. The fact that the second amended complaint has not remedied those inadequacies
27
suggests that further attempts at amendment would be futile. See Hartmann v. CDCR, 707 F.3d
28
////
4
1
1114, 1130 (9th Cir. 2013) (“A district court may deny leave to amend when amendment would
2
be futile.”).
3
IV.
4
Service of Doe Defendant
If the court’s recommendations are adopted, this action will proceed only against
5
defendant John Doe. This defendant cannot be served until he is identified. This court will
6
provide plaintiff with sixty days to provide an identity for this defendant. At the end of that
7
deadline, if plaintiff has been unable to produce an identity for John Doe, he may submit a filing
8
showing cause why this action should not be dismissed for failure to serve. That filing should
9
detail the steps that he and his counsel have undertaken to discern this defendant’s identity and
10
why an extension of time would not be futile.
11
V.
12
Conclusion
Accordingly, IT IS HEREBY ORDERED that:
13
1. The clerk of court shall add “John Doe” – a registered nurse at California Medical
14
Facility – to the docket as a defendant.
15
2. Plaintiff must identify “John Doe” within sixty days of this order’s entry so that
16
service may be attempted.
17
Additionally, IT IS HEREBY RECOMMENDED that Plaintiff’s Eighth Amendment
18
claims for deliberate indifference toward a serious medical need against defendants Dhillon,
19
Rading, Ditomas, and Clark be dismissed without leave to amend.
20
These findings and recommendations are submitted to the United States District Judge
21
assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty one days
22
after being served with these findings and recommendations, any party may file written
23
objections with the court. The document should be captioned “Objections to Magistrate Judge’s
24
Findings and Recommendations.” Any response to the objections shall be filed and served within
25
////
26
////
27
////
28
////
5
1
fourteen days after service of the objections. Failure to file objections within the specified time
2
may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th
3
Cir. 1991).
4
DATED: June 8, 2017
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?