Richard v. Ayers et al

Filing 15

ORDER ADOPTING REPORT AND RECOMMENDATION, DENYING MOTION TO AMEND, AND DISMISSING ACTION; adopting 12 Report and Recommendation; denying 13 Motion to Amend; Plaintiff warned re 28:USC 1915(g); the court certifies any appeal of this dismissal would not be taken in good faith. Case closed. Signed by Judge Thomas O. Rice. (CV, Case Administrator) Modified on 2/26/2015 (cc: Plaintiff and WA AG's Office) (CV, Case Administrator).

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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DAMIAN RICHARD,
NO: 4:14-CV-5084-TOR
Plaintiff,

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v.
DR. SUITER and DARREN
CHLIPALA,

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ORDER ADOPTING REPORT AND
RECOMMENDATION, DENYING
MOTION TO AMEND, AND
DISMISSING ACTION
1915(g)

Defendants.
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BEFORE THE COURT are the Report and Recommendation to Dismiss the

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First Amended Complaint (ECF No. 12), Plaintiff’s document titled, “No

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Objection to Report and Recommendation to Dismiss First Amended Complaint,”

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which is liberally construed as a Motion to Amend (ECF No. 13), and a Proposed

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Second Amended Complaint (ECF No. 14). Plaintiff agrees that his First

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Amended Complaint fails to state a claim against Defendants Dr. Suiter or Darren

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Chlipala and he asks that the action be dismissed without prejudice. Nevertheless,

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ORDER ADOPTING REPORT AND RECOMMENDATION, DENYING
MOTION TO AMEND, AND DISMISSING ACTION -- 1

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he seeks permission to proceed with his accompanying complaint dated September

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22, 2014 (ECF No. 14).

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In assessing Plaintiff’s Motion to Amend, the Court has considered the

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allegations set forth in the Proposed Second Amended Complaint and finds that

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they, too, fail to cure the deficiencies of the initial complaint.

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A prisoner seeking to impose Eighth Amendment liability for deliberate

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indifference must demonstrate three elements: (1) a "serious medical need," such

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that "failure to treat [the] condition could result in further significant injury or the

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unnecessary and wanton infliction of pain," Jett v. Penner, 439 F.3d 1091, 1096

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(9th Cir. 2006) (internal quotation marks omitted); (2) Defendant was "aware of"

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that serious medical need, see Farmer v. Brennan, 511 U.S. 825, 837 (1994); and

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(3) Defendant disregarded the risk that need posed, see id. at 846, such as by

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denying or delaying care, see Snow v. McDaniel, 681 F.3d 978, 986 (9th Cir.

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2012); Gibson v. Cnty. of Washoe, 290 F.3d 1175, 1188 (9th Cir. 2002). Plaintiff’s

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allegations do not rise to the level of a constitutional violation.

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Plaintiff states that he injured his knee on August 1, 2012, and was seen in

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the health service department on August 3, 2012. A nurse initially determined that

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Plaintiff had suffered minimal swelling to his patella, but the nurse was unable to

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thoroughly assess the knee due to tenderness. The nurse instructed Plaintiff to

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ORDER ADOPTING REPORT AND RECOMMENDATION, DENYING
MOTION TO AMEND, AND DISMISSING ACTION -- 2

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“stay of[f the] knee, use crutches, ice and elevate the knee, use a brace and take

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tylenol [sic] for pain.”

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Plaintiff states that he was seen again on August 16, 2012, after complaining

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of pain. He protests that PA-C Neau ordered an unidentified nurse to instruct

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Plaintiff “to continue to ice and elevate the knee, rest and use crutches for 6-8

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weeks and if not better new orders would be given at that time.” Plaintiff asserts

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that on August 23, 2012, he initiated a “medical emergency request” when his knee

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pain awoke him. He states that a nurse came, examined the knee and repeated the

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instructions ordered by PA-C Neau, and told Plaintiff to “return to the clinic for

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future assessment if pain continues.”
Plaintiff asserts that a nurse saw him at sick call on August 25, 2012,

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examined his knee and found that the pain and swelling had increased since the

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injury on August 1, 2012, while the range of motion had decreased. Plaintiff

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claims the nurse noted that his knee was “in extreme pain response and palpations

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medical aspect was strained or meniscus injury ligament.” Plaintiff complains that

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the “plan of treatment orders were consistent with recent orders given by defendant

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Neau.”

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Plaintiff contends that there was also a notation that he should be scheduled,

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as soon as possible, for an appointment to receive a knee injection, but he was

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never scheduled for this appointment and was never provided injections. He does

ORDER ADOPTING REPORT AND RECOMMENDATION, DENYING
MOTION TO AMEND, AND DISMISSING ACTION -- 3

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not state who failed to set this appointment or what efforts he made to ensure he

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received prescribed treatment. At worst, Plaintiff has stated that the scheduling of

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an appointment was neglected by an unidentified person. Mere indifference,

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medical malpractice, or negligence will not support a cause of action under the

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Eighth Amendment. Broughton v. Cutter Lab, 622 F.2d 458, 460 (9th Cir. 1980).

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Plaintiff avers that on September 6, 2012, he reported to the health clinic that

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his knee was “popping and locking.” He admits PA-C Relyea ordered that he be

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provided with a Health Status Report (“HSR”), a wrap and a knee brace. He

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complains, however, that no injections were given to him and “no treatment to

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repair the meniscus tear as required by the medical community.” Plaintiff makes

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no assertion that PA-C Relyea had been instructed to provide an injection, and with

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deliberate indifference to Plaintiff’s suffering failed to administer it. Indeed,

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Plaintiff indicated earlier that an appointment for such injection was never

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scheduled.

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Plaintiff presents no facts from which the Court could infer that, prior to

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September 6, 2012, a physician had medically diagnosed Plaintiff as requiring

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“treatment to repair the meniscus tear.” He alleges no facts showing that PA-C

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Relyea deliberately disregarded such a diagnosis. Differences in judgment

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between an inmate and prison medical personnel regarding appropriate medical

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diagnosis and treatment are not enough to establish a deliberate indifference claim.

ORDER ADOPTING REPORT AND RECOMMENDATION, DENYING
MOTION TO AMEND, AND DISMISSING ACTION -- 4

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See Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). Plaintiff concedes that he

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received a HSR, wrap and knee brace on September 6, 2012. His allegations are

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insufficient to show PA-C Relyea was deliberately indifferent to his serious

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medical needs.

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Plaintiff asserts that on October 10, 2012, he reported to health care officials

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that “pain had migrated from his medial to the lateral part of his knee.” He asserts

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that PA-C Relyea failed to provide injections “. . . or any treatment medically

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required to treat the meniscus tear.” Again, Plaintiff presents no facts showing that

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PA-C Relyea disregarded a known medical diagnosis or failed to administer a

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prescribed injection. The allegations are insufficient to state an Eighth

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Amendment violation.

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Plaintiff indicates that he “petitioned . . . the Assistant Secretary of the DOC

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in [an] attempt to compel the defendants to comply with Offender Health Plan

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Policy 600.000,” and that Defendant Chlipala was instructed to respond. Plaintiff

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asserts that on an unspecified date, Defendant Chlipala stated that he had spoken

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with Defendant Suiter, who reported that Plaintiff had sustained a “meniscus

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injury,” and “only received crutches, a knee brace and ice.” From this, Plaintiff

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infers that Defendants Suiter and Chlipala “knew or should have known plaintiff

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was never provided the necessary treatment to repair such an injury as required by

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the medical community (surgery).”

ORDER ADOPTING REPORT AND RECOMMENDATION, DENYING
MOTION TO AMEND, AND DISMISSING ACTION -- 5

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Once again, the standard for liability under the Eighth Amendment is not

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whether a Defendant “knew or should have known,” about a particular treatment.

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Rather, for a claim of deliberate indifference, an official must know of and

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disregard a serious medical condition and the official must be "aware of facts from

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which the inference could be drawn that a substantial risk of harm exists, and he

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must also draw the inference." Farmer v. Brennan, 511 U.S. at 837. Here,

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Plaintiff has failed to present any facts from which the Court could infer that PA-C

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Neau, PA-C Relyea, Dr. Suiter, or Darren Chlipala, was deliberately indifferent to

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his serious medical needs.

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Accordingly, IT IS ORDERED the Report and Recommendation (ECF No.

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12), is ADOPTED IN ITS ENTIRETY, the Motion to Amend (ECF No. 13) is

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DENIED and this action is DISMISSED with prejudice for failure to state a

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claim upon which relief may be granted under 28 U.S.C. §§ 1915(e)(2) and

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1915A(b)(1).

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Pursuant to 28 U.S.C. § 1915(g), enacted April 26, 1996, a prisoner who

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brings three or more civil actions or appeals which are dismissed as frivolous or for

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failure to state a claim will be precluded from bringing any other civil action or

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appeal in forma pauperis “unless the prisoner is under imminent danger of serious

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physical injury.” 28 U.S.C. § 1915(g). Plaintiff is advised to read the new

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statutory provisions under 28 U.S.C. § 1915. This dismissal of Plaintiff's

ORDER ADOPTING REPORT AND RECOMMENDATION, DENYING
MOTION TO AMEND, AND DISMISSING ACTION -- 6

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complaint may count as one of the three dismissals allowed by 28 U.S.C. §

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1915(g) and may adversely affect his ability to file future claims.

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IT IS SO ORDERED. The District Court Executive is directed to enter this

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Order, enter judgment, forward copies to Plaintiff at his last known address, and

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close the file. The District Court Executive is further directed to forward a copy of

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this Order to the Office of the Attorney General of Washington, Criminal Justice

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Division. The Court certifies any appeal of this dismissal would not be taken in

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good faith.

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DATED February 26, 2015.

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THOMAS O. RICE
United States District Judge

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ORDER ADOPTING REPORT AND RECOMMENDATION, DENYING
MOTION TO AMEND, AND DISMISSING ACTION -- 7