Jones v. You

Filing 12

ORDER Dismissing Complaint for Failing to State a Claim Upon Which Relief May be Granted Pursuant to 28 U.S.C. 1915(e)(2)(B)(ii) and 1915A(b)(1). Signed by Judge Michael M. Anello on 8/18/2017. (Blank copy of Complaint sent to Plaintiff) (All non-registered users served via U.S. Mail Service)(jjg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ELVIS JONES,
CDCR #G-41716,

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ORDER DISMISSING COMPLAINT
FOR FAILING TO STATE A CLAIM
UPON WHICH RELIEF MAY BE
GRANTED PURSUANT TO
28 U.S.C. § 1915(e)(2)(B)(ii)
AND § 1915A(b)(1)

Plaintiff,

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Case No.: 3:17-cv-01001-MMA-WVG

vs.
Dr. YOU,
Defendant.

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ELVIS JONES (“Plaintiff”), currently incarcerated at California State Prison in

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Corcoran (“COR”), California, and proceeding pro se, filed this civil rights action

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pursuant to 42 U.S.C. § 1983 on October 21, 2016, in the Eastern District of California.

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(Doc. No. 1).

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I.

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Procedural History
In one part of his Complaint, Plaintiff alleges that Dr. You, employed by Richard J.

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Donovan Correctional Facility (“RJD”), in San Diego, California, on an unspecified date

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“denied [him] ongoing medical care by cancelling and ignoring” medical chronos for

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soft-soled shoes and a lower-tier bunk assignment, and as a result, he was “denied access

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to [the] mental health medication line and prison dining halls,” and “admitted to a crisis
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bed at a higher level of care.” (Id. at a 3-4.) In another portion of his pleading, however,

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Plaintiff contends he was “transferred from RJD to Corcoran” on November 25, 2014,

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“where he was seen by Dr. You,” and “Corcoran custody officers … disregard[ed] [his]

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medical needs.” (Id. at 4, 9.) In addition, the Director’s Level Decision of an inmate

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health care appeal Plaintiff filed at COR requesting that “medical chronos and treatment

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records from another institution be honored at [his] current institution,” Log No. COR

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HC14056624, dated July 6, 2015, and attached to his Complaint, id. at 10-11, does not

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mention Dr. You or RJD. But it does note that Plaintiff had since been transferred from

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COR to the California Health Care Facility (“CHCF”) in Stockton in May 2015, where he

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was evaluated by an unidentified PCP [primary care provider] for “neck and knee pain”

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in June 2015, and where he acknowledged the receipt of “orthopedic shoes and

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orthotics.” (Id. at 10.)

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On October 21, 2016, a staff note in the Eastern District’s docket noted “venue

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correct,” and on October 24, 2016, United States Magistrate Judge Jennifer L. Thurston

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granted Plaintiff leave to proceed in forma pauperis (“IFP”) (Doc. No. 5). But after

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Plaintiff consented to magistrate judge jurisdiction on April 21, 2017, Judge Thurston

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transferred the case to the Southern District of California pursuant to 28 U.S.C.

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§ 1406(a), finding that “none of the defendants reside in [the Eastern District],” that

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Plaintiff’s “claim arose in San Diego County,” therefore, his case “should have been

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filed” in the Southern District of California. (Doc. No. 9 at 1.)

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Judge Thurston did not screen Plaintiff’s Complaint pursuant to either 28 U.S.C.

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§ 1915(e)(2) or § 1915A before the transfer.

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I.

Screening Required by 28 U.S.C. § 1915(e)(2) and § 1915A

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A.

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While Judge Thurston’s transfer Order does not address the inconsistencies in

Standard of Review

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Plaintiff’s pleading as to where the substantial part of the events or omissions giving rise

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to Plaintiff’s claims actually arose, see 28 U.S.C. § 1391(b)(2), in one section of his

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Complaint Plaintiff does allege the sole Defendant, Dr. You, is employed at RJD (and
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presumably resides) in San Diego. Id. § 1391(b)(1); Doc. No. 1 at 3.

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Because Plaintiff is a prisoner and is proceeding IFP, however, his Complaint

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

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Under these statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or

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any portion of it, which is frivolous, malicious, fails to state a claim, or seeks damages

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from defendants who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir.

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2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002,

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1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is

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‘to ensure that the targets of frivolous or malicious suits need not bear the expense of

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

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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

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

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

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F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th

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Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard

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applied in the context of failure to state a claim under Federal Rule of Civil Procedure

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12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted

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as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.

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662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121.

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Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of

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a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556

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U.S. at 678. “Determining whether a complaint states a plausible claim for relief [is] ... a

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context-specific task that requires the reviewing court to draw on its judicial experience

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and common sense.” Id. The “mere possibility of misconduct” or “unadorned, the

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defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility

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standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

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B.

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As noted above, Plaintiff claims “Defendant denied [him] ongoing medical care by

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cancelling and ignoring his CDCR medical chronos,”1 and that as a result, he was “denied

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access to a mental health medication line,” “prison dining halls,” and admitted to a “crisis

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bed at a higher level of care.” (Doc. No. 1 at 3.) Plaintiff claims Dr. You “informed [him]

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that he was den[y]ing use of medical devices for his feet because custody officers

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frowned on inmates[’] use of soft-sole[d] … shoes and lower tier chronos.” (Id. at 4.) He

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seeks “to be awarded financially through jury trial for pain and suffering.” (Id. at 5.)

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C.

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Plaintiff’s Allegations

Eighth Amendment – Medical Care
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Standard of Review

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Prison officials violate the Eighth Amendment only when they respond with

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deliberate indifference to an inmate’s serious medical needs. Estelle v. Gamble, 429 U.S.

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97, 103-05 (1976) (citations and footnotes omitted).

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Medical needs are sufficiently “serious” if, objectively, the failure to treat them

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“will result in significant injury or the unnecessary and wanton infliction of pain.”

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Peralta v. Dillard, 744 F.3d 1076, 1081 (9th Cir. 2014) (en banc) (citations and internal

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quotation marks omitted). Serious medical needs include “[t]he existence of an injury that

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a reasonable doctor 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 individual’s daily

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activities; or the existence of chronic and substantial pain.” McGuckin v. Smith, 974 F.2d

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1050, 1059 (9th Cir. 1991) (citations omitted), overruled on other grounds by WMX

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

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A medical “chrono” is a recommendation, usually related to an inmate’s medical condition or course of
treatment, issued by a prison physician. See e.g., Cal. Code Regs. tit. 15, § 3043.5(d) (describing the
medical chrono also known as “Form 128–C”); see generally Cal. Code Regs. tit. 15, § 3000 (defining
“general chrono” written on CDC Form 128–B “which is used to document information about inmates
and inmate behavior”); Diaz v. Diaz, No. 1:12-CV-01296-GBC PC, 2012 WL 5949094, at *2 n.1 (E.D.
Cal. Nov. 28, 2012).
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A prison official acts with deliberate indifference when the official is subjectively

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aware of, but purposefully ignores or fails to respond to an “excessive risk to inmate

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health” (i.e., a serious medical need). Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir.

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2014) (citations omitted). Each defendant’s alleged indifference must be “substantial.”

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Estelle, 429 U.S. at 105-06; Lemire v. Cal. Dept. of Corr. and Rehab. 726 F.3d 1062,

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1081-82 (9th Cir. 2013) (citations omitted). A prison doctor’s mistake, negligence, or

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malpractice does not establish deliberate indifference to serious medical needs. Estelle,

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429 U.S. at 105-06. “Even gross negligence is insufficient.” Lemire, 726 F.3d at 1082.

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Instead, “the official must both be aware of facts from which the inference could be

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drawn that a substantial risk of serious harm exists, and he must also draw the inference.”

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Colwell, 763 F.3d at 1066 (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994))

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(quotation marks omitted).

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While a prisoner need not prove that he was completely denied medical care,

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Lopez, 203 F.3d at 1132, and deliberate indifference is manifest when a prison doctor or

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guard intentionally denies or delays access to medical care or intentionally interferes with

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“treatment once prescribed,” Estelle, 429 U.S. at 104-05 (footnotes omitted), a mere

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disagreement with a defendant’s professional judgment concerning what medical care is

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most appropriate under the circumstances is insufficient. Hamby v. Hammond, 821 F.3d

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1085, 1092 (9th Cir. 2016) (citation omitted). Therefore, the medical care a doctor

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provides to an inmate amounts to deliberate indifference only if the doctor is alleged to

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have chosen a course of treatment that “was medically unacceptable under the

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circumstances” and did so “in conscious disregard of an excessive risk to plaintiff’s

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health.” Colwell, 763 F.3d at 1068 (citations and internal quotation marks omitted).

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Finally, where a prisoner seeks to hold prison officials personally liable for

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damages, the plaintiff must establish a causal link between the particular defendant’s

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deliberate indifference and the constitutional deprivation alleged. Leer, 844 F.2d at 633-

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34. “Causation is, of course, a required element of a § 1983 claim.” Estate of Brooks v.

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United States, 197 F.3d 1245, 1248 (9th Cir. 1999). Proper evaluation of causation
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involves “a very individualized approach which accounts for the duties, discretion, and

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means of each defendant.” Leer, 844 F.2d at 633-34.

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Analysis

Applying these standards, the Court finds Plaintiff’s Complaint fails to state a

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plausible claim for relief under the Eighth Amendment against Dr. You. Iqbal, 556 U.S.

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at 678-79. Plaintiff claims only that You denied him the “use of medical devices for his

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feet,” and “cancel[led] and ignor[ed]” previously issued chronos authorizing his use of

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soft-soled shoes and a lower-tier housing assignment. See Doc. No. 1 at 3-4. But Plaintiff

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altogether fails to include any factual allegations describing the nature of his physical

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disability or serious medical need for either of these accommodations. See Peralta, 744

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F.3d at 1081; McGuckin, 974 F.2d at 1059.

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Moreover, even if the Court assumes Plaintiff suffers from a “serious” medical

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need, the mere fact that medical chronos accommodating his needs were at some point

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discontinued, by Dr. You or by any subsequent prison doctor attending to him at RJD or

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elsewhere, does not by itself support a claim of deliberate indifference. A difference of

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opinion over what constitutes proper treatment does not rise to the level of an Eighth

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Amendment violation. See Estelle, 429 U.S. at 105-06; Sanchez v. Vild, 891 F.2d 240,

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242 (9th Cir.1989); Shapley v. Nev. Bd. of State Prison Comm’r, 766 F.2d 404, 407 (9th

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Cir. 1984). “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d

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1051, 1060 (9th Cir. 2004) (citing Hallett v. Morgan, 296 F.3d 732, 1204 (9th Cir. 2002).

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The Constitution does not require that prison doctors give inmates every medical

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treatment they desire. Bowring v. Godwin, 551 F.2d 44, 47-48 (4th Cir. 1977).

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And although Plaintiff may believe prison official must always provide him soft-

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soled shoes and a lower-tiered bunk regardless of his current physical condition,

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placement, classification, or other circumstances of incarceration, he may not dictate his

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own medical treatment. Bowring, 551 F.2d at 47-48. In fact, as a matter of law,

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differences of opinion between a prisoner and his doctors fail to show deliberate

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indifference to serious medical needs. Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir.
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1996); see also Allison v. Prison Health Services, Inc., 2009 WL 205228, at *8 (D. Idaho

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Jan. 28, 2009) (finding that Plaintiff’s assertion that a different orthotic device would

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provide better treatment was insufficient to support an Eighth Amendment claim); see

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also Diaz v. Vasquez, No. 1:12-CV-00732-GBC PC, 2012 WL 5471803, at *2 (E.D. Cal.

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Nov. 9, 2012) (finding transfer prison’s invalidation of inmate’s previous medical chrono

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for soft-soled shoes failed to state an Eighth Amendment claim pursuant to 28 U.S.C.

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§ 1915(e)(2) and § 1915A).

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II.

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Conclusion and Order
Accordingly, the Court DISMISSES Plaintiff’s Complaint sua sponte and in its

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entirety for failure to state a claim upon which relief can be granted pursuant to 28 U.S.C.

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§ 1915(e)(2)(B)(ii) and § 1915A(b)(1). See Lopez, 203 F.3d at 1126-27; Rhodes, 621 F.3d

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at 1004.

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The Court further GRANTS Plaintiff forty-five (45) days leave from the date of

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this Order in which to file an Amended Complaint which cures the deficiencies of

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pleading noted. Plaintiff’s Amended Complaint must be complete by itself without

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reference to his original pleading. Defendants not named and any claim not re-alleged in

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his Amended Complaint will be considered waived. See S.D. Cal. CivLR 15.1; Hal

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Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989)

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(“[A]n amended pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d

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896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend which are not

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

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Plaintiff’s Amended Complaint, should he elect to file one, must be titled as his

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“First Amended Complaint,” contain S.D. Cal. Civil Case No. 17-cv-01001-MMA-WVG

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in it caption, and comply both with Fed. R. Civ. P. 8 and with S.D. Cal. CivLR 8.2.a. The

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Court DIRECTS the Clerk of the Court to provide Plaintiff with a blank copy of its form

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Complaint under the Civil Rights Act, 42 U.S.C. § 1983 for Plaintiff’s use and to assist

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him in complying with LR 8.2.a’s requirements.

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If Plaintiff fails to file an Amended Complaint within 45 days, or if he files an

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Amended Complaint that still fails to allege a plausible claim for relief against any RJD

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or other official alleged to reside in San Diego or Imperial County, the Court will dismiss

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this civil action without further leave to amend pursuant to 42 U.S.C. § 1915(e)(2) and

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§ 1915A. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does

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not take advantage of the opportunity to fix his complaint, a district court may convert the

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dismissal of the complaint into dismissal of the entire action.”).

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Finally, should Plaintiff file an Amended Complaint that fails to contain or

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properly allege a plausible claim for relief arising in the Southern District of California

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against any Defendant alleged to reside in either San Diego or Imperial County, but does

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re-allege a plausible claim for relief arising at either COR or CHCF against Defendants

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alleged to reside and/or be employed in either Kings or San Joaquin County, the Court

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will transfer the case back to the Eastern District of California, where Plaintiff first

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elected to file it, and where it “could have been brought” pursuant to 28 U.S.C. §§ 84(b)

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and 1406(a). See Atl. Marine Const. Co. v. U.S. Dist. Court for W. Dist. of Texas, 134 S.

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Ct. 568, 581 (2013) (noting that “plaintiffs are ordinarily allowed to select whatever

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forum they consider most advantageous (consistent with jurisdictional and venue

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limitations)” and terming that selection the “plaintiff’s venue privilege.”).

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IT IS SO ORDERED.
DATE: August 18, 2017

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HON. MICHAEL M. ANELLO
United States District Judge

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