(PC) Baldhosky v. Hubbard et al, No. 1:2012cv01200 - Document 126 (E.D. Cal. 2017)

Court Description: FINDINGS and RECOMMENDATIONS to dismiss non-cognizable claims re 28 signed by Magistrate Judge Michael J. Seng on 12/1/2017. Referred to Judge Lawrence J. O'Neill; Objections to F&R due within 14-Days. (Lundstrom, T)

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(PC) Baldhosky v. Hubbard et al Doc. 126 1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 EASTERN DISTRICT OF CALIFORNIA 12 13 RAYMOND BALDHOSKY, 14 15 16 17 CASE NO. 1:12-cv-01200-LJO-MJS (PC) Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS NON-COGNIZABLE CLAIMS v. SUSAN HUBBARD, et al., (ECF No. 28) Defendants. 18 19 20 Plaintiff is a former state prisoner proceeding pro se and in forma pauperis in this 21 civil rights action brought pursuant to 42 U.S.C. § 1983. He has consented to Magistrate 22 Judge jurisdiction. (ECF No. 6.) Several of the defendants have appeared in the action 23 and declined to consent to Magistrate Judge jurisdiction. (ECF Nos. 38, 92, 107.) 24 On May 4, 2016, the Court screened Plaintiff’s complaint and dismissed several of 25 his Eighth Amendment medical indifference claims with prejudice. (ECF No. 31.) The 26 case has since proceeded against Defendants Drs. Gonzalez, Nguyen, and Metts; PAs 27 Peters and Byers; and Nurses Grossi, Ruff, Indindes, Kaylor, and Dunn on Eighth 28 Dockets.Justia.com 1 Amendment claims for medical indifference as set forth in the Court’s screening order. 2 (Id.) 3 I. Williams v. King 4 Federal courts are under a continuing duty to confirm their jurisdictional power 5 and are “obliged to inquire sua sponte whenever a doubt arises as to [its] existence[.]” 6 Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 278 (1977) (citations 7 omitted). On November 9, 2017, the Ninth Circuit Court of Appeals ruled that 28 U.S.C. 8 § 636(c)(1) requires the consent of all named plaintiffs and defendants, even those not 9 served with process, before jurisdiction may vest in a Magistrate Judge to dispose of a 10 civil claim. Williams v. King, 875 F.3d 500 (9th Cir. 2017). Accordingly, the Court held 11 that a Magistrate Judge does not have jurisdiction to dismiss a claim with prejudice 12 during screening even if the plaintiff has consented to Magistrate Judge jurisdiction. Id. 13 Here, Defendants were not yet served at the time that the Court screened the first 14 amended complaint and therefore had not appeared or consented to Magistrate Judge 15 jurisdiction. Because Defendants had not consented, the undersigned’s dismissal of 16 Plaintiff’s claims is invalid under Williams. Because the undersigned nevertheless stands 17 by the analysis in his previous screening order, he will below recommend to the District 18 Judge that the non-cognizable claims be dismissed. 19 II. Findings and Recommendations on Third Amended Complaint 20 A. Screening Requirement 21 The in forma pauperis statute provides, “Notwithstanding any filing fee, or any 22 portion thereof, that may have been paid, the court shall dismiss the case at any time if 23 the court determines that . . . the action or appeal . . . fails to state a claim upon which 24 relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 25 26 27 B. Pleading Standard 28 2 1 Section 1983 “provides a cause of action for the deprivation of any rights, 2 privileges, or immunities secured by the Constitution and laws of the United States.” 3 Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). 4 Section 1983 is not itself a source of substantive rights, but merely provides a method for 5 vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 6 (1989). 7 To state a claim under § 1983, a plaintiff must allege two essential elements: (1) 8 that a right secured by the Constitution or laws of the United States was violated and (2) 9 that the alleged violation was committed by a person acting under the color of state law. 10 See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243, 11 1245 (9th Cir. 1987). 12 A complaint must contain “a short and plain statement of the claim showing that 13 the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations 14 are not required, but “[t]hreadbare recitals of the elements of a cause of action, 15 supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 16 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 17 Plaintiff must set forth “sufficient factual matter, accepted as true, to state a claim to relief 18 that is plausible on its face.” Id. Facial plausibility demands more than the mere 19 possibility that a defendant committed misconduct and, while factual allegations are 20 accepted as true, legal conclusions are not. Id. at 677-78. Plaintiff’s Allegations 21 C. 22 Plaintiff complains of acts that occurred during his incarceration at the California 23 Substance Abuse Treatment Facility (“CSATF”) in Corcoran, California. He names the 24 following Defendants in their individual capacities: Doctors Gonzalez, Nguyen, Olga 25 Veregovskay, and Metts; Physician’s Assistants (“PA”) L. Peters and T. Byers; and 26 Nurses T. Grossi, Ruff, Indindes, Amanda Kaylor, and Dianna Dunn. Although the Court 27 previously found that Plaintiff stated cognizable claims against Nurses Rapozo and 28 3 1 Corey, Plaintiff has not named these individuals as Defendants in his third amended 2 complaint. 3 Plaintiff’s allegations relate generally to Defendants’ failure to prevent, and later 4 treat, pressure sores and related infections. He alleges that each of the Defendants 5 personally ignored risks to Plaintiff’s health and also failed to supervise other nurses. He 6 also claims that Defendants, and particularly Defendant Veregovskay, “medically 7 abandoned” him upon his release from prison. His allegations may be summarized 8 essentially as follows. 9 1. Overview and General Allegations 10 Plaintiff has a spinal cord injury and is confined to a wheelchair. He suffers from 11 back and shoulder injuries, poor upper body strength, and the inability to balance himself 12 without help. Prior to transferring to CSATF, he was housed at California State Prison – 13 Corcoran in a Medical Outpatient Housing Unit (“MOHU”). There, he had a medical bed 14 with rails to assist with activities of daily living (“ADLs”) and he had a work release order. 15 While in this housing environment, Plaintiff never had a Stage II pressure sore. 16 When he transferred to CSATF, he was placed in the general population. 17 However, Plaintiff’s medical needs could not be effectively accommodated in the general 18 population. Except for various hospital admissions, he was incarcerated at CSATF from 19 May 2009 until his release on July 27, 2010. 20 Shortly after arriving at CSATF, Plaintiff began complaining of his housing 21 placement and lack of accommodations. He complained that he was not properly 22 evaluated and that his limitations were being ignored. He complained that he did not 23 have a medical bed, proper commode, or supplies needed for proper bowel 24 management. Plaintiff states that he was injured as a result of attempting to maneuver in 25 and out of his bed, as well as falling from his bed. He had skin breakdown as the result 26 of his bowel difficulties. Plaintiff does not attribute these initial complaints – those 27 occurring prior to June 30, 2009 -- or the failure to address them to any particular 28 4 1 defendant or individual. 2 Plaintiff alleges generally that medical care at CSATF fell below acceptable 3 standards. As an example, Nurse Ruff was the “gatekeeper” for medical care on 4 Plaintiff’s yard. According to Plaintiff, she treated inmates poorly, did not employ 5 appropriate medical judgment, was the subject of numerous complaints from inmates 6 and family, and threatened or humiliated inmates seeking treatment. This disrespect for 7 inmates’ needs was present throughout the facility. 8 Plaintiff’s specific allegations are as follows. 9 2. Failure to Accommodate and Stage II Pressure Sore 10 On June 30, 2009, Plaintiff was seen by Defendant PA Peters, who failed to 11 properly examine Plaintiff, make an accurate diagnosis, determine a proper care plan, or 12 assess the need for medical equipment. Defendant PA Peters also rescinded Plaintiff’s 13 cell assignment and had him sent to a dormitory where he was at increased risk of harm. 14 On July 3, 2009, Plaintiff was seen by Defendant Dr. Gonzalez. Plaintiff 15 apparently was already suffering from skin deterioration at this time. Plaintiff presented a 16 list of equipment he believed he needed to properly manage his medical needs. Dr. 17 Gonzalez did not examine Plaintiff and refused Plaintiff’s request for a medical bed and 18 housing accommodation. As a result, Plaintiff sustained shoulder, hip, and back injuries 19 from falling off of an inappropriate bed. He also suffered “continued skin breakdown, 20 physical deterioration and inability to care for one’s self.” Dr. Gonzalez did provide 21 Plaintiff with bowel care supplies. However, he ignored Plaintiff’s back and shoulder 22 injuries, thus restricting Plaintiff’s ability to function in the general population. He refused 23 to order bed rest to allow Plaintiff’s wound to heal. According to Plaintiff, it was obvious 24 that his wound would enlarge into a “full blown pressure sore” if such measures were not 25 taken. 26 On July 7, 2009, Plaintiff requested physical therapy and replacement of worn out 27 stretch bands. Defendant Peters denied the request and confiscated Plaintiff’s old 28 5 1 stretch bands. 2 On July 17, 2009, Plaintiff was treated for a Stage II pressure sore by Nurse Jane 3 Doe 1. Plaintiff makes various allegations against Nurse Doe 1, but identifies her as a 4 non-party. Accordingly, these allegations will not be discussed further. 5 On July 18, 2009, Jane Doe Nurses 2-5 refused to comply with orders to provide 6 adequate medical supplies that Plaintiff needed for bowel and bladder maintenance. 7 Although Plaintiff alleges that this conduct was a proximate cause of his injuries, he 8 identifies these nurses as non-parties. Accordingly, these allegations will not be 9 discussed further. 10 On July 31, 2009, Plaintiff met with Defendant Dr. Nguyen and provided him with 11 a list of medical concerns regarding review of x-rays, back pain, edema, pressure 12 release issues, physical therapy and stretch band replacement, designation as 13 ‘medically unassigned’ for skin breakdown, bowel issues, replacement of the catheter, 14 and groin rash. Dr. Nguyen asked Plaintiff to leave the room while he reviewed Plaintiff’s 15 health records, but never asked Plaintiff to return. Dr. Nguyen never examined Plaintiff, 16 never treated him, and never addressed any of Plaintiff’s concerns. 17 On August 30, 2009, Plaintiff was seen by non-party Nurse Sagado, who 18 observed that a new pressure sore was developing. The next day, September 1, 2009, 19 Plaintiff was seen by Defendant Nurse Grossi. Grossi assessed the new wound. She 20 ordered wet to dry dressing to be changed once per day, but did not issue a bed rest or 21 work release order to allow the wound to heal. According to Plaintiff, such failures are 22 contrary to standard treatment and would obviously lead to deterioration of his wounds. 23 On September 8, 2009, Nurse Grossi examined the wound and again refused to grant a 24 work release order even though the wound was larger. 25 On September 21, 2009, PAs Peters and Byers reviewed Plaintiff’s medical 26 condition but refused to grant bedrest or work and school restrictions. According to 27 Plaintiff, such treatment is contrary to standard protocol. 28 6 Defendants’ 1 failure to properly examine Plaintiff and order necessary 2 accommodations created an environment that worsened his pressure sores and led to 3 the eventual development of MRSA and osteomyelitis. 4 3. Stage III Pressure Sore 5 By September 23, 2009, Plaintiff’s pressure sore had reached Stage III. On that 6 date, Plaintiff was seen by PA Peters, who refused to issue a work release order. 7 Plaintiff’s regular assignments required that he sit for up to eight hours on the pressure 8 sore. Plaintiff contends that Peters knew such treatment would lead to serious injury. 9 On September 28, 2009, Plaintiff reported on CDC Form 7632 that his pressure 10 sore had reached a “severe condition.” Defendants Gonzalez, Nguyen, Gross, Peters, 11 and Byers did not respond. He also submitted a health care request form asking to be 12 seen by a specialist and for a lay-in order for pressure relief. 13 On October 12, 2009, Plaintiff submitted another Form 7632 requesting to be 14 seen by his primary care physician. He reported that his pressure sore was discharging 15 puss, fat, and skin tissue. 16 17 On October 14, 2009, Plaintiff submitted an emergency appeal to obtain medical care after a non-party nurse advised him his wound was not healing properly. 18 On October 19, 2009, Plaintiff was seen by PA Peters. Peters suggested a two 19 hour off and one hour on schedule of pressure release but did not issue an order. On an 20 unspecified date1, Defendant Nurse Ruff refused to change Plaintiff’s dressing for his 21 Stage III pressure sore after it had become soiled. Nurse Ruff also directed another staff 22 person and an inmate to place Plaintiff on an examination table incorrectly, resulting in 23 pain and injury to Plaintiff. 24 On October 21, 2009, PA Byers issued a 50% reduction in Plaintiff’s work and 25 school assignments, but only when Plaintiff’s pressure sores were present. PA Byers did 26 not examine Plaintiff. Had he examined Plaintiff, he would have provided competent 27 28 1 Plaintiff’s second amended complaint identified this conduct as having occurred on October 19, 2009. 7 1 medical care and accommodations necessary to treat Plaintiff’s condition. Plaintiff 2 alleges that Byers is not competent. 3 4. First Hospital Admission 4 On October 24, 2009, Plaintiff saw Defendant Nurse Indindes. He had excessive 5 draining from his pressure sore and visible oozing through his clothing. Nurse Indindes 6 told Plaintiff to return in 12 hours. When Plaintiff did return, he advised that he was 7 suffering from hot and cold chills, body aches, malaise, and dry mouth for 2-3 days. His 8 temperature was 101 degrees. Plaintiff was immediately transported to Mercy Hospital in 9 Bakersfield, California, and underwent debridement of a Stage III pressure sore and 10 treatment of wound and urinary tract infections. 11 Upon discharge on November 2, 2009, Plaintiff returned to CSATF. On November 12 5, 2009, Plaintiff had two medical appointments, one of which was with PA Peters. In 13 each case, he was required to sit on his wound for two hours waiting to be seen. 14 5. Refusal to Clean and Dress Wound 15 On November 13, 2009, Plaintiff suffered an unintended bowel movement and 16 soiled his dressing and wound. Plaintiff reported the issue to Defendant Nurse Kaylor 17 and to Nurses Rapozo and Corey,2 and asked for a dressing change. These nurses 18 refused to clean and dress the wound, telling Plaintiff to come back later. 19 On November 14, 2009, Plaintiff suffered another unintended bowel movement 20 and again soiled his dressing and wound. Defendant Nurse Kaylor refused to clean and 21 dress the wound, telling Plaintiff to return in eight hours. When Plaintiff insisted, 22 Defendant Nurse Kaylor forced Plaintiff to wait for over an hour before cleaning and 23 dressing the wound. On November 23, 2009, Plaintiff soiled his dressing and wound a third time. 24 25 Defendant Nurse Dunn refused to clean and dress the wound. 6. 26 Second Hospital Admission 27 28 2 As previously stated, Nurses Rapozo and Corey are not named as Defendants. 8 1 On December 4, 2009, Plaintiff was forced to sit on his pressure sore for 2 hours 2 and 15 minutes before being seen by PA Peters. PA Peters then denied Plaintiff’s 3 requests for a transfer to a medical facility that could adequately treat what had become 4 a Stage IV pressure sore. 5 On December 10, 2009, Nurse Jane Doe 5 changed Plaintiff’s dressing and noted 6 that Plaintiff’s pressure sore wound exposed the bone and was still discharging foul 7 smelling pus, fat, and muscle. The nurse said that Plaintiff should be in a hospital, but 8 did nothing to ensure that Plaintiff got to one. Plaintiff identifies this nurse as a non-party. 9 On December 18, 2009, non-party Nurse Reposo changed Plaintiff’s dressing and 10 noted that the wound looked very bad. Plaintiff was transferred to San Joaquin 11 Community Hospital. He was seen by non-party Dr. Freeman. His wound was debrided. 12 Plaintiff was discharged from the hospital in January 2010 and admitted to the 13 Acute Care Hospital at Corcoran State Prison for further treatment, including intravenous 14 antibiotics. 15 On January 24, 2010, Dr. Freeman, examined the wound and proposed surgery 16 for February 15, 2010. Defendant Veregovskay did not make Plaintiff available to Dr. 17 Freeman for the surgery. Plaintiff later was informed that an error had been made in 18 scheduling the surgery. As discussed below, the surgery was eventually performed on 19 March 14, 2010. 20 7. Skin Flap Surgery 21 Plaintiff underwent skin flap surgery on March 14, 2010, and afterward was 22 discharged to CSATF. There, on or about March 21, 2010, Defendant Dr. Metts ordered 23 that Plaintiff be transferred from his bed using a Hoyer lift, despite knowing that use of 24 this lift would damage the vulnerable tissue because it would focus a substantial amount 25 of pressure on the surgical area. The transfer did indeed damage the tissue of the 26 surgical flap, and Plaintiff had to undergo a second skin flap surgery. 27 On April 2, 2010, following the second surgery, Dr. Freeman ordered post- 28 9 1 operative examinations in 2-4 weeks, or earlier as needed. Defendant Dr. Veregovskay 2 instead decided to treat and monitor Plaintiff’s wound herself. According to Plaintiff, Dr. 3 Veregovskay’s treatment led to an undetected abscess below the surface of the wound 4 that required a third operation following Plaintiff’s release from prison. That procedure 5 resulted in a 15 month hospital confinement. 6 8. Medical Care Following Release from Prison 7 Sometime before his release from prison, Plaintiff apparently asked through the 8 administrative appeal process about the medical care that he would receive following his 9 release. On June 9, 2010, he was informed at the informal level that “the medical 10 department will find a medical facility for your placement.” An appeals coordinator later 11 told Plaintiff that the medical department would find a medical facility for his placement 12 and that his parole agent would be notified. Dr. Veregovskaya also told Plaintiff that that 13 all medical arrangements for his pending release would be made. 14 Following Plaintiff’s release on July 27, 2010, and despite Dr. Veregovskaya’s 15 assurances, there was no medical transport to Plaintiff’s home city, no medical facility to 16 check into, and no accommodation to transport Plaintiff and his medical equipment and 17 supplies. Plaintiff thus had to transport himself and this required him to sit on the surgery 18 site for six hours. 19 9. Stage IV Pressure Sore 20 On July 26, 2010, the day before Plaintiff’s release, Plaintiff noticed a red spot 21 about 2” in diameter in the area of the existing pressure sore. Plaintiff showed the spot to 22 non-party CDCR nursing staff who opined that it was just a scrape or a Stage 1 pressure 23 sore. The spot did not go away. A few days later, Plaintiff had the wound dressed by a 24 doctor at an acute care clinic. The red spot still did not improve. Approximately three 25 weeks after his release, Plaintiff awoke in a pool of blood and tissue discharge. He was 26 admitted to Ventura County Medical Center Emergency Room with a Stage IV pressure 27 sore and osteomyelitis, transferred to the Veteran’s Administration Hospital in West Los 28 10 1 Angeles, and then spent seven months in the Spinal Cord Injury Ward in Long Beach. 2 10. Relief Sought 3 Plaintiff brings suit against Defendants for violation of his Eighth and Fourteenth 4 Amendment rights to be free from cruel and unusual punishment and deliberate 5 indifference. He seeks money damages. 6 D. 7 Plaintiff’s factual allegations against the named Defendants are largely 8 unchanged from those found non-cognizable in his prior pleading. Plaintiff presents new 9 argument as to why claims previously found non-cognizable should be allowed to 10 proceed. He provides medical materials relating to the care of pressure sores to support 11 these arguments. However, he does not provide measureably greater factual detail 12 regarding the specific conduct of the named Defendants. Because Plaintiff’s factual 13 allegations are largely unchanged, the Court finds itself repeating much of its original 14 screening order. Analysis 15 Deliberate indifference to serious medical needs violates the Eighth Amendment's 16 proscription against cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 104 17 (1976); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other 18 grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en 19 banc). A determination of “deliberate indifference” involves an examination of two 20 elements: the seriousness of the prisoner's medical need, and the nature of the 21 defendant's response to that need. Id. at 1059. A serious medical need exists if the 22 failure to treat a prisoner's condition could result in further significant injury or the 23 unnecessary and wanton infliction of pain. Id. The existence of an injury that a 24 reasonable doctor or patient would find important and worthy of comment or treatment, 25 the presence of a medical condition that significantly affects an individual's daily 26 activities, or the existence of chronic and substantial pain are examples of indications 27 that a prisoner has a serious need for medical treatment. Id. at 1059-60. Plaintiff has 28 11 1 sufficiently alleged a serious medical need by asserting that he is paraplegic and 2 suffered from significant pressure sores. 3 A prison official is deliberately indifferent if he knows that a prisoner faces a 4 substantial risk of serious harm and disregards that risk by failing to take reasonable 5 steps to abate it. Farmer v. Brennan, 511 U.S. 825, 837 (1994). The prison official must 6 not only “be aware of facts from which the inference could be drawn that a substantial 7 risk of serious harm exists,” but he “must also draw the inference.” Id. In order for 8 deliberate indifference to be established, therefore, there must be a purposeful act or 9 failure to act on the part of the defendant and resulting harm. McGuckin, 974 F.2d at 10 1060. Deliberate indifference may be shown when prison officials deny, delay or 11 intentionally interfere with medical treatment, or it may be shown in the way in which they 12 provide medical care. Id. at 1062. A claim of medical malpractice or negligence is 13 insufficient to make out a violation of the Eighth Amendment. Id. at 1059; Toguchi v. 14 Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). 15 1. Linkage 16 Under § 1983, Plaintiff must demonstrate that each named Defendant personally 17 participated in the deprivation of his rights. Ashcroft v. Iqbal, 556 U.S. 662, 676-77 18 (2009); Simmons, 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton, 19 588 F.3d 1218, 1235 (9th Cir. 2009); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 20 2002). Plaintiff may not attribute liability to a group of defendants, but must “set forth 21 specific facts as to each individual defendant’s” deprivation of his rights. Leer v. Murphy, 22 844 F.2d 628, 634 (9th Cir. 1988); see also Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 23 1989). As stated above, Plaintiff’s raises some general allegations that are directed 24 toward all of the Defendants collectively. For example, he alleges that all Defendants 25 failed to respond to his administrative appeals. However, this allegation does not provide 26 the necessary linkage between the Defendants’ individual conduct and the deprivation of 27 28 12 1 Plaintiff’s rights because it does not reflect that each individual Defendant knew of, but 2 disregarded a substantial risk to Plaintiff’s health. Leer, 844 F.2d at 634. 3 Moreover, liability may not be imposed on supervisory personnel under the theory 4 of respondeat superior, as each defendant is only liable for his or her own misconduct. 5 Iqbal, 556 U.S. at 676-77; Ewing, 588 F.3d at 1235. Supervisors may only be held liable 6 if they “participated in or directed the violations, or knew of the violations and failed to act 7 to prevent them.” Taylor, 880 F.2d at 1045 (9th Cir. 1989); accord Starr v. Baca, 652 8 F.3d 1202, 1205-08 (9th Cir. 2011); Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 9 2009); Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1182 (9th Cir. 10 2007); Harris v. Roderick, 126 F.3d 1189, 1204 (9th Cir. 1997). Conclusory claims that 11 the Defendants failed to supervise other nursing staff are not sufficient to state a claim. 12 2. 13 14 15 Substantive Analysis a. Cognizable Claims The Court concludes that Plaintiff has adequately alleged deliberate indifference on the part of the following Defendants on the following bases: 16 Dr. Gonzalez. Plaintiff contends that, at the time he saw Dr. Gonzalez he already 17 was suffering skin deterioration. Gonzalez was given a list of Plaintiff’s concerns and the 18 accommodations Plaintiff believed he needed, but nonetheless refused to examine him. 19 Dr. Nguyen. Plaintiff contends that he met with this doctor, who certainly should 20 have known that Plaintiff was a paraplegic confined to a wheelchair; that this doctor was 21 given a list of Plaintiff’s concerns, including pressure release issues, and reviewed 22 Plaintiff’s health records; and that the doctor nevertheless refused to examine or treat 23 Plaintiff. 24 Nurse Grossi, PA Peters and PA Byers. Plaintiff contends that these 25 Defendants failed to order work or school restrictions, issue lay-in orders, or place 26 Plaintiff on bed rest despite the presence and progression of Plaintiff’s pressure sores. 27 Plaintiff submits evidence indicating that pressure release is the first and foremost line of 28 13 1 defense in treating pressure sores. Although not dispositive, such evidence is sufficient 2 to suggest that, in failing to order some form of pressure release when pressure sores 3 were present, these Defendants were deliberately indifferent to a serious risk of harm to 4 Plaintiff. 5 6 Nurses Ruff, Indindes, Kaylor, and Dunn. Plaintiff contends that these Defendants refused to change his soiled and/or visibly oozing dressings. 7 Dr. Metts. Plaintiff claims that Dr. Metts used a Hoyer lift to transfer Plaintiff 8 against Plaintiff’s surgeon’s instructions despite knowing that it would create a serious 9 risk of substantial harm to Plaintiff (by concentrating pressure on the surgical area), and 10 11 that this conduct did in fact result in serious damage requiring a second surgery. b. Non-Cognizable Claims 12 Even if assumed, as it should be, that the medically trained Defendants who 13 treated and/or examined Plaintiff were aware of, or surely should have been aware of, 14 the nature and extent of Plaintiff’s condition, many of Plaintiff’s allegations reflect only his 15 rather strong, and perhaps justified, disagreement with their treatment. The allegations 16 as to the claims discussed below do not support a claim that the Defendants actually 17 knew that their diagnosis and treatment, or failure to treat, would, or was likely to, cause 18 or allow harm to Plaintiff. At most, these allegations suggest professional negligence; 19 indeed, Plaintiff’s allegation that some of the Defendants were incompetent suggests 20 malpractice, rather than deliberate indifference. As noted, malpractice is not sufficient to 21 support a claim of constitutional violations. 22 In applying the deliberate indifference standard, the Ninth Circuit has held that 23 before it can be said that a prisoner's civil rights have been abridged, “the indifference to 24 his medical needs must be substantial. Mere ‘indifference,’ ‘negligence,’ or ‘medical 25 malpractice’ will not support this cause of action.” Broughton v. Cutter Laboratories, 622 26 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 105-06). A complaint that a 27 medical professional has been negligent in diagnosing or treating a medical condition, or 28 14 1 otherwise committed malpractice, does not state a valid claim of medical mistreatment 2 under the Eighth Amendment. Even gross negligence is insufficient to establish 3 deliberate indifference to serious medical needs. See Wood v. Housewright, 900 F.2d 4 1332, 1334 (9th Cir. 1990). 5 Moreover, a mere difference of opinion between the prisoner and the prison 6 medical authorities regarding treatment does not amount to deliberate indifference. 7 Mayfield v. Craven, 433 F.2d 873, 874 (9th Cir. 1970). For a difference of opinion to rise 8 to the level of deliberate indifference, plaintiff must establish that the course of treatment 9 chosen was “medically unacceptable under the circumstances,” and was chosen “in 10 conscious disregard of an excessive risk” to plaintiff's health. Jackson, 90 F.3d at 332. 11 The facts presented simply do not meet this requirement. Even if Plaintiff is correct in his 12 belief that Defendants created an environment that caused or worsened the pressure 13 sores and led to the eventual development of MRSA and osteomyelitis, he has not 14 alleged a constitutionally prohibited deliberate indifference. 15 On the foregoing grounds, the Court finds that Plaintiff has failed to assert 16 constitutional violations against the following Defendants with regard to the following 17 alleged acts or inaction: (1) PA Peters for not providing Plaintiff a “proper” care plan, 18 medical equipment, or stretch bands; (2) Nurse Ruff for not correcting the alignment of 19 Plaintiff’s body on the examination table3; (3) Dr. Gonzalez for not ordering a medical 20 bed or addressing Plaintiff’s inability to conduct ADL4; and (4) Dr. Veregovskay for 21 failing to schedule Plaintiff’s skin flap surgery due to error. 22 The Court is not unsympathetic to Plaintiff’s medical condition or the certainly 23 reasonable belief that his condition unnecessarily worsened while at CATSF. One 24 3 25 26 27 28 Plaintiff does not allege that Defendant Nurse Ruff was aware that this alignment was causing Plaintiff pain, and he does not assert how long he remained on the table. Plaintiff claims that this Defendant’s conduct resulted in injuries after Plaintiff fell off of an inappropriately assigned bed. An injury following a Defendant’s conduct, standing alone, does not establish deliberate indifference. Plaintiff must allege facts that this Defendant’s decision was medically unacceptable or was chosen in conscious disregard of an excessive risk to Plaintiff’s health. At best, Plaintiff’s claim as to Dr. Gonzalez amounts to a difference of opinion as to a course of treatment. 4 15 1 cannot help but ask why at least some of the Defendants did not act more aggressively 2 in treating what appeared to be a chronic and chronically worsening condition not 3 uncommon among paraplegics. But, again, such concerns are not sufficient to meet the 4 very high threshold needed to assert unconstitutional deliberate indifference. Plaintiff 5 must put forth facts, not just his lay opinion, that Defendants’ acts or failure to act were 6 such as to reflect a knowing disregard for the likelihood they would create an excessive 7 risk to Plaintiff’s health. 8 Turning to Plaintiff’s claim that he had to wait for 2 hours before being seen by 9 Defendant PA Peters, a delay in treatment does not constitute an Eighth Amendment 10 violation unless it caused substantial harm. Wood v. Housewright, 900 F.2d 1332, 1334- 11 35 (9th Cir. 1999); see also Brigaerts v. Cardoza, 28 F.3d 105 (9th Cir. 1994) (“To 12 prevail on a claim of medical indifference, a prisoner must show that the denial of 13 adequate medical care caused him harm.”) There is no allegation that Plaintiff was 14 substantially harmed by these delays. 15 Plaintiff claims that Dr. Veregovskay did not schedule post-operative 16 appointments with Dr. Freeman, and instead chose to provide Plaintiff’s post-operative 17 care herself. Deliberate indifference may be shown when prison official ignore express 18 orders from a prisoner's treating physician. See Estelle, 429 U.S. at 104-05 (deliberate 19 indifference may manifest “by prison doctors in their response to the prisoner's needs or 20 by prison guards in intentionally denying or delaying access to medical care or 21 intentionally interfering with the treatment once prescribed”); Colwell v. Bannister, 763 22 F.3d 1060, 1068-69 (9th Cir. 2014) (reiterating that prison's reliance on non-specialist 23 prison physicians' opinions who make decisions based on policy, rather than specialists 24 contradictory opinions, satisfies deliberate indifference standard); Jett, 439 F.3d at 1097- 25 98 (prison doctor may have been deliberately indifferent to a prisoner's medical needs 26 when he decided not to request an orthopedic consultation as the prisoner's emergency 27 room doctor had previously ordered); Lopez v. Smith, 203 F.3d 1122, 1132 (9th Cir. 28 16 1 2000) (a prisoner may establish deliberate indifference by showing that a prison official 2 intentionally interfered with his medical treatment); Wakefield v. Thompson, 177 F.3d 3 1160, 1165 & n.6 (9th Cir. 1999) (“a prison official acts with deliberate indifference when 4 he ignores the instructions of the prisoner's treating physician or surgeon.”). However, 5 Plaintiff does allege facts to suggest that the treatment provided by Dr. Veregovskay 6 differed from that which Dr. Freeman prescribed or recommended. 7 Finally, Plaintiff claims that Dr. Veregovskay “abandoned” him by failing to make 8 various arrangements for Plaintiff’s care following his release from prison. In limited 9 circumstances, prison officials may violate the Eighth Amendment by failing to provide 10 for an inmate’s immediate medical needs upon release. Wakefield v. Thompson, 177 11 F.3d 1160, 1164 (9th Cir.1999) (holding that “the state must provide an outgoing 12 prisoner who is receiving and continues to require medication with a supply sufficient to 13 ensure that he has that medication available during the period of time reasonably 14 necessary to permit him to consult a doctor and obtain a new supply”); see also Lugo v. 15 Senkowski, 114 F. Supp. 2d 111, 115 (N.D.N.Y. 2000) (holding that the State “has a 16 duty to provide medical services for an outgoing prisoner who is receiving continuing 17 treatment at the time of his release for the period of time reasonably necessary for him to 18 obtain treatment on his own behalf” (internal quotation marks and citation omitted)). 19 Here, however, Plaintiff does not allege facts to suggest that he was receiving 20 continuing or ongoing treatment at the time he was released. Plaintiff underwent surgery 21 on March 14, 2010. He was to follow up in two to four weeks. He was released on July 22 27, 2010, approximately four months following his surgery. At that time, he had what 23 prison medical staff believed to be at most a Stage I pressure sore. Indeed, even the 24 physician Plaintiff saw at a non-custodial acute care clinic did nothing more than dress 25 Plaintiff’s wound. There is nothing to indicate that Plaintiff was in the midst of an ongoing 26 course of treatment at the time of his release, or that Dr. Veregovskay was deliberately 27 28 17 1 indifferent to Plaintiff’s continuing need to receive immediate and ongoing medical 2 treatment. Accordingly, this allegation fails to state a claim. 3 III. Conclusion and Recommendation 4 In sum, Plaintiff’s third amended complaint states cognizable Eighth Amendment 5 medical indifference claims against Drs. Gonzalez, Nguyen, and Metts; PAs Peters and 6 Byers; and Nurses Grossi, Ruff, Indindes, Kaylor, and Dunn on the bases set forth in 7 Section II(D)(2)(a) of this order. The remaining allegations in Plaintiff’s third amended 8 complaint do not state a cognizable claim for relief. 9 Accordingly, it is HEREBY RECOMMENDED that this action continue to proceed 10 only on Plaintiff’s cognizable Eighth Amendment medical indifference claims against Drs. 11 Gonzalez, Nguyen, and Metts; PAs Peters and Byers; and Nurses Grossi, Ruff, 12 Indindes, Kaylor, and Dunn on the bases set forth in Section II(D)(2)(a) of this order, and 13 that all other Defendants, and all other claims asserted in the third amended complaint, 14 be DISMISSED WITH PREJUDICE. 15 These findings and recommendations will be submitted to the United States 16 District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. 17 § 636(b)(1). Within fourteen (14) days after being served with the findings and 18 recommendations, the parties may file written objections with the Court. The document 19 should be captioned “Objections to Magistrate Judge’s Findings and Recommendation.” 20 A party may respond to another party’s objections by filing a response within fourteen 21 (14) days after being served with a copy of that party’s objections. The parties are 22 advised that failure to file objections within the specified time may result in the waiver of 23 rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter 24 v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). IT IS SO ORDERED. 25 26 27 Dated: December 1, 2017 /s/ Michael J. Seng UNITED STATES MAGISTRATE JUDGE 28 18

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