Gonzalez v. Chudy et al

Filing 7

ORDER OF DISMISSAL WITH LEAVE TO AMEND. Signed by Judge Claudia Wilken on 9/9/2011. (ndr, COURT STAFF) (Filed on 9/9/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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ERIC L. GONZALEZ,

No. C 10-3732 CW (PR)

Plaintiff,

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ORDER OF DISMISSAL WITH
LEAVE TO AMEND

v.

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J. CHUDY, et al.,

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Defendants.
________________________________/

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INTRODUCTION

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Plaintiff, a state prisoner, has filed a pro se civil rights
United States District Court
For the Northern District of California

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action pursuant to 42 U.S.C. § 1983 alleging that Defendants were
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deliberately indifferent to his serious medical needs in violation
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of his Eighth Amendment right to be free from cruel and unusual
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punishment.
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His motion for leave to proceed in forma pauperis has been
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granted.
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Venue is proper because the events giving rise to the claim
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are alleged to have occurred at Correctional Training Facility
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(CTF), which is located in this judicial district.

See 28 U.S.C.

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§ 1391(b).
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In his complaint, Plaintiff names the following Defendants:
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CTF Chief Medical Officer J. Chudy,1 as well as CTF Registered
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Nurses Leary and Uy.

Plaintiff seeks monetary damages.

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DISCUSSION
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I.

Standard of Review

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A federal court must conduct a preliminary screening in any

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In his complaint, Plaintiff occasionally misspells Defendant
Chudy's name as "Chudi"; however, the record shows the correct
spelling is "Chudy."

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case in which a prisoner seeks redress from a governmental entity

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or officer or employee of a governmental entity.

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§ 1915A(a).

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claims and dismiss any claims that are frivolous, malicious, fail

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to state a claim upon which relief may be granted or seek monetary

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relief from a defendant who is immune from such relief.

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§ 1915A(b)(1), (2).

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Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.

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1988).

28 U.S.C.

In its review, the court must identify any cognizable

Id.

Pro se pleadings must be liberally construed.

United States District Court
For the Northern District of California

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To state a claim under 42 U.S.C. § 1983, a plaintiff must

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allege two essential elements: (1) that a right secured by the

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Constitution or laws of the United States was violated, and

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(2) that the alleged violation was committed by a person acting

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under the color of state law.

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(1988).

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II.

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West v. Atkins, 487 U.S. 42, 48

Factual Background
On June 19, 2009, Plaintiff banged on his cell door to alert

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Defendant Uy and CTF Correctional Officer Martinus that he had been

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"experiencing pain and swelling in his lower legs for the last few

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weeks."

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him to see a doctor.

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doctor.

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Services Request Form (CDC-7362), which is a form submitted by

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inmates who are requesting medical care.

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(Compl. at 3.)2

Plaintiff asked Defendant Uy to permit

Defendant Uy did not refer Plaintiff to see a

Instead, he directed Plaintiff to complete a Health Care

Ten minutes later, Plaintiff observed CTF Correctional

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Plaintiff attaches fourteen pages to page three of his
complaint. The Court has renumbered them pages four through
seventeen.
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Officers Martinus and Hernandez walking on the tier.

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banged on his cell door for help.

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wrote Plaintiff a pass to see Defendant Leary at the infirmary.

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When Plaintiff arrived at the infirmary, he informed Defendant

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Leary that "he was experiencing pain and swelling in his lower legs

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and that he wanted to see a doctor."

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his concern that "he may be experiencing poor circulation in his

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legs which could cause a stroke or heart attack."

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Defendant Leary informed Plaintiff that he could not see a doctor

United States District Court
For the Northern District of California

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(Id. at 5.)

(Id.)

because CTF was "'short of doctors.'"

He again

Officer Hernandez

Plaintiff expressed

(Id. at 5-6.)

(Id. at 5.)

Plaintiff alleges that Defendant Leary "made no attempts to

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locate Plaintiff's medical chart, which would have shown her that

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Plaintiff was on baby asperin (81 mg ASA E.C.), cholesterol pills

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(Simvastatin 20 mg) and high blood pressure pills (Atenolol 50

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mg)."

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complete a CDC-7362 form.

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without any diagnosis or treatment.

(Id. at 6.)

Defendant Leary instructed Plaintiff to
She then sent Plaintiff back to his cell
(Id.)

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Later that same day, Plaintiff filed a 602 inmate appeal

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alleging that "CTF's medical staff was subjecting him to cruel and

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unusual punishment."

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(Id. at 3.)

On July 3, 2009, Plaintiff "alerted the 2nd Watch C/O that he

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was experiencing 'severe' pain and swelling in his lower legs."

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(Id. at 7.)

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infirmary," where he was told by CTF Correctional Officer McDonald

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to wait on a bench outside.

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Leary that Plaintiff was waiting outside the infirmary.

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Leary then informed Plaintiff "that he could not see a doctor due

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to Ad-Seg inmates being seen that day."

Plaintiff was given a "temporary inmate pass to the

Officer McDonald alerted Defendant

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(Id.)

Defendant

Without "taking any

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of Plaintiff's vital signs or examining his legs," Defendant Leary

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directed that Plaintiff be escorted back to his cell.
On July 6, 2009, Plaintiff saw a triage nurse for the pain and

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swelling in his lower legs.

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elevate both of his legs.

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impossible for him to elevate his legs because CTF's medical staff

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has not given him any type of device" with which to elevate his

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legs.

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any type of medical device from CTF officials that would help

United States District Court
For the Northern District of California

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(Id. at 8.)

The triage nurse advised Plaintiff to

Plaintiff responded that "it was

Plaintiff alleges he "still has not received

Plaintiff elevate his legs."

(Id.)

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On August 6, 2009, Plaintiff was "finally" seen by CTF

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physician Koziol, who "issued Plaintiff pain medication for his

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lower extremities."

(Id. at 9.)

Plaintiff alleges that "during the fifty three days [he] was

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without pain medication, he was so psychologically distraught that

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he had to cancel all of his mental health sessions" because he

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"believed he was going to die from a stroke or heart attack."

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(Id.)

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because "he was suffering in pain."

During this time, Plaintiff was also unable to exercise
(Id.)

At some point after being examined by CTF physician Koziol,

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Plaintiff "could no longer take the pain medication that was issued

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on 08/11/09 due to the medication irritating his stomach."

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10.)

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(Id. at

On August 20, 2009, Plaintiff received the second level of

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review response for his inmate grievance filed on June 19, 2009.

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The response stated that a podiatry consultation was ordered to

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address the severe pain and swelling in his lower legs; however,

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Plaintiff did not receive the podiatry consultation at that time.
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Plaintiff alleges that although Defendant Chudy "personally oversaw

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Plaintiff's medical situation," he "did not make sure that

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Plaintiff received the podiatry consult that was ordered . . . ."

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(Id. at 11.)

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"failed to make sure Plaintiff received the podiatry consult," he

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"suffered in severe pain and swelling in his lower extremities for

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'105 days.'"

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Plaintiff alleges that because Defendant Chudy

(Id.)

On December 3, 2009, Plaintiff saw CTF physician Jamari, who
ordered Plaintiff a "'second' podiatry consult," because "feet

United States District Court
For the Northern District of California

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problems can cause pain and swelling in the lower leg area."

(Id.

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at 12.)

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sure that Plaintiff received the podiatry consult" for "an

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additional '138 days,'" during which time Plaintiff "suffered in

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severe pain and swelling in his lower extremities."

Plaintiff alleges that Defendant Chudy "failed to make

(Id.)

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On April 20, 2010, Plaintiff filed an inmate grievance

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alleging "CTF prison officials were subjecting him to cruel and

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unusual punishment by not providing the podiatry consult in order

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to obtain new orthopedic shoes."

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explained that "because he was a mental health patient, exercising

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was a critical tool to help manage his anxieties."

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He further claimed that "without the correct orthopedic shoes, I

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can't participate in jogging or walking to relieve any of my

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anxieties which could result to [sic] sinking me into further

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depression."

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(Id. at 13.)

Plaintiff also

(Id. at 15.)

(Id., Ex. C at C-3.)

On June 22, 2010, a podiatry consultation was ordered for the

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third time, and Plaintiff was seen by a podiatrist, who informed

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Plaintiff that his "feet [sic] structure had totally collapsed and

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that he would not rule out arthritis, which would be the cause for

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the severe pain and swelling in the lower extremities . . . ."

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(Id.)

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The podiatrist ordered x-rays of Plaintiff's feet.
Plaintiff alleges that "during the 329 days [he] suffered with

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the severe pain and swelling in his lower extremities, he was

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unable to exercise outside and has been virtually confined to his

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cell bed due to his limited mobility."

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also claims that as of August 4, 2010, the date he signed the

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complaint, his "lower extremities have gotten worse over the last 7

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to 8 months," stating:

United States District Court
For the Northern District of California

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(Id. at 14.)

Plaintiff

. . . Plaintiff has great difficulty in just standing
up without shoes on. When Plaintiff stands up without
his shoes on in the cell to walk two feet to the
toilet, there is a stabbing pain shooting in the arch
of Plaintiff's left foot.
Moreover, . . . (both arches) have gotten so bad
that they are sore to the touch when Plaintiff is
laying down. When Plaintiff walks to chow he is always
experiencing stabbing pains on the top of his feet and
in both arches, plus it feels as though a claw is
pulling down on his calves.

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(Id. at 14-15.)

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III. Deliberate Indifference Claim

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Deliberate indifference to serious medical needs violates the

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Eighth Amendment's proscription against cruel and unusual

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punishment.

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analysis of a claim of deliberate indifference to serious medical

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needs involves an examination of two elements: (1) a prisoner's

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serious medical needs and (2) a deliberately indifferent response

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by the defendants to those needs.

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1050, 1059 (9th Cir. 1992), overruled on other grounds by WMX

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Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997)

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(en banc).

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Estelle v. Gamble, 429 U.S. 97, 104 (1976).

The

McGuckin v. Smith, 974 F.2d

A serious medical need exists if the failure to treat a
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prisoner's condition could result in further significant injury or

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the "unnecessary and wanton infliction of pain."

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F.2d at 1059 (citing Estelle, 429 U.S. at 104).

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indications that a prisoner has a serious need for medical

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treatment are the existence of an injury that a reasonable doctor

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or patient would find important and worthy of comment or treatment;

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the presence of a medical condition that significantly affects an

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individual's daily activities; or the existence of chronic and

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substantial pain.

United States District Court
For the Northern District of California

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McGuckin, 974
Examples of

Id. at 1059-60 (citing Wood v. Housewright, 900

F.2d 1332, 1337-41 (9th Cir. 1990)).

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The plaintiff must also show that the defendant knew the

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plaintiff faced "substantial risk of serious harm" yet failed to

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take reasonable steps to abate it.

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825, 837 (1994).

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be found liable under the Cruel and Unusual Punishments Clause."

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Id. at 845.

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facts from which the inference could be drawn that a substantial

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risk of serious harm exists," but "must also draw the inference."

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Id.

Farmer v. Brennan, 511 U.S.

A prison official "who act[s] reasonably cannot

Further, a prison official must not only "be aware of

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Therefore, in order to establish deliberate indifference,

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there must be a purposeful act or failure to act on the part of the

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defendant and resulting harm.

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v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir.

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1985).

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result in "significant injury" in order to establish a violation of

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the prisoner's federal constitutional rights, McGuckin, 974 F.2d at

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1059; however, the existence of serious harm tends to support an

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inmate's deliberate indifference claim.

McGuckin, 974 F.2d at 1060; Shapley

A defendant's actions need not be "egregious" nor need they

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Jett v. Penner, 439 F.3d

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1091, 1096 (9th Cir. 2006).
Assuming Plaintiff's medical needs were "serious," Plaintiff

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must allege facts which support a finding of deliberate

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indifference to those needs by Defendants Chudy, Leary and Uy.

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Such indifference may appear when prison officials deny, delay or

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intentionally interfere with medical treatment, or it may be shown

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in the way in which prison officials provide medical care.

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McGuckin, 974 F.2d at 1062.

See

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Here, Plaintiff alleges that Defendants Uy and Leary, who are
United States District Court
For the Northern District of California

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registered nurses, acted with deliberate indifference to his
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serious medical needs when, on June 19, 2009, they responded to his
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complaints of pain and swelling in his legs by telling him to fill
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out a medical request form rather than immediately referring him to
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see a doctor.

Plaintiff's allegations, however, do not state a

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claim for deliberate indifference because the facts do not support
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an inference that it was unreasonable for Defendants to follow
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prison procedures and require Plaintiff to fill out a medical
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request form before being seen by a doctor.

Specifically, based on

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the facts alleged, there is no indication that Plaintiff was
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suffering from a medical emergency that required Defendants to
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bypass prison procedures and call for immediate medical care for
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Plaintiff.
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Plaintiff further alleges that on July 3, 2009, Defendant

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Leary acted with deliberate indifference to his serious medical

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needs when, after a correctional officer allowed Plaintiff to go to

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the infirmary based on Plaintiff's complaints of pain and swelling

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in his legs, Leary told Plaintiff he could not see a doctor because

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Ad-Seg inmates were being seen that day and sent Plaintiff back to

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his cell without taking his vital signs or examining his legs.

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Again, however, Plaintiff's allegations do not state a claim for

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deliberate indifference because he has not alleged facts that show

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he faced a substantial risk of harm, that Defendant Leary, knowing

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of such risk, acted unreasonably, and that Defendant Leary's

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actions resulted in harm to Plaintiff.

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Finally, Plaintiff alleges that Defendant Chudy acted with
deliberate indifference to Plaintiff's serious medical needs

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United States District Court
For the Northern District of California

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because Chudy failed to ensure that Plaintiff receive timely

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podiatry consulations.

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cognizable claim, however, because they are entirely conclusory.

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Specifically, Plaintiff has not alleged facts that show that Chudy,

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knowing that Plaintiff faced a substantial risk of serious harm,

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acted unreasonably.

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that show Chudy was the individual who was responsible for ensuring

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the podiatry consultations were scheduled.

Plaintiff's allegations fail to state a

In particular, Plaintiff has not alleged facts

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Accordingly, for the above reasons, Plaintiff's Eighth
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Amendment claims against Defendants Uy, Leary and Chudy are
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DISMISSED for failure to state a cognizable claim for relief.
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Plaintiff may amend his complaint to cure the noted pleading
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deficiencies if he can, in good faith, allege facts that show
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Defendants acted with deliberate indifference to his serious
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medical needs.
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CONCLUSION

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For the foregoing reasons, the Court orders as follows:

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1.

Plaintiff's Eighth Amendment claim for deliberate
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indifference to serious medical needs is DISMISSED with leave to
amend.
2.

Within thirty (30) days from the date of this Order

Plaintiff may file an amended complaint as set forth above.
Plaintiff must use the attached civil rights form, write the case
number for this action -- C 10-3732 CW (PR) -- on the form, clearly
label the complaint "Amended Complaint," and complete all sections
of the form.

Because an amended complaint completely replaces the

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original complaint, Plaintiff must include in it all the claims he
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wishes to present.

See Ferdik v. Bonzelet, 963 F.2d 1258, 1262

United States District Court
For the Northern District of California

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(9th Cir. 1992).
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He may not incorporate material from the original

complaint by reference.
The failure to file an amended complaint by the thirty-day
deadline will result in the dismissal of this action without
prejudice.
3.

The Clerk of the Court shall send Plaintiff a blank civil

rights form along with a copy of this Order.
IT IS SO ORDERED.

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DATED: 9/9/2011
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CLAUDIA WILKEN
UNITED STATES DISTRICT JUDGE

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

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ERIC L GONZALEZ,
Case Number: CV10-03732 CW

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Plaintiff,
CERTIFICATE OF SERVICE
v.

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United States District Court
For the Northern District of California

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J CHUDY et al,
Defendant.
/

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on September 9, 2011, I SERVED a true and correct copy(ies) of the attached and a copy a
blank civil rights form, by placing said copy(ies) in a postage paid envelope addressed to the
person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said
copy(ies) into an inter-office delivery receptacle located in the Clerk's office.

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Eric L. Gonzalez E66196
Correctional Training Facility (Central)
P.O. Box 689
FW 235 Low
Soledad, CA 93960-0689

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Dated: September 9, 2011
Richard W. Wieking, Clerk
By: Nikki Riley, Deputy Clerk

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