-SKO (PC) Sutherland v. Kelso et al, No. 1:2009cv02028 - Document 12 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS recommending that this Action be DISMISSED, With Prejudice, for Failure to State a Claim Under Section 1983 re 10 First Amended Prisoner Civil Rights Complaint, signed by Magistrate Judge Sheila K. Oberto on 7/5/2011. Referred to Judge Wanger. Objections to F&R due within thirty (30) days. (Jessen, A)
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-SKO (PC) Sutherland v. Kelso et al Doc. 12 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 WILLIAM YOUNG SUTHERLAND, 10 Plaintiff, 11 12 CASE NO. 1:09-cv-02028-OWW-SKO PC FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM UNDER SECTION 1983 v. J. CLARK KELSO, et al., (Doc. 10) 13 Defendants. THIRTY-DAY OBJECTION PERIOD 14 / 15 Findings and Recommendations Following Screening of Amended Complaint 16 I. Procedural History 17 Plaintiff William Young Sutherland, a state prisoner proceeding pro se and in forma pauperis, 18 filed this civil rights action pursuant to 42 U.S.C. § 1983 on November 19, 2009. On February 3, 19 2011, the Court dismissed Plaintiff’s complaint, with leave to amend, for failure to state any claims 20 under section 1983. Plaintiff filed an amended complaint on March 7, 2011. 21 II. Screening Requirement and Standard 22 The Court is required to screen complaints brought by prisoners seeking relief against a 23 governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 24 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 25 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 26 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 27 “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall 28 1 Dockets.Justia.com 1 dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a 2 claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 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, __ U.S. __, __, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic 7 Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)), and courts “are not required to 8 indulge unwarranted inferences,” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) 9 (internal quotation marks and citation omitted). While factual allegations are accepted as true, legal 10 conclusions are not. Iqbal, 129 S.Ct. at 1949. 11 Under section 1983, Plaintiff must demonstrate that each defendant personally participated 12 in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires 13 the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 129 S.Ct. 14 at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility 15 of misconduct falls short of meeting this plausibility standard. Iqbal, 129 S.Ct. at 1949-50; Moss, 16 572 F.3d at 969. 17 III. Plaintiff’s Amended Complaint 18 A. 19 Plaintiff, who suffers from a degenerative neck and back problem that is debilitating if not 20 treated with pain medication, was transferred to Pleasant Valley State Prison (PVSP) in Coalinga, 21 California on January 13, 2009. Plaintiff seeks to impose liability on the PVSP Medical Department, 22 California Department of Corrections and Rehabilitation Health Care Services Chief J. Walker, 23 PVSP Warden James Yates, PVSP Chief Medical Officer F. Igbinosa, and PVSP Pharmacist-in- 24 Charge C. Yun for violating his rights under the Eighth Amendment of the United States 25 Constitution. Summary of Allegations 26 Upon his arrival at PVSP, Plaintiff was initially placed in the orientation unit, where he was 27 repeatedly denied his medication, leaving him to suffer in pain. Plaintiff was released from the 28 orientation unit on January 30, 2009, and he received his medication regularly until February 14, 2 1 2009, when the medication was stopped abruptly with no explanation. Plaintiff wrote to the medical 2 department and then filed an inmate appeal on March 3, 2009, but the appeal was subsequently 3 denied at every level. During this time period, Plaintiff asked medical staff members Roman, Didi, 4 Morra, and Gonzalez for assistance and they told him that they would look into the situation, but he 5 each time he followed up with them, they said they forgot. 6 On March 5, 2009, Plaintiff saw Dr. Rohrdanz, who ordered an orthopedic pillow to help 7 Plaintiff sleep at night, a number of tests, and a refill of Plaintiff’s pain medications. When Plaintiff 8 made Dr. Rohrdanz aware that he had been deprived of his pain medication for three weeks, Dr. 9 Rohrdanz assured him it would be reissued immediately. However, it took five days for one of the 10 medications to be refilled and twenty-one days for the other medication to be refilled. The 11 orthopedic pillow was not issued to Plaintiff until June 6, 2009. On May 1, 2009, Plaintiff saw Dr. 12 Paja, who reordered Plaintiff’s pain medication. It took fourteen days for that refill to occur. 13 During this time period, Plaintiff’s appeal was being partially granted at each level but the 14 key issue of delay was avoided. On May 10, 2009, Plaintiff was interviewed by Defendant Yun, the 15 pharmacist-in-charge, but he failed to address the issue of Plaintiff’s non-receipt of his medication 16 in a timely manner. Defendant Yun referenced the dates the medications were ordered but not the 17 failure to timely dispense them to Plaintiff. 18 On June 5, 2009, Plaintiff’s pain medication was again stopped, and on June 14, 2009, 19 Plaintiff submitted a request for an interview, stating that he was without his pain medication and 20 was in extreme pain. On June 18, 2009, Plaintiff again saw Dr. Paja who reordered Plaintiff’s pain 21 medication and tests; the medication order was never filled. 22 On June 25, 2009, Defendant Igbinosa responded to Plaintiff’s appeal in a hostile, 23 antagonistic manner. Defendant Igbinosa attacked Plaintiff’s request that his pain medication be 24 refilled in a timely manner and his other health care requests, which demonstrated disregard for 25 Plaintiff’s well-being. 26 On July 12, 2009, while getting out of bed, extreme pain shot down Plaintiff’s left arm. 27 Plaintiff lost his grip and fell from his upper bunk, injuring his left side and right shoulder and 28 leaving him with loss of movement, pain, and the possible need for surgery. 3 1 On July 15, 2009, Plaintiff went to the nurse’s line and he was immediately sent to see Dr. 2 Rohrdanz due to the condition of his shoulder. Dr. Rohrdanz examined Plaintiff’s shoulder and 3 ordered an x-ray stat. The x-ray confirmed shoulder damage and Dr. Rohrdanz said Plaintiff might 4 need surgery. 5 On July 24, 2009, Plaintiff was summoned to see Dr. Mardian, who refused to reorder the 6 pain medication that Dr. Paja had ordered on June 18 but which was never filled. Dr. Mardian 7 discontinued the prescription and instead increased Plaintiff’s dosage of Gabapentin. Plaintiff 8 alleges that Gabapentin is a seizure medication and more recently, it has been discontinued as a pain 9 reliever. 10 On September 2, 2009, Plaintiff submitted a request for an interview because the increased 11 Gabapentin dosage was upsetting his stomach and it was not relieving his pain. Plaintiff was seen 12 by Dr. Pido on September 3, 2009. Dr. Pido told Plaintiff that he suffered from arthritis, not a 13 dislocated shoulder, and that they do not give out pain medication for arthritis. Plaintiff tried to 14 explain that the pain medication was for his degenerative back and neck pain, not his more recent 15 shoulder injury, but Dr. Pido refused to acknowledge what Plaintiff was saying and kept insisting 16 that Plaintiff only suffered from arthritis. Plaintiff requested to have a previously-ordered MRI with 17 a sedative because he has claustrophobia, but Dr. Pido told Plaintiff that the facility’s health 18 department does not provide MRIs unless Plaintiff underwent physical therapy. Plaintiff explained 19 that an MRI had been ordered on several occasions but he was unable to undergo one because the 20 sedative had not been provided. Dr. Pido refused to discuss anything further and refused to order 21 any pain medication for Plaintiff. 22 On October 7, 2009, Plaintiff submitted another request for an interview due to his extreme 23 back and shoulder pain; he was seen by a doctor on October 13, 2009. On October 17, 2009, 24 Plaintiff’s Gabapentin dosage was reduced back to the previously prescribed level. On November 25 13, 2009, Plaintiff saw yet another doctor who reordered all of Plaintiff’s medications, but the 26 Gabapentin was stopped. 27 On February 18, 2010, the Gabapentin prescription was renewed. The medication ran out 28 several times and it took two to three weeks to refill it. On October 19, 2010, the Gabapentin was 4 1 permanently discontinued based on a decision that it would be prescribed for seizures only. On 2 January 8, 2011, Plaintiff’s medication again ran out after only thirty days. Plaintiff received a refill 3 on January 18, 2011, which ran out on February 3, 2011; Plaintiff sent in a refill request on February 4 7, 2011. 5 Plaintiff alleges that as evidenced by the foregoing, there is an ongoing pattern of negligence 6 at PVSP, but Defendant Igbinosa refuses to address it and he responded to Plaintiff’s inmate appeal 7 with aggression, denial, and defensiveness. Plaintiff alleges that the reckless disregard for inmate 8 health and safety is an ongoing problem at the prison, and it is a high priority issue because it 9 violates federal and state law and court orders issued in the Madrid and Plata cases.1 Plaintiff alleges 10 that the number of complaints filed by inmates evidences the deliberate indifference and negligent 11 disregard for inmates, and that these issues have been brought to the attention of Defendant Yates, 12 Defendant Walker, Receiver J. Clark Kelso, and the Ombudsman, but the neglect remains. 13 Plaintiff alleges that doctors are removing chronic pain medications on a facility-wide basis 14 following the issuance of a memorandum by the Chief Medical Officer (Defendant Igbinosa), and 15 that pain medication is being crushed to powder form in violation of pharmaceutical instructions and 16 warnings. Plaintiff alleges that he has been denied vital medications, which causes him to suffer 17 needless pain, and that all of the defendants were repeatedly informed of the situation but did 18 nothing, going so far as to mislead, deceive, or lie during the inmate appeals process. Plaintiff 19 alleges that the Chief Medical Officer is responsible for policymaking, compliance with federal and 20 state laws and court orders, and meeting inmates’ basic needs; and that the Warden (Defendant 21 Yates) has failed to step in and put a stop to the failure to meet Plaintiff’s basic needs. Finally, 22 Plaintiff alleges that the entire PVSP medical department has recklessly and cruelly violated inmates’ 23 rights and the Hippocratic Oath. 24 /// 25 /// 26 1 27 28 The Court takes judicial notice of Madrid, et al. v. Dept. of Corr. et al., case number 3:90-cv-03094-THE, and Plata, et al. v. Brown, et al., case number 3:01-cv-01351-THE, both of which are class actions in the Northern District of California challenging prison conditions of confinement. 5 1 2 B. Eighth Amendment Medical Care Claim 1. Legal Standard 3 “[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate 4 must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091, 1096 5 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 295 (1976)). The two-part 6 test requires Plaintiff to show (1) “‘a serious medical need’ by demonstrating that ‘failure to treat a 7 prisoner’s condition could result in further significant injury or the unnecessary and wanton infliction 8 of pain,’” and (2) “the defendant’s response to the need was deliberately indifferent.” Jett, 439 F.3d 9 at 1096 (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other 10 grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc) (internal 11 quotations omitted)). Deliberate indifference is shown by “a purposeful act or failure to respond to 12 a prisoner’s pain or possible medical need, and harm caused by the indifference,” and it may be 13 manifested “when prison officials deny, delay or intentionally interfere with medical treatment, or 14 it may be shown by the way in which prison physicians provide medical care.” Jett, 439 F.3d at 1096 15 (citing McGuckin, 974 F.2d at 1060 (internal quotations omitted)). Where a prisoner is alleging a 16 delay in receiving medical treatment, the delay must have led to further harm in order for the prisoner 17 to make a claim of deliberate indifference to serious medical needs. McGuckin, 974 F.2d at 1060 18 (citing Shapely v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985)). 19 Stating a claim against managerial or supervisory personnel, as Plaintiff seeks to do here, 20 requires a showing of personal participation in the deprivation of rights. Iqbal, 129 S.Ct. at 1948-49; 21 Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of 22 Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones, 297 F.3d at 934. Liability may not be 23 imposed on managerial or supervisory personnel for violations committed by their subordinates 24 under the theory of respondeat superior, Iqbal, 129 S.Ct. at 1948-49; Ewing, 588 F.3d at 1235, and 25 they may be held liable only if they “participated in or directed the violations, or knew of the 26 violations and failed to act to prevent them,” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); 27 accord Starr v. Baca, 633 F.3d 1191, 1196-97 (9th Cir. 2011); Corales v. Bennett, 567 F.3d 554, 570 28 6 1 (9th Cir. 2009); Preschooler II v. Clark County School Board of Trustees, 479 F.3d 1175, 1182 (9th 2 Cir. 2007); Harris v. Roderick, 126 F.3d 1189, 1204 (9th Cir. 1997). 3 2. 4 Discussion a. Existence of a Serious Medical Need 5 “[T]he existence of an injury that a reasonable doctor would find important and worthy of 6 comment or treatment, . . . the presence of a medical condition that significantly affects an 7 individual’s daily activities, and . . . the existence of chronic or substantial pain” are indications of 8 a serious medical need. Doty v. County of Lassen, 37 F.3d 540, 546 n.3 (9th Cir. 1994) (citation 9 omitted); Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000). Plaintiff’s allegations that he suffers 10 from a degenerative neck and back problem which requires pain medication and that without the pain 11 medication, his condition is debilitating are unquestionably sufficient to show the existence of a 12 serious medical need. Lopez, 203 F.3d at 1131; Doty, 37 F.3d at 546 n.3; McGuckin, 974 F.2d at 13 1060. 14 b. Deliberate Indifference 15 In addition to adequately alleging the existence of a serious medial need, Plaintiff must allege 16 sufficient facts to support the claim that each named defendant knowingly disregarding his serious 17 medical needs. “Medical malpractice does not become a constitutional violation merely because the 18 victim is a prisoner.” Estelle, 429 U.S. at 106. “Deliberate indifference is a high legal standard.” 19 Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). “Under this standard, the prison official 20 must not only ‘be aware of the facts from which the inference could be drawn that a substantial risk 21 of serious harm exists,’ but that person ‘must also draw the inference.’” Toguchi, 391 F.3d at 1057 22 (quoting Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970 (1994)). “‘If a prison official should 23 have been aware of the risk, but was not, then the official has not violated the Eighth Amendment, 24 no matter how severe the risk.’” Toguchi, 391 F.3d at 1057 (quoting Gibson v. County of Washoe, 25 Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)). 26 27 1) PVSP Medical Department Plaintiff is attempting to impose liability on the PVSP Medical Department. As a state 28 7 1 agency, the California Department of Corrections and Rehabilitation (CDCR), including its 2 individual institutions, is entitled to Eleventh Amendment immunity from suit. Aholelei v. Dept. 3 of Public Safety, 488 F.3d 1144, 1147 (9th Cir. 2007). Therefore, the PVSP Medical Department 4 is an improper defendant in this action and is entitled to dismissal. Id. 5 2) Walker and Yates 6 Defendants Walker and Yates may not be held liable based on their positions of authority 7 within CDCR and Plaintiff has not alleged any facts linking them to acts or omissions which suggest 8 they were personally involved in acting with deliberate indifference to Plaintiff’s medical needs. 9 Iqbal, 129 S.Ct. at 1948-49; Ewing, 588 F.3d at 1235. The general allegation that Defendants 10 Walker and Yates were put on notice as to the medical problems at PVSP is insufficient to state a 11 plausible claim against them for violating Plaintiff’s Eighth Amendment rights. Iqbal, 129 S.Ct. at 12 1949-50; Moss, 572 F.3d at 969. 13 3) Igbinosa 14 In addition to attempting to impose liability on Defendant Igbinosa based on the same 15 allegations made against Defendants Walker and Yates, Igbinosa was involved in responding to 16 Plaintiff’s inmate appeal. Although Plaintiff alleges that Defendant Igbinosa responded to his appeal 17 with hostility, antagonism, aggression, defensiveness, and denial, and he attacked Plaintiff’s 18 requests, including pleas for his pain medication refills, the context is almost entirely unclear. The 19 mere possibility of misconduct is insufficient to support a plausible claim for relief and the Court 20 cannot discern whether Defendant Igbinosa was simply rude, whether he merely failed to tell 21 Plaintiff what Plaintiff wanted to hear, or whether he knowingly disregarded a substantial risk of 22 harm to Plaintiff’s health. As a result, Plaintiff fails to state a viable claim against Defendant 23 Igbinosa. Iqbal, 129 S.Ct. at 1949-50; Moss, 572 F.3d at 969. 24 4) 25 Yun Finally, Defendant Yun was also involved via a review of Plaintiff’s inmate appeal. 26 Defendant Yun interviewed Plaintiff and allegedly failed to address the issue of Plaintiff’s untimely 27 medication refills. Defendant Yun cited the dates Plaintiff’s medications were ordered but not the 28 8 1 dates they were refilled. This is simply insufficient to show Defendant Yun acted with deliberate 2 indifference toward Plaintiff’s medical needs. Iqbal, 129 S.Ct. at 1949-50; Moss, 572 F.3d at 969. 3 c. Remedial Orders 4 Regarding the remedial orders issued in Madrid and Plata, these cases do not provide Plaintiff 5 with an independent cause of action under section 1983 because the orders do not have the effect of 6 creating or expanding Plaintiff’s constitutional rights. See Cagle v. Sutherland, 334 F.3d 980, 986- 7 87 (9th Cir. 2003) (consent decrees often go beyond constitutional minimum requirements, and do 8 not create or expand rights); Green v. McKaskle, 788 F.2d 1116, 1123 (5th Cir. 1986) (remedial 9 decrees remedy constitutional violations but do not create or enlarge constitutional rights). 10 In determining whether Plaintiff states a claim, the Court looks to whether Plaintiff’s factual 11 allegations support his contention that his constitutional rights were violated rather than to simply 12 whether or not there was an alleged breach of an agreement in a different case. See Cagle, 334 F.3d 13 at 986-87; Green, 788 F.2d at 1123; see also Garcia v. Stewart, No. C 06-6735 MMC (PR), 2009 WL 14 688887, at *7-8 (N.D.Cal. Mar. 16, 2009) (section 1983 claim based on non-compliance with 15 Castillo agreement not cognizable). Here, for the reasons set forth above, Plaintiff’s amended 16 complaint does not set forth sufficient facts to state a plausible claim for relief against Defendants 17 Walker, Yates, Igbinosa, and Yun for the violation of Plaintiff’s rights under the Eighth Amendment. 18 Iqbal, 129 S.Ct. at 1949-50; Moss, 572 F.3d at 969. 19 IV. Conclusion and Recommendation 20 Plaintiff’s amended complaint fails to state a claim against Defendants PVSP Medical 21 Department, Walker, Yates, Igbinosa, and Yun for violation of the Eighth Amendment. Plaintiff was 22 previously given notice of the deficiencies in his claims and leave to amend, but he was unable to 23 state a claim. Lopez, 203 F.3d at 1130; Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). 24 Accordingly, the Court HEREBY RECOMMENDS that this action be DISMISSED, with prejudice, 25 for failure to state a claim under section 1983. 26 These Findings and Recommendations will be submitted to the United States District Judge 27 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) 28 9 1 days after being served with these Findings and Recommendations, Plaintiff may file written 2 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 3 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 4 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 5 1153 (9th Cir. 1991). 6 7 IT IS SO ORDERED. 8 Dated: ie14hj July 5, 2011 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10
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