(PC) McCoy v. Massey et al

Filing 25

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 1/107/22 RECOMMENDING that this case proceed on Claim One of the Third Amended Complaint against defendants Massey and Canello only; and all other claims and defendants be dismissed pursuant to 28 U.S.C. § 1915A. Referred to Judge William B. Shubb. Objections due within 14 days.(Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JASON MCCOY,

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Plaintiff,

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No. 2:18-cv-2180 WBS AC P

v.

FINDINGS AND RECOMMENDATIONS

SKY MASSEY, et al.,

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Defendants.

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Plaintiff, a state prisoner proceeding pro se, seeks relief under 42 U.S.C. § 1983. The case

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is referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local

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Rule 302. The Third Amended Complaint, ECF No. 23, is now before the court for screening.

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Two previous versions of the complaint were screened and found not to state a claim for relief;

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plaintiff has twice been granted leave to amend. ECF Nos. 14, 17. For the reasons explained

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below, the undersigned recommends that this case proceed on Claim One of the Third Amended

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Complaint against defendants Massey and Canello only, and that all other claims and defendants

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be dismissed.

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I.

SCREENING REQUIREMENT
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

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“frivolous, malicious, or 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).

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A claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.”

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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th

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Cir. 1984). “[A] judge may dismiss . . . claims which are ‘based on indisputably meritless legal

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theories’ or whose ‘factual contentions are clearly baseless.’” Jackson v. Arizona, 885 F.2d 639,

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640 (9th Cir. 1989) (quoting Neitzke, 490 U.S. at 327), superseded by statute on other grounds as

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stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). The critical inquiry is whether a

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constitutional claim, however inartfully pleaded, has an arguable legal and factual basis.

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Franklin, 745 F.2d at 1227-28 (citations omitted).
“Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the

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claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of

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what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550

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U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

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“Failure to state a claim under § 1915A incorporates the familiar standard applied in the context

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of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Wilhelm v. Rotman,

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680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). In order to survive dismissal for failure

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to state a claim, a complaint must contain more than “a formulaic recitation of the elements of a

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cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the

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speculative level.” Twombly, 550 U.S. at 555 (citations omitted). “‘[T]he pleading must contain

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something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally

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cognizable right of action.’” Id. (alteration in original) (quoting 5 Charles Alan Wright & Arthur

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R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)).

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“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to

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relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

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Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual

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

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misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In reviewing a complaint under this
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standard, the court must accept as true the allegations of the complaint in question, Hosp. Bldg.

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Co. v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976) (citation omitted), as well as construe the

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pleading in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor,

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Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (citations omitted).

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II.

THE THIRD AMENDED COMPLAINT

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Plaintiff brings suit against twelve defendants, eight of whom are members of the medical

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staff at Mule Creek State Prison, three of whom are doctors at San Joaquin General Hospital, and

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one of whom is a correctional officer at MCSP. ECF No. 23 at 1-2. The Third Amended

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Complaint presents five claims, all alleging deliberate indifference to plaintiff’s serious medical

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needs, and all arising from the aftermath of an inmate assault on plaintiff on March 17, 2018,

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which broke plaintiff’s jaw. Plaintiff alleges in sum as follows.

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Claim One is stated against MCSP defendants Massey, a nurse; Canello, a correctional

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officer; and Horowitz, a doctor. Immediately following the assault plaintiff was taken to the

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Triage Treatment Area (TTA) and seen by Nurse Massey. Plaintiff realized from past experience

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that his jaw was broken. Plaintiff told Massey that his jaw was broken in the location of a

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previous fracture, that he was in extreme pain, and that he needed an x-ray, to see a doctor, and to

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be given pain medicine. These are “required” procedures when a broken bone is suspected.

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Defendant Massey failed to provide these things after being told by Officer Canello to only treat

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plaintiff for swelling. Officer Canello said that if Massey diagnosed a broken bone, they would

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have to write up the other inmate for assault which custody staff did not want to do “because the

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other inmate had did them a favor by assaulting [plaintiff].” Massey then ordered plaintiff

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returned to his cell. Thirteen hours later, plaintiff was returned to the TTA with even worse

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swelling and pain. RN Massey finally agreed to consult the on-call doctor and have plaintiff sent

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to an outside hospital for evaluation and treatment. Plaintiff claims that Massey delayed

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medically necessary evaluation and treatment, and that Dr. Horowitz, the on-call physician, had a

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duty to evaluate plaintiff personally rather than just relying on Massey’s report and sending him

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to SJGH on that basis. These actions caused plaintiff unnecessary pain and suffering util he

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received fentanyl at the hospital thirteen hours after the assault. His pain was so severe that he
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needed two doses of fentanyl. ECF No. 23 at 4-9.

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Claim Two is brought against SJGH doctors Willett, Kelly, and Lerokamos and Dr.

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Horowitz of MCSP. Plaintiff alleges in sum that these doctors consulted with each other and

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collectively agreed, after plaintiff’s fracture had been diagnosed by CT scan and he was provided

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pain medication, to return him to the prison without surgically stabilizing his jaw. Plaintiff

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alleges that broken jaws are “typically” stabilized to prevent further damage, and that the

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defendants’ failure to do so caused him extreme pain and unspecified permanent damage. Id. at

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10-11.

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Claim Three is brought against MCSP nurse Saini and the unnamed doctor who was on-

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call for the Triage Treatment Area on March 20, 2018. Plaintiff alleges that he was returned to

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MCSP from the hospital with instructions to prison staff to notify SJGH doctors if his condition

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worsened. On March 20, plaintiff felt his jaw “snap” when he yawned, and realized that it had

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“fractured further.” He went to the clinic and was seen by LVN Pelayo, who spoke to RN Saini

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about whether plaintiff should come to triage for immediate attention. Defendant Saini consulted

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with the on-call doctor and reported back that staff were aware of plaintiff’s condition, and that if

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he wanted to be seen again he should submit a request for treatment form and someone would get

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back to him in 24-48 hours. On March 21 plaintiff was finally seen by a dentist, DDS Francis,

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and dental x-rays revealed additional fractures to his jaw. These were caused by the failure to

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stabilize the fracture. As a result, plaintiff experienced extreme pain and unspecified permanent

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damage. Id. at 12-14.

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Claim Four is brought against MCSP doctors Horowitz and Smith (the Chief Medical

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Examiner), Rudas, and Matharu; MCSP dentist Francis; and SJGH doctors Willett, Kelly, and

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Lerokamos. Plaintiff alleges that his jaw injury should have been treated from the outset by an

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oral surgeon, but that MCSP had him initially treated at SJGH by an ENT doctor. When plaintiff

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was eventually seen at MCSP by DDS Francis, both his original injury and the subsequent

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damage from defendants’ failure to stabilize were identified as dental issues but plaintiff was

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again sent to triage for care by a medical doctor (Dr. Rudas) and not an oral surgeon. It was

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MCSP’s policy to send inmates with dental injuries to ENTs to save money. This caused plaintiff
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extreme pain and unspecified permanent damage. Id. at 15-17.

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Claim Five is brought against the following MCSP defendants: CME Smith; doctors

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Rudas, Matharu, and Horowitz; and nurses Saini and Rana. Plaintiff alleges that he was returned

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to MCSP from SJGH with orders that he receive a liquid diet. It was the specified defendants’

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duty to ensure that he received the ordered liquid diet, but he did not get it until March 21, 2018.

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Plaintiff repeatedly told defendants that he could not chew and had orders for a liquid diet. Id. at

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III.

EIGHTH AMENDMENT STANDARDS

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To state a § 1983 claim for violation of the Eighth Amendment based on inadequate

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medical care, a plaintiff must allege “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). To prevail,

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plaintiff must show both that his medical needs were objectively serious, and that defendants

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possessed a sufficiently culpable state of mind. Wilson v. Seiter, 501 U.S. 294, 299 (1991). A

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serious medical need exists if the failure to treat a prisoner’s condition could result in further

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significant injury or the unnecessary and wanton infliction of pain. See Wood v. Housewright,

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900 F. 2d 1332, 1337-41 (9th Cir. 1990). The requisite state of mind is “deliberate indifference.”

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Hudson v. McMillian, 503 U.S. 1, 4 (1992).

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In Farmer v. Brennan, 511 U.S. 825 (1994), the Supreme Court established a very strict

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standard which a plaintiff must meet in order to establish “deliberate indifference.” Negligence

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and even recklessness are insufficient. Farmer, 511 U.S. at 835, 836-37. Neither is it sufficient

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that a reasonable person would have known of the risk or that a defendant should have known of

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the risk. Id. at 842. A prison official acts with deliberate indifference only if he subjectively

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knows of and disregards an excessive risk to inmate health and safety. Toguchi v. Chung, 391

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F.3d 1051, 1057 (9th Cir. 2004).

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IV.

CLAIM FOR WHICH A RESPONSE IS REQUIRED
As amended, Claim One includes sufficient factual allegations to state a deliberate

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indifference claim against Nurse Massey and Officer Canello. Construed liberally and assumed

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to be true, plaintiff’s allegations show that Massey knew that there was reason to believe
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plaintiff’s jaw had been broken and that he was in excruciating pain, but failed to take immediate

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action to address this emergency because of Officer Canellos’ expressed hostility to plaintiff. The

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allegations are also sufficient to support the inference that Officer Canello deliberately interfered

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in plaintiff’s medical care with disregard for his serious condition, which can support liability on

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the part of custodial staff as well as medical personnel. See Estelle, 429 U.S. at 104-105.

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Accordingly, the Third Amended Complaint should be served on defendants Massey and Canello

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and they should be required to respond to Claim One.

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V.

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FAILURE TO STATE A CLAIM
Claim One fails to state a claim against Dr. Horowitz. There are no factual allegations

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which would support a conclusion that she was subjectively aware that plaintiff urgently required

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x-rays or immediate transport to an outside hospital when he was first brought to the TTA, and

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that her alleged failure to act was accompanied by a culpable state of mind. She is not alleged to

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have been influenced by custody staff as Nurse Massey was. Plaintiff’s allegations that Dr.

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Horowitz violated her “duty” to independently examine him, rather than relying on Nurse

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Massey’s verbal report, suggests only negligence or medical malpractice, which are not

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actionable under § 1983 and the Eighth Amendment. See Broughton v. Cutter Laboratories, 622

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F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 105-06); see also Toguchi, 391 F.3d at

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1057.

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Claims Two (failure to surgically stabilize jaw) and Four (treatment by M.D.s rather than

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by an oral surgeon) are fundamentally predicated on plaintiff’s difference of opinion with medical

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professionals about the treatment that was appropriate for him. Such differences of opinion fail to

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state an Eighth Amendment claim as a matter of law. Jackson v. McIntosh, 90 F.3d 330 (9th Cir.

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1996). Moreover, there are no concrete factual allegations as to any defendants named in these

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claims that demonstrate any of them acted with the requisite culpable state of mind. Negligence

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and malpractice are insufficient as a matter of Eighth Amendment jurisprudence, Broughton, 622

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F.2d at 460; conclusory allegations as to an element of liability are insufficient as a matter of

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applicable pleading standards, Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

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Accordingly, Claims Two and Four fail to state viable claims for relief.
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To the extent that Claim Three (involving plaintiff’s experience of a “snap” while

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yawning, allegedly demonstrating a further jaw fracture in the days after his return to the prison)

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is based on harm from the failure of SJGH doctors1 to surgically stabilize plaintiff’s jaw, it does

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not state a claim for the same reason as Claim Two. To the extent that Claim Three seeks to

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impose liability for the delay of follow-up medical care after plaintiff reported feeling the “snap”

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on March 20, 2018, the claim fails because there are no facts showing a deliberately indifferent

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state of mind on the part of any defendant, or identifying concrete injury from the delay. See

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Hallett v. Morgan, 296 F.3d 732, 745-46 (9th Cir. 2002) (to establish deliberate indifference

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arising from delay in providing care, plaintiff must show that the delay itself was harmful); see

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also Berry v. Bunnell, 39 F.3d 1056, 1057 (9th Cir. 1994); McGuckin v. Smith, 974 F.2d 1050,

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1059 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir. 1990); Hunt v. Dental

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Dep’t, 865 F.2d 198, 200 (9th Cir. 1989); Shapley v. Nevada Bd. of State Prison Comm’rs, 766

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F.2d 404, 407 (9th Cir. 1985).

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Finally, Claim Five (denial of liquid diet) fails for several reasons. First, plaintiff has

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previously been informed that more facts were needed to show a denial of nutrition significant

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enough to implicate constitutional standards. See Foster v. Runnels, 554 F.3d 807, 812-813 (9th

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Cir. 2009) (finding that denial of 16 meals over 23 days constitutes a serious deprivation within

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the meaning of the Eighth Amendment). The Third Amended Complaint specifies that plaintiff

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did not receive canned “Boost” nutrition drinks until March 21, but plaintiff has again failed to

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specify what foods were in fact provided to him. The availability of soft foods could have made

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the 2-3 day absence of a completely liquid diet constitutionally permissible; plaintiff has not

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presented facts from which the seriousness of the alleged deprivation can be assessed. Even if the

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court were to assume a serious deprivation, however, plaintiff’s allegations do not identify actions

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of any particular named defendant that caused it. Under § 1983, liability lies only for actions that

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cause a constitutional violation. See Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).

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Because of the other problems with plaintiff’s claims, it is unnecessary to consider whether the
SJGH defendants were acting under color of State law as required for § 1983 liability. See West
v. Atkins, 487 U.S. 42, 58 (1988); Lopez v. Dep’t of Health Servs., 939 F.2d 881 (9th Cir. 1991)
(per curiam).
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General allegations that medical personnel were responsible by virtue of their positions for

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ensuring plaintiff’s nutrition are insufficient to support liability. See Iqbal, 556 U.S. at 676 (no

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respondeat superior liability under § 1983). Individual officials cannot be liable on the theory

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that something went wrong on their watch, but only if their own actions or omissions caused the

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constitutional violation. See Starr v. Baca, 652 F.3d 1202, 1205-06 (9th Cir. 2011). Plaintiff’s

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allegations that the defendants breached their professional duties to ensure his health and safety

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sound in negligence; they do not support an Eighth Amendment violation. For all these reasons,

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the allegations of Claim Five fail to state a claim for relief.

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VI.

FURTHER LEAVE TO AMEND IS NOT APPROPRIATE
Leave to amend need not be granted when amendment would be futile. Hartmann v.

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CDCR, 707 F.3d 1114, 1130 (9th Cir. 2013). A history of failure to cure deficiencies supports

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denial of further leave to amend. See Foman v. Davis, 371 U.S. 178, 182 (1962). Plaintiff has

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twice been informed of the legal standards governing Eighth Amendment deliberate indifference

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claims, the principles governing liability under 42 U.S.C. § 1983, and applicable pleading

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standards. With his Third Amended Complaint, he has succeeded in stating a claim against

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defendants Massey and Canello for the initial delayed response to his broken jaw. However, it

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appears from the history of amendments in this case that plaintiff has now presented all the facts

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known to him and his amendments have not resulted in any additional viable claims. The

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undersigned concludes that further leave to amend would be futile.

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CONCLUSION

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In accordance with the above, IT IS HEREBY RECOMMENDED that:

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1. This case proceed on Claim One of the Third Amended Complaint against defendants

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Massey and Canello only; and

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2. All other claims and defendants be dismissed pursuant to 28 U.S.C. § 1915A.

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These findings and recommendations are 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 (14)

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

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objections with the court and serve a copy on all parties. Such a document should be captioned
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“Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that

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failure to file objections within the specified time may waive the right to appeal the District

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Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: January 7, 2022

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