(PC) Garbarini v. Mendivil et al, No. 1:2017cv00351 - Document 16 (E.D. Cal. 2018)
Court Description: FINDINGS and RECOMMENDATIONS Recommending that this 15 Case be Dismissed, with Prejudice, for Failure to State a Claim; Objections, if any, Due within Fourteen (14) Days signed by Magistrate Judge Gary S. Austin on 2/22/2018. Referred to Judge Anthony W. Ishii. (Sant Agata, S)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RALPH GARBARINI, 12 Plaintiff, 13 14 vs. D. MENDIVIL, et al., 15 Defendants. 16 1:17-cv-00351-AWI-GSA-PC FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE BE DISMISSED, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM (ECF No. 15.) OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN DAYS 17 18 19 I. BACKGROUND 20 Ralph Garbarini (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 21 with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint 22 commencing this action on March 10, 2017. (ECF No. 1.) The court screened the Complaint 23 and issued an order on October 3, 2017, dismissing the Complaint for failure to state a claim, 24 with leave to amend. (ECF No. 14.) On November 1, 2017, Plaintiff filed the First Amended 25 Complaint, which is now before the court for screening. (ECF No. 15.) 26 II. SCREENING REQUIREMENT 27 The court is required to screen complaints brought by prisoners seeking relief against a 28 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 1 1 The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 2 legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or 3 that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 4 § 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion thereof, that may have been 5 paid, the court shall dismiss the case at any time if the court determines that the action or 6 appeal fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 7 A complaint is required to contain “a short and plain statement of the claim showing 8 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are 9 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 10 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 11 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are 12 taken as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart 13 Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 14 To state a viable claim, Plaintiff must set forth “sufficient factual matter, accepted as true, to 15 ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678-79; Moss v. U.S. 16 Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). While factual allegations are accepted as 17 true, legal conclusions are not. Id. The mere possibility of misconduct falls short of meeting 18 this plausibility standard. Id. 19 III. SUMMARY OF FIRST AMENDED COMPLAINT 20 Plaintiff is presently incarcerated at Valley State Prison in Chowchilla, California. The 21 events at issue in the First Amended Complaint allegedly occurred at Corcoran State Prison 22 (CSP) in Corcoran, California, when Plaintiff was incarcerated there in the custody of the 23 California Department of Corrections and Rehabilitation. Plaintiff names as defendants D. 24 Mendivil (R.N.), R. Gill (M.D.), C. Ogbuehi (Physician’s Assistant), McCabe (M.D.), and U. 25 Williams (Health Care Appeals Coordinator) (collectively, “Defendants”). 26 Plaintiff’s allegations follow. Plaintiff suffers severe chronic pain caused by a non- 27 repairable massive tendon tear in his right rotator cuff, degenerative disc disease and 28 progressive arthritis in his right knee. 2 1 Plaintiff’s degenerative disc disease was initially diagnosed in February 2009 by his 2 physician at Salinas Valley State Prison (SVSP), who told Plaintiff his spine x-ray showed 3 fairly severe degenerative disc disease. 4 Plaintiff’s arthritis was initially diagnosed by his physician at SVSP in May 2011, using 5 an x-ray. The arthritis pain has increased over the years. On November 21, 2013, Dr. Clark 6 [not a defendant] at CSP told Plaintiff he suffered from progressive arthritis in his right knee. 7 Dr. Clark recommended cortisone injections instead of a knee replacement because of the high 8 risk of complications with knee replacements. Dr. Clark gave Plaintiff a cortisone injection in 9 his right knee. Plaintiff wears a knee brace that provides support and reduces pain when he 10 walks. 11 Plaintiff’s tendon tear in his rotator cuff was diagnosed during rotator cuff surgery on 12 July 11, 2013, at CSP. The surgery notes state that the cuff tear was massive, had re-ruptured, 13 and was non-repairable. 14 On February 25, 2016, Plaintiff submitted a health care services request form stating 15 that he continues to suffer severe chronic pain caused by his massive tendon tear, degenerative 16 disc disease, and progressive arthritis in his right knee. 17 On February 26, 2016, Plaintiff saw defendant Nurse Mendivil. Plaintiff described his 18 pain symptoms. Nurse Mendivil stated that Plaintiff was already scheduled to see a primary 19 care physician soon. 20 On March 10, 2016, Plaintiff saw defendant, Dr. Gill, and explained his symptoms. 21 Plaintiff requested Dr. Gill to provide him with effective treatment for the pain. Dr. Gill stated 22 that Plaintiff’s pain was being treated with Ibuprofen. Plaintiff stated that the Ibuprofen was 23 not effectively treating his pain. Dr. Gill responded by stating that Ibuprofen was going to have 24 to do, Plaintiff was not getting anything stronger, and Plaintiff will just have to learn to live 25 with the severe chronic pain. Dr. Gill refused to effectively treat Plaintiff’s severe chronic pain 26 despite having actual knowledge of the pain. 27 28 Plaintiff submitted two more health care services requests on April 17 and April 25, 2016. In both requests, Plaintiff requested treatment for his pain. 3 1 On April 18 and 26, 2016, Plaintiff saw defendant Nurse Mendivil, described his 2 symptoms, and requested effective treatment. During both visits defendant Mendivil stated to 3 Plaintiff that Plaintiff saw Dr. Gill on March 10, 2016, who prescribed Ibuprofen to treat his 4 pain. Plaintiff stated that the Ibuprofen did not effectively treat the high level of pain he was 5 suffering. Defendant Mendivil told Plaintiff that Ibuprofen was all that he is going to get and 6 he will just have to tuff it out. Defendant Mendivil refused to effectively treat Plaintiff’s severe 7 chronic pain despite having actual knowledge of his serious medical need. 8 Plaintiff continued to suffer pain and submitted four separate requests to see a primary 9 care physician for effective treatment of his serious medical need. Defendant Mendivil refused 10 to schedule Plaintiff for another appointment with a primary care physician, as Plaintiff 11 requested. 12 On July 5, 2016, Plaintiff filed health care appeal log# COR HC 16060831 (“831”) 13 stating that Nurse Mendivil had repeatedly refused him an appointment to see his primary care 14 physician. Plaintiff attached copies of the four supporting documents to the appeal showing 15 that he had submitted four separate requests to see a primary care physician and was repeatedly 16 denied an appointment by defendant Mendivil. 17 appointment to see a primary care physician. In the appeal Plaintiff requested an 18 On July 9, 2016, four days after he had filed appeal #831, Plaintiff saw acting primary 19 care physician, defendant Physician Assistant Ogbuehi, at 3C Yard medical. Plaintiff stated his 20 symptoms and began to request treatment but was interrupted by defendant Ogbuehi, who 21 stated he would only be addressing Plaintiff’s lab results and ace wrap issue, not Plaintiff’s 22 chronic pain. Plaintiff tried again to request treatment for his pain but defendant Ogbuehi 23 refused to listen. Plaintiff left the visit suffering severe chronic pain. 24 On July 20, 2016, after being repeatedly refused effective treatment by defendants 25 Mendivil, Gill, and Ogbuehi, Plaintiff submitted health care appeal log# COR HC 16060870 26 (“870”). 27 On July 28, 2016, Plaintiff was interviewed by Nurse Practitioner Hernandez [not a 28 defendant] regarding Plaintiff’s appeal #831, wherein Plaintiff states that he was repeatedly 4 1 refused an appointment to see a primary care physician. Plaintiff stated that four days after he 2 filed appeal #831, he was seen by acting primary care physician Obguehi, making appeal #831 3 moot. Plaintiff left the visit suffering severe chronic pain. 4 5 On July 29, 2016, defendant U. Williams cancelled appeal #870, incorrectly stating that the appeal duplicated appeal #831. 6 On August 3, 2016, Plaintiff submitted a second level response in appeal #870, stating 7 that appeals #831 and #870 addressed different and separate issues. Defendant Williams did 8 not respond. 9 On August 5, 2016, Plaintiff submitted health care appeal COR HC 16060987 (“987”) 10 where he requested effective treatment and provides a concise explanation of how appeal #987 11 addresses different and separate issues than appeal #831. 12 13 On August 11, 2016, defendant Appeals Coordinator Williams cancelled appeal #987, incorrectly stating that it was duplicative of appeal #831. 14 On August 16, 2016, defendant McCabe responded to appeal #831, incorrectly stating 15 that Plaintiff’s pain issues were addressed during his July 28, 2016 interview regarding appeal 16 #831. 17 18 Plaintiff requests punitive damages. IV. PLAINTIFF’S CLAIMS 19 The Civil Rights Act under which this action was filed provides: 20 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 . . . . 21 22 23 24 42 U.S.C. § 1983. 25 “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a 26 method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 490 U.S. 386, 27 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see also Chapman 28 v. Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los Angeles, 697 5 1 F.3d 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 2012); 2 Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). “To the extent that the violation of 3 a state law amounts to the deprivation of a state-created interest that reaches beyond that 4 guaranteed by the federal Constitution, Section 1983 offers no redress.” Id. 5 To state a claim under § 1983, a plaintiff must allege that (1) the defendant acted under 6 color of state law and (2) the defendant deprived him or her of rights secured by the 7 Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 8 2006); see also Preschooler v. Cnty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) 9 (discussing “under color of state law”). A person deprives another of a constitutional right, 10 “within the meaning of § 1983, ‘if he does an affirmative act, participates in another’s 11 affirmative act, or omits to perform an act which he is legally required to do that causes the 12 deprivation of which complaint is made.’” Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 13 F.3d 1175, 1183 (9th Cir. 2007) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). 14 “The requisite causal connection may be established when an official sets in motion a ‘series of 15 acts by others which the actor knows or reasonably should know would cause others to inflict’ 16 constitutional harms.” Preschooler II, 479 F.3d at 1183 (quoting Johnson, 588 F.2d at 743). 17 This standard of causation “closely resembles the standard ‘foreseeability’ formulation of 18 proximate cause.” Arnold v. Int’l Bus. Mach. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981); see 19 also Harper v. City of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008). 20 A. 21 Plaintiff’s allegations against defendants C. McCabe and U. Williams pertain to their Appeals Process 22 review and handling of Plaintiff’s inmate appeals. 23 administrative appeal generally cannot serve as the basis for liability in a section 1983 action, 24 Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993), because “inmates lack a separate 25 constitutional entitlement to a specific prison grievance procedure,” Ramirez v. Galaza, 334 26 F.3d 850, 860 (9th Cir. 2003) (no liberty interest in processing of appeals because no 27 entitlement to a specific grievance procedure), (citing Mann v. Adams, 855 F.2d 639, 640 (9th 28 Cir. 1988)). “[A prison] grievance procedure is a procedural right only, it does not confer any 6 Actions in reviewing a prisoner’s 1 substantive right upon the inmates.” Azeez v. DeRobertis, 568 F. Supp. 8, 10 (N.D. Ill. 1982) 2 accord Buckley, 997 F.2d at 495; see also Massey v. Helman, 259 F.3d 641, 647 (7th Cir. 3 2001) (existence of grievance procedure confers no liberty interest on prisoner). “Hence, it 4 does not give rise to a protected liberty interest requiring the procedural protections envisioned 5 by the Fourteenth Amendment.” Azeez, 568 F. Supp. at 10; Spencer v. Moore, 638 F. Supp. 6 315, 316 (E.D. Mo. 1986). 7 Moreover, the argument that anyone who knows about a violation of the Constitution 8 and fails to cure it has violated the Constitution himself is not correct. “Only persons who 9 cause or participate in the violations are responsible. Ruling against a prisoner on an 10 administrative complaint does not cause or contribute to the violation.” Greeno v. Daley, 414 11 F.3d 645, 656-57 (7th Cir. 2005) accord George v. Smith, 507 F.3d 605, 609-10 (7th Cir. 12 2007); Reed v. McBride, 178 F.3d 849, 851-52 (7th Cir. 1999); Vance v. Peters, 97 F.3d 987, 13 992-93 (7th Cir. 1996); Haney v. Htay, No. 1:16-CV-00310-AWI-SKO-PC, 2017 WL 698318, 14 at *4–5 (E.D.Cal. Feb. 21, 2017). 15 Thus, Plaintiff’s allegations that defendants C. McCabe and U. Williams failed to 16 properly process his appeals fail to state a cognizable claim. Therefore, the court finds that 17 Plaintiff fails to state a claim against any of the Defendants for the processing of his appeals. 18 B. 19 “[T]o maintain an Eighth Amendment claim based on prison medical treatment, an 20 inmate must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 21 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two-part 22 test for deliberate indifference requires the plaintiff to show (1) “‘a serious medical need’ by 23 demonstrating that ‘failure to treat a prisoner=s condition could result in further significant 24 injury or the unnecessary and wanton infliction of pain,’” and (2) “the defendant’s response to 25 the need was deliberately indifferent.” Jett, 439 F.3d at 1096 (quoting McGuckin v. Smith, 974 26 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 27 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc) (internal quotations omitted)). Deliberate 28 indifference is shown by “a purposeful act or failure to respond to a prisoner’s pain or possible Eighth Amendment Medical Claim 7 1 medical need, and harm caused by the indifference.” Id. (citing McGuckin, 974 F.2d at 1060). 2 Deliberate indifference may be manifested “when prison officials deny, delay or intentionally 3 interfere with medical treatment, or it may be shown by the way in which prison physicians 4 provide medical care.” Id. Where a prisoner is alleging a delay in receiving medical treatment, 5 the delay must have led to further harm in order for the prisoner to make a claim of deliberate 6 indifference to serious medical needs. McGuckin at 1060 (citing Shapely v. Nevada Bd. of 7 State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985)). 8 “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 9 1060 (9th Cir. 2004). “Under this standard, the prison official must not only ‘be aware of the 10 facts from which the inference could be drawn that a substantial risk of serious harm exists,’ 11 but that person ‘must also draw the inference.’” Id. at 1057 (quoting Farmer v. Brennan, 511 12 U.S. 825, 837 (1994)). “‘If a prison official should have been aware of the risk, but was not, 13 then the official has not violated the Eighth Amendment, no matter how severe the risk.’” Id. 14 (quoting Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)). “A 15 showing of medical malpractice or negligence is insufficient to establish a constitutional 16 deprivation under the Eighth Amendment.” 17 insufficient to establish a constitutional violation.” Id. (citing Wood v. Housewright, 900 F.2d 18 1332, 1334 (9th Cir. 1990)). Id. at 1060. “[E]ven gross negligence is 19 “A difference of opinion between a prisoner-patient and prison medical authorities 20 regarding treatment does not give rise to a § 1983 claim.” Franklin v. Oregon, 662 F.2d 1337, 21 1344 (9th Cir. 1981) (internal citation omitted). To prevail, a plaintiff “must show that the 22 course of treatment the doctors chose was medically unacceptable under the circumstances . . . 23 and . . . that they chose this course in conscious disregard of an excessive risk to plaintiff’s 24 health.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (internal citations omitted). 25 Plaintiff alleges that defendants Mendivil (Nurse), R. Gill (M.D.), and C. Ogbuehi 26 (Physician’s Assistant) refused to give him pain medication stronger than Ibuprofen, or refer 27 him to another physician, leaving him to suffer severe pain, and nurse Mendivil met with 28 Plaintiff three times and referred him to the M.D. for treatment. Dr. Gill saw Plaintiff but 8 1 /// 2 refused to prescribe pain medication stronger than Ibuprofen. The Physician’s Assistant met 3 with Plaintiff, but made it clear to Plaintiff that the appointment was not for pain issues. 4 The court finds that Plaintiff has demonstrated that he had serious medical needs as he 5 suffers chronic pain due to arthritis, degenerative disc disease, and a torn rotator cuff. 6 However, Plaintiff has not shown that any of the Defendants acted with deliberate indifference 7 to his needs. Plaintiff was prescribed the pain medication Ibuprofen, and upon his multiple 8 requests, Plaintiff met with defendants Mendivil and Gill, who both refused to replace the 9 Ibuprofen with stronger medication. Defendant Ogbeuhi met with Plaintiff but did not address 10 his pain because the appointment was only for lab results and an ace bandage issue. 11 Under Plaintiff’s allegations, Defendants were attentive to Plaintiff and addressed his 12 medical conditions. Plaintiff has not shown that the course of treatment chosen by medical 13 personnel was medically unacceptable under the circumstances and that they chose this course 14 in conscious disregard of an excessive risk to Plaintiff’s health. Therefore, Plaintiff alleges at 15 most a difference of opinion between Plaintiff and prison medical authorities regarding his 16 treatment, which does not give rise to a § 1983 claim. Accordingly, the court finds that 17 Plaintiff fails to state an Eighth Amendment medical claim against any of the Defendants. 18 V. CONCLUSION AND ORDER 19 The court finds that Plaintiff’s First Amended Complaint fails to state any claim upon 20 which relief may be granted under § 1983. The court previously granted Plaintiff leave to 21 amend the complaint, with ample guidance by the court. Plaintiff has now filed two complaints 22 without stating any claims upon which relief may be granted under § 1983. The court finds that 23 the deficiencies outlined above are not capable of being cured by amendment, and therefore 24 further leave to amend should not be granted. 28 U.S.C. § 1915(e)(2)(B)(ii); Lopez v. Smith, 25 203 F.3d 1122, 1127 (9th Cir. 2000). 26 Therefore, based on the foregoing, IT IS HEREBY RECOMMENDED that: 27 1. 28 This case be DISMISSED, with prejudice, for failure to state a claim upon which relief may be granted under § 1983; 9 1 2 /// 2. 3 This dismissal be subject to the “three-strikes” provision of 28 U.S.C. § 1915(g); and 4 3. 5 These findings and recommendations are submitted to the United States District Judge The Clerk be ordered to CLOSE this case. 6 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). 7 fourteen (14) days from the date of service of these findings and recommendations, Plaintiff 8 may file written objections with the court. Such a document should be captioned “Objections 9 to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 10 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 11 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 12 (9th Cir. 1991)). Within 13 14 15 16 IT IS SO ORDERED. Dated: February 22, 2018 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 10
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