(PC) Dixon v. Department of Correction and Rehabilitation et al, No. 1:2010cv01225 - Document 15 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dennis L. Beck on 3/2/2011 recommending that 8 Amended Prisoner Civil Rights Complaint be dismissed. Referred to Judge Lawrence J. O'Neill; Objections to F&R due by 4/7/2011. (Lundstrom, T)
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(PC) Dixon v. Department of Correction and Rehabilitation et al Doc. 15 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 DUANE DIXON, 9 10 CASE NO. 1:10-CV-01225-LJO-DLB PC Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL WITHOUT LEAVE TO AMEND (Doc. 8) v. 11 DEPARTMENT OF CORRECTION AND REHABILITATION, et al., 12 Defendants. 13 / 14 15 Plaintiff Duane Dixon (“Plaintiff”) is a California state prisoner proceeding pro se and in 16 forma pauperis in this civil rights action. On July 8, 2010, Plaintiff filed his initial complaint. 17 (Doc. 1). On August 5, 2010, Plaintiff filed a first amended complaint. (Doc. 8.) Plaintiff’s first 18 amended complaint is presently before the court for screening. 19 A. 20 The court is required to screen complaints brought by prisoners seeking relief against a Screening Requirement 21 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 22 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 23 legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or 24 that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 25 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been 26 paid, the court shall dismiss the case at any time if the court determines that . . . the action or 27 appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 28 1915(e)(2)(B)(ii). 1 Dockets.Justia.com 1 "Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited 2 exceptions," none of which applies to § 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 3 506, 512 (2002); Fed. R. Civ. P. 8(a). Pursuant to Rule 8(a), a complaint must contain "a short 4 and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. 5 P. 8(a). "Such a statement must simply give the defendant fair notice of what the plaintiff's claim 6 is and the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512. However, "the liberal 7 pleading standard . . . applies only to a plaintiff's factual allegations." Neitze v. Williams, 490 8 U.S. 319, 330 n.9 (1989). "[A] liberal interpretation of a civil rights complaint may not supply 9 essential elements of the claim that were not initially pled." Bruns v. Nat'l Credit Union Admin., 10 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 11 1982)). 12 B. 13 Plaintiff is currently a state prisoner at R.J. Donovan Prison in San Diego, California. Summary of Plaintiff’s Amended Complaint 14 The acts he complains of occurred while he was incarcerated at Kern Valley State Prison 15 (“KVSP”) in Delano, California. Plaintiff names the following defendants: J. Akanno, M.D., 16 medical doctor at KVSP; M. Spaeth, M.D., medical doctor at KVSP; R. Rodriguez, M.D., 17 medical doctor at Mercy Hospital in Bakersfield, California; the California Department of 18 Corrections and Rehabilitation (“CDCR”); and Does 1 through 4, prison medical care providers. 19 Plaintiff alleges the following: On April 6, 2007, Plaintiff was attacked by another prisoner and 20 stabbed in the head. The object with which Plaintiff was stabbed broke off in his skull. Plaintiff 21 was examined by Dr. Akanno on the date of the incident. On June 4, 2007, Plaintiff went to the 22 medical staff at KVSP complaining of bleeding and dizziness. (Doc. 8, p. 3I and Exhibit D.). 23 Approximately two months after the assault, on June 12, 2007, Dr. Akanno again examined 24 Plaintiff and noted that the injury was healing poorly. On July 31, 2007, Dr. Akanno noted that 25 Plaintiff was afflicted with an “old scalp wound due to assault” and that Plaintiff was “awaiting 26 orthopedic surgery and scalp surgery.” Plaintiff contends that Dr. Akanno “did not perceive 27 Plaintiff’s injury” and was “nonchalant.” (Doc. 8, p. 3D and Exhibits D and I.) 28 Approximately three months after the head injury, Plaintiff wrote to the warden about the 2 1 incessant pains in his head. On October 15, 2007, the associate warden advised Plaintiff to use 2 the appeal process. (Doc. 8, p. 3B and Exhibit B.) 3 On August 13, 2007, Plaintiff was transported to Mercy Hospital in Bakersfield, 4 California and examined by Dr. Rodriguez. His examination “was of the most cursory sort” and 5 Dr. Rodriguez “neither wanted to touch Plaintiff nor be in the same room with him.” Plaintiff 6 explained to Dr. Rodriguez that he believed there was something in the wound. Plaintiff felt that 7 Dr. Rodriguez was suspicious that Plaintiff might be irritating the injury. (Doc. 8, pp. 3B, 3G-H 8 and Exhibit C.) 9 On November 21, 2007, Dr. Spaeth excised skin from the wound area. Plaintiff contends 10 that Dr. Spaeth should have discovered the foreign body lodged in his head. On January 2, 2008, 11 Dr. Spaeth examined Plaintiff and noted that his scalp lesion was still draining. Plaintiff alleges 12 that Dr. Spaeth should have noticed that the wound was not healing. (Doc. 8, p. 3E.) 13 Plaintiff asserts that he repeatedly appealed to medical personnel regarding the pains in 14 his head and continuous bleeding. On numerous occasions, medical personnel documented that 15 the wound was not healing and Plaintiff was routinely given gauze and instructed to apply 16 pressure. (Doc. 8, pp. 3A-3B and Exhibit g.) 17 At some point, Plaintiff was transferred to Corcoran State Prison (“CSP-Corcoran”). 18 Following his transfer, Plaintiff’s wound was examined at CSP-Corcoran in May 2008. On July 19 3, 2008, a foreign body was excised from his skull. (Doc. 8, p. 3C.) 20 On July 31, 2008, Plaintiff filed an inmate appeal (“602") form while at CSP-Corcoran. 21 The appeal was denied at the Director’s Level on February 11, 2010. (Attachments to Doc. 8.) 22 Plaintiff claims that he needlessly endured pain and suffering. Plaintiff seeks financial 23 damages to deter medical carelessness. 24 25 26 C. Plaintiff’s Claims 1. Exhaustion of Administrative Remedies Before addressing the merits of Plaintiff’s claims, the court assesses whether Plaintiff has 27 exhausted his administrative remedies prior to filing this action. 28 The Prison Litigation Reform Act (“PLRA”) requires a prisoner to exhaust his 3 1 administrative remedies before filing a lawsuit concerning prison conditions: 2 3 No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any ... correctional facility until such administrative remedies as are available are exhausted. 4 42 U.S.C. § 1997e(a). Prisoners are required to exhaust the available administrative remedies 5 prior to filing suit. Jones v. Bock, 549 U.S. 199, 211, 127 S.Ct. 910, 918-19 (2007); McKinney 6 v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). Exhaustion is required regardless of the 7 relief sought by the prisoner and regardless of the relief offered by the process, Booth v. Churner, 8 532 U.S. 731, 741, 121 S.Ct. 1819 (2001), and the exhaustion requirement applies to all prisoner 9 suits relating to prison life, Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983 (2002). The 10 Supreme Court has held that this exhaustion requirement demands “proper” exhaustion. 11 Woodford v. Ngo, 548 U.S. 90, 84, 126 S.Ct. 2378 (2006). To “proper[ly]” exhaust, a prisoner 12 must comply “with an agency's deadlines and other critical procedural rules because no 13 adjudicative system can function effectively without imposing some orderly structure on the 14 course of its proceedings.” Id. at 90-91, 126 S.Ct. 2378. 15 The California Department of Corrections and Rehabilitation has an administrative 16 grievance system for prisoner complaints. Cal. Code Regs., tit. 15 § 3084.1. The process is 17 initiated by submitting a CDCR Form 602. Id. at § 3084.2(a). Four levels of appeal are 18 involved, including the informal level, first formal level, second formal level, and third formal 19 level, also known as the “Director’s Level.” Id. at § 3084.5. The process is initiated by 20 submission of the appeal to the informal level, or in some circumstances, the first formal level. 21 At the time of Plaintiff’s injury, appeals were to be submitted within fifteen working days of the 22 event being appealed. Id. at §§ 3084.5, 3084.6(c). In order to satisfy section 1997e(a), California 23 state prisoners are required to use this process to exhaust their claims prior to filing suit. 24 Woodford, 548 U.S. at 85-86, 126 S.Ct. 2378; McKinney, 311 F.3d at 1199-1201. Where it is 25 clear from the face of a prisoner’s complaint that he has not yet exhausted the administrative 26 grievance procedure, the action must be dismissed. 42 U.S.C. § 1997e(a); Wyatt v. Terhune, 315 27 F.3d 1108, 1120 (9th Cir.2003) (“A prisoner's concession to nonexhaustion is a valid grounds for 28 dismissal ....”); see also Bennett v. King, 293 F.3d 1096, 1098 (9th Cir.2002). 4 1 Plaintiff complains about an injury he sustained in April 2007, along with his subsequent 2 medical care while incarcerated at KVSP. According to the complaint and attachments, Plaintiff 3 “went directly to the prison warden by mail” to address the “incessant pains in his head.” In 4 October 2007, KVSP’s associate warden notified Plaintiff in writing of the availability of the 602 5 process to address his medical concerns. Plaintiff admits that the letter “advised [him] to use the 6 ‘appeal process.’” (Doc. 8, p. 3B and Exhibit B.) However, Plaintiff did not submit a 602 appeal 7 at any point during his incarceration at KVSP after his April 2007 injury. Instead, Plaintiff 8 waited until July 2008 to initiate the 602 process, which was after his transfer from KVSP to 9 CSP-Corcoran. 10 It is clear from the face of the complaint and attachments that Plaintiff did not afford 11 KVSP (and its medical staff) “an opportunity to correct its own [alleged] mistakes” before being 12 “haled into federal court.” Woodford, 548 U.S. at 89, 126 S.Ct. 2378. In short, Plaintiff failed to 13 timely exhaust the administrative grievance process. Accordingly, as the PLRA precludes 14 prisoners from filing federal lawsuits concerning prison conditions unless they have first 15 exhausted available administrative remedies, Plaintiff’s complaint fails to state a claim upon 16 which relief can be granted. 17 18 2. Medical Care The court construes Plaintiff’s complaint regarding his medical care as a claim that the 19 Defendant doctors were deliberately indifferent to his medical needs in violation of the Eighth 20 Amendment. Plaintiff contends that Defendants displayed medical carelessness in failing to 21 detect a foreign body lodged in his head, which resulted in his needless pain and suffering. 22 Plaintiff’s contentions do not reach the level of a constitutional violation. 23 Where a prisoner's Eighth Amendment claim is one of inadequate medical care, the 24 prisoner must allege and prove "acts or omissions sufficiently harmful to evidence deliberate 25 indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285 26 (1976). Such a claim has two elements: "the seriousness of the prisoner's medical need and the 27 nature of the defendant's response to that need." McGuckin v. Smith, 974 F.2d 1050, 1059 (9th 28 Cir.1991) (overruled on other grounds by WMX Techs., Inc. V. Miller, 104 F.3d 1133, 1136 (9th 5 1 Cir. 1997). A medical need is serious "if the failure to treat a prisoner's condition could result in 2 further significant injury or the ‘unnecessary and wanton infliction of pain.'" McGuckin, 974 3 F.2d at 1059 (quoting Estelle, 429 U.S. at 104). Indications of a serious medical need include 4 "the presence of a medical condition that significantly affects an individual's daily activities." Id. 5 at 1059-60. By establishing the existence of a serious medical need, a prisoner satisfies the 6 objective requirement for proving an Eighth Amendment violation. Farmer v. Brennan, 511 U.S. 7 825, 834, 114 S.Ct. 1970 (1994). 8 If a prisoner establishes the existence of a serious medical need, he or she must then show 9 that prison officials responded to the serious medical need with deliberate indifference. Farmer, 10 511 U.S. at 834. In general, deliberate indifference may be shown when prison officials deny, 11 delay, or intentionally interfere with medical treatment, or it may be shown by the way in which 12 prison officials provide medical care. Hutchinson v. United States, 838 F.2d 390, 394 (9th 13 Cir.1988). Before it can be said that a prisoner's civil rights have been abridged with regard to 14 medical care, however, "the indifference to his medical needs must be substantial. Mere 15 ‘indifference,' ‘negligence,' or ‘medical malpractice' will not support this cause of action." 16 Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir.1980) (citing Estelle, 429 U.S. at 17 105-06); see also Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir.2004). Deliberate 18 indifference is "a state of mind more blameworthy than negligence" and "requires ‘more than 19 ordinary lack of due care for the prisoner's interests or safety.'" Farmer, 511 U.S. at 835 (quoting 20 Whitley v. Albers, 475 U.S. 312, 319 (1986)). “[A] complaint that a physician has been 21 negligent in diagnosing or treating a medical condition does not state a valid claim of medical 22 mistreatment under the Eighth Amendment.” Estelle, 429 U.S. at 106. Even gross negligence is 23 insufficient to establish deliberate indifference to serious medical needs. See Wood v. 24 Housewright, 900 F.2d 1332, 1334 (9th Cir.1990). 25 Also, “[a] difference of opinion between a prisoner-patient and prison medical authorities 26 regarding treatment does not give rise to a § 1983 claim.” Franklin v. Oregon, 662 F.2d 1337, 27 1344 (9th Cir.1981) (internal citation omitted). To prevail, Plaintiff “must show that the course 28 of treatment the doctors chose was medically unacceptable under the circumstances ... and ... that 6 1 they chose this course in conscious disregard of an excessive risk to plaintiff's health.” Jackson v. 2 McIntosh, 90 F.3d 330, 332 (9th Cir.1986) (internal citations omitted). A prisoner's mere 3 disagreement with diagnosis or treatment does not support a claim of deliberate indifference. 4 Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir.1989). 5 Here, Plaintiff does not contend that he was denied or refused medical treatment. While 6 at KVSP, Plaintiff saw prison doctors, prison medical staff and outside doctors on numerous 7 occasions. Rather, Plaintiff’s claim is that defendant doctors and medical staff failed to diagnose 8 him with a foreign body in his head. He asserts that medical personnel who initially examined 9 him should have performed said examination with “enough care and diligence” to discover the 10 foreign object. (Doc. 8, p. 3I.) At most, Plaintiff is asserting negligence or a difference of 11 opinion regarding his diagnosis and treatment. As discussed above, mere negligence or a 12 disagreement about treatment are insufficient to support a deliberate indifference claim. 13 II. Conclusion and Recommendations 14 The court finds that plaintiff's complaint fails to state any claims upon which relief can be 15 granted under section 1983 against any of the defendants. Under Rule 15(a) of the Federal Rules 16 of Civil Procedure, the court should “freely give leave [to amend] when justice so requires.'" In 17 addition, "[l]eave to amend should be granted if it appears at all possible that the plaintiff can 18 correct the defect." Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (internal citations 19 omitted). However, in this action, the court finds that the deficiencies outlined above are not 20 capable of being cured by amendment because Plaintiff did not timely exhaust his administrative 21 remedies, and therefore further leave to amend should not be granted. 28 U.S.C. § 22 1915(e)(2)(B)(ii). 23 Accordingly, based on the foregoing, the court HEREBY RECOMMENDS that this 24 action be dismissed in its entirety for failure to state a claim upon which relief can be granted. 25 These Findings and Recommendations will be submitted to the United States District 26 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 27 thirty (30) days after being served with these Findings and Recommendations, Plaintiff may file 28 written objections with the Court. The document should be captioned "Objections to Magistrate 7 1 Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections 2 within the specified time may waive the right to appeal the District Court's order. Martinez v. 3 Ylst, 951 F.2d 1153 (9th Cir. 1991). 4 IT IS SO ORDERED. 5 Dated: 3b142a March 2, 2011 /s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8
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