(PC) Moore v. Stevig et al, No. 1:2011cv01108 - Document 26 (E.D. Cal. 2012)
Court Description: FINDINGS and RECOMMENDATIONS Recommending Dismissing Action for Failure to State a Claim re 24 , signed by Magistrate Judge Gerald B. Cohn on 11/13/12. Referred to Judge O'Neill. Fifteen Day Deadline. (Gonzalez, R)
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(PC) Moore v. Stevig et al Doc. 26 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 KEVIN MOORE, 10 Plaintiff, 11 12 CASE NO. 1:11-cv-01108-LJO-GBC (PC) FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSING ACTION FOR FAILURE TO STATE A CLAIM v. DAVID STEVIG, et al., Doc. 24 13 Defendants. FIFTEEN DAY DEADLINE 14 / 15 16 I. Procedural History 17 On July 6, 2011, Plaintiff Kevin Moore (“Plaintiff”), a state prisoner proceeding pro se and 18 in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983, alleging failure to treat 19 his hepatitis medical condition from 2002 through 2011. Doc. 1 at 8-9. Defendants were employed 20 at California Men’s Colony, San Luis Obispo, Corcoran State Prison, and Pleasant Valley State 21 Prison. Doc. 1 at 3. On May 29, 2012, the Court screened the complaint and dismissed the action 22 with leave to amend for failure to state a claim upon which § 1983 relief could be granted. Doc. 23. 23 On June 22, 2012, Plaintiff filed the first amended complaint which is currently before the Court. 24 Doc. 24. 25 II. Screening Requirement 26 The Court is required to screen complaints brought by prisoners seeking relief against a 27 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 28 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 1 Dockets.Justia.com 1 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 2 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 3 “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall 4 dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a 5 claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 6 A complaint, or portion thereof, should only be dismissed for failure to state a claim upon 7 which relief may be granted if it appears beyond doubt that Plaintiff can prove no set of facts in 8 support of the claim or claims that would entitle him to relief. See Hishon v. King & Spalding, 467 9 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); see also Synagogue v. 10 United States, 482 F.3d 1058, 1060 (9th Cir. 2007); NL Industries, Inc. v. Kaplan, 792 F.2d 896, 898 11 (9th Cir. 1986). In determining whether to dismiss an action, the Court must accept as true the 12 allegations of the complaint in question, and construe the pleading in the light most favorable to the 13 plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421-22 14 (1969); Daniels-Hall v. National Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010). 15 III. Plaintiff’s Complaint 16 Plaintiff is currently a state prisoner at the Deuel Vocational Institute (DVI) in Tracy, 17 California. The events central to Plaintiff’s complaint occurred while he was a prisoner at various 18 California state prison. Doc. 24 at 4. In the complaint, Plaintiff names the following as a 19 defendants: 1) Moon (M.D. at Corcoran State Prison); and 2) Chokatos (M.D. at Pleasant Valley 20 State Prison). Doc. 24 at 4. Plaintiff also mentions the actions of Dr. Ho, however, it is unclear 21 whether he is naming Dr. Ho as a defendant. Doc. 24 at 7-8, 12. Plaintiff requests monetary relief 22 and injunctive relief in the form of requiring two new medications to be prescribed to Plaintiff. Doc. 23 24 at 10, 14. 24 Plaintiff alleges that Defendants Moon and Chokatos failed to provide adequate medical care 25 for Plaintiff’s serious medical need which amounts to deliberate indifference. Doc. 24 at 4. 26 According to Plaintiff, he did not receive any medications from Defendants Moon and Chokatos and 27 did not receive the new medication to treat Hepatitis C. Doc. 24 at 4. Plaintiff argues that his 28 attachment from the American Liver Association demonstrates that his life-span is shortened without 2 1 the new medication. Doc. 24 at 4. Plaintiff is not receiving medication currently as a result of 2 Defendants Moon and Chokatos’ diagnosis and treatment plans. Doc. 24 at 4. Plaintiff reiterates 3 that he has not received the new medication needed to treat his Hepatitis C and not the “interferon 4 injection.” Doc. 24 at 5. Plaintiff alleges that the medication of “interferon” did nothing to change 5 the course of his Hepatitis C infection and defendant Chokatos knew that these injections were not 6 working. Doc. 24 at 6. Defendant Chokatos told Plaintiff that he would receive a new drug to treat 7 Hepatitis C. Doc. 24 at 6. According to Plaintiff from 2002 to 2011 all of the Defendants have 8 failed to provide adequate care. Doc. 24 at 6. Plaintiff alleges that he told the official about his 9 condition in his 602 grievance and “they” knew his condition was getting worse, however, doctors 10 at Pleasant Valley State Prison told Plaintiff that they did not have the medication to treat Hepatitis 11 C. Doc. 24 at 7 (citing to grievance Log No. PVSP-27-11-12651). Plaintiff states that on August 12 2, 2011, Dr. Ho interviewed Plaintiff and stated that they gave Plaintiff four weeks of treatment to 13 justify grievance log No. 09-2010-13896. Doc. 24 at 7-8. In grievance log No. PVSP-27-11-12651 14 medical staff stated that Plaintiff’s medical issues are being adequately accommodated. Doc. 24 at 15 8. According to Plaintiff, Dr. Ho and Chokatos stated that the medication “Boceprevir” and 16 “Telaprevir” have not been approved to treat Plaintiff’s Hepatitis C and that Plaintiff’s laboratory 17 results were within normal limits. Doc. 24 at 8, 12. When Plaintiff asked Dr. Ho why the new 18 medications would not get approved, Plaintiff was told that the State of California does not have any 19 money. Doc. 24 at 12. 20 According to Plaintiff the Federal Drug Administration (FDA) approved of Victrelis 21 (Boceprevir) and Incinern (Telaprevir) to be used in combination with Pegylated Interferon and 22 Ribavirin to treat Hepatitis C. Doc. 24 at 9. Plaintiff emphasizes the importance of treating the 23 disease early and argues that if he is given the new medication at his current stage, he would have 24 a chance for his liver to heal. Doc. 24 at 9-10. Plaintiff states that he can show that the Department 25 of Corrections refuse to treat Plaintiff’s medical condition by not giving Plaintiff “Victrelis” 26 (Boceprevir) and Inciver (Telaprevir). Doc. 24 at 12. Plaintiff states that he is bringing a claim 27 against Defendants Chokatos and Mood based on supervisory liability. Doc. 24 at 13. 28 /// 3 1 IV. Applicable Law and Analysis 2 A. 3 A complaint must contain "a short and plain statement of the claim showing that the pleader 4 is entitled to relief. . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 5 "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, 6 do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 677 (citing Bell Atlantic Corp. v. Twombly, 550 7 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to ‘state 8 a claim that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). 9 Facial plausibility demands more than the mere possibility that a defendant committed misconduct, 10 Iqbal at 1950, and while factual allegations are accepted as true, legal conclusions are not, id. at 11 1949. 12 Rule 8 1. Analysis 13 Plaintiff’s legal conclusions fail to comply with Rule 8(a). Plaintiff bears the burden of 14 separately setting forth his legal claims and for each claim, briefly and clearly providing the facts 15 supporting the claim so that the Court and Defendants are readily able to understand the claims. 16 Bautista v. Los Angeles County, 216 F.3d 837, 840-41 (9th Cir. 2000). 17 B. 18 “[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate 19 must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091, 1096 20 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 295 (1976)). The two part 21 test for deliberate indifference requires the plaintiff to show (1) “‘a serious medical need’ by 22 demonstrating that ‘failure to treat a prisoner’s condition could result in further significant injury or 23 the unnecessary and wanton infliction of pain,’” and (2) “the defendant’s response to the need was 24 deliberately indifferent.” Jett, 439 F.3d at 1096 (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 25 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th 26 Cir. 1997) (en banc) (internal quotations omitted)). Deliberate indifference is shown by “a 27 purposeful act or failure to respond to a prisoner’s pain or possible medical need, and harm caused 28 by the indifference.” Id. (citing McGuckin, 974 F.2d at 1060). Eighth Amendment Deliberate Indifference of medical treatment 4 1 “Mere negligence in diagnosing or treating a medical condition, without more, does not 2 violate a prisoner's Eighth Amendment rights.” Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) 3 (quoting Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988) (internal quotation marks 4 omitted). Additionally, to state a viable claim, Plaintiff must demonstrate that each named defendant 5 personally participated in the deprivation of his rights. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1948-49 6 (2009); Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of 7 Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones v. Williams, 297 F.3d 930, 934. Liability may 8 not be imposed on supervisory personnel under the theory of respondeat superior, Iqbal, 129 S.Ct. 9 at 1948-49; Ewing, 588 F.3d at 1235, and supervisors may only be held liable if they “participated 10 in or directed the violations, or knew of the violations and failed to act to prevent them,” Taylor v. 11 List, 880 F.2d 1040, 1045 (9th Cir. 1989); accord Starr v. Baca, 652 F.3d 1202, 1205-08 (9th Cir. 12 2011); Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009); Preschooler II v. Clark County School 13 Board of Trustees, 479 F.3d 1175, 1182 (9th Cir. 2007); Harris v. Roderick, 126 F.3d 1189, 1204 14 (9th Cir. 1997). 15 “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 1060 16 (9th Cir. 2004). “A difference of opinion between a prisoner-patient and prison medical authorities 17 regarding treatment does not give rise to a § 1983 claim,” Franklin v. Oregon, 662 F.2d 1337, 1344 18 (9th Cir. 1981) (internal citation omitted), and a difference of opinion between medical personnel 19 regarding treatment does not amount to deliberate indifference, Sanchez v. Vild, 891 F.2d 240, 242 20 (9th Cir. 1989). To prevail, Plaintiff “must show that the course of treatment the doctors chose was 21 medically unacceptable under the circumstances . . . and . . . that they chose this course in conscious 22 disregard of an excessive risk to plaintiff’s health.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 23 1986) (internal citations omitted). 24 1. Analysis 25 According to Plaintiff, the Federal Drug Administration (FDA) recently approved of Victrelis 26 (Boceprevir) and Incinern (Telaprevir) to be used in combination with Pegylated Interferon and 27 Ribavirin to treat Hepatitis C. Doc. 24 at 9. Plaintiff alleges that he has not received the newly 28 approved of drugs to treat his Hepatitis C, rather, Plaintiff received “interferon injections” which 5 1 were not affective. Doc. 24 at 5-6. According to Plaintiff, Dr. Ho and Chokatos stated that the 2 medication “Boceprevir” and “Telaprevir” have not been approved to treat Plaintiff’s Hepatitis C 3 and that Plaintiff’s laboratory results were within normal limits. Doc. 24 at 8, 12. When Plaintiff 4 asked Dr. Ho why the new medications would not get approved, Plaintiff was told that the State of 5 California does not have any money. Doc. 24 at 12. 6 Plaintiff’s disagreement with the type of medication that is prescribed to treat Plaintiff’s 7 Hepatitis C amounts to a difference in medical opinion and such is insufficient to state a deliberate 8 indifference claim. See Toguchi v. Chung, 391 F.3d 1051, 1060; Franklin v. Oregon, 662 F.2d 1337, 9 1344; Sanchez v. Vild, 891 F.2d 240, 242. Additionally, a policy of not using the latest FDA 10 approved drugs to treat Hepatitis and instead using alternate medications is an exercise of medical 11 judgement amounting to a difference in medical opinion and fails to state a deliberate indifference 12 claim. See Toguchi v. Chung, 391 F.3d 1051, 1060; Franklin v. Oregon, 662 F.2d 1337, 1344; 13 Sanchez v. Vild, 891 F.2d 240, 242.1 Moreover, Plaintiff’s original complaint demonstrated that 14 Defendants were not indifferent to Plaintiff’s complaints but evaluated Plaintiff and treated him 15 according to medical necessity and in accordance with his thyroid condition. Doc. 1 at 32 (Pltf’s 16 Exhibit); Doc. 24 at 57 (Pltf’s Exhibit). Plaintiff’s allegations may, at most, amount to negligence, 17 which is insufficient to hold a defendant liable for deliberate indifference to a serious medical need, 18 under the Eighth Amendment. 19 /// 20 21 22 23 24 25 26 27 28 1 See also Loeber v. Andem, 2012 W L 3590745 at *1-2 (11th Cir. 2012) (unpublished) (affirming decision that inmate failed to state a claim where although the inmate requested to be treated with interferon and ribavirin for his Hepatitis C, defendants chose alternate treatment); Taylor v. Ortiz, 410 Fed.Appx. 76 at *2 (10th Cir. 2010) (unpublished) (finding that inmate’s request for the specific treatment of interferon/ribavarin failed to state a claim where defendants provided alternate treatment); Amarir v. Hill, 243 Fed.Appx. 353, 354 (9th Cir. 2007) (unpublished) (“A prison inmate . . . does not have a right to treatment for conditions that are not readily amenable to treatment”) (citing to Cal. Code Regs. tit. 15, § 3350.1); Floyd v. Chief Medical Director of UTMB, 210 Fed.Appx. 387, 388-89 (5th Cir. 2006) (unpublished) (Inmate’s insistence that a newer drug (pegylated Interferon or Pegasys) would be more effective than the standard treatment fails to demonstrate that a doctor’s decision to continue the standard treatment resulted in a substantial risk of serious harm); Hix v. Tennessee Dept. of Corrections, 196 Fed.Appx. 350, 358 n. 1 (6th Cir. 2006) (unpublished) (noting that “. . . numerous courts have acknowledged [that] hepatitis C does not require treatment in all cases.”); Grindling v. Martone, No. 12-cv-00361-LEK-BMK, 2012 W L 3776491 at *7-8 (D. Hawaii 2012) (finding that inmate failed to state a deliberate indifference claim regarding his Hepatitis C condition because Plaintiff failed to demonstrate that defendants’ treatment decisions could result in significant harm). 6 1 C. 2 The Civil Rights Act under which this action was filed provides: 3 Linkage Requirement 5 Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 6 42 U.S.C. § 1983. The statute plainly requires that there be an actual connection or link between the 7 actions of the defendants and the deprivation alleged to have been suffered by Plaintiff. See Monell 8 v. Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). The 9 Ninth Circuit has held that “[a] person ‘subjects’ another to the deprivation of a constitutional right, 10 within the meaning of section 1983, if he does an affirmative act, participates in another’s 11 affirmative acts or omits to perform an act which he is legally required to do that causes the 12 deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). In 13 order to state a claim for relief under section 1983, Plaintiff must link each named defendant with 14 some affirmative act or omission that demonstrates a violation of Plaintiff’s federal rights. 4 15 1. Analysis 16 Although Plaintiff lists 1) Moon (M.D. at Corcoran State Prison); and 2) Chokatos (M.D. at 17 Pleasant Valley State Prison) as a defendants in the action, Plaintiff fails to explain what specific act 18 or omission each Defendant Moon did to cause the constitutional deprivation. Plaintiff also 19 mentions the actions of Dr. Ho, however, it is unclear whether he is naming Dr. Ho as a defendant. 20 Doc. 24 at 7-8, 12. 21 D. 22 Under § 1983, liability may not be imposed on supervisory personnel under the theory of 23 respondeat superior, Iqbal, 129 S. Ct. at 1948-49; Ewing, 588 F.3d at 1235, and administrators may 24 only be held liable if they “participated in or directed the violations, or knew of the violations and 25 failed to act to prevent them,” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); accord Starr, 652 26 F.3d 1202, 1205-08 (9th Cir. 2011); Corales, 567 F.3d at 570; Preschooler II v. Clark County School 27 Board of Trustees, 479 F.3d 1175, 1182 (9th Cir. 2007); Harris v. Roderick, 126 F.3d 1189, 1204 28 (9th Cir. 1997). Some culpable action or inaction must be attributable to defendants and while the Supervisory Liability 7 1 creation or enforcement of, or acquiescence in, an unconstitutional policy may support a claim, the 2 policy must have been the moving force behind the violation. Starr, 652 F.3d at 1205; Jeffers v. 3 Gomez, 267 F.3d 895, 914-15 (9th Cir. 2001); Redman v. County of San Diego, 942 F.2d 1435, 4 1446-47 (9th Cir. 1991); Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989). 5 1. Analsysis 6 Simply naming Dr. Moon and Dr. Chokatos as defendants in their supervisory capacity is 7 insufficient to hold them liable based on a position of authority as Plaintiff has not alleged any facts 8 linking Defendant Moon to any conduct nor has Plaintiff alleged facts sufficient to demonstrate an 9 Eigth Amendment deliberate indifference claim. Iqbal, 129 S. Ct. at 1948-49; Ewing, 588 F.3d at 10 1235. Accordingly, the Court finds that Plaintiff fails to state a cognizable claim for relief under § 11 1983 against Defendants Moon and Chokatos based upon supervisory liability. 12 V. 13 The Court finds that Plaintiff's first amended complaint filed on June 22, 2012, fails to state 14 any Section 1983 claims upon which relief may be granted against the named defendant. Under Rule 15 15(a) of the Federal Rules of Civil Procedure, leave to amend "shall be freely given when justice so 16 requires." In addition, "[l]eave to amend should be granted if it appears at all possible that the 17 plaintiff can correct the defect." Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (internal 18 citations omitted). However, in this action, Plaintiff filed two complaints and received substantial 19 guidance from the Court in its initial screening order. Doc. 23. The Court finds that the deficiencies 20 outlined above are not capable of being cured by amendment, and therefore orders that further leave 21 to amend not be granted. 28 U.S.C. § 1915(e)(2)(B)(ii). 22 Conclusions and Recommendation Accordingly, the Court HEREBY RECOMMENDS that this action be DISMISSED in its 23 entirety, WITH PREJUDICE, for failure to state a claim upon which relief may be granted. 24 /// 25 /// 26 /// 27 /// 28 /// 8 1 These Findings and Recommendations will be submitted to the United States District Judge 2 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fifteen (15) 3 days after being served with these Findings and Recommendations, Plaintiff may file written 4 objections with the Court. The document should be captioned "Objections to Magistrate Judge's 5 Findings and Recommendations." Plaintiff is advised that failure to file objections within the 6 specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 7 1153 (9th Cir. 1991). 8 9 IT IS SO ORDERED. 10 11 Dated: 0jh02o November 13, 2012 UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9
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