-DLB (PC) Bowell v. CSP Substance Abuse Treatment Facility At Corcoran, et al., No. 1:2010cv02336 - Document 15 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS Recommending Dismissal of Plaintiff's Action for Failure to State a Claim 10 ; Objections, If Any, Due Within Twenty-One Days, signed by Magistrate Judge Dennis L. Beck on 11/16/11. (Hellings, J)
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-DLB (PC) Bowell v. CSP Substance Abuse Treatment Facility At Corcoran, et al. Doc. 15 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 JAMES BOWELL, 9 Plaintiff, 10 11 12 CASE NO. 1:10-CV-02336-AWI-DLB PC FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF PLAINTIFF’S ACTION FOR FAILURE TO STATE A CLAIM (DOC. 10) v. CALIFORNIA SUBSTANCE ABUSE TREATMENT FACILITY AT CORCORAN, et al., 13 OBJECTIONS, IF ANY, DUE WITHIN TWENTY-ONE DAYS Defendants. 14 / 15 16 17 Findings and Recommendations I. Background 18 Plaintiff James Bowell (“Plaintiff”) is a prisoner in the custody of the California 19 Department of Corrections and Rehabilitation (“CDCR”). Plaintiff is proceeding pro se and in 20 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this 21 action by filing his complaint on December 15, 2010. Doc. 1. On June 7, 2011, the Court 22 dismissed the complaint and granted Plaintiff leave to amend. Plaintiff failed to file a timely 23 amended complaint. On August 12, 2011, the Court issued an Order to Show Cause why the 24 action should not be dismissed for failure to obey a court order and for failure to state a claim. 25 On August 23, 2011, Plaintiff filed a First Amended Complaint (“FAC”). Given Plaintiff’s 26 filing, the Order to Show Cause is HEREBY DISCHARGED. Accordingly, the FAC is now 27 before the Court for screening. 28 The Court is required to screen complaints brought by prisoners seeking relief against a 1 Dockets.Justia.com 1 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 2 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 3 legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or 4 that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 5 § 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion thereof, that may have been 6 paid, the court shall dismiss the case at any time if the court determines that . . . the action or 7 appeal . . . fails to state a claim upon which relief may be granted.” 28 U.S.C. § 8 1915(e)(2)(B)(ii). 9 A complaint must contain “a short and plain statement of the claim showing that the 10 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 11 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 12 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing 13 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual 14 matter, accepted as true, to ‘state a claim that is plausible on its face.’” Id. (quoting Twombly, 15 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id. 16 II. Summary Of Complaint 17 Plaintiff was previously incarcerated at California Substance Treatment Facility 18 (“SATF”) in Corcoran, California. Plaintiff names as Defendants: M. Ancheta, L. Metzler, R. 19 Kifer, and M. J. Gaedke, dentists employed at SATF; and V. Fanous, chief dentist at SATF. 20 As in his original complaint, Plaintiff alleges the following: On January 18, 2008, 21 Defendant L. Metzler stated that Plaintiff’s molars #19 and #13 would be repaired by a dentist in 22 the community, but the prison will only pull both under existing policy. FAC ¶ 1. 23 On February 25, 2008, in response to Plaintiff’s 602 inmate grievance, Defendant Gaedke 24 stated that CDCR does not provide root canal treatment for posterior teeth, including Plaintiff’s 25 molar. FAC ¶ 2. 26 On April 22, 2008, Defendant R. Kifer attempted to convince Plaintiff to extract two 27 teeth, #19 and #13, stating they could be easily restored, and that SATF provides only a silver 28 crown. FAC ¶ 3. 2 1 On May 25, 2008, defendant M. Ancheta refused root canal treatment, forcing Plaintiff to 2 have a tooth extraction of the #19 molar. The extraction took over thirty minutes. During the 3 extraction, Defendant Ancheta knocked Plaintiff’s front tooth loose by bumping it. The 4 unnecessary molar extraction caused a number of problems, including Plaintiff being unable to 5 eat on the left side of his mouth, the bite of his teeth being off, loss of weight from 170 to 140 6 pounds, left side of Plaintiff’s neck becoming loose from lack of biting and damage to Plaintiff’s 7 jaw bone. FAC ¶¶ 4. 8 9 On June 17, 2008, Defendant V. Fanous, during a grievance appeal, refused to provide off-site dental care per the California Code of Regulations. FAC ¶ 5. 10 Plaintiff alleges violation of the Eighth Amendment, as well as dental malpractice. 11 Plaintiff requests declaratory judgment and monetary damages. 12 III. Analysis 13 A. 14 The Eighth Amendment prohibits cruel and unusual punishment. “The Constitution does 15 not mandate comfortable prisons.” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quotation and 16 citation omitted). A prisoner’s claim of inadequate medical care does not rise to the level of an 17 Eighth Amendment violation unless (1) “the prison official deprived the prisoner of the ‘minimal 18 civilized measure of life’s necessities,’” and (2) “the prison official ‘acted with deliberate 19 indifference in doing so.’” Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (quoting 20 Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) (citation omitted)). The deliberate 21 indifference standard involves an objective and a subjective prong. First, the alleged deprivation 22 must be, in objective terms, “sufficiently serious . . . .” Farmer, 511 U.S. at 834 (citing Wilson v. 23 Seiter, 501 U.S. 294, 298 (1991)). Second, the prison official must “know[] of and disregard[] 24 an excessive risk to inmate health or safety . . . .” Id. at 837. Eighth Amendment 25 “Deliberate indifference is a high legal standard.” Toguchi, 391 F.3d at 1060. “Under 26 this standard, the prison official must not only ‘be aware of the facts from which the inference 27 could be drawn that a substantial risk of serious harm exists,’ but that person ‘must also draw the 28 inference.’” Id. at 1057 (quoting Farmer, 511 U.S. at 837). “‘If a prison official should have 3 1 been aware of the risk, but was not, then the official has not violated the Eighth Amendment, no 2 matter how severe the risk.’” Id. (quoting Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 3 1188 (9th Cir. 2002)). 4 In his FAC, Plaintiff again fails to state a claim against Defendant Ancheta. As before, 5 Plaintiff alleges insufficient facts to indicate that Defendant Ancheta knew of and disregarded an 6 excessive risk to Plaintiff’s health. Plaintiff’s allegations amount at most to negligence, which 7 fails to state an Eighth Amendment claim. Estelle v. Gamble, 429 U.S. 97, 106 (1976). 8 Furthermore, any difference of opinion between Plaintiff and the dentist concerning the 9 appropriate course of treatment does not rise to the level of deliberate indifference to a serious 10 11 medical need. Toguchi, 391 F.3d at 1058; Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) Plaintiff again fails to state a claim against Defendant Metzler. As with his original 12 complaint, Plaintiff has not alleged any serious harm. Even if Plaintiff had sufficiently alleged a 13 serious harm, Plaintiff’s allegations continue to amount to a difference of opinion between the 14 Plaintiff and the dentist concerning the appropriate course of treatment, which, as stated, does not 15 rise to the level of deliberate indifference to a serious medical need. Toguchi, 391 F.3d at 1058; 16 Jackson, 90 F.3d at 332. Plaintiff also fails to state a claim against Defendants Gaeke and R. 17 Kifer, for the same reason as Defendant Metzler. 18 In his FAC, Plaintiff again fails to state a claim against Defendant Vanous. Prisoners 19 have no right to outside medical care to supplement the medical care provided by the prison. 20 Roberts v. Spalding, 783 F.2d 867, 870 (9th Cir. 1986). 21 22 B. Supervisory Liability The Supreme Court recently emphasized that the term “supervisory liability,” loosely 23 and commonly used by both courts and litigants alike, is a misnomer. Iqbal, 129 S. Ct. at 1949. 24 “Government officials may not be held liable for the unconstitutional conduct of their 25 subordinates under a theory of respondeat superior.” Id. at 1948. Rather, each government 26 official, regardless of his or her title, is only liable for his or her own misconduct. 27 28 When the named defendant holds a supervisorial position, the causal link between the defendant and the claimed constitutional violation must be specifically alleged. See Fayle v. 4 1 Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 2 1978). To state a claim for relief under § 1983 for supervisory liability, plaintiff must allege 3 some facts indicating that the defendant either: personally participated in the alleged deprivation 4 of constitutional rights; knew of the violations and failed to act to prevent them; or promulgated 5 or “implemented a policy so deficient that the policy ‘itself is a repudiation of constitutional 6 rights’ and is ‘the moving force of the constitutional violation.’” Hansen v. Black, 885 F.2d 642, 7 646 (9th Cir. 1989) (internal citations omitted); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 8 1989). 9 Here, Plaintiff names Defendant Vanous, who holds a supervisory position. Plaintiff fails 10 to demonstrate that Defendant Vanous personally participated in the deprivation of constitutional 11 rights, knew of constitutional violations and failed to act to prevent them, or promulgated or 12 implemented a policy that violated Plaintiff’s constitutional rights. Hansen, 885 F.2d at 646; 13 Taylor, 880 F.2d at 1045.1 14 C. 15 Plaintiff alleges dental malpractice by Defendants. As Plaintiff has failed to allege any State Law Claims and Supplemental Jurisdiction 16 cognizable federal claims, the Court declines to exercise supplemental jurisdiction over any state 17 law claims. 28 U.S.C. § 1367(c)(3). 18 IV. Leave to Amend 19 Plaintiff previously was provided an opportunity to amend his complaint to allege 20 additional facts to cure the deficiencies identified herein. He was unable to do so. Accordingly, 21 further leave to amend will not be granted. See Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 22 2000) (en banc). 23 V. Recommendation 24 Based on the foregoing, it is HEREBY RECOMMENDED that: 25 1. This action be dismissed for failure to state a claim upon which relief may be 26 27 28 1 Plaintiff also seeks damages against the CDCR. The Eleventh Amendment bars suits against state agencies, as well as those where the state itself is named as a defendant. Lucas v. Dep't Of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam); Taylor, 880 F.2d at 1045. Plaintiff thus fails to state a claim against CDCR. 5 1 granted under 42 U.S.C. § 1983; and 2 2. The Clerk of the Court be directed to close this action. 3 These Findings and Recommendations will be submitted to the United States District 4 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty- 5 one (21) days after being served with these Findings and Recommendations, the parties may file 6 written objections with the Court. The document should be captioned “Objections to Magistrate 7 Judge’s Findings and Recommendations.” The parties are advised that failure to file objections 8 within the specified time may waive the right to appeal the District Court’s order. Martinez v. 9 Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 10 11 IT IS SO ORDERED. Dated: 3b142a November 16, 2011 /s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6