(PC) Legare v. Cryer et al, No. 1:2018cv01474 - Document 20 (E.D. Cal. 2019)
Court Description: FINDINGS and RECOMMENDATIONS to Dismiss Action for Failure to State a Claim 18 ; ORDER DIRECTING Clerk of Court to Randomly Assign District Judge; Referred to Judge Lawrence J. O'Neill, signed by Magistrate Judge Barbara A. McAuliffe on 11/19/2019. Objections to F&R due within FOURTEEN (14) DAYS(Orozco, A)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES PAUL LEGARE, 12 Plaintiff, 13 v. 14 C. CRYER, et al., 15 ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN DISTRICT JUDGE FINDINGS AND RECOMMENDATIONS TO DISMISS ACTION FOR FAILURE TO STATE A CLAIM Defendants. (ECF No. 18) 16 FOURTEEN-DAY DEADLINE 17 18 Case No. 1:18-cv-01474-BAM (PC) Plaintiff James Paul Legare (“Plaintiff”) is a state prisoner proceeding pro se and in forma 19 pauperis in this civil rights action under 42 U.S.C. § 1983. On September 4, 2019, the Court 20 screened Plaintiff’s complaint and granted him leave to amend. (ECF No. 15.) Plaintiff’s first 21 amended complaint, filed on November 4, 2019, is currently before the Court for screening. (ECF 22 No. 18.) 23 I. Screening Requirement and Standard 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 1 1 from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b). 2 A complaint must contain “a short and plain statement of the claim showing that the pleader 3 is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 4 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, 5 do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 6 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken as true, courts “are not required 7 to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 8 2009) (internal quotation marks and citation omitted). 9 To survive screening, Plaintiff’s claims must be facially plausible, which requires sufficient 10 factual detail to allow the Court to reasonably infer that each named defendant is liable for the 11 misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret Serv., 12 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully is not 13 sufficient, and mere consistency with liability falls short of satisfying the plausibility standard. 14 Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969. 15 II. Allegations in Complaint 16 Plaintiff is currently housed at the California Institution for Men in Chino, California. The 17 events in the complaint are alleged to have occurred while Plaintiff was housed at the California 18 Substance Abuse and Treatment Facility (“CSATF”) in Coalinga, California. Plaintiff names the 19 following defendants: (1) C. Cryer, Chief Executive Officer; (2) S. Gates, Chief, Health Care 20 Appeals Branch-Sacramento; and (3) Does 1 through 5, CSATF medical/health care providers. 21 Plaintiff alleges: On July 2017, after Plaintiff had complained for months about groin pain, 22 he was prescribed Oxcarbazepine (“Trileptal”) for pain management. Soon after taking Trileptal, 23 Plaintiff began to suffer side effects, such as dizziness, sleeplessness, periodic blurred vision, 24 confusion, thirst, fatigue and other negative effects. 25 On August 1, 2017, Plaintiff submitted a CDCR 7362 request for medical services 26 complaining about the serious side effects that Trileptal and requesting that a different pain 27 medication be prescribed. Plaintiff contends that despite Defendant Cryer and Doe Defendants 28 possessing knowledge of Plaintiff’s side effects, they were indifferent to Plaintiff’s suffering, taking 2 1 no action to prevent the reported condition. Plaintiff claims that defendants violated departmental 2 health care policies, which in turn caused Plaintiff to fall and injure himself. 3 By August 15, 2017, Plaintiff claims that he could no longer endure the side effects and 4 refused to take Trileptal. Plaintiff asserts that Defendant Cryer and Doe Defendants, despite 5 knowing that Plaintiff stopped taking Trileptal, took no corrective action to prescribe him an 6 alternate pain management medication. Plaintiff further asserts that this caused him to languish in 7 24/7 incessant groin pain that triggered falls to the ground resulting in physical injury. Plaintiff 8 alleges that one Doe Defendant further injured Plaintiff by issuing him a negative CDCR 128B for 9 exercising his right to refuse the medication causing life threatening side effects. 10 11 On August 6, 2017, Plaintiff asserts that the Board of Parole Hearings negatively addressed the CDCR 128B record during Plaintiff’s bid for freedom. 12 From August 15, 2017 to September 17, 2017, Defendant Cryer and Doe Defendants failed 13 to provide Plaintiff with care or pain management to relieve his groin pain. Plaintiff asserts that 14 the groin pain caused him to fall hard to the ground, resulting in injury to his person and the 15 subsequent prescription of a stroller/walker to help prevent additional falls. 16 On September 17, 2017, Doe Defendant prescribed acetaminophen (“Mapap”), which 17 Plaintiff alleged barely reduced his severe pain levels. Plaintiff claims that Defendant Cryer and 18 Doe Defendants knew that Mapap was nothing more than a fever reducer and that their actions 19 would intentionally cause Plaintiff to languish in unnecessary pain. 20 On October 13, 2017, Plaintiff felt helpless and filed a CDCR 602 Health Care 21 Administrative Appeal. The appeal addressed defendants’ actions and Plaintiff’s suffering of pain 22 and life-threatening side effects from Trileptal. 23 On December 20, 2017, Defendant Cryer issued CSATF’s institutional level response to 24 Plaintiff’s appeal. Plaintiff alleges that the response presented a false statement that at no time was 25 Plaintiff without pain medication. Plaintiff claims that Defendant Cryer knew this to be false 26 because of the CDCR 128B noting Plaintiff’s refusal to take Trileptal and knowingly falsified a 27 state medical record. Plaintiff asserts that Defendant Cryer cannot claim he was unaware of 28 Plaintiff’s suffering because it was his duty as Chief Medical Executive to know each patient’s 3 1 needs, medical orders, prescriptions, treatments and other records. 2 Plaintiff contends that his medical appeal suggests that it was illegal for Doe Defendants to 3 prescribe Trileptal. Defendant Cryer allegedly elected to make a false suggestion that Trileptal was 4 approved by the Food and Drug Administration for use as a pain medication when he knew 5 otherwise. Plaintiff asserts that both the FDA and the Federal Department of Justice indicated in 6 2010 that Trileptal was approved to treat partial epileptic seizures only and was specifically 7 prohibited from use as a pain management drug in human patients. Plaintiff claims that Defendants 8 Cryer, Gates and Doe Defendants were all informed about their illegal acts of prescribing prisoners 9 Trileptal to treat pain as far back as 2011. 10 On January 10, 2018, Plaintiff submitted his medical appeal to CDCR’s Headquarters level 11 for review and final exhaustion. In his appeal, Plaintiff specifically posed a question to Defendant 12 Gates as to whether Trileptal was an FDA-authorized pain management medication. Defendants 13 Gates, Cryer and Doe Defendants elected to avoid proving a straight answer to the question. 14 Plaintiff claims these defendants still elect to prescribe prisoners drugs for pain knowing that they 15 are prohibited by the FDA. Plaintiff asserts that Defendant Cryer, Defendant Gates and Doe 16 Defendants delayed and denied Plaintiff lawful pain management medication that adequately 17 prevented pain. Plaintiff further asserts that Doe Defendants were indifferent to Plaintiffs’ life 18 threatening Trileptal side effects and that Doe Defendant and Defendant Cryer knew that Plaintiff 19 had fallen to the ground several times and required a wheeled stroller/walker. Plaintiff claims that 20 defendants turned a blind eye to his pain and continue to prescribe prisoners Trileptal for pain. 21 22 Plaintiff asserts a claim for deliberate indifference and damages, along with injunctive relief. 23 III. Discussion 24 A. Eighth Amendment – Deliberate Indifference 25 A prisoner’s claim of inadequate medical care does not constitute cruel and unusual 26 punishment in violation of the Eighth Amendment unless the mistreatment rises to the level of 27 “deliberate indifference to serious medical needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 28 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). Deliberate indifference may be shown 4 1 by the denial, delay or intentional interference with medical treatment or by the way in which 2 medical care is provided. Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988). The two- 3 part test for deliberate indifference requires Plaintiff to show (1) “a ‘serious medical need’ by 4 demonstrating that failure to treat a prisoner’s condition could result in further significant injury or 5 the ‘unnecessary and wanton infliction of pain,’” and (2) “the defendant’s response to the need was 6 deliberately indifferent.” Jett, 439 F.3d at 1096. 7 A defendant does not act in a deliberately indifferent manner unless the defendant “knows 8 of and disregards an excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 9 837 (1994). “Deliberate indifference is a high legal standard,” Simmons, 609 F.3d at 1019; Toguchi 10 v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004), and is shown where there was “a purposeful act or 11 failure to respond to a prisoner’s pain or possible medical need” and the indifference caused harm. 12 Jett, 439 F.3d at 1096. 13 In applying this standard, the Ninth Circuit has held that before it can be said that a 14 prisoner’s civil rights have been abridged, “the indifference to his medical needs must be 15 substantial. Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this cause 16 of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429 17 U.S. at 105−106). “[A] complaint that a physician has been negligent in diagnosing or treating a 18 medical condition does not state a valid claim of medical mistreatment under the Eighth 19 Amendment. Medical malpractice does not become a constitutional violation merely because the 20 victim is a prisoner.” Estelle, 429 U.S. at 106; see also Anderson v. Cty. of Kern, 45 F.3d 1310, 21 1316 (9th Cir. 1995). Even gross negligence is insufficient to establish deliberate indifference to 22 serious medical needs. See Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990). 23 Further, a “difference of opinion between a physician and the prisoner−or between medical 24 professionals−concerning what medical care is appropriate does not amount to deliberate 25 indifference.” Snow v. McDaniel, 681 F.3d 978, 987 (9th Cir. 2012) (citing Sanchez v. Vild, 891 26 F.2d 240, 242 (9th Cir. 1989) ), overruled in part on other grounds, Peralta v. Dillard, 744 F.3d 27 1076, 1082−83 (9th Cir. 2014); Wilhelm v. Rotman, 680 F.3d 1113, 1122−23 (9th Cir. 2012) (citing 28 Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1986) ). Rather, Plaintiff “must show that the 5 1 course of treatment the doctors chose was medically unacceptable under the circumstances and that 2 the defendants chose this course in conscious disregard of an excessive risk to [his] health.” Snow, 3 681 F.3d at 988 (citing Jackson, 90 F.3d at 332) (internal quotation marks omitted). 4 Doe Defendants 5 Plaintiff appears to allege that Doe Defendants failed to properly treat him for pain in 6 violation of his Eighth Amendment rights. At best, Plaintiff has alleged negligence or medical 7 malpractice resulting from the prescription of Trileptal, which Plaintiff stopped taking. Negligence, 8 gross negligence, or medical malpractice does not rise to the level of an Eighth Amendment 9 violation. Further, it is evident from Plaintiff’s allegations that Doe Defendants attempted to 10 address Plaintiff’s pain by prescribing various medications, including Mapap. Plaintiff’s 11 disagreement with the chosen course of treatment, however, is not sufficient to state a cognizable 12 claim. 13 Defendants Cryer and Gates 14 Plaintiff’s allegations against Defendants Cryer and Gates also do not demonstrate 15 deliberate indifference to a serious medical need in violation of the Eighth Amendment. As best 16 as the Court can determine, Defendants Cryer and Gates were involved in Plaintiff’s inmate appeals 17 during a time period in which Plaintiff was receiving pain medication. 18 disagreement with the prescribed treatment is not sufficient to state a claim. Again, Plaintiff’s 19 B. Injunctive Relief 20 Insofar as Plaintiff seeks injunctive relief against prison officials, any such request is now 21 moot. Plaintiff is no longer housed at the California Substance Abuse Treatment Facility, where he 22 alleges the incidents at issue occurred, and where the prison officials are employed. Therefore, any 23 injunctive relief against officials at the California Substance Abuse Treatment Facility is moot. See 24 Andrews v. Cervantes, 493 F.3d 1047, 1053 n.5 (9th Cir. 2007) (prisoner’s claims for injunctive 25 relief generally become moot upon transfer) (citing Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 26 1991) (per curiam) (holding claims for injunctive relief “relating to [a prison’s] policies are moot” 27 when the prisoner has been moved and “he has demonstrated no reasonable expectation of returning 28 to [the prison]”)). 6 1 IV. 2 For the reasons stated, Plaintiff’s amended complaint fails to state a cognizable section 1983 3 claim for relief. Despite being provided with the relevant pleading and legal standards, Plaintiff 4 has been unable to cure the identified deficiencies and further leave to amend is not warranted. 5 Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). 6 7 8 9 Conclusion and Recommendation Accordingly, the Clerk of the Court is DIRECTED to randomly assign a district judge to this action. Furthermore, IT IS HEREBY RECOMMENDED that this action be dismissed for failure to state a cognizable section 1983 claim. 10 These Findings and Recommendation will be submitted to the United States District Judge 11 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen (14) 12 days after being served with these Findings and Recommendation, Plaintiff may file written 13 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 14 Findings and Recommendation.” Plaintiff is advised that failure to file objections within the 15 specified time may result in the waiver of the “right to challenge the magistrate’s factual findings” 16 on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 17 F.2d 1391, 1394 (9th Cir. 1991)). 18 19 20 21 IT IS SO ORDERED. Dated: /s/ Barbara November 19, 2019 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 7
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