(PC) Azdar v. Wreston ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 VICTOR MARTINEZ AZDAR, ) Case No. 1:19-cv-01064-SAB (PC) ) 12 Plaintiff, ) ) ORDER DIRECTING CLERK OF COURT TO 13 v. ) RANDOMLY ASSIGN A DISTRICT JUDGE TO THIS ACTION 14 WRESTON, et al., ) ) FINDINGS AND RECOMMENDATION 15 Defendants. ) RECOMMENDING DISMISSAL OF ACTION ) FOR FAILURE TO STATE A COGNIZABLE 16 ) CLAIM FOR RELIEF 17 [ECF No. 8] 18 Plaintiff Victor Martinez Azdar is appearing pro se and in forma pauperis in this civil rights 19 action pursuant to 42 U.S.C. § 1983. 20 Currently before the Court is Plaintiff’s first amended complaint, filed September 11, 2019. 21 I. 22 SCREENING REQUIREMENT 23 The Court is required to screen complaints brought by prisoners seeking relief against a 24 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court 25 must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally “frivolous or 26 malicious,” that “fail[] to state a claim on which relief may be granted,” or that “seek[] monetary relief 27 against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). 28 /// 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, do 4 not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 5 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate that each defendant personally participated 6 in the deprivation of Plaintiff’s rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). 7 Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally 8 construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 9 Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be facially plausible, which 10 requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable 11 for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 12 (9th Cir. 2009). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, and “facts 13 that are ‘merely consistent with’ a defendant’s liability” falls short of satisfying the plausibility standard. 14 Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969. 15 II. 16 COMPLAINT ALLEGATIONS 17 The alleged incident took place while Plaintiff was housed at the Kings County Jail, and 18 Plaintiff names Dr. Wreston, Dr. Kamitiski, and Does 1 through 5, as Defendants. 19 On May 5, 2018, while Plaintiff was housed at the Kings County Jail, he woke up to get his 20 lunch. Plaintiff jumped off his upper bed bunk and slipped on the wet floor caused by the toilet flood. 21 Plaintiff landed hard on his feet, slipped and landed hard on his back. Plaintiff felt intense pain in the 22 back of his head, both his feet, back of his neck, and upper and lower back and shoulders. 23 Plaintiff immediately called for the deputy to allow him to get to medical. After submitting 24 medical request slips and informing prison staff of his need for medication attention, Plaintiff was 25 delayed an entire week before x-rays were taken. The medical providers indicated that Plaintiff was 26 fine and that nothing was wrong with him. The x-rays were only taken to determine the extent of 27 injury to Plaintiff’s spine, and not his feet, shoulders or neck. The x-rays were not adequate to 28 determine the injury to the spine because an MRI or CT scan was necessary. Medical personnel failed 1 to take into account the full extent of Plaintiff’s injuries, and he suffers extreme pain in his right 2 shoulder and cannot lift his arm above his head. Plaintiff also suffers pain in his lower back. Plaintiff 3 made requests for an MRI or CT scan, but doctors would say he was “fine” or “you look okay.” 4 On June 3, 2018, Plaintiff filed a medical grievance requesting to be examined by a doctor. 5 Plaintiff submitted over ten medical requests for assistance to no avail. Doctors Wreston and Chi 6 Chuan Kamitiski refused to see Plaintiff and provide medical treatment. 7 III. 8 DISCUSSION 9 A. Deliberate Indifference to Serious Medical Need 10 Although it is not entirely clear from the first amended complaint, the Court assumes that 11 Plaintiff was a pretrial detainee while he was housed at the Kings County Jail. 12 For a pretrial detainee to state a claim for deliberate indifference to medical needs he must allege 13 that “(i) the defendant made an intentional decision with respect to the conditions under which the 14 plaintiff was confined; (ii) those conditions put the plaintiff at substantial risk of suffering serious harm; 15 (iii) the defendant did not take reasonable available measures to abate that risk, even though a reasonable 16 official in the circumstances would have appreciated the high degree of risk involved—making the 17 consequences of the defendant’s conduct obvious; and (iv) by not taking such measures, the defendant 18 caused the plaintiff’s injuries.” Gordon v. City of Orange, 888 F.3d 1118, 1125 (9th Cir. 2018), cert. 19 denied sub nom. Cty. of Orange, Cal. v. Gordon, 139 S.Ct. 794 (2019); Horton by Horton v. City of Santa 20 Maria, 915 F.3d 592, 602 (9th Cir. 2019). “With respect to the third element, the defendant’s conduct 21 must be objectively unreasonable, a test that will necessarily ‘turn[ ] on the facts and circumstances of 22 each particular case.’ ” Gordon, 888 F.3d at 1125 (quoting Castro v. Cty. of Los Angeles, 833 F.3d 1060, 23 1071 (9th Cir. 2016).) “ ‘[M]ere lack of due care by a state official’ does not deprive an individual of 24 life, liberty, or property under the Fourteenth Amendment.” Gordon, 888 F.3d at 1125. Therefore, the 25 plaintiff must “prove more than negligence but less than subjective intent—something akin to reckless 26 disregard.” Id. 27 /// 28 /// 1 After his injury, Plaintiff received x-rays which were negative. While Plaintiff alleges that he 2 requested to have an MRI and/or CT scan, he has failed to allege any facts that either doctor intentionally 3 denied his requests for medical care. Other than conclusory allegations that Drs. Wreston and Kamitiski 4 were his primary physicians and they denied his requests, there are no facts alleged by which the Court 5 can reasonably infer that Dr. Wreston, Dr. Kamitiski, and/or Does 1 through 5 objectively knew of 6 Plaintiff’s medical needs and made an intentional decision with respect to Plaintiff’s medical care. Iqbal, 7 556 U.S. at 678. Further, Plaintiff’s grievances attached to his amended complaint demonstrate that 8 Plaintiff continues to be evaluated and medication provided. (First Am. Compl. at pp. 15-16.)1 9 Accordingly, Plaintiff has failed to state a cognizable claim against Dr. Wreston, Dr. Kamitiski, or Does 10 1 through 5. 11 IV. 12 CONCLUSION AND RECOMMENDATION 13 Plaintiff’s first amended complaint fails to state a cognizable claim for relief. Plaintiff was 14 previously notified of the applicable legal standards and the deficiencies in his pleading, and despite 15 guidance from the Court, Plaintiff’s amended complaint is largely identical to the original complaint. 16 Based upon the allegations in Plaintiff’s original and first amended complaints, the Court is persuaded 17 that Plaintiff is unable to allege any additional facts that would support a claim for a due process 18 violation or access to the court, and further amendment would be futile. See Hartmann v. CDCR, 707 19 F.3d 1114, 1130 (9th Cir. 2013) (“A district court may deny leave to amend when amendment would be 20 futile.”) Based on the nature of the deficiencies at issue, the Court finds that further leave to amend is 21 not warranted. Lopez v. Smith, 203 F.3d 1122, 1130 (9th. Cir. 2000); Noll v. Carlson, 809 F.2d 1446- 22 1449 (9th Cir. 1987). 23 Accordingly, the Clerk of the Court is HEREBY DIRECTED to randomly assign a District 24 Judge to this action. 25 /// 26 27 1 References herein to page numbers are to the Court’s ECF pagination headers. 28 1 Further, for the reasons explained above, it is HEREBY RECOMMENDED that this action | 2 || dismissed for failure to state a cognizable claim for relief. 3 This Findings and Recommendation will be submitted to the United States District Judge 4 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within twenty-one (21) 5 || days after being served with this Findings and Recommendation, Plaintiff may file written objections 6 || with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 7 || Recommendation.” Plaintiff is advised that failure to file objections within the specified time may 8 || result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) 9 || (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 10 11 ||/IT IS SO ORDERED. Al fe 12 || Dated: _ September 18, 2019 OF 13 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28