(PC) Schmaus v. Covello, et al.

Filing 13

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 7/19/2021 RECOMMENDING claims One and Three be dismissed for failure to state claims upon which relief may be granted; defendants Covello, Bal, Wong, Vaughn, and Gates be di smissed; and this action proceed solely on Claim Two, plaintiff's First Amendment retaliation claim against defendant Christopher Smith, a physician and surgeon at Mule Creek State Prison. Referred to Judge Kimberly J. Mueller; Objections to F&R due within 14 days. (Yin, K)

Case 2:20-cv-01356-KJM-AC Document 13 Filed 07/19/21 Page 1 of 4
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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JASON ERIC SCHMAUS,

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Plaintiff,

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v.

No. 2:20-cv-1356 KJM AC P

FINDINGS AND RECOMMENDATIONS

P. COVELLO, et al.,

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Defendants.

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Plaintiff, a state prisoner proceeding pro se and in forma pauperis, has filed this civil

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rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States

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Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On June 23, 2021, the undersigned screened plaintiff’s complaint and determined that it

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failed to state cognizable claims against certain named defendants. See generally ECF No. 10.

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Accordingly, plaintiff was instructed to inform the court within fourteen days whether he wished

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to amend the complaint or to proceed on the viable claims that had been identified therein. The

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fourteen-day period has ended, and plaintiff has not stated that he would like to amend the

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complaint. Therefore, for the reasons stated below, it will be recommended that certain

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defendants and the claims against them be dismissed so that plaintiff can proceed on the viable

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claim in this action.

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Case 2:20-cv-01356-KJM-AC Document 13 Filed 07/19/21 Page 2 of 4
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I.

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THE COMPLAINT
The complaint presents three claims against six defendants: Mule Creek State Prison

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(”MCSP”), Warden P. Covello; Chief Physician and Surgeon Christopher Smith; Chief Medical

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Executive Dr. Bal; plaintiff’s primary care providers Drs. Wong and Vaughn, and Chief

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Healthcare Correspondence & Appeals Branch employee S. Gates. See generally ECF No. 1.

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The claims raised against the defendants allege violations of plaintiff’s First and Eighth

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Amendment rights. See generally id. at 4-7.

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Claim One alleges that defendant Smith was deliberately indifferent to plaintiff’s serious
medical needs in violation of his Eighth Amendment rights when, after plaintiff had extensive

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surgery done on his face, defendant Smith took away his pain medication too soon. See ECF No.

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1 at 4-5. Claim Two alleges that defendant Smith violated plaintiff’s First Amendment right to be

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free from retaliation when, after plaintiff had filed a grievance to receive pain medication,

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defendant Smith rescinded plaintiff’s lower bunk chrono because plaintiff refused to sign off on

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the filed grievance. See id. at 6. This decision, plaintiff alleges, ultimately led to him falling off

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a top bunk and being physically and mentally injured. See id. Finally, Claim Three alleges that

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defendants Wong, Vaughn, Bal, Gates, Smith and Covello were deliberately indifferent and

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ignored plaintiff’s safety needs in violation of his Eighth Amendment rights when none of them

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intervened to correct defendant Smith’s rescission of plaintiff’s lower bunk chrono before

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plaintiff fell off the upper bunk. See generally ECF No. 1 at 5, 7.

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II.

SCREENING FINDINGS

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On screening, the undersigned determined that Claims One and Three – asserting

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violations of plaintiff’s Eighth Amendment rights – fail to state claims upon which relief may be

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granted because (1) they do not challenge plaintiff’s medical care per se; (2) the facts as presented

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do not show that there was an excessive risk of harm in not reinstating plaintiff’s lower bunk

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chrono or that defendants Smith, Wong and Vaughn had culpable states of mind when they did

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not; and (3) the claims sound only in negligence, which does not rise to the level of Eighth

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Amendment violation. See ECF No. 10 at 5. In addition, the undersigned determined that (4)

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defendant Warden Covello cannot be liable under a respondeat superior theory simply because he
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Case 2:20-cv-01356-KJM-AC Document 13 Filed 07/19/21 Page 3 of 4
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hired subordinate defendants, and (5) the alleged mishandling and/or rejection of plaintiff’s

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appeals by defendants Covello, Bal and Gates does not support liability under Section 1983

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because inmates are not entitled to a specific grievance procedure under the Constitution. See id.

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Claim Two, the First Amendment claim raised against defendant Smith, has been

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determined to reasonably support retaliatory intent given the direct link between defendant

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Smith’s revocation of plaintiff’s lower bunk chrono after plaintiff refused comply with defendant

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Smith’s demand that he sign off on the grievance he had filed. See ECF No. 10 at 4. As a result,

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the undersigned intends to require defendant Smith to respond to Claim Two. See id.

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III.

NO NOTICE ON HOW TO PROCEED

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In the screening order, plaintiff was given the opportunity either to amend the complaint

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or to proceed solely on Claim Two against defendant Smith. See ECF No. 10 at 6-8, 10. When

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the order issued, plaintiff was informed that his failure to return the form Notice on How to

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Proceed would result in a recommendation that Claims One and Three, and defendants Covello,

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Bal, Wong, Vaughn and Gates be dismissed from this action. See id. at 8-9. Plaintiff has not

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filed the notice form, and the fourteen-day period within which he was to do so has expired.

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Accordingly, IT IS HEREBY RECOMMENDED for the reasons set forth above and in
the screening order, ECF No. 10, that:

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1. Claims One and Three be DISMISSED for failure to state claims upon which relief
may be granted;

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2. Defendants Covello, Bal, Wong, Vaughn, and Gates be DISMISSED; and

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3. This action proceed solely on Claim Two, plaintiff’s First Amendment retaliation

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claim against defendant Christopher Smith, a physician and surgeon at Mule Creek State Prison.

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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 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. Such a document should be captioned “Objections to Magistrate Judge’s Findings

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Case 2:20-cv-01356-KJM-AC Document 13 Filed 07/19/21 Page 4 of 4
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and Recommendations. Plaintiff is advised that failure to file objections within the specified time

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may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th

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Cir. 1991).

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DATED: July 19, 2021

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