Hardwick v. California Department of Corrections and Rehabilitation et al.

Filing 26

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 7/3/2018 RECOMMENDING defendants' 21 motion to dismiss be granted; and plaintiff be given the opportunity to amend the complaint to cure the defects. Referred to Judge Troy L. Nunley; Objections to F&R due within 14 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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NICHOLAS KURT HARDWICK,

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No. 2:16-cv-0854 TLN DB P

Plaintiff,
v.

FINDINGS AND RECOMMENDATIONS

CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION, et al.,
Defendant.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in an action brought

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under 42 U.S.C. § 1983. Plaintiff claims defendants Dr. Leo and Dr. Newman were deliberately

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indifferent to his serious medical needs in violation of the Eighth Amendment. Plaintiff alleges

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defendants prescribed Sulindac without a companion prescription for Prilosec, which caused him

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to suffer from gastritis.

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Presently before the court is defendants’ fully briefed motion to dismiss. Defendants

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argue the complaint does not allege facts showing defendants failed to diagnose or treat an

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obvious injury, or that prescribing Sulindac without also prescribing Prilosec was medically

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unacceptable, and they are entitled to qualified immunity. (ECF No. 21.) For the reasons set

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forth below, the undersigned will recommend defendants’ motion to dismiss be granted and

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plaintiff be given leave to file an amended complaint.
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BACKGROUND
I.

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Allegations in the Complaint
Plaintiff is a state prisoner currently housed in the Male Community Reentry Program

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Butte, in Oroville California. (ECF No. 24.) While housed at Deuel Vocational Institution

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(“DVI”) plaintiff was prescribed Sulindac, a powerful nonsteroidal anti-inflammatory (“NSAID”)

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medication, by defendant doctors Leo and Newman. (ECF No. 1 at 1, 3.) Plaintiff claims that

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defendants’ failure to prescribe Prilosec along with Sulindac caused plaintiff to develop NSAID

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induced gastritis. (ECF No. 1 at 3.) Plaintiff states this violated his right to adequate medical

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care. (Id.)

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II.

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Procedural Background
Plaintiff initiated this action by filing a complaint on April 25, 2016. (ECF No. 1.) The

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court screened the complaint and found that for the limited purposes of §1915A screening,

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plaintiff stated cognizable claims against defendants Leo and Newman. (ECF No. 11 at 3.)

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Defendants Leo and Newman responded to the complaint by filing the present motion to dismiss

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pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 21.)

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STANDARD OF REVIEW
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for motions to dismiss for

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“failure to state a claim upon which relief can be granted.” “To survive a motion to dismiss, a

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complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is

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plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v.

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Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads

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factual content that allows the court to draw the reasonable inference that the defendant is liable

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for the misconduct alleged.” Id. The court must accept as true the allegations of the complaint,

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Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), and construe the pleading

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in the light most favorable to plaintiff, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se

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complaint must contain more than “naked assertion[s],” “labels and conclusions,” or “a formulaic

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recitation of the elements of a cause of action, supported by mere conclusory statements.” Iqbal,

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556 U.S. at 678.
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A motion to dismiss for failure to state a claim should not be granted unless it appears

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beyond doubt that the plaintiff can prove no set of facts in support of his claims which would

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entitle him to relief. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984) (citing Conley v.

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Gibson, 355 U.S. 41, 45-46 (1957)). Pro se pleadings are held to a less stringent standard than

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those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curium). The court

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must give a pro se litigant leave to amend his complaint “unless it determines that the pleading

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could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122,

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1127 (9th Cir. 2000) (quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995)). However,

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the court’s liberal interpretation of a pro se complaint may not supply essential elements of the

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claim that were not pled. Ivey v. Bd. Of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir.

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1982). In ruling on a motion to dismiss pursuant to Rule 12(b)(6), the court “may ‘generally

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consider only allegations contained in the pleadings, exhibits attached to the complaint, and

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matters properly subject to judicial notice.’” Outdoor Media Grp., Inc. v. City of Beaumont, 506

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F.3d 895, 899 (9th Cir. 2007) (citing Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007)).

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ANALYSIS
I.

Legal Standards Eighth Amendment—Deliberate Indifference
The Eighth Amendment prohibits the infliction of “cruel and unusual punishments.” U.S.

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Const. amend. VIII. “[T]he unnecessary and wanton infliction of pain constitutes cruel and

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unusual punishment” prohibited by the United States Constitution. Whitley v. Albers, 475 U.S.

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312, 319 (1986) (internal quotations and citations omitted). “Deliberate indifference to serious

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medical needs of prisoners constitutes the unnecessary and wanton infliction of pain proscribed

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by the Eighth Amendment.” Estelle v. Gamble, 429 U.S. 97, 104 (1976) (internal quotations and

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citations omitted).

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A determination of “deliberate indifference” involves an examination of two elements: the

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seriousness of the prisoner’s medical need and the nature of the defendant’s response to that need.

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McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds by WMX

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Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997). First, a “plaintiff must show a

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‘serious medical need’ by demonstrating that ‘failure to treat a prisoner’s condition could result in
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further significant injury or the unnecessary and wanton infliction of pain.’” Jett v. Penner, 439

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F.3d 1091, 1096 (9th Cir. 2006) (quoting McGuckin, 974 F.2d at 1059). Second, a plaintiff must

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show the defendant’s response to the need was deliberately indifferent. Id. This can be

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established by showing “(a) a purposeful act or failure to respond to a prisoner’s pain or possible

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medical need and (b) harm caused by the indifference.” Id.

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Inadvertent failure to provide adequate care or negligence in diagnosing or treating a

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medical condition is not sufficient to sustain an Eighth Amendment claim. Estelle, 429 U.S. at

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105. A difference of medical opinion does not amount to deliberate indifference. Sanchez v.

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Vild, 891 F.2d 240, 242 (9th Cir. 1989) (citing Randall v. Wyrick, 642 F.2d 304, 308 (8th Cir.

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1981)). A prisoner must allege acts or omissions sufficiently harmful to evidence deliberate

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indifference to serious medical needs. Estelle, 429 U.S. at 106.

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II.

Discussion
In the complaint, plaintiff claims defendants violated his right to adequate medical care by

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giving him Sulindac without a simultaneous prescription for Prilosec which caused him to

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develop NSAID induced gastritis. Plaintiff does not allege in his complaint or his opposition to

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the motion to dismiss that defendants Leo and Newman were aware of his reaction to Sulindac

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and denied or delayed treatment. Thus, he has not shown a purposeful act or failure to respond to

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his medical needs. See McGuckin v. Smith, 974 F.2d at 1059-60 (“A defendant must

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purposefully ignore or fail to respond to a prisoner’s pain or possible medical need in order for

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deliberate indifference to be established.”).

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Plaintiff claims in his opposition Dr. Leo prescribed Sulindac even though plaintiff

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informed him his pain had been adequately managed by Tramadol. (ECF No. 22 at 3.) Plaintiff

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further claims he was prescribed Prilosec and diagnosed with NSAID induced gastritis by Dr.

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Conannan after his transfer to Pleasant Valley State Prison. (Id. at 5.) However, plaintiff’s

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preference for Tramadol, his development of gastritis, and Dr. Conannan’s decision to

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discontinue Sulindac and prescribe Prilosec do not amount to deliberate indifference. A

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difference of opinion between an inmate and prison medical personnel, or between medical

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professionals, regarding appropriate diagnosis and treatment does not establish a deliberate
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indifference claim. Sanchez, 891 F.2d at 242; Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir.

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2004). To establish a difference of opinion rising to the level of deliberate indifference, plaintiff

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“must show that the course of treatment the doctors chose was medically unacceptable under the

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circumstances.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996).

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Plaintiff further argues in his opposition that defendants acted recklessly in prescribing

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Sulindac without also prescribing Prilosec. However, allegations of improper medical treatment

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do not amount to deliberate indifference. See Wood v. Housewright, 900 F.2d 1332, 1334 (9th

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Cir. 1990) (“While poor medical treatment will at a certain point rise to the level of constitutional

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violation, mere malpractice, or even gross negligence, does not suffice.”).
Plaintiff’s allegations fail to show that defendants denied or delayed treatment or that

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prescribing Sulindac without simultaneously giving him Prilosec was medically unacceptable.

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See McGuckin, 974 F.2d at 1059 (Deliberate indifference “may appear when prison officials

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deny, delay, or intentionally interfere with medical treatment or it may be shown by the way in

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which prison physicians provide medical care.”). Because the facts contained in the complaint do

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not show that defendants were deliberately indifferent, the court will recommend defendants’

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motion to dismiss be granted.

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III.

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Qualified Immunity
Defendants argue the court should grant their motion to dismiss because they are entitled

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to qualified immunity. However, because the court has recommended that plaintiff’s claim be

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dismissed, the court need not analyze defendants’ arguments regarding qualified immunity with

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respect to a claim which the court has found that plaintiff failed to allege a constitutional

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violation. See Cnty. of Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998) (“[T]he better

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approach to resolving cases in which the defense of qualified immunity is raised is to determine

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first whether the plaintiff has alleged the deprivation of a constitutional right at all.”); see also

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Saucier v. Katz, 533 U.S. 194, 201 (2001) (“If no constitutional right would have been violated

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were the allegations established, there is no necessity for further inquiries concerning qualified

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immunity.”).

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IV.

Leave to Amend
If the court finds that a complaint should be dismissed for failure to state a claim, the court

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has discretion to dismiss with or without leave to amend. Lopez, 203 F.3d at 1126-30. Leave to

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amend should be granted if it appears possible that the defects in the complaint could be

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corrected, especially if the plaintiff is pro se. Id. at 1130-31; see also Cato v. United States, 70

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F.3d 1103, 1106 (9th Cir. 1995) (“A pro se litigant must be given leave to amend his or her

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complaint, and some notice of its deficiencies, unless it is absolutely clear that the deficiencies of

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the complaint could not be cured by amendment.”) (citing Noll v. Carlson, 809 F.2d 1446, 1448

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(9th Cir. 1987)). Accordingly, plaintiff should be given the opportunity to amend the complaint.

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CONCLUSION

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Accordingly, IT IS HEREBY RECOMMENDED that defendants’ motion to dismiss

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(ECF No. 21) be granted. However, the court further recommends that plaintiff be given the

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opportunity to amend the complaint to cure the defects.

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These findings and recommendations will be 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 fourteen days

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after being served with these findings and recommendations, plaintiff may file written objections

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

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and Recommendations.” Plaintiff is advised that failure to file objections within the specified

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time may result in waiver of the right to appeal the district court’s order. Martinez v. Ylst, 951

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F.2d 1153 (9th Cir. 1991).

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Dated: July 3, 2018

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DLB:12
DLB1/orders/prisoner-civil rights/Rank1164.mtd

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