(PC) Kelly v. Sao et al, No. 1:2018cv00484 - Document 11 (E.D. Cal. 2018)
Court Description: FINDINGS and RECOMMENDATIONS, Recommending that Plaintiff's Complaint be Dismissed with Prejudice for Failure to State a Claim, without Leave to Amend, signed by Magistrate Judge Erica P. Grosjean on 9/12/18. Referred to Judge Drozd. Objections to F&R Due Within Twenty-One Days. (Gonzalez, R)
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 JAMES CARL KELLY, 12 Plaintiff, 13 14 v. 15 DR. SAO, et al., Case No. 1:18-cv-00484-DAD-EPG FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT PLAINTIFF’S COMPLAINT BE DISMISSED WITH PREJUDICE FOR FAILURE TO STATE A CLAIM, WITHOUT LEAVE TO AMEND (ECF No. 1) 16 TWENTY-ONE (21) DAY DEADLINE Defendants. 17 18 19 James Carl Kelly (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 20 in this civil rights action pursuant to 42 U.S.C. § 1983. On April 9, 2018, Plaintiff commenced 21 this action by filing a Complaint. (ECF No. 1). Plaintiff alleges that he suffers from chronic pain, 22 but is not receiving adequate pain medication. 23 The Court has screened the Complaint, and finds that it fails to state a cognizable federal 24 claim for the reasons described below. This Court recommends that the District Judge dismiss 25 the federal claim for deliberate indifference to serious medical needs under the Eighth 26 Amendment with prejudice for failure to state a claim. The Court recommends that the District 27 Judge dismiss any state law claims for medical malpractice without prejudice for lack of 28 jurisdiction. 1 1 2 If Plaintiff disagrees with this recommendation, he may file objections to this order within 21 days from the date of this order. 3 I. 4 SCREENING REQUIREMENT The Court is required to screen complaints brought by prisoners seeking relief against a 5 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 6 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 7 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 8 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 9 As Plaintiff is proceeding in forma pauperis (ECF No. 9), the Court may also screen the 10 complaint under 28 U.S.C. § 1915. “Notwithstanding any filing fee, or any portion thereof, that 11 may have been paid, the court shall dismiss the case at any time if the court determines that the 12 action or appeal fails to state a claim upon which relief may be granted.” 28 U.S.C. 13 § 1915(e)(2)(B)(ii). A complaint is required to contain “a short and plain statement of the claim showing that 14 15 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 16 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 17 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 18 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual 19 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting 20 Twombly, 550 U.S. at 570). The mere possibility of misconduct falls short of meeting this 21 plausibility standard. Id. at 679. While a plaintiff’s allegations are taken as true, courts “are not 22 required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 23 (9th Cir. 2009) (internal quotation marks and citation omitted). Additionally, a plaintiff’s legal 24 conclusions are not accepted as true. Iqbal, 556 U.S. at 678. Pleadings of pro se plaintiffs “must be held to less stringent standards than formal 25 26 pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding that 27 pro se complaints should continue to be liberally construed after Iqbal). 28 /// 2 1 II. 2 PLAINTIFF’S ALLEGATIONS IN HIS COMPLAINT Plaintiff alleges that he is a victim of abuse including sodomy and rape. As a result of this 3 abuse, Plaintiff received injuries such as degenerative disk disease with pinched nerves in his left 4 buttock, left leg, and left heel. He uses a wheel chair for ambulation. It hurts when he walks. If 5 the disk grinds all the way down, he will be “cripple.” 6 Plaintiff states that Doctor Sao says it is too early for Tylenol 3 narcotic pain medications. 7 Doctor Ulit also said no to Tylenol 3 and he doesn’t believe Plaintiff will be “crippled.” In 2003, 8 Dr. S. Padons also said it was too early. 9 10 Plaintiff is in chronic pain and cannot sleep all night. Plaintiff had to give up his walker because of the pain. 11 12 Plaintiff was on Tylenol 3 from 2003 until 2017, when doctors said they would not reorder Tylenol 3 for him. Plaintiff claims the doctors will not alleviate his chronic pain. Plaintiff states that “I want a judge to be the third person to make the decision.” 13 14 15 16 III. DISCUSSION A. Eighth Amendment A prisoner can establish an Eighth Amendment violation arising from 17 deficient medical care if he can prove that prison officials were deliberately indifferent to 18 a serious medical need. Estelle v. Gamble, 429 U.S. 97, 104 (1976). Assuming 19 the medical need is “serious,” a plaintiff must show that the defendant acted 20 with deliberate indifference to that need. Id. “Deliberate indifference is a high legal 21 standard.” Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). It entails something more 22 than medical malpractice or even gross negligence. Id. Deliberate indifference exists when a 23 prison official “knows of and disregards an excessive risk to inmate health or safety; the official 24 must both be aware of the facts from which the inference could be drawn that a substantial risk 25 of serious harm exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 26 837 (1994). Deliberate indifference exists when a prison official “den[ies], delay[s] or 27 intentionally interfere[s] with medical treatment, or it may be shown by the way in which prison 28 3 1 officials provide medical care.” Crowley v. Bannister, 734 F.3d 967, 978 (9th Cir. 2013) (internal 2 quotation marks and citation omitted). 3 Critically, “a difference of opinion between a physician and the prisoner—or 4 between medical professionals—concerning what medical care is appropriate does not amount 5 to deliberate indifference.” Snow v. McDaniel, 681 F.3d 978, 987 (9th Cir. 2012) (citing Sanchez 6 v. Vild, 891 F.2d 240, 242 (9th Cir. 1989)), overruled on other grounds by Peralta v. Dillard, 744 7 F.3d 1076, 1083 (9th Cir. 2014). Instead, to establish deliberate indifference in the context of a 8 difference of opinion between a physician and the prisoner or between medical providers, 9 the prisoner “‘must show that the course of treatment the doctors chose 10 was medically unacceptable under the circumstances’ and that the defendants ‘chose this course 11 in conscious disregard of an excessive risk to plaintiffs health.’” Id. at 988 (quoting Jackson v. 12 McIntosh, 90 F.3d 330, 332 (9th Cir. 1996)). In other words, where there has been some arguably 13 appropriate treatment, deliberate indifference cannot be established merely by showing 14 disagreement with the physician but only by showing that the defendant chose a course of 15 treatment knowing that it was inappropriate. Put differently, a court cannot substitute its judgment 16 for that of a medical professional, but it can examine a medical professional’s good faith in 17 selecting a course of treatment. 18 Plaintiff fails to state a claim for a violation of the Eighth Amendment for cruel and 19 unusual punishment based on deliberate indifference to serious medical needs. Plaintiff alleges 20 that he suffers from chronic pain. He used to receive Tylenol 3, which is a narcotic pain 21 medication, but that was stopped in January 2017. It is clear that Plaintiff feels strongly that he 22 needs this type of pain medication. However, Plaintiff has not alleged any facts indicating that 23 his doctors agree. It is not enough to allege that Plaintiff disagrees with his doctors. In order to 24 establish a constitutional claim, Plaintiff must allege facts indicating that his doctors believe that 25 he needs the medication but refuse to provide it. It is not the Court’s role to decide the best 26 medical treatment when there is a difference of opinion between Plaintiff and his doctors. 27 28 Indeed, Plaintiff alleges that his doctors do not believe he needs the pain medication. Plaintiff states that “Doctor SAO says it is too early for Tylenol 3 narcotic pain medication,” and 4 1 “Doctor Ulit said no to Tylenol 3 and he don’t believe I will be cripple . . . .” (ECF No. 1, at p. 2 3). 3 4 For these reasons, Plaintiff fails to state a claim for unconstitutional treatment under the Eighth Amendment. B. 5 Related State Law Claims 6 Plaintiff also asserts a claim for medical malpractice. Because the Court recommends 7 dismissing any federal claims, the Court does not reach the merits of any state law claims for 8 medical malpractice. The Court recommends dismissing this claim without prejudice. 28 U.S.C. 9 § 1367(c)(3); Acri v. Varian Associates, Inc., 114 F.3d 999, 1001 (9th Cir. 1997) (“The Supreme 10 Court has stated, and we have often repeated, that ‘in the usual case in which all federal law 11 claims are eliminated before trial, the balance of factors ... will point towards declining to 12 exercise jurisdiction over the remaining state-law claims’ ” (citation omitted)). 13 IV. CONCLUSION AND ORDER 14 The Court has screened the complaint, and finds that it fails to state a federal claim under 15 the relevant legal standards. The Court recommends dismissing the federal claim with prejudice 16 for failure to state a claim, and dismissing the state claim without prejudice for lack of jurisdiction. 17 The Court does not recommend granting leave to amend. Plaintiff clearly alleged the 18 19 20 21 circumstances underlying his complaint, including that doctors did not believe he required the pain medication he seeks, and the Court has found that those circumstances do not state a constitutional violation for the reasons described in this order. For that reason, leave to amend would be futile. Based on the foregoing, it is HEREBY RECOMMENDED that: 1. This case be DISMISSED for failure to state a claim; and 22 2. The Clerk of Court be directed to CLOSE this case. 23 These findings and recommendations are submitted to the district judge assigned to the case, 24 pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within twenty-one (21) days after being 25 served with these findings and recommendations, Plaintiff may file written objections with the 26 27 court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections within the specified time may 28 5 1 result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) 2 (quoting Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 3 4 5 6 IT IS SO ORDERED. Dated: September 12, 2018 /s/ 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 6
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