(PC) Bradford v. Kvichko, No. 1:2016cv01077 - Document 4 (E.D. Cal. 2017)
Court Description: ORDER granting Plaintiff's 2 Motion to Proceed IFP. FINDINGS and RECOMMENDATIONS recommending dismissal of certain claims signed by Magistrate Judge Stanley A. Boone on 12/28/2017. Referred to Judge Anthony W. Ishii; Objections to F&R due within 14-Days. (Lundstrom, T)
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 RAYMOND ALFORD BRADFORD, Plaintiff, 11 12 13 14 v. E. KVICHKO, Defendant. 15 16 ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 1:16-cv-01077-SAB (PC) ORDER GRANTING PLAINTIFF’S APPLICATION TO PROCEED IN FORMA PAUPERIS (ECF No. 2) FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF CERTAIN CLAIMS FOURTEEN (14) DAY DEADLINE 17 I. 18 INTRODUCTION 19 20 21 22 Plaintiff Raymond Alford Bradford is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff’s motion to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a) is currently before the Court. (ECF No. 2.) 23 II. 24 MOTION TO PROCEED IN FORMA PAUPERIS 25 The Prison Litigation Reform Act of 1995 (PLRA) was enacted “to curb frivolous prisoner 26 complaints and appeals.” Silva v. Di Vittorio, 658 F.3d 1090, 1099-1100 (9th Cir. 2011). Pursuant to 27 the PLRA, the in forma pauperis statue was amended to include section 1915(g), a non-merits related 28 screening device which precludes prisoners with three or more “strikes” from proceeding in forma 1 1 pauperis unless they are under imminent danger of serious physical injury. Andrews, 493 F.3d at 2 1050. The statute provides that “[i]n no event shall a prisoner bring a civil action … under this section 3 if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought 4 an action or appeal in a court of the United States that was dismissed on the grounds that it is 5 frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is 6 under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). 7 Plaintiff is subject to section 1915(g) because on three or more occasions he has filed actions 8 that have been dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon 9 which relief may be granted.1 Thus, the Court turns to whether Plaintiff has met the imminent danger 10 exception, which requires Plaintiff to show that he is under (1) imminent danger of (2) serious 11 physical injury and which turns on the conditions he faced at the time he filed suit on July 26, 2016. 12 Andrews, 493 F.3d at 1053-1056. Conditions which posed imminent danger to Plaintiff at some 13 earlier time are immaterial, as are any subsequent conditions. 14 requirement is merely procedural rather than a merits-based review of the claims, the allegations of 15 imminent danger must still be plausible. Id. at 1055. Id. at 1053. While the injury 16 In this case, Plaintiff alleges as follows: On December 16, 2015, psychiatrist E. Kvichko 17 diagnosed Plaintiff with having a mental illness and filed a Keyhea petition to forcefully medicate him 18 with psychotropic medications, based on allegations that Plaintiff stabbed his cellmate and is a danger 19 to others. Defendant Kvichko’s petition was based on false allegations and lies, and Defendant 20 Kvichko gave false testimony to deliberately punish and harm Plaintiff. The psychotropic medications 21 that Plaintiff is being forced to take gives him severe chest pain and blurred vision, which continued 22 through the date of his complaint. Although Plaintiff has complained to Defendant Kvichko about the 23 side effects, his complaints have been met with no avail, and he is told that “all medication has side 24 effects.” (ECF No. 1, at p. 3.) 25 1 26 27 28 The Court takes judicial notice of the following cases: Bradford v. White, et al., No. 2:98-cv-00180-FCDJFM-PC (dismissed June 3, 1999 as frivolous); Bradford v. Terhune, et al., No. 1:04-cv-05496-AWI-DLB-PC (dismissed Oct. 21, 2004 for the failure to state a claim); Bradford v. Grannis, No. 2:05-cv-00862-FCD-DADPC (dismissed Sept. 30, 2007 as frivolous and for the failure to state a claim); and Bradford v. Terhune, et al., No. 1:04-cv-05261-LJO-SMS-PC (dismissed May 12, 2008 for the failure to state a claim). 2 1 The Court finds that, liberally construed, Plaintiff’s allegations plausibly demonstrate the 2 existence of an imminent danger of serious physical injury when he filed his complaint. Accordingly, 3 Plaintiff’s application to proceed in forma pauperis in this action shall be granted. The Court now turns to screening the allegations of Plaintiff’s complaint, filed on July 26, 4 5 2016. (ECF No. 1.) 6 III. 7 SCREENING REQUIREMENT 8 The Court is required to screen complaints brought by prisoners seeking relief against a 9 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 10 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 11 “frivolous or malicious,” that “fail[] to state a claim on which relief may be granted,” or that “seek[] 12 monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). 13 A complaint must contain “a short and plain statement of the claim showing that the pleader is 14 entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 15 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, 16 do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 17 550 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate that each defendant personally 18 participated in the deprivation of Plaintiff’s rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 19 2002). 20 Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally 21 construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121 22 (9th Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be facially plausible, 23 which requires sufficient factual detail to allow the Court to reasonably infer that each named 24 defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 25 572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant has acted unlawfully” is not 26 sufficient, and “facts that are ‘merely consistent with’ a defendant’s liability” falls short of satisfying 27 the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969. 28 /// 3 1 IV. 2 COMPLAINT ALLEGATIONS 3 Plaintiff is currently incarcerated at R.J. Donovan Correctional Facility, in San Diego, 4 California. His allegations concern events while he was incarcerated at Kern Valley State Prison 5 (“KVSP”), in Delano, California. Plaintiff names as a Defendant E. Kvichko, a psychiatrist employed 6 at KVSP. 7 Plaintiff’s allegations against Defendant Kvichko are summarized above. Based on those 8 allegations, Plaintiff asserts a claim against Defendant Kvichko for the violation of his Eighth 9 Amendment rights to be free from cruel and unusual punishment. Plaintiff also asserts a claim for a 10 violation of his due process rights under the Fourteenth Amendment, based upon the false testimony at 11 the Keyhea hearing. 12 V. 13 DISCUSSION 14 A. Due Process 15 Plaintiff asserts that his due process rights were violated because Defendant Kvichko’s Keyhea 16 petition was false, and because the administrative law judge allowed Defendant Kvichko to give false 17 testimony, Plaintiff was denied the right to a fair hearing. Plaintiff further asserts that because 18 Defendant Kvichko lied under oath, there was insufficient evidence that he was a danger to others. 19 The Due Process Clause permits the state to treat an “inmate who has a serious mental illness 20 with antipsychotic drugs against his will, if the inmate is dangerous to himself or others and the 21 treatment is in the inmate’s medical interest.” Washington v. Harper, 494 U.S. 210, 229 (1990). 22 Further, under Keyhea v. Rushen, 178 Cal. App. 3d 527 (1986), the California Court of Appeal held 23 that “state prisoners presently have a statutory right to refuse long-term treatment with psychotropic 24 drugs absent a judicial determination that they are incompetent to do so.” Id. at 527. 25 In this case, Plaintiff alleges that the administrative law judge granted the Keyhea petition after 26 a hearing on the matter. This comports with the requirements of due process. See Washington v. 27 Harper, 494 U.S. 210, 231-33 (1990) (notice and a hearing required prior to the involuntary use of 28 psychotropic medications on inmates); Lamon v. Junious, 505 Fed. App’x 662, 662 (9th Cir. 2012) 4 1 (same). Plaintiff’s allegations nevertheless assert that the hearing was unfair, and although he does not 2 name the administrative law judge as a defendant, he alleges that the judge did not properly conduct 3 the hearing because false testimony was allowed to be heard. To the extent Plaintiff alleges that the 4 administrative law judge violated his constitutional rights during court proceedings, he cannot do so in 5 this action. The administrative law judge is entitled to absolute immunity from any claims under § 6 1983. See Stump v. Sparkman, 435 U.S. 349 (1978). The Court lacks jurisdiction to consider 7 Plaintiff’s challenge to the administrative law judge’s decision to order Plaintiff to receive medication 8 involuntarily. See Coleman v. City of Sacramento, No. 2:16-cv-575 CKD P, 2016 WL 2901657, at *3 9 (E.D. Cal. May 18, 2016); Meyers v. The Health & Hospitals Corp., No. 14-cv-7448 (CBA) (LB), 10 2016 WL 2946172, at *10-11 (E.D.N.Y. May 18, 2016); Wilson v. Shumway, 264 F.3d 120, 125 (1st 11 Cir. 2001). 12 Plaintiff specifically asserts that his rights were violated by Defendant Kvichko when the 13 psychiatrist knowingly making false statements in a Keyhea petition and in the Keyhea proceedings, 14 which led to his court-ordered involuntary medication. To the extent Plaintiff’s claims are premised on 15 Defendant Kvichko’s false testimony in connection with the Keyhea proceeding, however, that 16 defendant is absolutely immune from any § 1983 claim. See Meyers v. Contra Costa Cty. Dep’t of 17 Soc. Servs., 812 F.2d 1154, 1156 (9th Cir. 1987) (“[W]itnesses are immune from liability [under § 18 1983] for their testimony”). 19 Similarly, to the extent Plaintiff’s claims are premised on Defendant Kvichko’s execution of 20 the administrative law judge’s order requiring that he be involuntarily medicated, Defendant Kvichko 21 is also entitled to absolute immunity from such a claim. See Kulas v. Valdez, 159 F.3d 453, 457 (Trott, 22 J., concurring) (“This circuit has repeatedly stated that quasi-judicial immunity protects those who 23 execute [state] court orders from liability in civil rights actions.” (collecting cases)). 24 For all of these reasons, Plaintiff has failed to state a claim for a violation of his due process 25 rights under the Fourteenth Amendment. Because the defects in his claim cannot be cured, the Court 26 further finds that leave to amend should not be granted, and this claim should be dismissed with 27 prejudice. 28 /// 5 Eighth Amendment – Deliberate Indifference 1 B. 2 Plaintiff also asserts an Eighth Amendment violation based on Defendant Kvichko’s 3 indifference to his complaints about severe side effects of the psychotropic medication. 4 The Eighth Amendment demands, among other things, that prison officials not act in a manner 5 “sufficiently harmful to evidence deliberate indifference to serious medical needs.” Estelle v. Gamble, 6 429 U.S. 97, 106, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976). An Eighth Amendment claim based on 7 inadequate medical care has two elements: “the seriousness of the prisoner’s medical need and the 8 nature of the defendant’s response to that need.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 9 1992). A medical need is “serious” “if the failure to treat the prisoner’s condition could result in 10 further significant injury or the ‘unnecessary and wanton infliction of pain.’” Id. (quoting Estelle, 429 11 U.S. at 104); see also Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). 12 According to Plaintiff’s allegations, there was no medical need for the medication, and 13 Defendant Kvichko intentionally falsified a Keyhea petition and gave false testimony for the purpose 14 of punishing and harming Plaintiff. Further, Plaintiff alleges that he suffered severe chest pain and 15 blurred vision, that he complained of these matters to Defendant Kvichko, but the psychiatrist only 16 responded that “all medication has side effects.” (ECF No. 1, at p. 3.) Liberally construed, Plaintiff has stated a claim for deliberate indifference to serious medical 17 18 needs in violation of the Eighth Amendment against Defendant Kvichko. 19 VI. 20 CONCLUSION AND RECOMMENDATIONS 21 Based on the foregoing analysis, the Court HEREBY ORDERS as follows: 22 1. The Clerk of the Court shall randomly assign a district judge to this action; and 23 2. Plaintiff’s motion to proceed in forma pauperis (ECF No. 2) is granted. 24 Furthermore, the Court HEREBY RECOMMENDS that: 25 1. Plaintiff’s claim for a violation of his due process rights under the Fourteenth 26 Amendment be dismissed, with prejudice, for the failure to state a claim; and, 27 /// 28 6 2. 1 2 This action proceed only on Plaintiff’s claim for deliberate indifference to a serious medical need in violation of the Eighth Amendment against Defendant Kvichko. 3 These findings and recommendations will be submitted to the United States District Judge 4 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) days 5 after being served with these findings and recommendations, Plaintiff may file written objections with 6 the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 7 Recommendations.” Plaintiff is advised that failure to file objections within the specified time may 8 result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) 9 (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 10 11 IT IS SO ORDERED. 12 Dated: 13 December 28, 2017 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7
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