(PC) Linder v. Soltenian et al, No. 2:2018cv02281 - Document 11 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dennis M. Cota on 11/14/2018 RECOMMENDING that defendant Chau be dismissed for failure to state a claim. Referred to Judge John A. Mendez. Objections due within 14 days after being served with these findings and recommendations. (Huang, H)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DUANE LINDER, 12 13 14 15 No. 2:18-CV-2281-JAM-DMC-P Plaintiff, v. FINDINGS AND RECOMMENDATIONS JALAL SOLTENIAN, et al., Defendants. 16 17 18 19 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff’s first amended complaint (Doc. 9). The court is required to screen complaints brought by prisoners seeking relief 20 against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 21 § 1915A(a). The court must dismiss a complaint or portion thereof if it: (1) is frivolous or 22 malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief 23 from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover, 24 the Federal Rules of Civil Procedure require that complaints contain a “. . . short and plain 25 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This 26 means that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d 27 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the 28 complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon which it 1 1 rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff must allege 2 with at least some degree of particularity overt acts by specific defendants which support the 3 claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is 4 impossible for the court to conduct the screening required by law when the allegations are vague 5 and conclusory. 6 I. PLAINTIFF’S ALLEGATIONS 7 8 9 Plaintiff names the following doctors as defendants: (1) Jalal Soltenian, M.D.; (2) J. Chau, M.D.; (3) Christopher Smith, M.D.; (4) James Pucelik, M.D.; and (5) Carmelino 10 Galang, M.D. Drs. Soltenian, Chau, and Smith are prison physicians. Drs. Pucelik and Galang 11 are physicians at San Joaquin General Hospital. According to plaintiff, by 2009 he became 12 dependent on a cane and knee braces due to degenerative changes caused by arthritis. See Doc. 9, 13 p. 6. Plaintiff states he had been issued a “reasonable accommodation chrono” for a lower bunk 14 and lower tier cell assignment because of his mobility problems. Id. 15 Plaintiff claims defendant Soltenian cancelled his lower tier accommodation 16 chrono in 2014 despite plaintiff informing the doctor doing so would “place my life, health well- 17 being in jeopardy as to being injured and or causing an untimely death.” Id. Plaintiff further 18 alleges: “Dr. Soltenian said he did not care and he with a clear concious [sic] and deliberate 19 intent with no regard for my well-being took away all my reasonable accommodations except for 20 my lower bunk. . . .” Id. Plaintiff states he was required to move to an upper tier cell and, after 21 several months going up and down stairs, he hyperextended his left knee to the point he could no 22 longer walk. See id. Plaintiff alleges he was taken to the clinic after this injury but “was denied 23 treatment and sent away,” though plaintiff does not allege by whom. Id. Plaintiff was eventually 24 seen at the medical clinic after he fell again two weeks later, and was informed by Dr. Rudest 25 (who is not a named defendant) he would require a total knee replacement. See id. at 7. Plaintiff 26 states he received a total knee replacement on March 30, 2015. 27 /// 28 /// 2 1 According to plaintiff, approximately two weeks following his surgery, his knee 2 “started popping and making a grinding sound really bad,” causing his knee to become dislocated. 3 Id. Plaintiff was seen at the prison medical clinic by defendant Chau, who submitted a request for 4 plaintiff to be seen by the surgeon. Id. 5 Next, plaintiff claims he was seen by an outside specialist, defendant Galang, on 6 October 20, 2015. See id. According to plaintiff, defendant Galang “did not want to hear it and 7 tried to tell me that there is nothing wrong.” Id. Plaintiff was returned to the prison where he 8 submitted “numerous 7362 Medical Requests” and was seen again by defendant Chau who 9 prescribed pain medication “until I could see Dr. Galang once again.” Id. at 7-8. Plaintiff alleges 10 that, when he was sent to see defendant Galang again, he was informed “Dr. Galang had fled the 11 County to avoid Medical malpractice Suites [sic].” Id. at 8. 12 Next, plaintiff states he was returned to see an outside specialist a month later and 13 was told by Dr. Casey (who is not a named defendant) the problem with his knee replacement 14 could have been resolved. See id. Plaintiff alleges, “out of the blue” defendant Smith approved 15 plaintiff to see another outside specialist, defendant Pucelik, who told plaintiff “there is nothing 16 more anyone can do. . . .” Id. According to plaintiff, defendant Pucelik informed him “he 17 [presumably Dr. Pucelik] was told specifically by Dr. smith that I have to deal with it, live with it, 18 and there will be no further specialist care, per orders of Dr. Smith.” Id. 19 20 21 II. DISCUSSION By separate order, the court has determined the action is appropriate for service on 22 defendants Soltenian, Pucelik, Galang, and Smith. The court finds, however, plaintiff has failed 23 to state a claim for relief against defendant Chau. The treatment a prisoner receives in prison and 24 the conditions under which the prisoner is confined are subject to scrutiny under the Eighth 25 Amendment, which prohibits cruel and unusual punishment. See Helling v. McKinney, 509 U.S. 26 25, 31 (1993); Farmer v. Brennan, 511 U.S. 825, 832 (1994). The Eighth Amendment “. . . 27 embodies broad and idealistic concepts of dignity, civilized standards, humanity, and decency.” 28 Estelle v. Gamble, 429 U.S. 97, 102 (1976). Conditions of confinement may, however, be harsh 3 1 and restrictive. See Rhodes v. Chapman, 452 U.S. 337, 347 (1981). Nonetheless, prison officials 2 must provide prisoners with “food, clothing, shelter, sanitation, medical care, and personal 3 safety.” Toussaint v. McCarthy, 801 F.2d 1080, 1107 (9th Cir. 1986). A prison official violates 4 the Eighth Amendment only when two requirements are met: (1) objectively, the official’s act or 5 omission must be so serious such that it results in the denial of the minimal civilized measure of 6 life’s necessities; and (2) subjectively, the prison official must have acted unnecessarily and 7 wantonly for the purpose of inflicting harm. See Farmer, 511 U.S. at 834. Thus, to violate the 8 Eighth Amendment, a prison official must have a “sufficiently culpable mind.” See id. 9 Deliberate indifference to a prisoner’s serious illness or injury, or risks of serious 10 injury or illness, gives rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at 105; 11 see also Farmer, 511 U.S. at 837. This applies to physical as well as dental and mental health 12 needs. See Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982). An injury or illness is 13 sufficiently serious if the failure to treat a prisoner’s condition could result in further significant 14 injury or the “. . . unnecessary and wanton infliction of pain.” McGuckin v. Smith, 974 F.2d 15 1050, 1059 (9th Cir. 1992); see also Doty v. County of Lassen, 37 F.3d 540, 546 (9th Cir. 1994). 16 Factors indicating seriousness are: (1) whether a reasonable doctor would think that the condition 17 is worthy of comment; (2) whether the condition significantly impacts the prisoner’s daily 18 activities; and (3) whether the condition is chronic and accompanied by substantial pain. See 19 Lopez v. Smith, 203 F.3d 1122, 1131-32 (9th Cir. 2000) (en banc). 20 The requirement of deliberate indifference is less stringent in medical needs cases 21 than in other Eighth Amendment contexts because the responsibility to provide inmates with 22 medical care does not generally conflict with competing penological concerns. See McGuckin, 23 974 F.2d at 1060. Thus, deference need not be given to the judgment of prison officials as to 24 decisions concerning medical needs. See Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir. 25 1989). The complete denial of medical attention may constitute deliberate indifference. See 26 Toussaint v. McCarthy, 801 F.2d 1080, 1111 (9th Cir. 1986). Delay in providing medical 27 treatment, or interference with medical treatment, may also constitute deliberate indifference. See 28 Lopez, 203 F.3d at 1131. Where delay is alleged, however, the prisoner must also demonstrate 4 1 that the delay led to further injury. See McGuckin, 974 F.2d at 1060. 2 Negligence in diagnosing or treating a medical condition does not, however, give 3 rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at 106. Moreover, a 4 difference of opinion between the prisoner and medical providers concerning the appropriate 5 course of treatment does not give rise to an Eighth Amendment claim. See Jackson v. McIntosh, 6 90 F.3d 330, 332 (9th Cir. 1996). 7 In this case, plaintiff alleges defendant Chau submitted a request for plaintiff to be 8 seen by his surgeon after plaintiff complained of problems related to his knee surgery. Plaintiff 9 also alleges defendant Chau prescribed pain medication. These limited allegations do not indicate 10 defendant Chau was deliberately indifferent. To the contrary, they reflect defendant Chau was 11 attendant to plaintiff’s complaints by recommending further specialist consultation and providing 12 pain medication. Plaintiff’s allegations fail to state an Eighth Amendment claim against 13 defendant Chau. 14 /// 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 5 1 2 III. CONCLUSION Because it does not appear possible that the deficiencies identified herein can be 3 cured by amending the complaint, plaintiff is not entitled to leave to amend prior to dismissal of 4 defendant Chau. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc). 5 6 Based on the foregoing, the undersigned recommends that defendant Chau be dismissed for failure to state a claim. 7 These findings and recommendations are submitted to the United States District 8 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 9 after being served with these findings and recommendations, any party may file written 10 objections with the court. Responses to objections shall be filed within 14 days after service of 11 objections. Failure to file objections within the specified time may waive the right to appeal. See 12 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 13 14 15 Dated: November 14, 2018 ____________________________________ DENNIS M. COTA UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 6

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