Juarez v. Butts et al

Filing 81

ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 10/25/18 ORDERING that 78 Motion to Amend the Complaint is granted. Service is appropriate for defendants Atienza and Bhatia. The Clerk of the Court shall se nd plaintiff two USM-285 forms, one summons, an instruction sheet and a copy of the Fourth Amended Complaint. Within thirty days from the date of this order, plaintiff shall complete the Notice of Submission of Documents and submit the document s to the court. 76 Motion to Appoint Counsel is denied. RECOMMENDING that plaintiff's claims against defendants Hlaing and Monk be dismissed. F&R referred to District Judge John A. Mendez. Objections to F&R due within fourteen days. (Kaminski, H)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

FOR THE EASTERN DISTRICT OF CALIFORNIA

9
10

JOSE JUAREZ,

11
12
13
14

No. 2:15-cv-1996 JAM DB P
Plaintiff,

v.

ORDER AND FINDINGS AND
RECOMMENDATIONS

M. HLAING, et al.
Defendants.

15
16

Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42

17

U.S.C. § 1983. Plaintiff alleges defendants were deliberately indifferent to his serious medical

18

needs in violation of the Eighth Amendment and that they retaliated against him. Before the court

19

is plaintiff’s Fourth Amended Complaint for screening. For the reasons set forth below, the court

20

finds plaintiff has stated some cognizable claims and recommends other claims be dismissed.

21

BACKGROUND

22

Plaintiff initiated this action in 2015 by filing a civil rights complaint against three

23

defendants: Butts, Hlaing, and Rackley. The court found plaintiff failed to state any cognizable

24

claims for relief. Since then, plaintiff has filed, and the court has screened, two additional

25

complaints. The court found that plaintiff stated a minimally cognizable Eighth Amendment

26

claim against defendant Hlaing in his second amended complaint. (See ECF No. 32.) Defendant

27

then sought to dismiss the complaint based on plaintiff’s prior suits seeking relief on the same

28

subject. The court found plaintiff’s prior state habeas proceeding precluded his claims regarding
1

1

his medical care for pain occurring before October 2014. However, his claims for actions after

2

October 2014 were not precluded. (ECF No. 62.)

3

Since then, plaintiff has attempted to amend his complaint to include new and more recent

4

allegations against new defendants. The consistent theme of plaintiff’s claims is his assertion that

5

he is not receiving sufficient pain medication while incarcerated at the California Health Care

6

Facility (“CHCF”). On July 12, 2018, plaintiff’s filed his most recent complaint, his Fourth

7

Amended Complaint. (ECF No. 74.1) Plaintiff also filed a motion for leave to file the complaint.

8

(ECF No. 78.)

9

SCREENING
Plaintiff’s motion for leave to file the Fourth Amended Complaint is brief. He does little

10
11

to try to satisfy the standards set out in Foman by showing an absence of undue delay, bad faith or

12

dilatory motive, futility of amendment, and prejudice to the opposing party. See United States v.

13

Webb, 655 F.2d 977, 980 (1981) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)).

14

Nonetheless, the court finds that plaintiff’s pro se status and the policy that leave to amend

15

pleadings shall be freely given favor granting plaintiff leave to amend his complaint. There is no

16

indication that any of the cautionary factors set out in Foman are present. And, to the extent

17

amendment may be futile, that factor will be addressed when the court considers below whether

18

plaintiff has stated cognizable claims.

19

With respect to screening the present complaint, the court has set out the screening

20

standards in three prior orders (see Dec. 18, 2015 Order (ECF No. 8); Feb. 17, 2017 Order (ECF

21

No. 23); June 20, 2017 Order (ECF No. 32)) and the standards for alleging an Eighth Amendment

22

claim in four prior orders (id.; June 13, 2018 Order (ECF No. 72).) Those standards will not be

23

repeated in full here.

24

////

25

////

26
27
28

1

Plaintiff filed a second copy of this complaint on August 3, 2018 along with his motion for leave
to file the fourth amended complaint. (ECF No. 79.) However, this copy is missing several
pages. Therefore, the court will review the copy filed on July 12 (ECF No. 74) for screening.
2

1

I.

Allegations of the Fourth Amended Complaint

2

Plaintiff now identifies four defendants: Hlaing, Monks, R. Atienza, and Bhatia.

3

Specifically, he alleges that defendant Hlaing was his primary care physician from June 2014 to

4

2015. He states that he had a serious medical need, but does not identify it. He further states that

5

Hlaing was indifferent to that need. He states that Hlaing humiliated him by laughing at him

6

when he cried out that he was in pain and needed help. (ECF No. 74 at 9.)

7

Plaintiff alleges defendant Monks was his primary care physician from November 8, 2016

8

to March 21, 2017. Plaintiff states that he told Monks he was in pain but Monks withheld

9

narcotic pain medication. (ECF No. 74 at 12.)

10

With respect to defendant Atienza, plaintiff alleges that on April 25, 2017, he pleaded

11

with Atienza for help with his pain. In response, Atienza did nothing. Plaintiff filed a staff

12

complaint against Atienza. Atienza told plaintiff that he was not going to get any pain medication

13

from Atienza because of the staff complaint. Plaintiff alleges that these actions constituted

14

retaliation for the filing of the staff complaint. (ECF No. 74 at 12-13.)

15

Finally, plaintiff alleges defendant Bhatia became his primary care physician in November

16

2017. Plaintiff told Bhatia about his significant pain and “cried out for help,” but Bhatia told

17

plaintiff to “get use [to] it because you don’t get anything from me while on my unit.” Plaintiff

18

further complains that when he asked for help transferring from his bed to his wheelchair, Bhatia

19

directed staff not to help him, stating that plaintiff could “do it by himself.” Plaintiff contends

20

this was done in retaliation for filing the present lawsuit. (ECF No. 74 at 13-14.)

21

Plaintiff alleges he suffers pain for a variety of reasons. He has chronic low back pain

22

after a 1995 auto accident. He suffered strokes in 2012 and 2014. He has problems with his left

23

hip. And he has carpal tunnel syndrome in his right hand. (ECF No. 74 at 14.)

24
25

Plaintiff seeks injunctive relief in the form of adequate pain medication and compensatory
and punitive damages. (ECF No. 74 at 18.)

26

II.

Does Plaintiff State Claims Cognizable under Section 1983?

27

Where a prisoner's Eighth Amendment claim arises in the context of medical care, the

28

prisoner must allege and prove “acts or omissions sufficiently harmful to evidence deliberate
3

1

indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). An Eighth

2

Amendment medical claim has two elements: “the seriousness of the prisoner's medical need and

3

the nature of the defendant's response to that need.” McGuckin v. Smith, 974 F.2d 1050, 1059

4

(9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th

5

Cir. 1997) (en banc).

6

A medical need is serious “if the failure to treat the prisoner's condition could result in further

7

significant injury or the ‘unnecessary and wanton infliction of pain.’” McGuckin, 974 F.2d at

8

1059 (quoting Estelle, 429 U.S. at 104). If a prisoner establishes the existence of a serious

9

medical need, he must then show that prison officials responded to the serious medical need with

10

deliberate indifference. See Farmer v. Brennan, 511 U.S. 825, 834 (1994). In general, deliberate

11

indifference may be shown when prison officials deny, delay, or intentionally interfere with

12

medical treatment, or may be shown by the way in which prison officials provide medical care.

13

Hutchinson v. United States, 838 F.2d 390, 393-94 (9th Cir. 1988).

14

In his current complaint, plaintiff fails to sufficiently allege a claim against defendant

15

Hlaing. While the court can infer that the serious medical need plaintiff references is his pain,

16

plaintiff fails to explain just what Hlaing did or did not do. Further, to the extent plaintiff alleges

17

Hlaing, and the other defendants, had some sort of supervisory role over other medical staff at

18

CHCF, that fact does not state a claim for deliberate indifference. See Fayle v. Stapley, 607 F.2d

19

858, 862 (9th Cir. 1979) (supervisory personnel are generally not liable under § 1983 for the

20

actions of their employees; a causal link between the supervisor and the claim constitutional

21

violation must be shown). To the extent plaintiff is alleging Hlaing violated a constitutional right

22

by humiliating him, plaintiff is advised that threats, harassment, and humiliation do not state a

23

claim under § 1983. See Rutledge v. Arizona Bd. of Regents, 660 F.2d 1345, 1353 (9th Cir.

24

1981), aff'd sub nom., Kush v. Rutledge, 460 U.S. 719 (1983). Plaintiff fails to state a cognizable

25

claim against defendant Hlaing.

26

Plaintiff’s allegations against defendant Monk are only that Monk withheld narcotic pain

27

medication. Plaintiff does not explain why he required narcotic pain medication. He does not

28

have the right to dictate what medications he will be prescribed. See Stiltner v. Rhay, 371 F.2d
4

1

420, 421 n.3 (9th Cir. 1967); Peacock v. Horowitz, No. 2:13-cv-2506 TLN AC P, 2016 WL

2

3940346, at *7 (E.D. Cal. July 21, 2016). “[A] plaintiff's showing of nothing more than ‘a

3

difference of medical opinion’ as to the need to pursue one course of treatment over another [is]

4

insufficient, as a matter of law, to establish deliberate indifference.” Jackson v. McIntosh, 90

5

F.3d 330, 332 (citing Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989)). Plaintiff fails to state a

6

claim for deliberate indifference against defendant Monk.
Plaintiff’s allegations against defendants Atienza and Bhatia are more detailed. He states

7
8

that he informed both defendants about his pain and both refused to help him. Plaintiff has

9

alleged minimally sufficient deliberate indifference claims against defendants Atienza and Bhatia.
The court finds plaintiff’s allegations that Atienza refused him medication in retaliation

10
11

for plaintiff’s filing a staff complaint against him is also sufficient to state a First Amendment

12

retaliation claim. See Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005). However,

13

plaintiff does not state a retaliation claim against defendant Bhatia. He fails to show that Bhatia’s

14

statement that plaintiff was able to transfer himself from his bed to his wheelchair was made in

15

retaliation for the present lawsuit. In fact, plaintiff fails to show that Bhatia was even aware of

16

this case. Plaintiff also fails to show Bhatia’s statement was sufficiently injurious as to constitute

17

an “adverse action.” See Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) (harm resulting

18

from retaliation must be “more than minimal”).

19

III.

No Leave to Amend

20

As indicated above, plaintiff is proceeding on his Fourth Amended Complaint. The court has

21

provided plaintiff with the legal standards that govern the constitutional claims he is attempting to

22

assert in this action and has given him multiple opportunities to cure the defects of his complaint.

23

Plaintiff filed this action in 2015. He has finally stated some cognizable claims against some

24

defendants. At this point, dismissal without further leave to amend is appropriate. See Lipton v.

25

Pathogenesis Corp., 284 F.3d 1027, 1039 (9th Cir. 2002) (“Because any amendment would be

26

futile, there was no need to prolong the litigation by permitting further amendment.”).

27

////

28

////
5

1
2

MOTION FOR APPOINTMENT OF COUNSEL
Plaintiff seeks the appointment of counsel. (ECF No. 76.) He alleges that he is unable to

3

afford counsel; the issues in his case are complex; he has difficulty “to get around” due to his

4

medical issues; he has been unsuccessful in finding an attorney to help him; and he has little

5

knowledge of the law.

6

The United States Supreme Court has ruled that district courts lack authority to require

7

counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490

8

U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the

9

voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d

10

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

11

The test for exceptional circumstances requires the court to evaluate the plaintiff’s

12

likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in

13

light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328,

14

1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances

15

common to most prisoners, such as lack of legal education and limited law library access, do not

16

establish exceptional circumstances that would warrant a request for voluntary assistance of

17

counsel. In the present case, the court does not find the required exceptional circumstances.

18

Accordingly, IT IS HEREBY ORDERED as follows:

19

1. Plaintiff’s motion for leave to amend the complaint (ECF No. 78) is granted.

20

2. Service is appropriate for the following defendants: Atienza and Bhatia.

21

3. The Clerk of the Court shall send plaintiff two USM-285 forms, one summons, an

22

instruction sheet and a copy of the Fourth Amended Complaint filed July 12, 2018

23

(ECF No. 74.)

24
25

4. Within thirty days from the date of this order, plaintiff shall complete the attached
Notice of Submission of Documents and submit the following documents to the court:

26

a. The completed Notice of Submission of Documents;

27

b. One completed summons;

28

c. One completed USM-285 form for each defendant listed in number 2 above;
6

1

and

2

d. Three copies of the endorsed complaint filed July 12, 2018.

3

5. Plaintiff need not attempt service on defendants and need not request waiver of service.

4

Upon receipt of the above-described documents, the court will direct the United States Marshal to

5

serve the above-named defendants pursuant to Federal Rule of Civil Procedure 4 without payment

6

of costs.

7

6. Plaintiff’s motion for the appointment of counsel (ECF No. 76) is denied.

8

7. The document filed here on August 3, 2018 and identified in the docket as “Fifth

9

Amended Complaint” is stricken. It is simply a second, and incomplete, copy of plaintiff’s

10

Fourth Amended Complaint.
Further, IT IS RECOMMENDED that plaintiff’s claims against defendants Hlaing and

11
12

Monk be dismissed.

13

These findings and recommendations will be submitted to the United States District Judge

14

assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

15

after being served with these findings and recommendations, either party may file written

16

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

17

Findings and Recommendations.” The parties are advised that failure to file objections within the

18

specified time may result in waiver of the right to appeal the district court’s order. Martinez v.

19

Ylst, 951 F.2d 1153 (9th Cir. 1991).

20

Dated: October 25, 2018

21
22
23
24

DLB:9
DB/prisoner-civil rights/juar1996.4ac scrn

25

/1

26
27
28
7

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

JOSE JUAREZ,

12
13
14

No. 2:15-cv-1996 JAM DB P
Plaintiff,

v.

NOTICE OF SUBMISSION

M. HLAING, et al.,

15

Defendants.

16
17
18

Plaintiff submits the following documents in compliance with the court's order filed
_____________________:

19

____

completed summons form

20

____

completed USM-285 forms

21

____

copies of the ___________________
Complaint

22
23

DATED:

24
25

________________________________
Plaintiff’s Signature

26
27
28
1