(PC) Venable v. Stainer et al, No. 1:2016cv00589 - Document 29 (E.D. Cal. 2018)
Court Description: FINDINGS and RECOMMENDATIONS Recommending That This Case be Dismissed, With Prejudice, for Failure to State a Claim 21 , signed by Magistrate Judge Gary S. Austin on 3/15/2018: 14-Day Deadline. (Hellings, J)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ELVIS VENABLE, 12 Plaintiff, 13 14 vs. STAINER, et al., 15 Defendants. 16 1:16-cv-00589-AWI-GSA-PC FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE BE DISMISSED, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM (ECF No. 21.) OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN DAYS 17 18 19 20 21 I. BACKGROUND 22 Elvis Venable (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 23 with this civil rights action pursuant to 42 U.S.C. ' 1983. Plaintiff filed the Complaint 24 commencing this action on April 26, 2016. (ECF No. 1.) The court screened the Complaint 25 and issued an order on June 17, 2016, dismissing the Complaint for failure to state a claim with 26 leave to amend. (ECF No. 7.) After being granted multiple extensions of time, on May 1, 27 2017, Plaintiff filed the First Amended Complaint, which is now before the court for screening. 28 (ECF No. 25.) 1 1 II. SCREENING REQUIREMENT 2 The court is required to screen complaints brought by prisoners seeking relief against a 3 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 4 The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 5 legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or 6 that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 7 § 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion thereof, that may have been 8 paid, the court shall dismiss the case at any time if the court determines that the action or 9 appeal fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 10 A complaint is required to contain “a short and plain statement of the claim showing 11 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are 12 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 13 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 14 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are 15 taken as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart 16 Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 17 To state a viable claim, Plaintiff must set forth “sufficient factual matter, accepted as true, to 18 ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678-79; Moss v. U.S. 19 Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). While factual allegations are accepted as 20 true, legal conclusions are not. Id. The mere possibility of misconduct falls short of meeting 21 this plausibility standard. Id. 22 III. SUMMARY OF FIRST AMENDED COMPLAINT 23 Plaintiff is presently incarcerated at Kern Valley State Prison (KVSP) in Delano, 24 California, where the events at issue in the First Amended Complaint allegedly occurred when 25 Plaintiff was incarcerated there in the custody of the California Department of Corrections and 26 Rehabilitation (CDCR). Plaintiff names as defendants M.D. Stainer, Martin Biter (KVSP 27 Warden), Michael Hutchinson (Chief Executive Officer), Dr. Richard F. Busch, Dr. Woods, 28 and KVSP (collectively, “Defendants”). 2 1 Plaintiff’s allegations in the First Amended Complaint are largely the same as in his 2 original Complaint. Plaintiff alleges that on March 5, 2014, he was assaulted by two inmates 3 and suffered a broken jaw. He was admitted to Kern Medical Center for an intermaxillary 4 fixation. After a period of recovery suggested by defendant Dr. Busch, defendant Busch 5 performed a procedure to remove the fixation wiring on April 30, 2014. During the procedure 6 defendant Busch broke several of Plaintiff’s teeth. 7 Plaintiff brought the issue to the attention of KVSP medical staff. Defendant Woods 8 attempted to repair the broken teeth, but placed fillings that were not completely on Plaintiff’s 9 teeth. This led to debris in Plaintiff’s mouth and an increase in severe pain from the jaw 10 fracture. It was later discovered that the fracture was not fully healed when the wiring was 11 removed. The “sub-par” treatment caused the fillings to have to be redone in thirty days, which 12 resulted in an increase in Plaintiff’s pain. (ECF No. 25 at 2.) 13 The dental surgeon at KVSP noted the “unattended fracture” and indicated that 14 defendant Busch should not have removed the wiring. (ECF No. 25 at 3.) After Plaintiff told 15 defendant Busch of the diagnosis made by the KVSP specialist, defendant Busch said, “If 16 KVSP staff believe your jaw is still broken, they should fix it themselves.” (ECF No. 25 at 3.) 17 Plaintiff used the prison grievance system to resolve his jaw issue. However during the 18 process, CDCR suggested that because Plaintiff missed an appointment when he was ill, he 19 caused the deficiencies in the fixation process. Plaintiff contends that he was not responsible 20 for the removal of the fixation wiring, or the fact that one area of his jaw was not fully healed 21 when the wiring was removed. 22 Based on these facts, Plaintiff alleges a violation of the Eighth Amendment. He 23 contends that Defendants failed to perform a required procedure that was needed to correct the 24 fracture of which they were aware. That Defendants were aware of the need to have two 25 fractures repaired yet only one of the necessary repairs was made. Plaintiff contends that when 26 Defendants discovered that one of the repairs was not made the issue was further worsened by 27 defendant Busch when he took the wrong actions to correct the problem. 28 3 1 Plaintiff contends that the corrective actions by Defendant Woods caused more pain. 2 Plaintiff alleges that defendant Biter is responsible as supervisor of his subordinates who fail to 3 carry out proper medical operations of prisoners. Plaintiff alleges that defendants, Stainer and 4 Hutchinson reviewed Plaintiff’s administrative appeals and all of the Defendants failed to take 5 corrective medical attention leaving Plaintiff in severe pain and suffering for more than three 6 years. 7 municipal liability under § 1983 for failing to adequately train medical personnel. 8 9 Plaintiff alleges that defendants Biter, Stainer, and Hutchison are all liable under Plaintiff seeks monetary damages. IV. PLAINTIFF’S CLAIMS 10 The Civil Rights Act under which this action was filed provides: 11 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . . 12 13 14 15 42 U.S.C. § 1983. 16 “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a 17 method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 490 U.S. 386, 18 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see also Chapman 19 v. Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los Angeles, 697 20 F.3d 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 2012); 21 Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). “To the extent that the violation of 22 a state law amounts to the deprivation of a state-created interest that reaches beyond that 23 guaranteed by the federal Constitution, Section 1983 offers no redress.” Id. 24 To state a claim under § 1983, a plaintiff must allege that (1) the defendant acted under 25 color of state law and (2) the defendant deprived him or her of rights secured by the 26 Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 27 2006); see also Preschooler v. Cnty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) 28 (discussing “under color of state law”). A person deprives another of a constitutional right, 4 1 “within the meaning of § 1983, ‘if he does an affirmative act, participates in another’s 2 affirmative act, or omits to perform an act which he is legally required to do that causes the 3 deprivation of which complaint is made.’” Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 4 F.3d 1175, 1183 (9th Cir. 2007) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). 5 “The requisite causal connection may be established when an official sets in motion a ‘series of 6 acts by others which the actor knows or reasonably should know would cause others to inflict’ 7 constitutional harms.” Preschooler II, 479 F.3d at 1183 (quoting Johnson, 588 F.2d at 743). 8 This standard of causation “closely resembles the standard ‘foreseeability’ formulation of 9 proximate cause.” Arnold v. Int’l Bus. Mach. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981); see 10 also Harper v. City of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008). 11 A. 12 In the prior screening order of June 17, 2016, the court found that Plaintiff failed to state 13 a cognizable claim in the original Complaint against any Defendant. In screening the First 14 Amended Complaint, the court reaches the same conclusion, as discussed in the following 15 paragraphs. Prior Screening Order Defendant KVSP – Eleventh Amendment Immunity 16 B. 17 Plaintiff seeks to hold Kern Valley State Prison (KVSP) liable for failing to provide him 18 with adequate medical care, in violation of the Eighth Amendment. 19 “The Eleventh Amendment prohibits federal courts from hearing suits brought against 20 an unconsenting state.” Brooks v. Sulphur Springs Valley Elec. Co., 951 F.2d 1050, 1053 (9th 21 Cir.1991); see also Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54, 116 S.Ct. 1114 (1996); 22 Puerto Rico Aqueduct Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144, 113 S.Ct. 684 23 (1993); Tennessee v. Lane, 541 U.S. 509, 517 (2004). The Eleventh Amendment also bars 24 suits against a state’s agencies. See Puerto Rico Aqueduct, 506 U.S. at 144; Brooks, 951 F.2d 25 at 1053; Mitchell v. Los Angeles Community College Dist., 861 F.2d 198, 201 (9th Cir. 1989); 26 Beentjes v. Placer Cnty. Air Pollution Control Dist., 397 F.3d 775, 777 (9th Cir. 2005). Thus, 27 the CDCR is entitled to Eleventh Amendment immunity. In addition, California prisons are 28 entitled to Eleventh Amendment immunity. Lopez v. Wasco State Prison, 2008 WL 5381696, 5 1 at *4 (E.D. Cal. Dec. 22, 2008) (citing Keel v. California Dept. of Corrections and 2 Rehabilation, 2006 WL 1523121, *2 (E.D. Cal. 2006)). Thus, defendant KVSP is entitled to 3 Eleventh Amendment immunity and must be dismissed. 4 Therefore, Plaintiff fails to state a claim against KVSP. 5 C. 6 Plaintiff seeks to hold defendants Biter, Stainer, and Hutchinson liable under municipal 7 liability under § 1983 for failing to adequately train medical personnel about providing medical 8 assistance beyond emergency first-aid treatment. Municipal Liability 9 A local government unit may not be held responsible for the acts of its employees under 10 a respondeat superior theory of liability. Monell v. Department of Social Services, 436 U.S. 11 658, 691 (1978); Webb v. Sloan, 330 F.3d 1158, 1163-64 (9th Cir. 2003); Gibson v. Cnty. of 12 Washoe, 290 F.3d 1175, 1185 (9th Cir. 2002). Rather, a local government unit may only be 13 held liable if it inflicts the injury complained of. Gibson, 290 F.3d at 1185. 14 A municipality may be held liable under § 1983 only where an action pursuant to 15 official municipal policy of some nature causes a constitutional tort. 42 U.S.C.A. § 1983. 16 Harper, 533 F.3d at 1010. Generally, a claim against a local government unit for municipal or 17 county liability requires an allegation that “a deliberate policy, custom, or practice . . . was the 18 ‘moving force’ behind the constitutional violation . . . suffered.” Galen v. Cnty. of Los 19 Angeles, 477 F.3d 652, 667 (9th Cir. 2007); City of Canton, Ohio, v. Harris, 489 U.S. 378, 385 20 (1989). Alternatively, and more difficult to prove, municipal liability may be imposed where 21 the local government unit’s omission led to the constitutional violation by its employee. 22 Gibson, 290 F.3d at 1186. Under this route to municipal liability, the “plaintiff must show that 23 the municipality’s deliberate indifference led to its omission and that the omission caused the 24 employee to commit the constitutional violation.” 25 showing “that the municipality was on actual or constructive notice that its omissions would 26 likely result in a constitutional violation.” Id. Id. Deliberate indifference requires a 27 To state a claim against a municipality, Plaintiff must show that (1) the municipality 28 acted under color of state law, and (2) if a constitutional violation occurred, the violation was 6 1 caused by an official policy or custom of the municipality. Tsao v. Desert Palace, Inc., 698 2 F.3d 1128, 1139 (9th Cir. 2012) (citing see Harper, 533 F.3d at 1024). 3 Here, Plaintiff has not named any municipality he seeks to hold liable under § 1983, nor 4 has he alleged that an official policy or custom of a municipality caused a constitutional 5 violation against him. Therefore, Plaintiff fails to state a claim against any of the Defendants 6 under municipal liability. 7 D. 8 While the Eighth Amendment of the United States Constitution entitles Plaintiff to 9 medical care, the Eighth Amendment is violated only when a prison official acts with deliberate 10 indifference to an inmate’s serious medical needs. Snow v. McDaniel, 681 F.3d 978, 985 (9th 11 Cir. 2012), overruled in part on other grounds, Peralta v. Dillard, 744 F.3d 1076, 1082-83 (9th 12 Cir. 2014); Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012); Jett v. Penner, 439 F.3d 13 1091, 1096 (9th Cir. 2006). Plaintiff “must show (1) a serious medical need by demonstrating 14 that failure to treat [his] condition could result in further significant injury or the unnecessary 15 and wanton infliction of pain,” and (2) that “the defendant’s response to the need was 16 deliberately indifferent.” Wilhelm, 680 F.3d at 1122 (citing Jett, 439 F.3d at 1096). Deliberate 17 indifference is shown by “(a) a purposeful act or failure to respond to a prisoner’s pain or 18 possible medical need, and (b) harm caused by the indifference.” Wilhelm, 680 F.3d at 1122 19 (citing Jett, 439 F.3d at 1096). The requisite state of mind is one of subjective recklessness, 20 which entails more than ordinary lack of due care. Snow, 681 F.3d at 985 (citation and 21 quotation marks omitted); Wilhelm, 680 F.3d at 1122. Eighth Amendment Medical Claim 22 Here, Plaintiff contends that he received “sub-par” treatment from Defendants Busch 23 and Woods. However, an Eighth Amendment claim may not be premised on even gross 24 negligence by a physician, Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990), and 25 Plaintiff’s claims do not demonstrate that any Defendant acted with the requisite state of mind, 26 i.e., that they “[knew] of and disregard[ed] an excessive risk to [plaintiff’s] health or safety.” 27 Farmer v. Brennan, 511 U.S. 825, 837 (1994). 28 /// 7 1 For example, Plaintiff alleges that defendant Busch broke his teeth while removing the 2 wire at Kern Valley Medical Center, took out the wire too soon and then told Plaintiff that if 3 KVSP staff believed that his jaw was still broken they should fix it. While he may have broken 4 Plaintiff’s teeth or removed the wire too soon, there is no indication that he undertook these 5 actions with deliberate indifference. Insofar as defendant Busch told Plaintiff that KVSP should 6 treat his jaw if they felt it required further treatment, instructing Plaintiff to seek treatment from 7 his place of incarceration, is not disregarding an excessive risk to his health or safety. 8 Similarly, Plaintiff fails to demonstrate that defendant Woods, who attempted to fix his broken 9 teeth, performed the procedure with deliberate indifference. The fact that defendant Woods 10 may have erred in some respect, alone, does not rise to the level of an Eighth Amendment 11 violation. 12 indifference to a serious medical need. Again, even gross negligence is insufficient to state a claim for deliberate 13 Plaintiff also alleges that Defendants were aware of the need to have two fractures 14 repaired, yet only one of the necessary repairs was made. He does not, however, connect any 15 specific Defendant to this omission, nor does he provide enough facts to show that the failure to 16 treat was done with deliberate indifference. 17 Plaintiff therefore fails to state a claim under the Eighth Amendment. 18 E. 19 Supervisory personnel may not be held liable under section 1983 for the actions of Supervisory Liability 20 subordinate employees based on respondeat superior, or vicarious liability. 21 Bannister, 734 F.3d 967, 977 (9th Cir. 2013); accord Lemire v. California Dep’t of Corr. and 22 Rehab., 726 F.3d 1062, 1074-75 (9th Cir. 2013); Lacey v. Maricopa County, 693 F.3d 896, 23 915- 16 (9th Cir. 2012) (en banc). Rather, “[a] supervisor may be liable only if (1) he or she is 24 personally involved in the constitutional deprivation, or (2) there is a sufficient causal 25 connection between the supervisor’s wrongful conduct and the constitutional violation.” 26 Crowley, 734 F.3d at 977 (citing Snow, 681 F.3d at 989) (internal quotation marks omitted); 27 accord Lemire, 726 F.3d at 1074-75; Lacey, 693 F.3d at 915-16. 28 /// 8 Crowley v. 1 Plaintiff suggests that defendants Biter, Stainer, and Hutchinson improperly reviewed 2 Plaintiff’s appeal and medical complaints. 3 administrative appeal does not cause or contribute to the underlying violation. George v. Smith, 4 507 F.3d 605, 609 (7th Cir. 2007) (quotation marks omitted). 5 administrators cannot willfully turn a blind eye to constitutional violations being committed by 6 subordinates, Jett, 439 at 1098, there may be limited circumstances in which those involved in 7 reviewing an inmate appeal can be held liable under section 1983. That circumstance has not 8 been presented here. Plaintiff alleges that there was a factual discrepancy during the appeals 9 process, but he is not entitled to any specific outcome. Ramirez v. Galaza, 334 F.3d 850, 860 10 As a general matter, denying a prisoner’s However, because prison (9th Cir. 2003); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988). 11 Plaintiff also suggests that defendants Biter, Stainer, and Hutchinson failed to ensure 12 adequate treatment providers, but he does not connect this alleged failure to his alleged 13 deprivation. Plaintiff states that they were aware of his treatment issues through the appeals. 14 Further, Plaintiff has not stated a viable claim against defendants Busch or Woods for denying 15 him medical care. Absent the presentation of facts sufficient to show that an Eighth 16 Amendment violation occurred in the first place, Plaintiff cannot pursue a claim against those 17 who reviewed the administrative appeal grieving the underlying denial of medical care. 18 Plaintiff therefore fails to state a claim against Defendants Biter, Stainer and Hutchinson based 19 on supervisory liability. 20 F. 21 “The elements of a medical malpractice claim are (1) the duty of the professional to use 22 such skill, prudence, and diligence as other members of his profession commonly possess and 23 exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent 24 conduct and resulting injury; and (4) actual loss or damage resulting from the professional’s 25 negligence.” Avivi v. Centro Medico Urgente Medical Center, 159 Cal.App.4th 463, 468, n.2, 26 71 Cal.Rptr.3d 707, 711 (Cal. Ct. App. 2008) (internal quotations and citation omitted). To the 27 extent that Plaintiff seeks to pursue tort claims under California law, the Government Claims 28 Act requires exhaustion of those claims with the California Victim Compensation and Medical Malpractice 9 1 Government Claims Board, and Plaintiff is required to specifically allege compliance in his 2 complaint. Shirk v. Vista Unified Sch. Dist., 42 Cal.4th 201, 208-09 (Cal. 2007); State v. 3 Superior Court of Kings Cnty. (Bodde), 32 Cal.4th 1234, 1239 (Cal. 2004); Mabe v. San 4 Bernardino Cnty. Dep’t of Pub. Soc. Servs., 237 F.3d 1101, 1111 (9th Cir. 2001); Mangold v. 5 California Pub. Utils. Comm’n, 67 F.3d 1470, 1477 (9th Cir. 1995); Karim-Panahi v. Los 6 Angeles Police Dep’t, 839 F.2d 621, 627 (9th Cir. 1988). He has not done so. 7 Moreover, because Plaintiff fails to allege a viable federal claim in the First Amended 8 Complaint, the court will not exercise supplemental jurisdiction over his state law claim. 28 9 U.S.C. § 1367(c)(3); Parra v. PacifiCare of Az., Inc., 715 F.3d 1146, 1156 (9th Cir. 2013); 10 Herman Family Revocable Trust v. Teddy Bear, 254 F.3d 802, 805 (9th Cir. 2001). 11 V. CONCLUSION AND RECOMMENDATIONS 12 The court finds that Plaintiff’s First Amended Complaint fails to state any claims upon 13 which relief may be granted under § 1983. The court previously granted Plaintiff leave to 14 amend the complaint, with ample guidance by the court. Plaintiff has now filed two complaints 15 without stating any claims upon which relief may be granted under § 1983. The court finds that 16 the deficiencies outlined above are not capable of being cured by amendment, and therefore 17 further leave to amend should not be granted. 28 U.S.C. § 1915(e)(2)(B)(ii); Lopez v. Smith, 18 203 F.3d 1122, 1127 (9th Cir. 2000). 19 Therefore, based on the foregoing, IT IS HEREBY RECOMMENDED that: 20 1. 21 This case be DISMISSED, with prejudice, for failure to state a claim upon which relief may be granted under § 1983; and 22 2. 23 These findings and recommendations are submitted to the United States District Judge The Clerk be ordered to CLOSE this case. 24 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). 25 fourteen (14) days from the date of service of these findings and recommendations, Plaintiff 26 may file written objections with the court. Such a document should be captioned “Objections 27 to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 28 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 10 Within 1 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 2 (9th Cir. 1991)). 3 4 5 6 IT IS SO ORDERED. Dated: March 15, 2018 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11
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