-CMK (PC) Norman v. Walker et al, No. 2:2010cv01344 - Document 23 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 12/09/11 recommending that defendant's unopposed motion to dismiss 18 be granted and this action be dismissed for failure to state a claim. MOTION to DISMISS 18 referred to Judge Kimberly J. Mueller. Objections due within 14 days. (Plummer, M)
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-CMK (PC) Norman v. Walker et al Doc. 23 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MILLER NORMAN, 12 No. CIV S-10-1344-KJM-CMK-P Plaintiff, 13 vs. 14 WALKER, et al., 15 FINDINGS AND RECOMMENDATIONS Defendants. 16 / 17 Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant 18 to 42 U.S.C. § 1983. Pending before the court is defendant’s unopposed motion to dismiss (Doc. 19 18). 20 Background 21 Plaintiff’s original complaint named four defendants: J. Walker, Chief Medical 22 Officer; Dr. K. Win, physician; B. McPherson, Nurse Practitioner; and G. Swarthout, Warden. 23 His original complaint was dismissed for failure to allege facts sufficient to state a claim against 24 any of these individuals. Plaintiff was provided with an opportunity to file an amended 25 complaint to cure the defects identified by the court. In his amended complaint, plaintiff 26 eliminated all of the defendants except Walker, whom he identified as the chief medical officer at 1 Dockets.Justia.com 1 Solano State Prison. He alleges Dr. Walker has violated his Eighth Amendment rights by 2 ignoring his medical needs and failing to provide him the diabetic diet he medically requires. All 3 other defendants have been dismissed from this action. Plaintiff attaches two of the inmate 4 grievance responses to his amended complaint; another inmate grievance response is attached to 5 his original complaint, which the defendant requests the court take judicial notice of.1 6 Motion to Dismiss 7 Defendant Walker brings this motion to dismiss, pursuant to Federal Rule of Civil 8 Procedure 12(b)(6), for failure to allege facts sufficient to support his claim for violation of the 9 Eighth Amendment. 10 In considering a motion to dismiss, the court must accept all allegations of 11 material fact in the complaint as true. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). The 12 court must also construe the alleged facts in the light most favorable to the plaintiff. See Scheuer 13 v. Rhodes, 416 U.S. 232, 236 (1974); see also Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 14 738, 740 (1976); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam). All 15 ambiguities or doubts must also be resolved in the plaintiff's favor. See Jenkins v. McKeithen, 16 395 U.S. 411, 421 (1969). However, legally conclusory statements, not supported by actual 17 factual allegations, need not be accepted. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 18 (2009). In addition, pro se pleadings are held to a less stringent standard than those drafted by 19 lawyers. See Haines v. Kerner, 404 U.S. 519, 520 (1972). 20 Rule 8(a)(2) requires only “a short and plain statement of the claim showing that 21 the pleader is entitled to relief” in order to “give the defendant fair notice of what the . . . claim is 22 and the grounds upon which it rests.” Bell Atl. Corp v. Twombly, 550 U.S. 544, 555 (2007) 23 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, in order to survive dismissal for 24 25 26 1 The document defendant requests the court take judicial notice of is attached to plaintiff’s original complaint. As the document is part the record in this case, no judicial notice is necessary. 2 1 failure to state a claim under Rule 12(b)(6), a complaint must contain more than “a formulaic 2 recitation of the elements of a cause of action;” it must contain factual allegations sufficient “to 3 raise a right to relief above the speculative level.” Id. at 555-56. The complaint must contain 4 “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. “A claim has 5 facial plausibility when the plaintiff pleads factual content that allows the court to draw the 6 reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct. at 7 1949. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more 8 than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. 9 at 556). “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, 10 it ‘stops short of the line between possibility and plausibility for entitlement to relief.” Id. 11 (quoting Twombly, 550 U.S. at 557). 12 In deciding a Rule 12(b)(6) motion, the court generally may not consider materials 13 outside the complaint and pleadings. See Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998); 14 Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). The court may, however, consider: (1) 15 documents whose contents are alleged in or attached to the complaint and whose authenticity no 16 party questions, see Branch, 14 F.3d at 454; (2) documents whose authenticity is not in question, 17 and upon which the complaint necessarily relies, but which are not attached to the complaint, see 18 Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001); and (3) documents and materials 19 of which the court may take judicial notice, see Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 20 1994). 21 Defendant Walker contends that no claim against her could exist because she was 22 not involved in plaintiff’s medical care, but only in responding to plaintiff’s inmate grievance 23 appeal at the director’s level of review. Despite what plaintiff alludes to in his complaint, 24 identifying defendant Walker as the Chief Medical Officer at Solano State Prison, she states her 25 actual position is Chief of the California Prison Health Care Services. This contention is 26 supported by the Director’s Level Decision plaintiff attached to his original complaint, and is not 3 1 contested by plaintiff. Thus, it is apparent that defendant Walker was not actually involved in 2 plaintiff’s medical treatment. Rather, her only connection to plaintiff is her review of plaintiff’s 3 inmate grievance. Thus, there are two problems with plaintiff’s claims, which are addressed 4 more fully below. First, as defendant Walker was not involved in plaintiff’s medical care, she 5 could not have been deliberately indifferent to his medical needs. Reviewing another medical 6 provider’s decision of whether treatment was necessary or sufficient is an insufficient ground for 7 claiming violation of the Eighth Amendment. In addition, defendant Walker’s involvement in 8 the review of plaintiff’s inmate appeal is an insufficient independent ground for an alleged 9 constitutional violation as prisoners have no constitutional right to an adequate prison 10 administrative appeal or grievance system. 11 Eighth Amendment 12 The treatment a prisoner receives in prison and the conditions under which the 13 prisoner is confined are subject to scrutiny under the Eighth Amendment, which prohibits cruel 14 and unusual punishment. See Helling v. McKinney, 509 U.S. 25, 31 (1993); Farmer v. Brennan, 15 511 U.S. 825, 832 (1994). The Eighth Amendment “embodies broad and idealistic concepts of 16 dignity, civilized standards, humanity, and decency.” Estelle v. Gamble, 429 U.S. 97, 102 17 (1976). Conditions of confinement may, however, be harsh and restrictive. See Rhodes v. 18 Chapman, 452 U.S. 337, 347 (1981). Nonetheless, prison officials must provide prisoners with 19 “food, clothing, shelter, sanitation, medical care, and personal safety.” Toussaint v. McCarthy, 20 801 F.2d 1080, 1107 (9th Cir. 1986). A prison official violates the Eighth Amendment only 21 when two requirements are met: (1) objectively, the official’s act or omission must be so serious 22 such that it results in the denial of the minimal civilized measure of life’s necessities; and (2) 23 subjectively, the prison official must have acted unnecessarily and wantonly for the purpose of 24 inflicting harm. See Farmer, 511 U.S. at 834. Thus, to violate the Eighth Amendment, a prison 25 official must have a “sufficiently culpable mind.” See id. 26 /// 4 1 Deliberate indifference to a prisoner’s serious illness or injury, or risks of serious 2 injury or illness, gives rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at 3 105; see also Farmer, 511 U.S. at 837. This applies to physical as well as dental and mental 4 health needs. See Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982). An injury or illness is 5 sufficiently serious if the failure to treat a prisoner’s condition could result in further significant 6 injury or the “unnecessary and wanton infliction of pain.” McGuckin v. Smith, 974 F.2d 1050, 7 1059 (9th Cir. 1992); see also Doty v. County of Lassen, 37 F.3d 540, 546 (9th Cir. 1994). 8 Factors indicating seriousness are: (1) whether a reasonable doctor would think that the condition 9 is worthy of comment; (2) whether the condition significantly impacts the prisoner’s daily 10 activities; and (3) whether the condition is chronic and accompanied by substantial pain. See 11 Lopez v. Smith, 203 F.3d 1122, 1131-32 (9th Cir. 2000) (en banc). 12 The requirement of deliberate indifference is less stringent in medical needs cases 13 than in other Eighth Amendment contexts because the responsibility to provide inmates with 14 medical care does not generally conflict with competing penological concerns. See McGuckin, 15 974 F.2d at 1060. Thus, deference need not be given to the judgment of prison officials as to 16 decisions concerning medical needs. See Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir. 17 1989). The complete denial of medical attention may constitute deliberate indifference. See 18 Toussaint v. McCarthy, 801 F.2d 1080, 1111 (9th Cir. 1986). Delay in providing medical 19 treatment, or interference with medical treatment, may also constitute deliberate indifference. 20 See Lopez, 203 F.3d at 1131. Where delay is alleged, however, the prisoner must also 21 demonstrate that the delay led to further injury. See McGuckin, 974 F.2d at 1060. 22 Negligence in diagnosing or treating a medical condition does not, however, give 23 rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at 106. A difference of 24 opinion between the prisoner and medical providers concerning the appropriate course of 25 treatment also does not give rise to an Eighth Amendment claim. See Jackson v. McIntosh, 90 26 F.3d 330, 332 (9th Cir. 1996). 5 1 Moreover, vicarious liability is not applicable in a § 1983 action. Thus, “a 2 plaintiff must plead that each Government-official defendant, through the official’s own 3 individual actions, has violated the constitution.” Iqbal, 129 S. Ct. at 1948. A claim based on 4 the knowledge and acquiescence of another’s action is insufficient to state a claim. 5 Here, Plaintiff alleges he is in need of a special diabetic diet, or transfer to a 6 facility which offers such a special diet. He was informed through the inmate grievance process 7 that his current place of incarceration does not offer a special diabetic diet, and that the California 8 Department of Corrections and Rehabilitation does not authorize transfers to another institution 9 on the basis of diabetic diet. Other than his alleged dietary requirements, he does not claim the 10 treatment of his diabetes is insufficient or being ignored. It appears from the inmate grievance 11 review decisions that his diabetes is being followed and he is being provided the necessary 12 insulin and blood testing in order to keep his blood sugar levels under control. Thus, he does not 13 and cannot claim his medical condition is being ignored. Even if he was claiming his medical 14 condition is not being treated, it is clear that defendant Walker is not the medical provider for 15 plaintiff. Her review of plaintiff’s inmate grievance cannot form the basis of his denial of 16 medical care claim, as she is not the medical provider making those decisions. Plaintiff fails to 17 plead facts demonstrating defendant Walker denied, delayed, or intentionally interfered with his 18 medical treatment, or was personally deliberately indifferent to his medical needs. 19 Grievance Process 20 There is no constitutional right to an adequate prison administrative appeal or 21 grievance system. See Wolff v. McDonnell, 418 U.S. 539, 565 (1974) (accepting that Nebraska 22 did not provide administrative review of disciplinary decisions). Thus, prisoners have no stand- 23 alone due process rights related to the administrative grievance process. See Mann v. Adams, 24 855 F.2d 639, 640 (9th Cir. 1988); see also Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) 25 (holding that there is no liberty interest entitling inmates to a specific grievance process). 26 Because there is no right to any particular grievance process, it is impossible for due process to 6 1 have been violated by ignoring or failing to properly process grievances. Numerous district 2 courts in this circuit have reached the same conclusion. See Smith v. Calderon, 1999 WL 3 1051947 (N.D. Cal 1999) (finding that failure to properly process grievances did not violate any 4 constitutional right); Cage v. Cambra, 1996 WL 506863 (N.D. Cal. 1996) (concluding that prison 5 officials’ failure to properly process and address grievances does not support constitutional 6 claim); James v. U.S. Marshal’s Service, 1995 WL 29580 (N.D. Cal. 1995) (dismissing 7 complaint without leave to amend because failure to process a grievance did not implicate a 8 protected liberty interest); Murray v. Marshall, 1994 WL 245967 (N.D. Cal. 1994) (concluding 9 that prisoner’s claim that grievance process failed to function properly failed to state a claim 10 under § 1983). Prisoners do, however, retain a First Amendment right to petition the government 11 through the prison grievance process. See Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir. 1995). 12 Therefore, interference with the grievance process may, in certain circumstances, implicate the 13 First Amendment. 14 To the extent plaintiff may be claiming that defendant Walker is liable for failing 15 to properly address his grievance, such allegations cannot form the basis for a § 1983 action. 16 While plaintiff may have a constitutional right to access established prison grievance procedures, 17 that right protects his ability to file the grievance, but does not protect him as to how prison 18 officials process and/or decide the grievance. As defendant Walker’s only involvement with 19 plaintiff was reviewing his inmate grievance, plaintiff has not alleged sufficient facts to support a 20 § 1983 action against her. 21 Conclusion 22 Based on the foregoing, the undersigned finds plaintiff’s complaint fails to state a 23 claim against defendant Walker for violation of his Eighth Amendment rights. 24 Accordingly, IT IS HEREBY RECOMMENDED that defendant’s unopposed 25 motion to dismiss (Doc. 18) be granted, and this action be dismissed for failure to state a claim. 26 /// 7 1 These findings and recommendations are submitted to the United States District 2 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 3 after being served with these findings and recommendations, any party may file written 4 objections with the court. Responses to objections shall be filed within 14 days after service of 5 objections. Failure to file objections within the specified time may waive the right to appeal. 6 See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 7 8 9 10 DATED: December 9, 2011 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 8