Wilson v. California Dept. of Corrections et al

Filing 21

ORDER DISMISSING Civil Action for Failing to State a Claim Pursuant to 28 U.S.C. §§ 1915(e)(2), 1915A(b) AND 42 U.S.C. § 1997e(a). Signed by Judge Barry Ted Moskowitz on 5/4/2016.(All non-registered users served via U.S. Mail Service)(rlu)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ROY L. WILSON,
CDCR # G-26646,

Case No.: 3:13-cv-01455-BTM-JLB
ORDER DISMISSING CIVIL
ACTION FOR FAILING TO STATE
A CLAIM PURSUANT TO
28 U.S.C. §§ 1915(e)(2), 1915A(b)
AND 42 U.S.C. § 1997e(a)

Plaintiff,

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vs.

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CALIFORNIA DEPT. OF
CORRECTIONS, et al.,

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Defendants.

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I.

Procedural History

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On February 18, 2014, the Court granted Plaintiff Roy L. Wilson’s Motion to

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Proceed In Forma Pauperis (“IFP”), but sua sponte dismissed his Complaint for failing to

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state a claim upon which relief could be granted pursuant to 28 U.S.C. § 1915(e)(2) and

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§ 1915A(b). See Feb. 18, 2014 Order (Doc. No. 5).

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More than two years after Plaintiff initiated suit, he was provided a short and plain

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notice of his complaint’s deficiencies, and was granted multiple extensions of time in

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which to amend, see e.g., Doc. Nos. 13, 16, 19, Plaintiff filed an Amended Complaint on

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October 5, 2015 (Doc. No. 20). In his Amended Complaint, as in his original, Plaintiff
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alleges prison officials at Centinela State Prison (“CEN”) violated his Eighth Amendment

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right to adequate medical care. See Doc. No. 20 at 2-4. Plaintiff seeks an injunction

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preventing “reprisal(s),” as well as general and punitive damages. Id. at 7.

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II.

Screening per 28 U.S.C. §§ 1915(e)(2) and 1915A(b)

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A.

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Because Plaintiff remains a prisoner and is proceeding IFP, his Amended Complaint

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requires a pre-Answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). “The

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purpose of § 1915A is ‘to ensure that the targets of frivolous or malicious suits need not

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bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014)

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(quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)).

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“The standard for determining whether a plaintiff has failed to state a claim upon which

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relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil

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Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 1108,

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1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012)

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(noting that screening pursuant to § 1915A “incorporates the familiar standard applied in

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the context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6)”).

Standard of Review

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“A complaint is subject to dismissal for failure to state a claim if the allegations,

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taken as true, show the plaintiff is not entitled to relief.” Jones v. Bock, 549 U.S. 199, 215

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(2007); see also Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (a complaint

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fails to state a claim if it fails to contain “a short and plain statement of the claim showing

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that the pleader is entitled to relief.”) (citing FED. R. CIV. P. 8(a)(2)). “To survive a motion

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to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a

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

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(quoting Twombly, 550 U.S. at 570); Wilhelm, 680 F.3d at 1121.
Plaintiff’s Allegations

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B.

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Plaintiff’s Amended Complaint no longer names the California Department of

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Corrections, the Correction Management Corp., Inc, an unidentified Chief Medical Officer

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at CEN, Dr. M. Fraze, T. Kirby, J. Jimenez, or A. Miller as Defendants. Therefore, as
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Plaintiff was cautioned in the Court’s February 18, 2014 Order, any claims as to these

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former parties are now considered waived. See Doc. No. 5 at 13; Lacey v. Maricopa Cnty,

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693 F.3d 896, 928 (9th Cir. 2012) (claims dismissed with leave to amend which are not re-

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alleged in an amended pleading may be “considered waived if not repled.”).

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Plaintiff’s Amended Complaint now alleges only that Arthur Blain, and K. Wyatt, a

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doctor and registered nurse at CEN, both neglected to recognize the seriousness of a wrist

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injury he reported on June 20, 2012, and failed to either ensure or recommend an immediate

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X-ray. See Doc. No. 20 at 2-3. Plaintiff admits that after he continued to complain of

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swelling and pain, an X-ray was authorized on July 23, 2012, and one was conducted on

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August 30, 2012, “two months after [Plaintiff’s] initial complaint.” Id. at 3.
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Inadequate Medical Care

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First, as to the basis for Plaintiff’s medical care claims, the Court finds that his

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Amended Complaint still fails to allege facts sufficient to state a plausible claim for relief

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as to either Defendant Blain or Wyatt. See Iqbal, 556 U.S. at 678.

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Only “deliberate indifference to a serious medical illness or injury states a cause of

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action under § 1983.” Estelle v. Gamble, 429 U.S. 97, 105 (1976). “This includes ‘both an

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objective standard-- that the deprivation was serious enough to constitute cruel and unusual

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punishment--and a subjective standard--deliberate indifference.’” Colwell v. Bannister,

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763 F.3d 1060, 1066 (9th Cir. 2014) (quoting Snow v. McDaniel, 681 F.3d 978, 985 (9th

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Cir. 2012), overruled in part on other grounds by Peralta v. Dillard, 744 F.3d 1076 (9th

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Cir. 2014) (en banc)).

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Because Plaintiff alleges to have suffered a bone fracture to his right wrist when he

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first complained to Defendants Blain and Wyatt on June 20, 2012, as evidenced by an

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“eerie bulge,” see Doc. No. 20 at 4, the Court presumes, as it did in its February 18, 2014

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Order, that Plaintiff’s medical need was objectively serious. See McGuckin v. Smith, 974

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F.2d 1050, 1059 (9th Cir. 1991), overruled on other grounds by WMX Techs., Inc. v. Miller,

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104 F.3d 1133 (9th Cir. 1997) (en banc); Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir.

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2006) (serious medical need exists if failure to treat the injury or condition “could result in
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further significant injury” or cause “the unnecessary and wanton infliction of pain.”

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(citation and internal quotation marks omitted).

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However, Plaintiff’s Amended Complaint, like his original pleading, fails to include

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further “factual content that allows the court to draw the reasonable inference” that either

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Doctor Blain or Nurse Wyatt acted with “deliberate indifference” to his injured wrist. Iqbal,

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556 U.S. at 678; Jett, 439 F.3d at 1096. As the Court noted in its February 18, 2014 Order,

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in order to plead deliberate indifference, Plaintiff must allege that Blain and Wyatt

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“purposeful[ly] act[ed] or fail[ed] to respond to [his] pain or possible medical need,” and

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that he was harmed by their indifference. Wilhelm, 680 F.3d at 1122; Jett, 439 F.3d at 1096.

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“Deliberate indifference is a high legal standard,” Toguchi v. Chung, 391 F.3d 1051, 1060

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(9th Cir. 2004), that requires Plaintiff to allege these Defendants “kn[ew] of and

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disregard[ed] an excessive risk to inmate health and safety.” Farmer v. Brennan, 511 U.S.

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825, 837 (1994). Thus, Plaintiff’s pleading must contain “factual content” to show that

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officials he seeks to hold liable were both “aware of facts from which the inference could

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be drawn that a substantial risk of serious harm exist[ed], and [that they] … also dr[e]w the

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inference.” Id.; Iqbal, 556 U.S. at 678. Even if prison officials are alleged to “actually

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kn[o]w of a substantial risk to inmate health or safety,” they will not be found deliberately

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indifferent “if they responded reasonably to the risk, even if the harm ultimately was not

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averted.” Farmer, 511 U.S. at 844.

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Here, Plaintiff alleges to have reported his “visible, sizeable swelling” and

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“excruciating pain” to Nurse Wyatt at the B-yard clinic on June 20, 2012. See Doc. No. 20

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at 3. Plaintiff contends Wyatt telephoned Dr. Blain, and then gave him some Tylenol, an

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ice bag, and Ace-wrapped his wrist. Id. Plaintiff’s pain and swelling did not subside,

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however, and he continued to “frequent[] the clinic,” and submitted “more than ten”

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medical requests until an X-ray was first “recommended” on July 23, 2012, and later

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conducted on August 30, 2012, “two (2) months after [his] initial complaint.” Id. However,

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Plaintiff alleges no further facts to suggest how or why Wyatt and Blain were the medical

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officials responsible for any delay in scheduling an X-ray or any other diagnostic or pain
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treatment after his initial consultation with them on June 20, 2012. Iqbal, 556 U.S. at 676

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(“[A]plaintiff must plead that each Government-official defendant, though the official’s

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own individual actions, has violated the Constitution.”).

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Deliberate indifference entails more than ordinary lack of due care. Snow v.

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McDaniel, 681 F.3d 978, 985 (9th Cir. 2012) (citation and quotation marks omitted);

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Wilhelm, 680 F.3d at 1122. While Plaintiff may not have agreed with Wyatt or Blain’s

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treatment decisions on June 20, 2012, or their failure to provide him with an “instant” X-

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ray on that day, see Doc. No. 20 at 2, this disagreement, without more does not provide

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sufficient “factual content” to plausibly suggest that either Wyatt or Blain acted with

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deliberate indifference. Iqbal, 556 U.S. at 678 (“The plausibility standard is not akin to a

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‘probability requirement,’ but it asks for more than the sheer possibility that a defendant

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has acted unlawfully.”); see Frost v. Cate, No. 12-CV-05226-YGR (PR), 2015 WL

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1927933, at *10 (N.D. Cal. Mar. 27, 2015) (denial of request for an MRI or an x-ray

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amounted to “nothing more than a difference of opinion between medical staff and an

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inmate”); cf. Franklin v. State of Or., State Welfare Div., 662 F.2d 1337, 1344 (9th Cir.

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1981) (rejecting prisoner’s claims that “prison clinic took twelve X-rays when two would

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have been sufficient,” on Eighth Amendment grounds as mere “difference of opinion”

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insufficient to state a § 1983 claim).

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Accordingly, the Court finds that Plaintiff Amended Complaint still fails to state an

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Eighth Amendment inadequate medical care claim against either Defendant Wyatt or

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Blain, and therefore, must also be dismissed pursuant to 28 U.S.C. § 1915(e)(2) and

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§ 1915A(b). See Lopez, 203 F.3d at 1126-27; Resnick, 213 F.3d at 446.

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2.

Exhaustion

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“Among other reforms, the PLRA mandates early judicial screening . . . and requires

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prisoners to exhaust prison grievance procedures before filing suit.” Jones, 549 U.S. at 202.

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While the “failure to exhaust is an affirmative defense under the PLRA,” id. at 216, a

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prisoner’s complaint may be subject to dismissal for failure to state a claim when an

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affirmative defense appears plainly on its face. Id. at 215; see also Albino v. Baca, 747 F.3d
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F.3d 1162, 1169 (9th Cir. 2014) (en banc) (noting that where “a prisoner’s failure to exhaust

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is clear from the face of the complaint,” his complaint is subject to dismissal for failure to

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state a claim), cert. denied sub nom., Scott v. Albino, 135 S. Ct. 403 (2014) (No. 14–82);

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Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003) (“A prisoner’s concession to

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nonexhaustion is a valid ground for dismissal[.]”), overruled on other grounds by Albino,

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747 F.3d at 1166.

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Applying these standards, the Court finds that in addition to failing to state an Eighth

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Amendment inadequate medical care claim against DefendantsWyatt or Blain, Plaintiff’s

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Amended Complaint must be also dismissed for failing to state a claim pursuant to 28

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U.S.C. § 1915A(b)(1) because he clearly concedes on the face of his pleading that he failed

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to exhaust all available administrative remedies as required by 42 U.S.C. § 1997e(a) before

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he filed suit. See Doc. No. 20 at 6; Vaden v. Summerhill, 449 F.3d 1047, 1050-51 (9th Cir.

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2006).

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The PLRA amended 42 U.S.C. § 1997e to provide that “[n]o action shall be brought

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with respect to prison conditions under section 1983 of this title, or any other Federal law,

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by a prisoner confined in any jail, prison, or other correctional facility until such

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administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The

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requirement is mandatory and unequivocal. Booth v. Churner, 532 U.S. 731, 741 (2001);

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McKinney v. Carey, 311 F.3d 1198, 1200 (9th Cir. 2002) (“Congress could have written a

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statute making exhaustion a precondition to judgment, but it did not. The actual statute

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makes exhaustion a precondition to suit.”). “The bottom line is that a prisoner must pursue

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the prison administrative process as the first and primary forum for redress of grievances.

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He may initiate litigation in federal court only after the administrative process ends and

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leaves his grievances unredressed.” Vaden, 449 F.3d at 1051.

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The State of California provides its prisoners and parolees the right to appeal

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administratively “any policy, decision, action, condition, or omission by the department or

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its staff that the inmate or parolee can demonstrate as having a material adverse effect upon

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his or her health, safety, or welfare.” CAL. CODE REGS. tit. 15, § 3084.1(a). In order to
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exhaust available administrative remedies within this system, a prisoner must generally

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proceed through three levels of review: (1) a first level written appeal, submitted on a

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CDCR Form 602, which describes “the specific issue under appeal and the relief

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requested”; (2) a second level written appeal to the institution head or his equivalent; and

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(3) a third level written appeal to the Secretary of the CDCR, which is reviewed by a

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designated representative under the supervision of the third level Appeals Chief or his

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equivalent. See Woodford v. Ngo, 548 U.S. 81, 85-86 (2006); see also CAL. CODE REGS.

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tit. 15, §§ 3084.2(a); 3084.7(a)-(c), (d) (Jan. 1, 2014). A final decision from the third level

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of review “exhausts administrative remedies” under 42 U.S.C. § 1997e(a). See Lira v.

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Herrera, 427 F.3d 1164, 1166–67 (9th Cir. 2005); see also CAL. CODE REGS. tit. 15,

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§ 3084.7(c), (d)(3) (Jan. 1, 2014).

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In this case, Plaintiff used the Court’s form Complaint under the Civil Rights Act,

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42 U.S.C. § 1983, which asks if he has “previously sought and exhausted all forms of

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informal or formal relief from the proper administrative officials regarding the acts alleged

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. . . [E.g., CDC Inmate/Parolee Appeal Form 602, etc.]?” See Doc. No. 20 at 6. In response,

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Plaintiff placed an “X” in box marked “No.” Id. And while the form further asks, “If your

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answer is ‘No’, briefly explain why administrative relief was not sought,” Plaintiff simply

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wrote “N/A.” Id. Section 1997e(a) however, is applicable. Booth, 532 U.S. at 741; see also

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Porter v. Nussle, 534 U.S. 516, 524 (2002) (holding that § 1997e(a)’s mandatory

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exhaustion requirement “applies to all inmate suits about prison life, whether they involve

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general circumstances or particular episodes, and whether they allege excessive force or

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some other wrong.”).

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Thus, based on Plaintiff’s concession of nonexhaustion, which is clear and

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unequivocal on both the face of his original (Doc. No. 1 at 4), as well as his Amended

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Complaints, see Doc. No. 20 at 6; Albino, 747 F.3d at 1166; Wyatt, 315 F.3d at 1120, the

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Court finds that even if Plaintiff had sufficiently alleged an Eighth Amendment claim

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against any Defendant, his case would nevertheless be subject to dismissal. Jones, 549 U.S.

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at 215; 28 U.S.C. § 1915A(b)(1). The “exhaustion requirement does not allow a prisoner
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to file a complaint addressing non-exhausted claims.” Rhodes v. Robinson, 621 F.3d 1002,

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1004 (9th Cir. 2010) (citing McKinney, 311 F.3d at 1199).

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III.

Conclusion and Order

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Accordingly, the Court DISMISSES this civil action without prejudice based on

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Plaintiff’s failure to state a claim upon which relief can be granted and pursuant to 28

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U.S.C. §§ 1915(e)(2), 1915A(b)(1) and 42 U.S.C. § 1997e(a).
The Clerk of Court shall enter a final dismissal without prejudice and close the file.1

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Dated: May 4, 2016

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_________________________________________
Barry Ted Moskowitz, Chief Judge
United States District Court

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While the Court typically grants leave to amend liberally in pro se cases, Plaintiff has
already been apprised of his pleading deficiencies, has failed to correct them, and has
repeatedly conceded his failure to exhaust, which is not a pleading defect which might be
cured by the allegation of additional facts. See Lopez, 203 F.3d at 1127. Leave to amend is
properly denied “if amendment would be futile.” Carrico v. City and County of San
Francisco, 656 F.3d 1002, 1008 (9th Cir. 2011).
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