Green v. Nangalama, et al

Filing 21

ORDER adopting 12 FINDINGS AND RECOMMENDATIONS, signed by Judge Kimberly J. Mueller on 3/23/15. Defendants Deems and Zamora are DISMISSED from this action; and this action shall continue against defendant Nangalama only. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LONZELL GREEN,

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Plaintiff,

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No. 2:13-cv-2390-KJM-CMK

v.

ORDER

ANDREW NANGALAMA, et al.,

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Defendant.

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Plaintiff, a prisoner proceeding pro se, brings this civil rights action under 42

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U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided by

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Eastern District of California local rules.
On October 30, 2014, the magistrate judge filed findings and recommendations,

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which were served on the parties and which contained notice that the parties may file objections

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within a specified time. No objections to the findings and recommendations have been filed.

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The court presumes that any findings of fact are correct. See Orand v. United

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States, 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are

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reviewed de novo. See Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir.

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1983). Having reviewed the file, for the reasons set forth below the court concurs in the

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recommended dismissal of defendants Deems and Zamora.

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Plaintiff claims that his right to constitutionally adequate medical care has been

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violated by failure to provide adequate treatment for his facial nerve damage and associated pain.

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Complaint at 3, 6, ECF No. 1. Defendants Deems and Zamora reviewed plaintiff’s inmate health

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care administrative appeal seeking pain medication and other treatment, including a neurology

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consult at, respectively, the second and third levels of administrative review. Id. at 7-8, 11-12.

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The magistrate judge recommends their dismissal on the grounds that (1) there are no allegations

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that either defendant was involved in the actual treatment of plaintiff; and (2) that plaintiff has no

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due process protection in the administrative grievance procedure, there are no allegations that

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procedure was interfered with, and the only role defendants Deems and Zamora had in plaintiff’s

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medical care was reviewing the grievance at higher levels of review. Findings and

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Recommendations at 3-4, ECF No. 12.

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Plaintiff alleges that in reviewing his grievance defendants Deems and Zamora

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“sustained the misconduct of the defendant Nangalama” who “failed to assist plaintiff in adequate

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effective fixing of the facial nerve damage he suffers from.” ECF No. 1 at 3. This claim arises, if

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at all, under the Eighth Amendment’s ban on deliberate indifference to serious medical needs.

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Where, as here, an inmate’s administrative grievance concerns an ongoing alleged

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unconstitutional denial of adequate medical care and the reviewer “had the authority and

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opportunity to prevent the ongoing violation, a plaintiff may be able to establish liability by

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alleging that the appeals coordinator knew about an impending violation and failed to prevent it.”

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Herrera v. Hall, 2010 WL 2791586, slip op. at 4 (E.D.Cal. 2010) (citing Taylor v. List, 880 F.2d

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1040, 1045 (9th Cir. 1989)). A cognizable Eighth Amendment claim against defendants Deems

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and Zamora would require factual allegations suggesting each defendant acted with deliberate

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indifference to plaintiff’s serious medical needs. See Starr v. Baca, 652 F.3d 1202, 1206-07 (9th

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Cir. 2011) (“A showing that a supervisor acted, or failed to act, in a manner that was deliberately

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indifferent to an inmate’s Eighth Amendment rights is sufficient to demonstrate the involvement

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– and the liability – of that supervisor.”). There are no allegations to suggest either defendant

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Deems or defendant Zamora was deliberately indifferent to plaintiff’s medical needs in

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responding to plaintiff’s grievance. Accordingly, these two defendants will be dismissed.
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In accordance with the above, IT IS HEREBY ORDERED that:

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1. The recommendations filed October 30, 2014, are adopted, for the reasons set

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forth above;

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2. Defendants Deems and Zamora are dismissed from this action; and

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3. This action shall continue against defendant Nangalama only.

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DATED: March 23, 2015.

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UNITED STATES DISTRICT JUDGE
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