(PC) Bernard L. Smith v. Hawkins, No. 2:2014cv02222 - Document 44 (E.D. Cal. 2016)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 2/29/16 recommending that defendant's 7/28/15 motion to dismiss 28 be denied. MOTION to DISMISS 28 referred to Judge Kimberly J. Mueller. Objections due within 14 days. (Plummer, M)
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(PC) Bernard L. Smith v. Hawkins Doc. 44 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BERNARD SMITH, 12 Plaintiff, 13 14 No. 2:14-cv-2222-KJM-EFB P v. FINDINGS AND RECOMMENDATIONS HAWKINS, et al., 15 Defendants. 16 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 17 18 U.S.C. § 1983. Defendant Hawkins moves to dismiss for failure to state a claim under Federal 19 Rule of Civil Procedure 12(b)(6). ECF No. 28. For the reasons that follow, the motion must be 20 denied. 21 I. The Complaint 22 In screening plaintiff’s amended complaint, the court found that plaintiff appeared to state 23 cognizable claims against defendant Hawkins for retaliation and deliberate indifference. ECF No. 24 20 at 3. These claims are premised on the following allegations of the complaint: 25 Plaintiff has suffered from HIV and bladder cancer for many years. ECF No. 19 at 4. He 26 also suffers from neuropathy, which makes standing and walking for long periods of time 27 difficult. Id. He has pain in his feet, hands, knees, elbows, and stomach. Id. The neuropathy 28 causes pain so severe that, untreated, it prevents plaintiff from exercising, walking, and standing 1 Dockets.Justia.com 1 for long periods of time. Id. at 6. Plaintiff had been prescribed Gabapentin to treat his 2 neuropathy by four different doctors. Id. at 4. 3 Plaintiff arrived at Mule Creek State Prison (“MCSP”) on October 11, 2013. Id. On 4 January 27, 2014, an HIV specialist named Dr. Robert Rudas re-ordered Gabapentin for plaintiff 5 at the rate of 1200 milligrams three times per day for one year. Id. On April 24, 2014, however, 6 defendant Hawkins, a doctor at MCSP, discontinued the prescription and allegedly denied any 7 other pain treatment to plaintiff. Id. at 5. Hawkins allegedly did so to retaliate against plaintiff 8 for saying that Hawkins knew nothing about HIV, bladder cancer, and neuropathy pain and for 9 filing a complaint against Hawkins with the state medical board. Id. Plaintiff claims that 10 Hawkins thereafter refused to see plaintiff, except for an appeal interview. Id. 11 Plaintiff allegedly suffered so much pain as a result of Hawkins’ actions that he went 12 “man down” on June 15, 2014 so that he could see Dr. Rudas. Id. at 6. He learned, however, that 13 Hawkins and others had removed him from Rudas’s care. Id. 14 II. The Motion to Dismiss 15 A. Rule 12(b)(6) Standard 16 To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a 17 complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Bell 18 Atlantic Corp. v. Twombly, 550 U.S. 544, 554-55, 562-63, 570 (2007) (stating that the 12(b)(6) 19 standard that dismissal is warranted if plaintiff can prove no set of facts in support of his claims 20 that would entitle him to relief “has been questioned, criticized, and explained away long 21 enough,” and that having “earned its retirement,” it “is best forgotten as an incomplete, negative 22 gloss on an accepted pleading standard”). Thus, the grounds must amount to “more than labels 23 and conclusions” or a “formulaic recitation of the elements of a cause of action.” Id. at 1965. 24 Instead, the “[f]actual allegations must be enough to raise a right to relief above the speculative 25 level on the assumption that all the allegations in the complaint are true (even if doubtful in 26 fact).” Id. (internal citation omitted). Dismissal may be based either on the lack of cognizable 27 legal theories or the lack of pleading sufficient facts to support cognizable legal theories. 28 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 2 1 The complaint’s factual allegations are accepted as true. Church of Scientology of Cal. v. 2 Flynn, 744 F.2d 694, 696 (9th Cir. 1984). The court construes the pleading in the light most 3 favorable to plaintiff and resolves all doubts in plaintiff’s favor. Parks Sch. of Bus., Inc. v. 4 Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). General allegations are presumed to include 5 specific facts necessary to support the claim. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 6 (1992). 7 The court may disregard allegations contradicted by the complaint’s attached exhibits. 8 Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987); Steckman v. Hart Brewing, 9 Inc., 143 F.3d 1293, 1295-96 (9th Cir.1998). Furthermore, the court is not required to accept as 10 true allegations contradicted by judicially noticed facts. Sprewell v. Golden State Warriors, 266 11 F.3d 979, 988 (9th Cir. 2001) (citing Mullis v. U.S. Bankr. Ct., 828 F.2d 1385, 1388 (9th Cir. 12 1987)). The court may consider matters of public record, including pleadings, orders, and other 13 papers filed with the court. Mack v. South Bay Beer Distribs., 798 F.2d 1279, 1282 (9th Cir. 14 1986) (abrogated on other grounds by Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104 15 (1991)). “[T]he court is not required to accept legal conclusions cast in the form of factual 16 allegations if those conclusions cannot reasonably be drawn from the facts alleged.” Clegg v. 17 Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994). Neither need the court accept 18 unreasonable inferences, or unwarranted deductions of fact. Sprewell, 266 F.3d at 988. 19 Pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. 20 Kerner, 404 U.S. 519, 520-21 (1972). Unless it is clear that no amendment can cure its defects, a 21 pro se litigant is entitled to notice and an opportunity to amend the complaint before dismissal. 22 Lopez v. Smith, 203 F.3d 1122, 1127-28 (9th Cir. 2000) (en banc); Noll v. Carlson, 809 F.2d 23 1446, 1448 (9th Cir. 1987). 24 B. Analysis 25 Hawkins argues that plaintiff has failed to state a viable claim for deliberate indifference 26 27 28 to his serious medical needs in violation of the Eighth Amendment to the U.S. Constitution.1 The 1 Hawkins does not address plaintiff’s retaliation claim in the instant motion. ECF No. 28-1 at 7 n.3. 3 1 Eighth Amendment protects prisoners from inhumane methods of punishment and from inhumane 2 conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). 3 Extreme deprivations are required to make out a conditions-of-confinement claim, and only those 4 deprivations denying the minimal civilized measure of life’s necessities are sufficiently grave to 5 form the basis of an Eighth Amendment violation. Hudson v. McMillian, 503 U.S. 1, 9 (1992). 6 “Prison officials have a duty to ensure that prisoners are provided adequate shelter, food, clothing, 7 sanitation, medical care, and personal safety. The circumstances, nature, and duration of a 8 deprivation of these necessities must be considered in determining whether a constitutional 9 violation has occurred. The more basic the need, the shorter the time it can be withheld.” 10 Johnson v. Lewis, 217 F.3d 726, 731-732 (9th Cir. 2000) (quotations and citations omitted). 11 To state an Eighth Amendment claim predicated on the denial of medical care, a plaintiff 12 must allege that: (1) he had a serious medical need and (2) the defendant’s response to that need 13 was deliberately indifferent. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); see also Estelle 14 v. Gamble, 429 U.S. 97, 106 (1976). A serious medical need exists if the failure to treat the 15 condition could result in further significant injury or the unnecessary and wanton infliction of 16 pain. Jett, 439 F.3d at 1096. A deliberately indifferent response may be shown by the denial, 17 delay or intentional interference with medical treatment or by the way in which medical care was 18 provided. Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988). To act with deliberate 19 indifference, a prison official must both be aware of facts from which the inference could be 20 drawn that a substantial risk of serious harm exists, and he must also draw the inference. Farmer 21 v. Brennan, 511 U.S. 825, 837 (1994). 22 Thus, a defendant will be liable for violating the Eighth Amendment if he knows that 23 plaintiff faces “a substantial risk of serious harm and disregards that risk by failing to take 24 reasonable measures to abate it.” Id. at 847. “[I]t is enough that the official acted or failed to act 25 despite his knowledge of a substantial risk of serious harm.” Id. at 842. 26 A plaintiff does not have to establish that the defendant care provider totally failed to treat 27 him to show an Eighth Amendment violation, but must show wrongdoing amounting to more 28 than medical negligence. Farmer, 511 U.S. at 835 (“[D]eliberate indifference describes a state of 4 1 mind more blameworthy than negligence.”); Ortiz v. City of Imperial, 884 F.2d 1312, 1314 (9th 2 Cir. 1989). In addition, mere differences of opinion concerning the appropriate treatment cannot 3 be the basis of an Eighth Amendment violation. Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 4 1996); Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981). On the other hand, a failure to 5 provide access to medical staff that is competent to render care may constitute deliberate 6 indifference in a particular case. Ortiz, 884 F.2d at 1314 (“[A]ccess to medical staff is 7 meaningless unless that staff is competent and can render competent care.”). 8 Hawkins concedes that plaintiff has alleged serious medical needs. ECF No. 28-1 at 4. 9 Hawkins argues, however, that plaintiff has failed to allege facts showing that he was deliberately 10 indifferent to those needs when he discontinued plaintiff’s Gabapentin prescription. According to 11 Hawkins, plaintiff has not alleged facts, beyond his own opinion, that Gabapentin was medically 12 necessary, that Hawkins knew that discontinuing the drug presented a serious risk of harm to 13 plaintiff, or that he was denied all treatment for his pain. Id. at 5. Hawkins relies heavily on 14 McNeil v. Singh, No. 1:12-cv-01005-RRB, 2013 U.S. Dist. LEXIS 63891, at *21-35 (E.D. Cal. 15 May 3, 2013), in which the court dismissed a plaintiff’s claim that his Eighth Amendment rights 16 were violated by the defendant’s discontinuation of Gabapentin as alleging a mere difference of 17 opinion. 18 Plaintiff’s complaint here differs significantly from the allegations in McNeil. Plaintiff 19 alleges that four prior doctors and Dr. Rudas had all prescribed Gabapentin to treat his neuropathy 20 pain. ECF No. 19 at 4. Only Hawkins refused, and according to plaintiff’s allegation, that refusal 21 was in retaliation for plaintiff having made disparaging statements about Hawkins’s knowledge of 22 plaintiff’s medical conditions. Id. It can be inferred from this allegation that the discontinuation 23 of Gabapentin occurred sometime after, but proximate in time to the plaintiff’s critical comments 24 about Hawkins. Further, according to the allegations of the complaint, Hawkins discontinued 25 plaintiff’s treatment with Gabapentin only a few months after Dr. Rudas had prescribed it. These 26 allegations permit the inference that Hawkins’s opinion that Gabapentin was not necessary 27 contradicted not only plaintiff’s opinion but the opinions of five medical doctors and was made in 28 reaction to plaintiff’s criticism of Hawkins. 5 1 Plaintiff further alleges that Hawkins was not competent to treat plaintiff’s particular 2 conditions but nevertheless deliberately interfered with the prescription ordered by a doctor who 3 was competent to treat those conditions. Id. at 5, 7. And finally, contrary to defendant’s claim, 4 plaintiff does allege that defendant failed to provide an alternative pain treatment and instead left 5 him in severe pain for “193 days and counting.” Id. at 5. Plaintiff’s allegations that defendant 6 refused treatment for plaintiff’s known painful condition suffices to allege that defendant knew 7 plaintiff faced a serious risk of harm when he discontinued the Gabapentin. 8 9 In sum, plaintiff has alleged sufficient facts to state a claim that Hawkins was deliberately indifferent to his serious medical needs in violation of the Eighth Amendment. 10 Hawkins also argues that he is entitled to qualified immunity. Because Hawkins’s 11 argument for qualified immunity is premised on his argument that the allegations fail to state a 12 claim for violation of the Constitution, that argument must be rejected for the same reasons. 13 14 15 III. Conclusion and Recommendation For the foregoing reasons, it is recommended that defendant’s July 28, 2015 motion to dismiss (ECF No. 28) be denied. 16 These findings and recommendations are submitted to the United States District Judge 17 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 18 after being served with these findings and recommendations, any party may file written 19 objections with the court and serve a copy on all parties. Such a document should be captioned 20 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 21 within the specified time may waive the right to appeal the District Court’s order. Turner v. 22 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 23 DATED: February 29, 2016. 24 25 26 27 28 6
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