(PC-G) Gonzalez v. Bopari et al, No. 1:2012cv01053 - Document 38 (E.D. Cal. 2014)

Court Description: FINDINGS and RECOMMENDATIONS Recommending that Defendant Bopari's 33 Motion to Dismiss be Granted signed by Magistrate Judge Dennis L. Beck on 12/8/2014. Referred to Judge Lawrence J. O'Neill. Objections to F&R due by 1/12/2015. (Sant Agata, S)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 CLEOFAS GONZALEZ, 12 Plaintiff, 13 14 vs. DR. BOPARI, et al., 15 Defendants. ) ) ) ) ) ) ) ) ) ) 1:12cv01053 LJO DLB PC FINDINGS AND RECOMMENDATIONS REGARDING DEFENDANT’S MOTION TO DISMISS THIRTY-DAY DEADLINE 16 Plaintiff Cleofas Gonzalez (“Plaintiff”) is a state prisoner proceeding pro se and in forma 17 18 pauperis in this civil rights action pursuant to 28 U.S.C. § 1983. Plaintiff filed this action on 19 June 28, 2012. 20 21 22 A. PROCEDURAL HISTORY The Court screened Plaintiff’ original complaint on March 25, 2013, and dismissed it with leave to amend. 23 Plaintiff filed his First Amended Complaint on April 4, 2013. The Court screened the 24 25 26 27 28 First Amended Complaint on November 13, 2013, and again dismissed it with leave to amend. Plaintiff was informed that this would be his final opportunity to amend. On December 23, 2013, Plaintiff filed his Second Amended Complaint. On April 23, 2014, the Court ordered that the Second Amended Complaint go forward against Defendants 1 1 Bopari and Grimm1 for violation of the First and Eighth Amendments, as well as a state law 2 claim for medical malpractice.2 3 4 On September 15, 2014, Defendant Bopari filed the instant motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Plaintiff filed his opposition on 5 October 9, 2014, and Defendant filed his reply on October 15, 2014. The motion is ready for 6 7 decision pursuant to Local Rule 230(l). B. 8 SUMMARY OF ALLEGATIONS IN SECOND AMENDED COMPLAINT Plaintiff is currently incarcerated at the California Substance Abuse Treatment Facility in 9 10 Corcoran, California. The events at issue occurred while Plaintiff was incarcerated at Avenal 11 State Prison. Plaintiff alleges that prior to February 2010, he had been seen by Defendants Grimm and 12 13 Bopari3 for numerous injuries and was not able to get more than a few feet away from his 14 wheelchair without assistance. Defendant Bopari, “along with other named defendant(s), 15 instructed Plaintiff on numerous occasions not to go more than five feet without the use of his 16 17 18 wheelchair. In fact, up until February 2010, all of the doctors who saw Plaintiff told him not to go more than five feet without his wheelchair because of his advanced age (56) and weak physical condition. 19 In February 2010, Plaintiff had been in the Medical Offices at ASP. He had numerous 20 21 22 23 24 25 26 issues with his health and his amputated left leg. At that time, Defendant Grimm “drastically changed” the prognosis and insisted that Plaintiff did not need his wheelchair any longer. ECF No. 22, at 3. Plaintiff alleges that this coincided with the filing of his inmate appeals related to Defendants’ medical care. He contends that after he began to complain about his medical care, 1 On December 2, 2014, the Court issued Findings and Recommendations to dismiss Defendant Grimm for Plaintiff’s failure to effectuate service. The objection period has not yet passed. 2 27 3 28 The remaining claims and Defendants were dismissed on June 12, 2014. Plaintiff often references the “doctors named in this action.” Defendants Bopari and Grimm are the only doctors identified by name and therefore the Court refers to only Defendants Bopari and Grimm. 2 1 “Defendants seem to make it a point to take retribution against plaintiff, by not giving him 2 medical attention and taking his wheelchair.” ECF No. 22, at 3. 3 4 Between February 2010 and May 2011, when Plaintiff’s wheelchair was returned, he suffered injuries from falls because he could not move more than five feet on his ill-fitting 5 prosthetic. Shortly before his wheelchair was returned, Plaintiff suffered a fall that caused a chip 6 7 8 to the bone in his amputated left leg. Plaintiff also has diabetes, and sores occurred that caused major injections. In May 2011, after the last major fall, “Defendant(s)” gave his wheelchair back. 9 10 “Defendant(s)” instructed Plaintiff not to go more than five feet without his wheelchair. Plaintiff 11 asked “Defendant(s)” what resulted in the return of his wheelchair. He alleges, “Defendant(s) 12 stated nothing other than to say you always needed it as far as I can see, but Dr. Bopari is in 13 charge. Now he says give it back to you.” ECF No. 22, at 4. 14 15 16 Plaintiff believes that when his wheelchair was returned, Defendants admitted their wrongdoing. He alleges that any other doctor would not have taken his wheelchair because of his health status, advanced age, diabetes and amputated leg. 17 18 Based on these allegations, the Court found that Plaintiff stated a First Amendment claim and an Eighth Amendment claim, as well as a state law claim for medical malpractice. 19 C. LEGAL STANDARD 20 21 22 23 A motion to dismiss brought pursuant to Rule 12(b)(6) tests the legal sufficiency of a claim, and dismissal is proper if there is a lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Conservation Force v. Salazar, 646 F.3d 24 1240, 1241-42 (9th Cir. 2011) (quotation marks and citations omitted), cert. denied, 132 S.Ct. 25 1762 (2012). In resolving a 12(b)(6) motion, a court’s review is generally limited to the 26 operative pleading. Daniels-Hall v. National Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010); 27 28 3 1 2 Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007); Schneider v. California Dept. of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998). 3 4 To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 5 678, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 6 7 8 9 127 S.Ct. 1955, 1964-65 (2007)) (quotation marks omitted); Conservation Force, 646 F.3d at 1242; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The Court must accept the well-pleaded factual allegations as true and draw all reasonable inferences in favor of the 10 non-moving party, Daniels-Hall, 629 F.3d at 998; Sanders, 504 F.3d at 910; Morales v. City of 11 Los Angeles, 214 F.3d 1151, 1153 (9th Cir. 2000), and in this Circuit, pro se litigants are entitled 12 to have their pleadings liberally construed and to have any doubt resolved in their favor, Wilhelm 13 v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012); Watison v. Carter, 668 F.3d 1108, 1112 (9th 14 Cir. 2012); Silva v. Di Vittorio, 658 F.3d 1090, 1101 (9th Cir. 2011); Hebbe v. Pliler, 627 F.3d 15 338, 342 (9th Cir. 2010). 16 17 18 D. ANALYSIS 1. Eighth Amendment The Eighth Amendment’s prohibition against cruel and unusual punishment protects 19 prisoners not only from inhumane methods of punishment, but also from inhumane conditions of 20 21 22 23 confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006) (citing Farmer v. Brennan, 511 U.S. 825, 847, 114 S.Ct. 1970 (1994) and Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392 (1981)) (quotation marks omitted). While conditions of confinement may be, and 24 often are, restrictive and harsh, they must not involve the wanton and unnecessary infliction of 25 pain. Morgan, 465 F.3d at 1045 (citing Rhodes, 452 U.S. at 347) (quotation marks omitted). 26 27 Prison officials have a duty to ensure that prisoners are provided adequate shelter, food, clothing, sanitation, medical care, and personal safety, Johnson v. Lewis, 217 F.3d 726, 731 (9th 28 4 1 2 3 4 Cir. 2000) (quotation marks and citations omitted), but not every injury that a prisoner sustains while in prison represents a constitutional violation, Morgan, 465 F.3d at 1045 (quotation marks omitted). To maintain an Eighth Amendment claim, inmates must show deliberate indifference to a substantial risk of harm to their health or safety. E.g., Farmer, 511 U.S. at 847; Thomas v. 5 Ponder, 611 F.3d 1144, 1151-52 (9th Cir. 2010); Foster v. Runnels, 554 F.3d 807, 812-14 (9th 6 7 8 9 Cir. 2009); Morgan, 465 F.3d at 1045; Johnson, 217 F.3d at 731; Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998). For claims arising out of medical care in prison, Plaintiff “must show (1) a serious 10 medical need by demonstrating that failure to treat [his] condition could result in further 11 significant injury or the unnecessary and wanton infliction of pain,” and (2) that “the defendant’s 12 response to the need was deliberately indifferent.” Wilhelm v. Rotman, 680 F.3d 1113, 1122 13 (9th Cir. 2012) (citing Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006)). 14 15 16 17 18 19 Deliberate indifference is shown by “(a) a purposeful act or failure to respond to a prisoner’s pain or possible medical need, and (b) harm caused by the indifference.” Wilhelm, 680 F.3d at 1122 (citing Jett, 439 F.3d at 1096). The requisite state of mind is one of subjective recklessness, which entails more than ordinary lack of due care. Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012) (citation and quotation marks omitted); Wilhelm, 680 F.3d at 1122. Deliberate indifference may be shown “when prison officials deny, delay or intentionally 20 21 22 23 24 interfere with medical treatment, or it may be shown by the way in which prison physicians provide medical care.” Wilhelm, 680 F.3d at 1122 (citing Jett, 439 F.3d at 1096) (internal quotation marks omitted). In the Court’s screening order, the Court determined that Plaintiff’s allegations were 25 sufficient to state a claim against Defendants Grimm and Bopari. In so finding, the Court did not 26 provide an analysis as to why it found a cognizable claim. Rather, the Court generally provides a 27 28 5 1 detailed analysis only where it finds a failure to state a claim. The Court will therefore address 2 Defendant’s claims given the lack of prior analysis. 3 4 Defendant first argues that Plaintiff cannot demonstrate a serious medical need, theorizing that Plaintiff’s claimed “serious medical need” is the use of the wheelchair, and he 5 does not necessarily require a wheelchair to get around. At the screening stage, however, 6 7 8 9 Plaintiff’s allegations are sufficient to demonstrate a serious medical need. Plaintiff is an amputee, of advanced age and with diabetes, and he alleges that his prosthetic is ill-fitting. He contends that he fell numerous times, including one fall that caused bone chips. Combined with 10 his allegation that he could not walk more than five feet on his prosthetic, the Court finds that his 11 facts, when liberally construed in his favor, pass the threshold required to demonstrate a serious 12 medical need. Defendant’s suggestion that a wheelchair “is a desirable convenience as opposed 13 to a necessity required for prison life,” does not negate Plaintiff’s claims at the pleading stage. 14 Next, Defendant Bopari argues that there are really only two allegations specifically 15 against him (1) that he treated Plaintiff prior to February 2010 and told him not to go more than 16 five feet without a wheelchair; and (2) that he returned Plaintiff’s wheelchair in May 2011. 17 18 Under these facts, Defendant contends that there is no basis for liability against him. The Court agrees. Plaintiff alleges that Defendant Grimm took his wheelchair in 19 February 2010, and that Defendant Bopari gave it back to him in May 2011. He does not allege 20 21 22 23 24 that Defendant Bopari was involved in the confiscation, nor does he allege that Defendant Bopari knew of the events. Therefore, Defendant Bopari did not disregard a substantial risk of harm to Plaintiff’s health or safety at any time. Often times in the Second Amended Complaint, Plaintiff refers to “Defendant(s)” in a 25 general sense. However, Plaintiff specifies that it was Defendant Grimm who took his 26 wheelchair, not Defendant Bopari. Although Plaintiff states elsewhere that “Defendant(s)” took 27 28 6 1 2 3 4 5 the wheelchair and “Defendants” seemed to retaliate against him, his bare allegations are insufficient to state a claim against Defendant Bopari. ECF No. 22, at 3. In his opposition, Plaintiff contends that Defendants were aware of his suffering, but still confiscated his wheelchair and refused to return it for a considerable period of time. He also suggests that Defendant Bopari was in a supervisory position and knew of Defendant Grimm’s 6 7 8 9 deprivation through Plaintiff’s prison appeals and other documents. Plaintiff’s statements in his opposition, however, do not serve to remedy the defects in his Second Amended Complaint. “In determining the propriety of a Rule 12(b)(6) dismissal, a court 10 may not look beyond the complaint to a plaintiff’s moving papers, such as a memorandum in 11 opposition to a defendant’s motion to dismiss.” Schneider v. California Dept. of Corr., 151 F.3d 12 1194, 1197 n.1 (9th Cir. 1998) (citation omitted). 13 Second, even considering Plaintiff’s assertions, they fall below the threshold necessary to 14 state a claim. In the prior screening order, the Court explained that bare assertions that 15 Defendant Bopari reviewed his complaints were not sufficient to state a claim. The Court 16 instructed Plaintiff that he had to include facts related to Defendant Bopari’s review of his 17 18 19 appeals. Plaintiff has failed to do so. The Court also notes that Plaintiff, in his opposition, states that “proof” of Defendant Bopari’s knowledge will be generated through the discovery process. However, an insufficient 20 21 22 23 24 complaint cannot proceed in hopes that evidence will be discovered later. The allegations in the complaint must be sufficient in the first instance. Accordingly, the Court finds that Plaintiff fails to state an Eighth Amendment claim against Defendant Bopari. 25 2. 26 “Prisoners have a First Amendment right to file grievances against prison officials and to 27 Retaliation be free from retaliation for doing so.” Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) 28 7 1 2 3 4 5 (citing Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009)). Also protected by the First Amendment is the right to pursue civil rights litigation in federal court without retaliation. Silva v. Di Vittorio, 658 F.3d 1090, 1104 (9th Cir. 2011). “Within the prison context, a viable claim of First Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and 6 7 8 9 that such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). Based on the discussion of Plaintiff’s Eighth Amendment claim, he cannot establish that 10 11 Defendant Bopari took an adverse action against him. Moreover, even if Plaintiff could get by 12 the first element, he has not sufficiently alleged facts to show that any actions were taken 13 because of his alleged grievances. Legal conclusions are not sufficient. Iqbal, 129 S.Ct at 1949. 14 While factual allegations are accepted as true, legal conclusions are not. Id. 15 16 17 18 19 Accordingly, Plaintiff fails to state a claim under the First Amendment against Defendant Bopari. 3. Medical Malpractice Pursuant to 28 U.S.C. § 1367(a), in any civil action in which the district court has original jurisdiction, the district court “shall have supplemental jurisdiction over all other claims in the 20 21 22 23 action within such original jurisdiction that they form part of the same case or controversy under Article III,” except as provided in subsections (b) and (c). “[O]nce judicial power exists under § 1367(a), retention of supplemental jurisdiction over state law claims under 1367(c) is 24 discretionary.” Acri v. Varian Assoc., Inc., 114 F.3d 999, 1000 (9th Cir. 1997). “The district 25 court may decline to exercise supplemental jurisdiction over a claim under subsection (a) if . . . 26 the district court has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 27 1367(c)(3). The Supreme Court has cautioned that “if the federal claims are dismissed before 28 8 1 2 trial, . . . the state claims should be dismissed as well.” United Mine Workers of America v. Gibbs, 383 U.S. 715, 726 (1966). 3 4 As the Court has found that Plaintiff does not state a federal claim, it will not exercise jurisdiction over the state law claim as to Defendant Bopari. 5 E. RECOMMENDATION 6 Based on the foregoing, the Court HEREBY RECOMMENDS that Defendant Bopari’s 7 8 9 motion to dismiss, filed on September 15, 2014, be GRANTED. Plaintiff has been given numerous opportunities to amend, and the Court finds that the claims against Defendant Bopari 10 should be DISMISSED WITHOUT LEAVE TO AMEND, and that Defendant Bopari should be 11 DISMISSED from this action.4 12 These Findings and Recommendations will be submitted to the United States District 13 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 14 thirty (30) days after being served with these Findings and Recommendations, the parties may 15 file written objections with the Court. The document should be captioned “Objections to 16 Magistrate Judge’s Findings and Recommendations.” The parties are advised that failure to file 17 18 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, __ F.3d __, __, No. 11-17911, 2014 WL 6435497, at *3 (9th Cir. Nov. 18, 2014) 19 (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 20 21 IT IS SO ORDERED. 22 Dated: 23 December 8, 2014 /s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE 24 25 26 27 4 28 Given that Findings and Recommendations are pending to dismiss the remaining Defendant, this will not terminate this action. 9

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