(PC) Valencia v. Kokor, No. 1:2013cv01391 - Document 59 (E.D. Cal. 2015)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dennis L. Beck on 10/27/2015 recommending dismissal of certain claims re 54 Amended Prisoner Civil Rights Complaint. Referred to Judge Lawrence J. O'Neill; Objections to F&R due by 11/20/2015. (Lundstrom, T)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 DANIEL G. VALENCIA, Plaintiff, 11 12 v. 13 KOKOR, et al., 14 Case No. 1:13-cv-01391-LJO-DLB (PC) FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF CERTAIN CLAIMS Defendants. _____________________________________/ TWENTY-ONE DAY DEADLINE 15 16 Plaintiff Daniel G. Valencia (“Plaintiff”) is a California state prisoner proceeding pro se in 17 this civil action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on August 30, 2013. The 18 Court ordered that the complaint be served on Defendant Winfred Kokor, M.D., on August 22, 19 2014. 20 On April 20, 2015, the Court granted Defendant Kokor’s motion to dismiss and dismissed 21 the complaint with leave to amend. Plaintiff filed a Second Amended Complaint on September 22 25, 2015, naming Dr. Kokor and Dr. Jawahar Sundaram as Defendants. 23 On October 5, 2015, the Court screened the Second Amended Complaint and found that it 24 stated an Eighth Amendment deliberate indifference claim against Defendants Kokor and 25 Sundaram. The Court further found that it did not state any other claims for relief. Plaintiff was 26 ordered to notify the Court whether he would proceed only on the cognizable claims, or amend his 27 complaint. 28 1 On October 19, 2015, Plaintiff notified the Court of his willingness to proceed only on the 2 cognizable claim against Defendants Kokor and Sundaram. The Court now issues these Findings 3 and Recommendations. 4 A. SCREENING STANDARD 5 The Court is required to screen complaints brought by prisoners seeking relief against a 6 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 7 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 8 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 9 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 10 “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall 11 dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a 12 claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 13 A complaint must contain “a short and plain statement of the claim showing that the 14 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 15 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 16 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing 17 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual 18 matter, accepted as true, to ‘state a claim that is plausible on its face.’” Id. (quoting Twombly, 550 19 20 21 22 23 24 25 26 27 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id. Section 1983 provides a cause of action for the violation of Plaintiff’s constitutional or other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 1087, 1092 (9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). Plaintiff’s allegations must link the actions or omissions of each named defendant to a violation of his rights; there is no respondeat superior liability under section 1983. Iqbal, 556 U.S. at 676-77; Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones, 297 F.3d at 934. Plaintiff must present factual allegations sufficient to state a 28 2 1 plausible claim for relief. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 2 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility 3 standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969. 4 B. ALLEGATIONS IN COMPLAINT 5 Plaintiff is currently incarcerated at the California Substance Abuse Treatment Facility. 6 The events at issue occurred while he was incarcerated at Corcoran State Prison (“CSP”). 7 Plaintiff explains that he has received pain management for all of his injuries at other 8 prisons. On several occasions, Plaintiff complained of his chronic pain and asked why CSP 9 removed or discontinued his morphine and gabapentin. Plaintiff states that his physician told him 10 “state cut/backs.” ECF No. 54, at 2. 11 Plaintiff alleges that he has had several visits with Defendant Kokor on E-Yard, and he 12 refuses to treat “with small levels of opioids and recommends nonsteroidal anti-inflammatory 13 drugs (NSAIDs).” ECF No. 54, at 2. Plaintiff further alleges that Defendant has known for years that he has “not gone up the 14 15 ladder” and kept Plaintiff on NSAIDs despite knowing that it is not working.1 ECF No. 54, at 2. 16 As a result of knowing of Plaintiff’s injuries, he contends that Defendant Kokor was deliberately 17 indifferent. Plaintiff continues to suffer pain throughout his body. Plaintiff also faults Defendant Kokor’s treatment because he failed to provide adequate 18 19 treatment to him “following other multiple orthopedic surgeon [sic] from hospitals and other 20 prisons.” ECF No. 54, at 3. Plaintiff contends that Defendant Kokor said that he didn’t care about 21 other reports, and he only gave Plaintiff a small amount of morphine for a short period of time. 22 Plaintiff alleges that Defendant Kokor refused “medium/long term treatment and refused the 23 CPHCS care guidelines for chronic pain.” Plaintiff believes that the next step on the ladder is to 24 add an opiate medication, but Defendant Kokor refused to do so. 25 Plaintiff alleges that for years, he was unable to eat or walk to the chow-hall because of 26 nerve damage that impacts his ability to stand and walk, and he is sometimes bedridden with 27 unbearable pain. Plaintiff has told Defendant Kokor that NSAIDs hurt his liver. 28 1 The “ladder” refers to the World Health Organization’s suggestions for treatment of pain. 3 1 Almost immediately after Plaintiff filed this action, Defendant Kokor gave Plaintiff a short 2 course of opioids. Plaintiff told Defendant Kokor that the opioids helped his main issues. 3 Plaintiff moved to A-Yard and was seen by Defendant Sundaram, who told Plaintiff that he 4 would not go against Defendant Kokor’s treatment plan. He told Plaintiff that if Defendant Kokor 5 hadn’t given him anything by now, he probably won’t. 6 Plaintiff has received Tylenol with codeine, but it never worked. Now, Defendant 7 Sundaram “don’t want to talk about it either!” ECF No. 54, at 4. 8 Plaintiff alleges that Defendants Kokor and Sundaram have been deliberately indifferent to 9 his pain, and retaliated against him for filing this action. He contends that they have made him 10 suffer despite knowing that he could be treated. 11 C. DISCUSSION 12 1. 13 While the Eighth Amendment of the United States Constitution entitles Plaintiff to medical Eighth Amendment- Deliberate Indifference 14 care, the Eighth Amendment is violated only when a prison official acts with deliberate 15 indifference to an inmate’s serious medical needs. Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 16 2012), overruled in part on other grounds, Peralta v. Dillard, 744 F.3d 1076, 1082-83 (9th Cir. 17 2014); Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012); Jett v. Penner, 439 F.3d 1091, 18 1096 (9th Cir. 2006). Plaintiff “must show (1) a serious medical need by demonstrating that 19 failure to treat [his] condition could result in further significant injury or the unnecessary and 20 wanton infliction of pain,” and (2) that “the defendant’s response to the need was deliberately 21 indifferent.” Wilhelm, 680 F.3d at 1122 (citing Jett, 439 F.3d at 1096). Deliberate indifference is 22 shown by “(a) a purposeful act or failure to respond to a prisoner’s pain or possible medical need, 23 and (b) harm caused by the indifference.” Wilhelm, 680 F.3d at 1122 (citing Jett, 439 F.3d at 96). 24 The requisite state of mind is one of subjective recklessness, which entails more than ordinary lack 25 of due care. Snow, 681 F.3d at 985 (citation and quotation marks omitted); Wilhelm, 680 F.3d at 26 1122. 27 At the heart of Plaintiff’s complaint is his belief that Defendants should be treating his pain 28 with opioids, rather than with the medications he is currently receiving. He states that Defendant 4 1 Kokor knows that the NSAIDs are not working, but refuses to change his medications. Plaintiff 2 also states that he told Defendant Kokor that the NSAIDs hurt his liver. Plaintiff saw Defendant 3 Sundaram after he was moved to A-Yard, but Defendant Sundaram indicated that he would not 4 “go against” Defendant Kokor’s treatment plan. ECF No. 54, at 4. Plaintiff alleges that both 5 Defendants have made him suffer despite knowing that he could be treated. 6 Construed liberally, Plaintiff states an Eighth Amendment claim against Defendants Kokor 7 and Sundaram. 8 2. 9 Allegations of retaliation against a prisoner’s First Amendment rights to speech or to First Amendment- Retaliation 10 petition the government may support a section 1983 claim. Silva v. Di Vittorio, 658 F.3d 1090, 11 1104 (9th Cir. 2011); Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985); see also Valandingham 12 v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989); Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995). 13 “Within the prison context, a viable claim of First Amendment retaliation entails five basic 14 elements: (1) An assertion that a state actor took some adverse action against an inmate (2) 15 because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s 16 exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate 17 correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005); accord Watison v. 18 Carter, 668 F.3d 1108, 1114-15 (9th Cir. 2012); Silva, 658 at 1104; Brodheim v. Cry, 584 F.3d 19 1262, 1269 (9th Cir. 2009). 20 Plaintiff believes that Defendants have denied him proper treatment because he filed this 21 action. However, Plaintiff includes no facts to suggest any connection between their treatment and 22 Plaintiff’s complaint. In other words, although Plaintiff concludes that their treatment was 23 retaliatory, he provides no factual allegations to show that their treatment decisions were made 24 because of his filing of this action. While factual allegations are accepted as true, legal 25 conclusions are not. Iqbal, 129 S. Ct. at 1949. 26 Plaintiff therefore fails to state a claim under the First Amendment. 27 /// 28 /// 5 1 D. FINDINGS AND RECOMMENDATIONS 2 Plaintiff’s Second Amended Complaint states a cognizable Eighth Amendment claim 3 against Defendants Kokor and Sundaram. The Court therefore RECOMMENDS that this action 4 go forward on the Eighth Amendment deliberate indifference claim against Defendants Kokor and 5 Sundaram, and that all other claims be DISMISSED.2 6 These Findings and Recommendations will be submitted to the United States District 7 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 8 twenty-one (21) days after being served with these Findings and Recommendations, the parties 9 may file written objections with the Court. Local Rule 304(b). The document should be 10 captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to 11 the objections must be filed within fourteen (14) days from the date of service of the objections. 12 The parties are advised that failure to file objections within the specified time may waive the right 13 to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 14 15 IT IS SO ORDERED. 16 Dated: /s/ Dennis October 27, 2015 L. Beck UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 2 The Court will address service of Defendant Sundaram once the Findings and Recommendations are adopted. 6

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