(PC) Santana v. McCoy et al, No. 1:2017cv00941 - Document 13 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS Regarding Dismissal of 12 Action for Failure to State a Claim signed by Magistrate Judge Barbara A. McAuliffe on 4/9/2018. Referred to Judge Anthony W. Ishii. Objections to F&R due within Fourteen (14) Days. (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 GERARDO GARCIA SANTANA, 12 13 14 Plaintiff, v. M. MCCOY, et al. 15 Defendants. 16 ) ) ) ) ) ) ) ) ) ) ) Case No.: 1:17-cv-00941-AWI-BAM (PC) FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF ACTION FOR FAILURE TO STATE A CLAIM (ECF No. 12) FOURTEEN-DAY DEADLINE 17 18 Plaintiff Gerardo Garcia Santana (“Plaintiff”) is a state prisoner of the California Department 19 of Corrections and Rehabilitation (“CDCR”), proceeding pro se and in forma pauperis in this civil 20 rights action pursuant to 42 U.S.C. § 1983. On February 20, 2018, the Court screened Plaintiff’s 21 complaint and granted him leave to amend. (ECF No. 8.) Plaintiff’s first amended complaint, filed on 22 March 29, 2018, is currently before the Court for screening. (ECF No. 12.) 23 I. 24 The Court is required to screen complaints brought by prisoners seeking relief against a 25 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. § 26 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous or 27 malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief 28 from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). Screening Requirement and Standard 1 1 A complaint must contain “a short and plain statement of the claim showing that the pleader is 2 entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 3 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, 4 do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atl. 5 Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). While a plaintiff’s allegations 6 are taken as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart 7 Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 8 To survive screening, Plaintiff’s claims must be facially plausible, which requires sufficient 9 factual detail to allow the Court to reasonably infer that each named defendant is liable for the 10 misconduct alleged. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks omitted); Moss v. U.S. 11 Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). 12 unlawfully is not sufficient, and mere consistency with liability falls short of satisfying the plausibility 13 standard. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks omitted); Moss, 572 F.3d at 969. The sheer possibility that a defendant acted Plaintiff’s Allegations 14 I. 15 Plaintiff is currently housed Calipatria State Prison in Calipatria, California. The events in the 16 complaint are alleged to have occurred while Plaintiff was housed at the California Substance Abuse 17 and Treatment Facility in Corcoran, California. Plaintiff names the following defendants: (1) M. 18 McCoy, R.N.; (2) R. Davidson, L.V.N.; (3) Julian Metts, Facility Doctor; and (4) David G. Smith, 19 Orthopedic Doctor. 20 Plaintiff alleges as follows: On December 4, 2015, Plaintiff was in the recreation yard playing 21 flag football. He stumbled on a pothole and fell onto another inmate, hitting his right hand and fingers 22 on the inmate’s foot/shoe. Plaintiff immediately felt a sharp pain in his right hand on his middle, 23 fourth and pinky fingers. When Plaintiff saw how crooked and abnormal his finger looked, along with 24 the sharp pain, Plaintiff walked off the field and went directly to the facility medical clinic as a 25 medical emergency. 26 At the C-Facility clinic, Plaintiff expressed to an unidentified correctional officer his 27 emergency, including the pain, possibility of a broken finger and need for immediate medical 28 attention. The correctional officer told him to wait outside the clinic until he was called. 2 1 Approximately 10 minutes later, Plaintiff was let inside the clinic at met by two facility nurses, 2 Defendant McCoy and Defendant Davidson. Plaintiff expressed to the defendants that he was in 3 severe pain and was in shock at how his finger looked. When Defendants McCoy and Davidson 4 examined Plaintiff’s hand, Plaintiff asked if his finger was broken or dislocated. Defendant McCoy 5 said it was more likely dislocated. Plaintiff then asked if the doctor was still in so he could put it back 6 in place. Defendant McCoy said the doctor had already gone home. Plaintiff then asked Defendants 7 McCoy and Davidson if they could send him to Central Treatment Center so that he could see a doctor 8 and get x-rays. Defendant McCoy refused, stating that all doctors had gone home due to shift change. 9 Plaintiff alleges that CTC has a 24-hour on-call doctor for emergencies. 10 Defendant Davidson began to write a medical report of the injury and then splinted and 11 wrapped Plaintiff’s injured finger. While his finger was being wrapped, Plaintiff expressed the pain 12 he was suffering and how sensitive his injured figure was to Defendant’s touch. Plaintiff asked if he 13 could receive any pain relief medication. Defendant McCoy gave Plaintiff ten (10) Ibuprofen 200 mg 14 pills and told him if his hand was still swollen in the next few days he should submit a sick call slip. 15 Defendant McCoy then sent Plaintiff back to his cell. 16 Plaintiff alleges that in the following days he was in severe pain, which began to affect his 17 everyday functioning. The affected area was bruised, swollen and painful to touch, and limited the use 18 of his right hand. After several days, the pain and swelling had not subsided. Plaintiff then submitted 19 a sick call slip on December 8, 2015, four days after the injury. 20 On December 10, 2015, Plaintiff was called to the medical clinic. Plaintiff was examined by 21 Defendant McCoy. While filling out the Musculoskeletal Complaint form, Defendant McCoy asked 22 Plaintiff his pain level, with 10 being the highest. 23 responded sarcastically, saying “Oh . . . you’ve had child bearing before?” (ECF No. 12 at p. 5.) 24 Plaintiff responded that he had never had child bearing before and had never experienced this severe 25 pain. Plaintiff also explained that because of the pain, his hand was immobilized and he was unable to 26 sleep. When Plaintiff said 10, Defendant McCoy 27 Plaintiff was then examined by Defendant Dr. Metts. Plaintiff told Defendant Dr. Metts that 28 his finger had been in that condition since December 4. After Defendant Dr. Metts examined the right 3 1 hand/finger, he told Plaintiff that the fourth finger on the right hand was probably dislocated. Plaintiff 2 requested pain medication. Defendant Dr. Metts ordered Naproxen for pain and x-rays for Plaintiff’s 3 right fourth finger. 4 On December 11, 2015, Plaintiff was called to the medical facility clinic. Plaintiff was again 5 seen by Defendant Dr. Metts. After examining Plaintiff’s x-rays, Defendant Dr. Metts determined that 6 Plaintiff’s fourth finger was not broken, but was dislocated. Defendant Dr. Metts then decided to put 7 the dislocated finger back in place. Defendant Dr. Metts injected Lidocaine to numb the finger. A 8 minute later, Defendant Dr. Metts began to manipulate the dislocated finder back in its place. As 9 Defendant Dr. Metts began to put the finger back in place, Plaintiff became lightheaded and nauseated. 10 After attempting to put the finger back in place, Defendant Dr. Metts wrapped the finger and sent 11 Plaintiff for another set of x-rays. Defendant Dr. Metts again prescribed Naproxen for pain. 12 On December 17, 2015, Plaintiff was seen by Defendant Dr. Metts, who reviewed the x-rays 13 from December 11, 2015. Defendant Dr. Metts determined that the fourth finger was still dislocated. 14 Defendant Dr. Metts again attempted to put the finger back in its place. When the procedure was 15 completed, Defendant Dr. Metts placed a splint under the fourth finger, wrapped it and sent Plaintiff 16 for another set of x-rays. The same date, Plaintiff returned to the clinic to see Defendant Dr. Metts. 17 After examining the x-rays, Defendant Dr. Metts concluded that the finger was still dislocated and 18 ordered orthopedic to see Plaintiff as soon as possible. 19 On December 18, 2015, Plaintiff was seen by Defendant Dr. Smith, an orthopedist, at the 20 Central Treatment Center. Defendant Dr. Smith examined Plaintiff’s finger and opined that had his 21 finger been treated immediately on the day of injury, then he would not have been going through this 22 process. Defendant Dr. Smith numbed Plaintiff’s finger and attempted to relocate it. Following the 23 procedure, Defendant Dr. Smith sent the Plaintiff for x-rays. After Defendant Dr. Smith examined the 24 x-rays, he told Plaintiff that the finger was still dislocated and that surgery was necessary. Defendant 25 Dr. Smith told Plaintiff that he would do the surgery and put in a pin to hold the joint of the finger in 26 place. Defendant Dr. Smith cast Plaintiff’s hand and finger and sent him back to his cell. Plaintiff 27 requested pain relief medication, but Defendant Dr. Smith refused. 28 4 1 After suffering from pain and swelling for several days, Plaintiff submitted a sick call slip on 2 December 19, 2015. On December 22, 2015, Plaintiff was seen by Nurse Practitioner L. Merritt. 3 After listening to Plaintiff’s complaints, Nurse Merritt ordered Tylenol 3, three times a day for pain 4 and sleep. After examining Plaintiff’s hand, Nurse Meritt became concerned and sent Plaintiff to the 5 Central Treatment Center to see a doctor. 6 At the treatment center, Dr. H. Chang examined Plaintiff and said nothing was wrong. Dr. 7 Chang also said he was going to change the prescribed Tylenol 3 because the medicine had opiates, 8 exposing Plaintiff to selling the pills in the facility and making him vulnerable to drug abuse. 9 Although Plaintiff pleaded with Dr. Chang, he was prescribed Tylenol 3, 1 pill three times a day. 10 On December 26, 2015, Plaintiff stopped at the medical clinic for his pain medication. The 11 clinic was dark, but Plaintiff could see Defendant Davidson asleep with her head on her arms resting 12 on the table. Plaintiff knocked several times on the clinic window, but Defendant Davison did not 13 respond. Plaintiff left suffering from pain in his finger. 14 On December 29, 2015, Plaintiff underwent surgery. Defendant Dr. Smith placed a pin in the 15 finger to hold the joint in place. More than one month later, Defendant Dr. Smith removed the pin and 16 recommended physical therapy. However, physical therapy was postponed because Plaintiff had an 17 infection in his finger following removal of the pin. Plaintiff attended physical therapy in February, 18 March, April, May and June 2016. During Plaintiff’s last visit with Defendant Dr. Smith, he told 19 Plaintiff that he could not do anything about his finger and could offer no surgery to return full 20 flexibility of his finger. 21 Defendant Dr. Metts concluded that the finger was now normal. Plaintiff alleges that as of 22 November 3, 2016, his finger is permanently diminished with limited flexibility, stiffness and sporadic 23 moments of pain. Plaintiff claims that defendants violated his Eighth Amendment rights and were 24 deliberately indifferent to his serious medical needs. 25 compensatory and punitive damages. He seeks declaratory relief, along with 26 II. Discussion 27 A prisoner’s claim of inadequate medical care does not constitute cruel and unusual 28 punishment in violation of the Eighth Amendment unless the mistreatment rises to the level of 5 1 “deliberate indifference to serious medical needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) 2 (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two part test for deliberate indifference 3 requires Plaintiff to show (1) “a ‘serious medical need’ by demonstrating that failure to treat a 4 prisoner’s condition could result in further significant injury or the ‘unnecessary and wanton infliction 5 of pain,’ ” and (2) “the defendant’s response to the need was deliberately indifferent.” Jett, 439 F.3d at 6 1096. A defendant does not act in a deliberately indifferent manner unless the defendant “knows of 7 and disregards an excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 837 8 (1994). “Deliberate indifference is a high legal standard,” Simmons v. Navajo Cty. Ariz., 609 F.3d 9 1011, 1019 (9th Cir. 2010); Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004), and is shown 10 where there was “a purposeful act or failure to respond to a prisoner’s pain or possible medical need” 11 and the indifference caused harm. Jett, 439 F.3d at 1096. 12 In applying this standard, the Ninth Circuit has held that before it can be said that a prisoner’s 13 civil rights have been abridged, “the indifference to his medical needs must be substantial. Mere 14 ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this cause of action.” Broughton 15 v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 105–106). “[A] 16 complaint that a physician has been negligent in diagnosing or treating a medical condition does not 17 state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does 18 not become a constitutional violation merely because the victim is a prisoner.” Estelle, 429 U.S. at 19 106; see also Anderson v. County of Kern, 45 F.3d 1310, 1316 (9th Cir. 1995). Even gross negligence 20 is insufficient to establish deliberate indifference to serious medical needs. See Wood v. Housewright, 21 900 F.2d 1332, 1334 (9th Cir. 1990). 22 Further, a “difference of opinion between a physician and the prisoner—or between medical 23 professionals—concerning what medical care is appropriate does not amount to deliberate 24 indifference.” Snow v. McDaniel, 681 F.3d 978, 987 (9th Cir. 2012) (citing Sanchez v. Vild, 891 F.2d 25 240, 242 (9th Cir. 1989)), overruled in part on other grounds, Peralta v. Dillard, 744 F.3d 1076, 1082– 26 83 (9th Cir. 2014); Wilhelm v. Rotman, 680 F.3d 1113, 1122–23 (9th Cir. 2012) (citing Jackson v. 27 McIntosh, 90 F.3d 330, 332 (9th Cir. 1986)). Rather, Plaintiff “must show that the course of treatment 28 the doctors chose was medically unacceptable under the circumstances and that the defendants chose 6 1 this course in conscious disregard of an excessive risk to [his] health.” Snow, 681 F.3d at 988 (citing 2 Jackson, 90 F.3d at 332) (internal quotation marks omitted). 3 4 As currently pled, Plaintiff’s allegations do not state a cognizable Eighth Amendment claim against any of the named defendants in this action. 5 Defendants McCoy and Davidson 6 Plaintiff’s allegations indicate that Defendants McCoy and Davidson examined Plaintiff on the 7 date of the injury, provided a splint and prescribed him pain medication. Defendants McCoy and 8 Davidson also directed Plaintiff to submit a sick call slip if his hand was still swollen. Although 9 Plaintiff suggests that these defendants were deliberately indifferent to his injury by failing to respond 10 or otherwise delaying treatment, he has not stated a cognizable claim against them. At best, Plaintiff 11 suggests a disagreement about the appropriate course of treatment on the day of his injury, which does 12 not amount to deliberate indifference. To the extent Plaintiff complains that Defendant Davidson did 13 not respond to him at the clinic window on one occasion, there is no indication that Defendant 14 Davidson knew Plaintiff was there or that he had a medical need. Plaintiff has been unable to cure 15 these deficiencies by amendment. 16 Dr. Julian Metts 17 Plaintiff’s allegations indicate that Defendant Metts provided treatment to Plaintiff at least four 18 times between December 10 and December 17, 2015, and this treatment included multiple sets of x- 19 rays, pain medication and multiple attempts to correct the dislocation of Plaintiff’s finger. After these 20 attempts were unsuccessful, Defendant Metts referred Plaintiff for consultation with an orthopedist. 21 There is no indication that Defendant Metts delayed in providing treatment or pain medication. 22 Neither Plaintiff’s disagreement with the course of treatment nor any alleged negligence by Defendant 23 Metts is sufficient to state a cognizable Eighth Amendment claim. 24 Dr. David G. Smith 25 Plaintiff’s allegations indicate that Defendant Smith evaluated Plaintiff, ordered x-rays, cast his 26 hand and finger, performed surgery and ordered physical therapy. There is no suggestion in these 27 allegations that Defendant Smith was deliberately indifferent to Plaintiff’s serious medical needs. 28 Plaintiff’s assertions of pain during treatment are not sufficient to state a cognizable deliberate 7 1 indifference claim. Although Plaintiff alleges that Defendant Dr. Smith did not respond to his request 2 for pain medication, there is no indication that Plaintiff was not already receiving medication that had 3 been prescribed previously by Dr. Metts. 4 III. Conclusion and Recommendation 5 Plaintiff’s complaint fails to state a cognizable claim for relief. Despite be provided with the 6 relevant pleading and legal standards, Plaintiff has been unable to cure the deficiencies of his 7 complaint, and further leave to amend is no warranted. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 8 2000). 9 Accordingly, the Court HEREBY RECOMMENDS that Plaintiff’s complaint be dismissed for 10 failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. §§ 1915A and 1915(e). 11 These Findings and Recommendation will be submitted to the United States District Judge 12 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen (14) 13 days after being served with these Findings and Recommendation, Plaintiff may file written objections 14 with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 15 Recommendation.” Plaintiff is advised that failure to file objections within the specified time may 16 result in the waiver of the “right to challenge the magistrate’s factual findings” on appeal. Wilkerson v. 17 Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 18 1991)). 19 20 21 22 IT IS SO ORDERED. Dated: /s/ Barbara April 9, 2018 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 8