Jackson v. Pompan et al

Filing 7

ORDER OF DISMISSAL WITH PARTIAL LEAVE TO AMEND (Illston, Susan) (Filed on 3/13/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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PATRICK JACKSON,

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Plaintiff,

United States District Court
For the Northern District of California

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No. C 12-6049 SI (pr)
ORDER OF DISMISSAL WITH
PARTIAL LEAVE TO AMEND

v.

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DONALD POMPAN, Physician; et al.,

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Defendants.
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INTRODUCTION

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Patrick Jackson, formerly an inmate at Salinas Valley State Prison, filed a pro se civil

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rights action under 42 U.S.C. § 1983. His complaint is now before the court for review under

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28 U.S.C. § 1915A.

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BACKGROUND

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Jackson alleges the following in his complaint:

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Upon his arrival at Salinas Valley State Prison on April 13, 2011, he immediately

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requested surgery for a torn anterior cruciate ligament ("ACL") in his left knee. The records

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attached to the complaint indicate that he had knee problems for several years. See Docket # 1,

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p. 25. A blood test was done for an MRI screening on April 25, 2011. Jackson thereafter filed

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inmate appeals about the slow service. He contends that Dr. Pompan did not order the MRI until

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August 23, 2011.

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The MRI was done on September 2, 2011. The MRI results determined that he had an

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ACL "tear, medial meniscus tear, and lateral femoral condyle chondral lesion." Docket # 1, p.
4; but see Docket # 1, p. 57 (MRI report).

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On December 7, 2011, Jackson had knee surgery. Immediately thereafter, the surgeon,

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Dr. Pompan "signed a completely inadequate set of discharge instructions and released the

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plaintiff on the same day into the care of prison officials." Docket # 1, p. 5.1 When he returned

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to prison, the pre-operative pain medication wore off and Jackson submitted an emergency

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request for stronger medication on December 7, 2011.

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On December 13, 2011, Jackson saw Dr. Birdsong, who prescribed a wheelchair with an

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elevated leg and a pillow for sleeping, but would not prescribe stronger medication. Jackson saw

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Dr. Bridgnell on December 16, 2012, and he increased the pain medication. On December 20,

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2011, Jackson submitted an emergency request for the wheelchair and pillow which had not yet

United States District Court
For the Northern District of California

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been delivered to him.

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On December 21, 2011, defendant Hernandez arrived at Jackson's cell door to take him

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to his appointment with Dr. Pompan at an outside facility. Jackson showed Hernandez the

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accommodation verification for a wheelchair for transportation. C/O Hernandez insisted that

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Jackson be put in restraints while on crutches. This was too painful for Jackson and he told C/O

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Hernandez that fact. C/O Hernandez abruptly left the area. Jackson wrote another health care

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services request form.

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On December 22, 2012, Jackson received his wheelchair and pillow. Later that day, he

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was taken to an appointment with Dr. Pompan. He complained to Dr. Pompan about the

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medications, but Dr. Pompan ignored him and wrote notes that ignored his complaints.

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On December 26, 2011, Jackson filed an inmate appeal about C/O Hernandez. The

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appeal was screened out improperly by J. Villafuerte. Jackson resubmitted the inmate appeal

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and then filed one about defendant Villafuerte's actions.

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On January 16, 2012, defendant D. Schaffer informed Jackson of an upcoming

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classification hearing and asked if Jackson wanted to attend. Jackson said that he did. Jackson

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suspected something was amiss and requested a copy of the classification report, which he

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The discharge instructions included instructions to resume daily prescription medication, keep
the dressing site dry and intact, apply ice packs, elevate extremity, "crutches with written instructions
given," and a follow-up appointment in several days. See Docket # 1, p. 28.
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received on March 1, 2012. He learned from the report that D. Schaffer, G. Jiminez, D. Rocha,

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& D. Asuncion "illegally held committee without the plaintiff, falsified legal documents, and

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decided upon his transfer while lying on the summary saying the plaintiff agree with the

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decision." Docket # 1, p. 9.

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Defendant Mazariegos improperly handled an inmate appeal.

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On March 8, 2012, Jackson was transferred "in retaliatory fashion for the grievances" he

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had filed. Docket # 1, p. 9.

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DISCUSSION

United States District Court
For the Northern District of California

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A federal court must engage in a preliminary screening of any case in which a prisoner

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seeks redress from a governmental entity or officer or employee of a governmental entity.

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See 28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and

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dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may

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be granted, or seek monetary relief from a defendant who is immune from such relief. See id.

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at 1915A(b). Pro se pleadings must be liberally construed. See Balistreri v. Pacifica Police

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Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that

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a right secured by the Constitution or laws of the United States was violated and (2) that the

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violation was committed by a person acting under the color of state law. See West v. Atkins, 487

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U.S. 42, 48 (1988).

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Federal Rule of Civil Procedure 8(a)(2) requires "a short and plain statement of the claim

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showing that the pleader is entitled to relief." "Specific facts are not necessary; the statement

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need only . . . give the defendant fair notice of what the . . . claim is and the grounds upon which

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it rests." Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations and internal quotation marks

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omitted). Although a complaint “does not need detailed factual allegations, . . . a plaintiff's

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obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and

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conclusions, and a formulaic recitation of the elements of a cause of action will not do. . . .

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Factual allegations must be enough to raise a right to relief above the speculative level." Bell
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Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). A complaint must

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proffer "enough facts to state a claim to relief that is plausible on its face." Id. at 570.

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A.

Deliberate Indifference To Medical Needs

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Deliberate indifference to a prisoner’s serious medical needs amounts to the cruel and

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unusual punishment prohibited by the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104

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(1976). A prison official violates the Eighth Amendment only when two requirements are met:

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(1) the deprivation alleged is, objectively, sufficiently serious, and (2) the official is,

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subjectively, deliberately indifferent to the inmate’s health or safety. See Farmer v. Brennan,

United States District Court
For the Northern District of California

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511 U.S. 825, 834 (1994).

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Liberally construed, the pro se complaint states a cognizable claim against Dr. Pompan
for the alleged delay in ordering an MRI for Jackson.

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Even with liberal construction, however, the complaint does not state any other claim for

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deliberate indifference to serious medical needs. Jackson alleges that Dr. Pompan gave him

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"completely inadequate" discharge orders after his knee surgery, but fails to allege what the

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inadequacies were. The discharge orders attached to the complaint plainly show that he did

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receive some discharge orders, even if he disagrees with them. See Docket # 1, p. 28 (discharge

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orders include directive to resume daily medications and crutches); see generally Gant v.

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Wallingford Bd. Of Educ., 69 F.3d 669, 674 (2d Cir. 1995)(a document attached to the complaint

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"will be read to evidence what it incontestably shows once one assumes that it is what the

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complaint says it is (or, in the absence of a descriptive allegation, that it is what it appears to

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be)").

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regarding treatment does not give rise to a § 1983 claim." Franklin v. Oregon, 662 F.2d 1337,

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1344 (9th Cir. 1981). Jackson apparently wanted stronger medications than he received and

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wanted a wheelchair instead of crutches, but none of his allegations suggest these to be any more

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than differences of opinion between the prisoner-patient and the doctor as to the appropriate

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post-operative care following knee surgery. If he wishes to pursue this claim in his amended

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complaint, he must include allegations that show this to be more than a difference of opinion

"A difference of opinion between a prisoner-patient and prison medical authorities

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about appropriate post-operative care.
The complaint does not state a claim against C/O L. Hernandez, who allegedly insisted

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that Jackson be restrained while on crutches rather than to locate a wheelchair to take him to a

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doctor's appointment. Deliberate indifference is shown by "(a) a purposeful act or failure to

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respond to a prisoner's pain or possible medical need and (b) harm caused by the indifference."

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Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); see Wood v. Housewright, 900 F.2d 1332,

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1335 (9th Cir. 1990) (delay in treatment does not violate Eighth Amendment unless it causes

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harm); Van Court v. Lehman, 137 Fed. Appx. 948, 950 (9th Cir. 2005) (one day delay in

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receiving pain medication not sufficient to demonstrate deliberate indifference to a serious

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United States District Court
For the Northern District of California

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medical need). The complaint does not suggest Hernandez's actions caused any actual harm.

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According to Jackson, he was taken to the follow-up medical appointment the next day. See

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Docket # 1, pp. 5-6. Nothing in the complaint indicates that the one-day delay made any

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difference to his medical care.

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The complaint does not allege any particular conduct by defendants Zamora and Lee that

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amounted to deliberate indifference. The allegations that Zamora is the chief of the California

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correctional health care services, that Lee is the staff services manager for the California

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correctional health care services, and that they are responsible for health care services in the

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CDCR do not suffice to show their liability for any alleged deficiencies in Jackson's medical

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care. There is no respondeat superior liability under § 1983, i.e., no liability under § 1983 solely

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because one is responsible for the actions or omissions of another. See Taylor v. List, 880 F.2d

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1040, 1045 (9th Cir. 1989).

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B.

Inmate Appeals

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Jackson asserts claims against prison officials who made errors in processing his inmate

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appeals and failed to find in his favor on his administrative appeals. The mishandling or failure

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to grant an inmate's appeal in the prison administrative appeal system does not amount to a due

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process violation. There is no federal constitutional right to a prison administrative appeal or

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grievance system for California inmates. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir.
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2003); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988); Antonelli v. Sheahan, 81 F.3d 1422,

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1430 (7th Cir. 1996) (prison grievance procedure is procedural right that does not give rise to

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protected liberty interest requiring procedural protections of Due Process Clause); Smith v.

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Noonan, 992 F.2d 987, 989 (9th Cir. 1993). Prison officials are not liable for a due process

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violation for simply failing to process an appeal properly or failing to find in plaintiff's favor.

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The complaint also does not state a claim for deliberate indifference to serious medical

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needs against any of the several people who allegedly denied or mishandled Jackson's inmate

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appeals. By the time the several defendants decided his inmate appeals, the medical problems

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in those appeals apparently had been resolved. The alleged improper handling of the inmate

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United States District Court
For the Northern District of California

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appeal about Hernandez's actions by defendants Villafuerte and Mazariegos occurred after

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Jackson had already had his follow-up medical appointment. See Docket # 1, pp. 40, 72-73.

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C.

Classification Hearing

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Jackson alleges that he was not allowed to appear at his classification hearing. He had

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no federally-protected right to appear at the classification hearing. He does not allege that he

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was in administrative segregation or disciplinary segregation, or that either form of segregated

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housing was being contemplated for him. The classification committee's report also shows no

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segregated housing or discipline was contemplated; indeed, the report appears to be rather

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favorable, as it noted his classification score had been adjusted downward due to two quarters

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without CDC-115s, that he had been endorsed to the less restrictive 270-degree housing, and that

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the committee elected to refer him "for transfer consideration as part of the activation of LAC

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IV (270) GP. Transfer is non-adverse in nature. Jackson will retain his current Custody and

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MG/PG upon transfer." Docket # 1, p. 100.

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The Due Process Clause of the Fourteenth Amendment of the U.S. Constitution protects

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individuals against governmental deprivations of life, liberty or property without due process of

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law. Changes in conditions of confinement may amount to a deprivation of a constitutionally

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protected liberty interest, provided that the liberty interest in question is one of real substance.

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Sandin v. Conner, 515 U.S. 472, 477-87 (1995). When – as apparently was the case here – there
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was no change in conditions of confinement that implicated a liberty interest of real substance,

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there was no right to due process in connection with the decision-making process by prison

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officials. See Chappell v. Mandeville, — F.3d —, 2013 WL 364203, *9-*10 (9th Cir. 2013)

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(contraband watch not such an extreme change in conditions of confinement as to trigger due

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process protections). Since he had no federally-protected due process right in connection with

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the classification committee meeting, Jackson's absence from the meeting did not violate due

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process.
The allegedly false statements in the classification committee report – i.e., the statements

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that he was present at the meeting and agreed with the transfer – do not give rise to a federal

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United States District Court
For the Northern District of California

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claim because the inaccuracy of records compiled or maintained by the government is not,

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standing alone, sufficient to state a claim of constitutional injury under the Due Process Clause.

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See Paul v. Davis, 424 U.S. 693, 711-714 (1976); Reyes v. Supervisor of DEA, et al., 834 F.2d

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1093, 1097 (1st Cir. 1987) (no due process claim for false information maintained by police

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department); Pruett v. Levi, 622 F.2d 256, 258 (6th Cir. 1980) (mere existence of inaccuracy in

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FBI criminals files does not state constitutional claim).

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C.

Retaliatory Transfer

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Jackson contends that he was improperly transferred to a different prison. The transfer

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itself did not violate his federal right to due process. Prisoners have no constitutional right to

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incarceration in a particular institution. See Olim v. Wakinekona, 461 U.S. 238, 244-48 (1983);

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Meachum v. Fano, 427 U.S. 215, 224 (1976). A prisoner's liberty interests are sufficiently

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extinguished by his conviction that the state may generally confine or transfer him to any of its

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institutions, to prisons in another state or to federal prisons, without offending the Constitution.

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See Rizzo v. Dawson, 778 F.2d 527, 530 (9th Cir. 1985) (intrastate prison transfer does not

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implicate Due Process Clause). "It is well settled that the decision where to house inmates is at

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the core of prison administrators' expertise." McKune v. Lile, 536 U.S. 24, 39 (2002). The

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claim that the transfer violated due process is dismissed.

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Although a transfer is generally permissible, prison officials cannot transfer a prisoner
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from one correctional institution to another in order to punish or retaliate against the prisoner for

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exercising his constitutional rights. See Schroeder v. McDonald, 55 F.3d 454, 461 (9th Cir.

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1995); Rizzo v. Dawson, 778 F.2d at 532. "Within the prison context, a viable claim of First

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Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some

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adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and that

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such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action

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did not reasonably advance a legitimate correctional goal." Rhodes v. Robinson, 408 F.3d 559,

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567-68 (9th Cir. 2005) (footnote omitted).
The complaint fails to state a claim for a retaliatory transfer. The complaint does not

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United States District Court
For the Northern District of California

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allege who retaliated against him. Jackson alleges that he "was transferred in retaliatory fashion

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for the grievances and changes that was called upon the Salinas Valley State Prison

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administration." Docket # 1, p. 9. If he wishes to pursue this claim, he needs to identify the

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defendant(s) for this claim. He also needs to allege facts showing the transfer to have been an

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adverse action, as nothing in the complaint suggests it was. He also needs to affirmatively allege

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that the decision did not reasonably advance a legitimate correctional goal. His exhibit indicates

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that the transfer was non-adverse and was done for population management purposes upon the

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opening of a new 270-degree general population facility at the California State Prison -

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Lancaster, which appears to be a legitimate penological purpose. See Docket # 1, p. 100.

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In the foregoing paragraphs, the court has identified deficiencies in Jackson's various

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claims. It may be that Jackson can cure some of these deficiencies with amendment, so the

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complaint will be dismissed with leave to amend.

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Finally, Jackson sent a letter inquiring whether his case had been filed in the proper

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division of this district. The answer to his inquiry is that prisoner civil rights actions may be

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assigned to any division in this district.

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CONCLUSION

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For the foregoing reasons, the complaint is dismissed with leave to amend. The amended

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complaint must be filed no later than April 26, 2013, and must include the caption and civil case

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number used in this order and the words AMENDED COMPLAINT on the first page. Plaintiff

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is cautioned that his amended complaint must be a complete statement of his claims. See Lacey

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v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc) ("For claims dismissed with

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prejudice and without leave to amend, we will not require that they be repled in a subsequent

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amended complaint to preserve them for appeal. But for any claims voluntarily dismissed, we

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will consider those claims to be waived if not repled.") Failure to file the amended complaint

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United States District Court
For the Northern District of California

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by the deadline will result in the dismissal of all claims and defendants except the one cognizable

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claim alleged against Dr. Pompan for delay in ordering the MRI.

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IT IS SO ORDERED.
Dated: March 13, 2013

_______________________
SUSAN ILLSTON
United States District Judge

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