Hernandez v. Kernan

Filing 8

ORDER: (1) Denying 5 Motion for Extension of Time as Moot; and (2) Dismissing First Amended Complaint. The Court DENIES Plaintiff's Motion for Extension of Time to File FAC [ECF No. 5] as moot; DISMISSES this civil action without further leave to amend pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b). Because the Court finds further amendment futile, leave to amend is DENIED. The Clerk of Court is DIRECTED to close the file. Signed by Judge Dana M. Sabraw on 4/17/2018.(All non-registered users served via U.S. Mail Service)(aef)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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STEVE GILBERT HERNANDEZ,
CDCR #G-46924,

ORDER:

Plaintiff,

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vs.

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Case No.: 3:18-cv-00160-DMS-PCL

(1) DENYING MOTION FOR
EXTENSION OF TIME AS MOOT
[ECF No. 5]; and

SCOTT KERNAN; A. SANGHA;
K. REILLY; J. LEWIS

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Defendants.

(2) DISMISSING FIRST AMENDED
COMPLAINT

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I.

Procedural History

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On January 23, 2018, Steve Hernandez (“Plaintiff”), a state inmate currently

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incarcerated at Correctional Training Facility located in Soledad, California, proceeding

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pro se, filed a civil action pursuant to 42 U.S.C. § 1983. (ECF No. 1.) In addition,

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Plaintiff filed a Motion to Proceed In Forma Pauperis (“IFP”). (ECF No. 2.)

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The Court GRANTED Plaintiff’s Motion to Proceed IFP and simultaneously

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DISMISSED his Complaint for failing to state a claim upon which relief could be granted

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pursuant to 28 U.S.C. § 1915(e)(2) & 1915A. (ECF No. 3.) Plaintiff was given leave to

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file an amended pleading in order to correct the deficiencies of pleading identified in the

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Court’s Order. (Id.) On March 5, 2018, Plaintiff filed a motion seeking additional time

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to file his amended pleading. (ECF No. 5.) However, before the Court could rule on this

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motion, Plaintiff filed his First Amended Complaint (“FAC”). (ECF No. 6.) Therefore,

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Plaintiff’s motion seeking additional time is DENIED as moot.

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II.

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

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A.

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As the Court stated in the previous Order, because Plaintiff is a prisoner and is

Standard of Review

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proceeding IFP, his FAC requires a pre-answer screening pursuant to 28 U.S.C.

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§ 1915(e)(2) and § 1915A(b). Under these statutes, the Court must sua sponte dismiss a

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prisoner’s IFP complaint, or any portion of it, which is frivolous, malicious, fails to state

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a claim, or seeks damages from defendants who are immune. See Williams v. King, __

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F.3d __, 2017 WL 5180205, at *2 (9th Cir. Nov. 9, 2017) (discussing 28 U.S.C. §

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1915(e)(2)) (citing Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc));

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Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. §

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1915A(b)). “The purpose of [screening] is ‘to ensure that the targets of frivolous or

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malicious suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d

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903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d

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680, 681 (7th Cir. 2012)). A complaint is “frivolous” if it “lacks an arguable basis either

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in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 324 (1989).

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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 to “contain sufficient factual matter,

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

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556 U.S. 662, 678 (2009) (internal quotation marks omitted).

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

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

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Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for

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relief [is] . . . a context-specific task that requires the reviewing court to draw on its

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judicial experience and common sense.” Id. The “mere possibility of misconduct” or

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“unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting

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this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969

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(9th Cir. 2009).

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B.

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Plaintiff was initially diagnosed with Hepatitis C when he was housed at the

Plaintiff’s Allegations

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Correctional Training Facility in 2000. (See FAC at 7.) At some point, Plaintiff was

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transferred to CEN 1. On February 7, 2016, Plaintiff filed an administrative grievance in

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which he requested to be “seen by a specialist” and to “treat the underlying cause of

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Hepatitis C.” (Id. at 4.) In this request Plaintiff alleges he notified prison officials that he

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had been “subjected to unpleasant side effects, such as edema, nausea, fatigue, tenderness

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and pains, plus pressure in the stomach area.” (Id.)
In response, physicians at CEN ordered “an ultra sound for possible gall bladder

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problems” but Plaintiff denied he has any issues with his gall bladder. (Id. at 5.) Plaintiff

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was seeking a specific treatment for his Hepatitis C which includes “medicine such as

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At the time Plaintiff filed this action he was housed at Centinela State Prison (“CEN”). (See ECF No.
1.)
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Harvoni.” (Id.) However, Plaintiff was informed that such treatment was only provided

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where “liver function numbers have to be elevated according to a specified level.” (Id.)

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If the liver function numbers reach that level or higher, Plaintiff would receive this

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treatment, along with a “fibro scan” that “detects scarring of the liver, cirrhosis and

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cancer.” (Id.)

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However, Plaintiff claims he is being unfairly denied this treatment and instead,

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prison officials “favor monitoring the Plaintiff’s Hep C virus.” (Id. at 6.) Defendant

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Sangha, Chief Medical Executive at CEN, responded to the first level of review of

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Plaintiff’s grievance. (See id. at 8.) In this response, Sangha informed Plaintiff that he

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“did not meet the criteria for inclusion in the Hepatitis C treatment program.” (Id.)

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Defendant Reilly, Chief Executive Office for the California Correctional Health Care

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Services (“CCHCS”), also denied Plaintiff’s request and found that “Plaintiff did not

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meet the criteria for inclusion in the Hepatitis C treatment program as per CCHCS

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guidelines.” (Id.) Defendant Lewis, Deputy Director of Policy and Risk Management

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Services for CCHCS, also “advised” Plaintiff that he did not “meet criteria for

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consideration of Hep C treatment at this time.” (Id.)
Plaintiff claims that he is “routinely” examined once a year for his Hepatitis C at

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which time blood is drawn and evaluated. (Id. at 9.) Plaintiff claims that “this has been

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the routine throughout his incarceration.” (Id.) Plaintiff alleges that he “still suffers from

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the symptoms associated with the Hep C virus.” (Id.)
Plaintiff seeks injunctive relief in the form of a “preliminary injunction to

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C.D.C.R. or the Defendants to immediately provide Plaintiff with treatment that includes

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modern medicine such as Harvoni” and to “receive a fibro scan to check for liver

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damage.” (Id. at 17.)

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C.

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Once again, Plaintiff has attached to his FAC several Exhibits which demonstrate

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that Plaintiff brought these identical Eighth Amendment claims based on the same set of

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facts before California State Courts. On July 13, 2017, Justices McConnell, Haller, and

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Aaron issued an Opinion denying Plaintiff’s petition for writ of habeas corpus. (See Pl.’s

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FAC, ECF No. 6 at 61-62, Ex. Z, In Re Steven G. Hernandez, No. D072412 (Cal.Ct.App.

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July 13, 2017). Specifically, the Justices found that the “prison staff is not acting with

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deliberate indifference to [Plaintiff’s] serious medical needs.” (Id. at *2.) They further

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found that Plaintiff’s own submissions demonstrated that “physicians have been

Rooker Feldman

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monitoring his hepatitis C, considered his request for treatment with Harvoni, and

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concluded based on medical criteria that he does not yet qualify for such treatment.” (Id.)

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Finally, they concluded that Plaintiff’s “disagreement or dissatisfaction with his

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physician’s treatment plan and his preference for a different one are insufficient to state

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an Eighth Amendment claim.” (Id.) Plaintiff appealed this decision to the California

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Supreme Court and his petition for writ of habeas corpus was denied. (See FAC, ECF

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No. 6 at 64, “Appendix 3,” In re STEVEN G. HERNANDEZ, No. S24846 (Cal. Dec. 13,

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2017).

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Here, Plaintiff is seeking a ruling from this Court essentially overturning a

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California State Court decision. If the Court were to find that Plaintiff has stated an

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Eighth Amendment claim, that finding would be in direct contradiction to the findings of

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the California Court of Appeal. This is not a viable form of relief in this action. The

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Rooker-Feldman doctrine provides that “‘a losing party in state court is barred from

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seeking what in substance would be appellate review of the state judgment in a United

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States District Court, based on the losing party’s claim that the state judgment itself

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violates the loser’s federal rights.’” Doe v. Mann, 415 F.3d 1038, 1041 (9th Cir. 2005)

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(quoting Johnson v. De Grandy, 512 U.S. 997, 1005-06 (1994)), cert. denied, 119 S.Ct.

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868 (1999); see District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476 &

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486 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 416 (1923).

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Review of state court decisions may only be conducted in the United States

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Supreme Court. Feldman, 460 U.S. at 476 & 486; Rooker, 263 U.S. at 416; see 28

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U.S.C. § 1257. The Rooker-Feldman jurisdictional bar applies even if the complaint

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raises federal constitutional issues. Feldman, 460 U.S. at 483 n.16 & 486; Henrichs v.

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Valley View Development, 474 F.3d 609, 613 (9th Cir. 2007). More specifically, the bar

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applies if the challenge to the state court decision is brought as a § 1983 civil rights

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action. See Branson v. Nott, 62 F.3d 287, 291 (9th Cir. 1995); Worldwide Church of God

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v. McNair, 805 F.2d 888, 893 n.4 (9th Cir. 1986).
A complaint challenges a state court decision if the constitutional claims presented

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to the district court are “inextricably intertwined” with the state court’s decision in a

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judicial proceeding. Feldman, 460 U.S. at 483 n.16. “[T]he federal claim is inextricably

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intertwined with the state court judgment if the federal claim succeeds only to the extent

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that the state court wrongly decided the issues before it.” Pennzoil Co. v. Texaco Inc.,

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481 U.S. 1, 25 (1987)(Marshall, J., concurring); see also Worldwide Church of God, 805

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F.2d at 891-92.

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Because Plaintiff appears to seek this Court’s assistance in overturning orders

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made by state court judges based on the same Eighth Amendment claims brought in this

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action, his claims are inextricably intertwined with the state court proceedings, and are

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barred by the Rooker-Feldman doctrine.

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D.

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“[O]nce a court has decided an issue of fact or law necessary to its judgment, that

Collateral Estoppel

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decision may preclude relitigation of the issue in a suit on a different cause of action

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involving a party to the first case.” Allen v. McCurry, 449 U.S. 90, 94 (1980). Collateral

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estoppel operates to “relieve parties of the cost and vexation of multiple lawsuits,

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conserve judicial resources and, by preventing inconsistent decisions, encourage reliance

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on adjudication.” Id. Federal courts hearing section 1983 actions must give collateral

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estoppel effect to state court judgments. Id. Specifically, “[a] federal court must give to

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a state-court judgment the same preclusive effect as would be given that judgment under

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the law of the State in which the judgment was rendered.” Migra v. Warren City School

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Dist. Bd. of Educ., 465 U.S. 75, 81 (1984); see also Ayers v. City of Richmond, 895 F.2d

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1267, 1270 (9th Cir. 1990) (“State law governs the application of collateral estoppel or

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issue preclusion to a state court judgment in a federal civil rights action”).

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Under California law, collateral estoppel prevents the re-litigation of issues

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decided in a prior matter if: (1) the issue is identical to the one decided in the prior

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proceeding; (2) the issue was actually litigated in the prior proceeding; (3) the issue was

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necessarily decided in the prior proceedings; (4) the decision in the prior proceeding was

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final and on the merits; and (5) the party against whom the preclusion is sought is the

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same or is in privity with the party from the prior proceeding. See Lucido v. Superior

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Court, 51 Cal.3d 335, 341 (Cal. 1990).

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Plaintiff brought his habeas petition to the California State Court to challenge the

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“Director’s Level of Review dated August 9, 2016” which “denied Petitioner’s appeal on

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the stated ground that his laboratory results do not meet the criteria for treatment.” (FAC,

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ECF No. 6 at 58.) This “Director’s Level of Review” is the same one that is the subject

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of this matter for which Plaintiff seeks to hold Defendant Lewis liable for alleged Eighth

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Amendment violations. (See id., ECF No. 6 at 39-82.)

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The Court finds that all the elements of collateral estoppel have been met with

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regard to Plaintiff’s Eighth Amendment claim. As stated above, on July 13, 2017,

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Justices McConnell, Haller, and Aaron issued an opinion denying Plaintiff’s petition for

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writ of habeas corpus. (See Pl.’s FAC, ECF No. 6 at 61-62, Ex. Z, In Re Steven G.

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Hernandez, No. D072412 (Cal.Ct.App. July 13, 2017). Specifically, the Justices found

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that the “prison staff is not acting with deliberate indifference to [Plaintiff’s] serious

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medical needs.” (Id.) They further found that Plaintiff’s own submissions demonstrated

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that “physicians have been monitoring his hepatitis C, considered his request for

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treatment with Harvoni, and concluded based on medical criteria that he does not yet

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qualify for such treatment.” (Id.) Finally, they concluded that Plaintiff’s “disagreement

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or dissatisfaction with his physician’s treatment plan and his preference for a different

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one are insufficient to state an Eighth Amendment claim.” (Id.) Plaintiff appealed this

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decision to the California Supreme Court and his petition for writ of habeas corpus was

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denied. (See FAC, ECF No. 6 at 64, “Appendix 3,” In re STEVEN G. HERNANDEZ, No.

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S24846 (Cal. Dec. 13, 2017).
For all these reasons, the Court finds that Plaintiff is estopped from bringing his
Eighth Amendment claims to this Court.

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E.

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Finally, Plaintiff’s claims are subject to sua sponte dismissal because, as stated

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above they are duplicative of those raised in the previously identified California State

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Court proceedings. A court “‘may take notice of proceedings in other courts, both within

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and without the federal judicial system, if those proceedings have a direct relation to

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matters at issue.’” Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (quoting

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Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002)). A prisoner’s

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complaint is considered frivolous under 28 U.S.C. § 1915(e)(2)(B)(ii) [formerly

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§ 1915(d)] if it “merely repeats pending or previously litigated claims.” Cato v. United

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States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995) (construing former 28 U.S.C. § 1915(d))

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(citations and internal quotations omitted).

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Duplicative claims

Because Plaintiff’s current FAC raises the same facts and is based on the same

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incidents, the Court must dismiss this duplicative and subsequently-filed civil action as

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frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). See Cato, 70 F.3d at 1105 n.2.

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F.

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To the extent that Plaintiff seeks injunctive relief in the form of an order directing

Injunctive Relief

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CEN Defendants to provide him with medical treatment, the claims against CEN

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Defendants are moot in light of his transfer to the Correctional Training Facility in

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Soledad, California. See Dilley v. Gunn, 64 F.3rd 1365, 1368 (9th Cir. 1995) (An

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inmate’s transfer to a different prison while conditions of confinement claims are pending

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moot any claims for injunctive relief.)

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III.

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Conclusion and Order
Good cause appearing, the Court:

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as moot;

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2.

DENIES Plaintiff’s Motion for Extension of Time to File FAC [ECF No. 5]

DISMISSES this civil action without further leave to amend pursuant to 28

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U.S.C. § 1915(e)(2)(B) and § 1915A(b). Because the Court finds further amendment

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futile, leave to amend is DENIED. See Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 339

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(9th Cir. 1996) (denial of a leave to amend is not an abuse of discretion where further

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amendment would be futile).

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The Clerk of Court is DIRECTED to close the file.

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IT IS SO ORDERED.

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Dated: April 17, 2018

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