Garcia v. Greenleaf et al

Filing 9

ORDER signed by Magistrate Judge Deborah Barnes on 3/24/2017 GRANTING plaintiff's 7 application to proceed IFP. Plaintiff shall pay the $350.00 filing fee in accordance with the concurrent CDCR order. Plaintiff's claims against the following defendants are DISMISSED with leave to amend: Lipton, Rouer, OT Smith, POC, Lankford, Woodward, Ludlow, and Does 1-20. If plaintiff chooses to amend the complaint, he shall file a first amended complaint within 30 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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BRANDON MICHAEL GARCIA,

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No. 2:16-cv-0269 DB P

Plaintiff,
v.

ORDER

DELMAR GREENLEAF, et al.,
Defendants.

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Plaintiff is a state prisoner, represented by counsel, who has filed a civil rights action

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under 42 U.S.C. § 1983. Plaintiff’s alleges defendants were deliberately indifferent to his

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medical needs in violation of the Eighth Amendment. His complaint is before the court for

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screening. Also before the court is plaintiff’s application to proceed in forma pauperis. For the

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reasons set forth below, the court will grant the motion to proceed in forma pauperis, and finds

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the complaint states potentially cognizable claims against only defendants Greenleaf, Abdur-

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Rahman, and Jones. Plaintiff will be permitted to amend the complaint.

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IN FORMA PAUPERIS

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Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. §

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1915(a). Accordingly, the request to proceed in forma pauperis will be granted.
Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§
1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in
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accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct

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the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and

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forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments

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of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account.

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These payments will be forwarded by the appropriate agency to the Clerk of the Court each time

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the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. §

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1915(b)(2).

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SCREENING

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I.

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Legal Standards

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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II.

Allegations of the Complaint

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Plaintiff is incarcerated at High Desert State Prison (“HDSP”) in Susanville, California.

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Plaintiff identifies the following defendants: (1) Dr. Delmar Greenleaf; (2) Dr. Randall Lankford;

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(3) Dr. Salahuddin Abdur-Rahman; (4) C. Lipton, R.N.; (5) L. Jones, R.N.; (6) Rouer, R.N.;1(7)

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Woodward, R.N.; (8) Dr. Paul Ludlow; (9) “POC,” an unknown medical provider; (10) “OT

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Smith,” an unknown medical provider and/or employee; and (11) Does 1 through 20. All

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defendants are employees of the California Department of Corrections and Rehabilitation

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(“CDCR”) at HDSP, with the exception of Dr. Ludlow, who provides medical care as an Ear,

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Nose, and Throat Specialist (“ENT”) for prisoners at HDSP under contract with CDCR. (Compl.

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(ECF No. 1) ¶¶ 6-16.)

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Plaintiff alleges that on December 14, 2014, he was involved in an altercation on the yard at
HDSP. As a result of the altercation, plaintiff suffered injury to the left side of his face. Plaintiff

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This defendant is also identified in the complaint as “Roeur.”
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contends that due to delays by defendants in treating his injuries, he was unable to have surgery

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because his bones had started to heal in the wrong place. As a result, plaintiff has a permanent

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deformity to his face, nerve damage, migraines, and constant and chronic pain on the left side of

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his face and his left eye.

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III.

Does Plaintiff state a Cognizable Eighth Amendment Claim?

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A. Eighth Amendment Standards

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In order to state a claim under the Eighth Amendment regarding medical care, plaintiff

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must allege and prove that he suffered a sufficiently serious deprivation (the objective prong of

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the claim) and that officials acted with deliberate indifference in allowing or causing the

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deprivation to occur (the subjective prong of the claim). Wilson v. Seiter, 501 U.S. 294, 298-99

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(1991). Thus, when a prisoner’s Eighth Amendment claim arises in the context of medical care,

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

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

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Eighth Amendment medical claim, then, states two elements: “the seriousness of the prisoner’s

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medical need and the nature of the defendant’s response to that need.” McGuckin v. Smith, 974

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F.2d 1050, 1059 (9th Cir. 1991), overruled on other grounds by WMX Techs., Inc. v. Miller, 104

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F.3d 1133 (9th Cir. 1997) (en banc).

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

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further significant injury or the ‘unnecessary and wanton infliction of pain.’” McGuckin, 974

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F.2d at 1059 (quoting Estelle, 429 U.S. at 104). Indications of a serious medical need include

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“the presence of a medical condition that significantly affects an individual’s daily activities.” Id.

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at 1059-60. By establishing the existence of a serious medical need, a prisoner satisfies the

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objective requirement for proving an Eighth Amendment violation. Farmer v. Brennan, 511 U.S.

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825, 834 (1994).

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If a prisoner establishes the existence of a serious medical need, he must then show that

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prison officials responded to it with deliberate indifference. Farmer, 511 U.S. at 834. In general,

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a prisoner may show deliberate indifference with evidence that officials denied, delayed, or

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intentionally interfered with medical treatment, or he may show it by the way in which prison
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officials actively provided medical care. Hutchinson v. United States, 838 F.2d 390, 393-94 (9th

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Cir. 1988). Before it can be said that a prisoner’s civil rights were violated by inadequate medical

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care, however, “the indifference to his medical needs must be substantial. Mere ‘indifference,’

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‘negligence,’ or ‘medical malpractice’ will not support this cause of action.” Broughton v. Cutter

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Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 105-06). See also

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Toguchi v. Soon Hwang Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (“Mere negligence in

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diagnosing or treating a medical condition, without more, does not violate a prisoner’s Eighth

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Amendment rights.”); McGuckin, 974 F.2d at 1059 (same). Deliberate indifference is “a state of

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mind more blameworthy than negligence” and “requires ‘more than ordinary lack of due care for

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the prisoner’s interests or safety.’” Farmer, 511 U.S. at 835 (quoting Whitley v. Albers, 475 U.S.

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312, 319 (1986)).

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B. Analysis

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1.

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Plaintiff Fails to State Potentially Cognizable Claims against Some Defendants

Most of plaintiff’s allegations do not rise to the level of deliberate indifference. Plaintiff even

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characterizes what happened as a “multiple series of oversights.” (Compl. ¶ 53.) Plaintiff’s

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allegations against the following defendants are insufficient to state Eighth Amendment claims.

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Accordingly, the court will dismiss plaintiff’s claims against those defendants and give plaintiff

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leave to amend.

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Plaintiff alleges that defendants Lipton and Rouer were the first people to see him after his

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injuries. He states that they telephoned “POC,” who instructed them to provide saw him

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Ibuprofen and ice packs and told him to return the following day. (Id. ¶¶ 20-22.) Plaintiff also

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alleges Lipton took him to the Correctional Treatment Center (“CTC”) for x-rays. Plaintiff does

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not show that these defendants did anything besides follow instructions. This is insufficient to

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plead deliberate indifference on their part.

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Similarly, plaintiff’s allegations against defendant “OT Smith” are simply that Smith

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attempted to make an appointment for plaintiff with Dr. Ludlow. (Id. ¶¶ 39, 40.) That simple

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task does not demonstrate deliberate indifference on the part of Smith to plaintiff’s serious

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medical needs.
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With respect to defendant “POC,” plaintiff does not allege what POC was told nor does

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plaintiff allege that POC’s instructions to the nurses were unacceptable medical advice under the

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circumstances. (Id. ¶ 22.) Plaintiff’s allegations against POC are insufficient to state an Eighth

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Amendment claim.
Plaintiff’s allegations against defendant Dr. Lankford are also insufficient. Plaintiff alleges

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that Dr. Lankford added two notes to plaintiff’s medical record – one indicating that plaintiff was

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scheduled for surgery and the second indicating the surgery was rescheduled. (Id. ¶¶ 34, 35.)

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Plaintiff also alleges generally that Lankford was “aware of plaintiff’s medical condition and the

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need for plaintiff to see an ENT specialist.” (Id. ¶ 54; see also id. ¶ 60.) However, plaintiff does

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not allege any facts showing what defendant Lankford knew about his injuries or otherwise how

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Lankford acted with deliberate indifference to plaintiff’s serious medical needs. Accordingly,

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plaintiff’s claims against defendant Lankford will also be dismissed from this action.

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Plaintiff’s only allegation against defendant Nurse Woodward is that Woodward, along with

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Greenleaf, signed the medical notes written upon plaintiff’s return from the emergency room the

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day after he sustained his injuries. (Id. ¶ 28.) This is insufficient to show Woodward acted, or

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failed to act, with deliberate indifference.
Plaintiff’s allegations against defendant Dr. Ludlow are unclear. Plaintiff cites medical record

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notes in which some prison staff wrote that Ludlow’s office had lost the records of plaintiff’s x-

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ray and CT scan, that Ludlow or his office informed the prison that plaintiff’s appointment with

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him was not “Urgent or Emergent,” and that Ludlow apparently was slow to review plaintiff’s

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records and schedule an appointment. (Id. ¶¶ 38-40, 42-44.) However, any allegation that Dr.

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Ludlow was responsible for delay is belied by plaintiff’s allegation that when he saw Ludlow on

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February 10, 2015, Ludlow expressed surprise that it had taken the prison so long to get plaintiff

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to him. (Id. ¶ 46.) On the facts alleged, the court finds plaintiff has failed to state a potentially

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cognizable claim of deliberate indifference against defendant Ludlow.

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2. Plaintiff States Potentially Cognizable Claims against Greenleaf, AbdurRahman, and Jones
Plaintiff’s allegations against the remaining defendants are sufficient, at the screening stage,

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to state potentially cognizable claims for a violation of plaintiff’s Eighth Amendment rights.

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Plaintiff shows that defendant Greenleaf was aware, two days after plaintiff sustained his injuries,

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that plaintiff needed to see an ENT on an “emergent” basis. (Id. ¶ 29.) Plaintiff also shows that

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defendant Abdur-Rahman was aware that day that plaintiff was “awaiting emergent ENT

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evaluation which is supposed to occur today.” (Id. ¶ 31.) Both Drs. Greenleaf and Abdur-

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Rahman either saw plaintiff or added notes to his medical records at least twice thereafter. (Id. ¶¶

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32, 37, 42, 45.) They appeared to recognize the need for plaintiff to be seen by an ENT.

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However, plaintiff did not see an ENT until February 10, 2015, at which time he was told it was

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too late for surgery because his bones had started to heal. (Id. ¶ 46.)

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Plaintiff’s allegations against defendant Nurse Jones are also minimally sufficient to state a

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claim. Plaintiff shows Jones made numerous entries in plaintiff’s medical record that

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demonstrate Jones’ knowledge that plaintiff needed to see an ENT as quickly as possible.

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Plaintiff also alleges that Jones falsified information in his medical records to make it appear that

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they delay sending plaintiff to an ENT was attributable to Dr. Ludlow. (Id. ¶¶ 38-41.)

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3.

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Plaintiff names twenty Doe defendants who he identifies as employees of HDSP. There is

Doe Defendants

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no provision in the Federal Rules of Civil Procedure for including unnamed defendants in a

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complaint. The use of Does in pleading practice is generally disfavored – but it is not prohibited.

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See Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980); Wakefield v. Thompson, 177 F.3d

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1160, 1163 (9th Cir. 1999); Lopes v. Viera, 543 F. Supp.2d 1149, 1152 (E.D. Cal. 2008).

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However, plaintiff must allege facts showing when, where, and how each Doe defendant violated

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his constitutional rights. See Addis v. Ariz. Dept. of Corrs., No. CV14-1115-PHX-DGC, 2015

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WL 875233, at *3 (D. Ariz. Mar. 2, 2015). Plaintiff makes no allegations about what the Doe

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defendants have done. Therefore, plaintiff’s claims against the Doe defendants will be dismissed.

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For the foregoing reasons, IT IS HEREBY ORDERED as follows:

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1. Plaintiff’s application to proceed in forma pauperis (ECF No. 7) is granted;

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2. Plaintiff’s claims against the following defendants are dismissed with leave to amend:

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Lipton, Rouer, OT Smith, POC, Lankford, Woodward, Ludlow, and Does 1-20.

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3. If plaintiff chooses to amend the complaint, he shall file a first amended complaint

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within thirty days of the filed date of this order.
Dated: March 24, 2017

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DLB:9
DLB1/prisoner-civil rights/garc0269.scrn

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