(PC) Franklin v. Tate ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JEFFREY FRANKLIN, ) Case No. 1:19-cv-01170-AWI-SAB (PC) ) 12 Plaintiff, ) ) FINDINGS AND RECOMMENDATIONS 13 v. ) RECOMMENDING DISMISSAL OF CERTAIN CLAIMS ) 14 HAROLD TATE, et al., ) [ECF No. 16] 15 Defendants. ) ) 16 ) 17 Plaintiff Jeffrey Franklin is appearing pro se in this civil rights action pursuant to 42 U.S.C. § 18 1983. 19 Currently before the Court is Plaintiff’s third amended complaint, filed January 8, 2020. 20 I. 21 SCREENING REQUIREMENT 22 The Court is required to screen complaints brought by prisoners seeking relief against a 23 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 24 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 25 “frivolous or malicious,” that “fail[] to state a claim on which relief may be granted,” or that “seek[] 26 monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). 27 /// 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, 4 do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 5 550 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate that each defendant personally 6 participated in the deprivation of Plaintiff’s rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 7 2002). 8 Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally 9 construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121 10 (9th Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be facially plausible, 11 which requires sufficient factual detail to allow the Court to reasonably infer that each named 12 defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 13 572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant has acted unlawfully” is not 14 sufficient, and “facts that are ‘merely consistent with’ a defendant’s liability” falls short of satisfying 15 the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969. 16 II. 17 COMPLAINT ALLEGATIONS 18 The Court accepts Plaintiff’s allegations in the first amended complaint as true only for the 19 purpose of the sua sponte screening requirement under 28 U.S.C. § 1915. 20 Plaintiff names Doctor Harold Tate, Chief Physician Surgeon U. Baniga, Chief Medical 21 Executive S. Shiesha, Deputy Director J. Lewis, as Defendants. 22 On July 29, 2015 to August 7, 2015, while Plaintiff was at a legal visit with the class action 23 attorneys, he was told by custody staff to terminate the legal visit to attend his cancer therapy regimen. 24 Plaintiff told staff that the visit was critical and to allow him to proceed to the end before he was taken 25 for the cancer treatment. When Plaintiff continued with the legal visit, Defendant Dr. Tate called the 26 cancer center radiation oncologist, and falsely told the center that Plaintiff no longer wanted the 27 radiation treatment and to discontinue all future radiation therapy. As a result of Defendant Dr. Tate’s 28 action, Plaintiff missed numerous days of radiation treatment. 1 Plaintiff was told before he began radiation treatment that it was vital that all radiation 2 treatment appointments be fulfilled as well as all medication. This information was known by 3 Defendant Dr. Tate and the other named Defendants. 4 On July 31, 2015, Plaintiff filed an emergency medical appeal regarding the action taken by 5 Defendant Dr. Tate. Plaintiff stated that Dr. Tate’s action was done because Plaintiff was participating 6 in the class action civil lawsuit. Plaintiff also requested that he be assigned a different primary care 7 physician and that his cancer radiation treatment be reinstated. Plaintiff noted that this was the third 8 time since January 2015 that Defendant Dr. Tate interfered with his cancer treatment. Plaintiff’s 9 appeal was answered by Defendant Baniga who acknowledged that Dr. Tate did discontinue the 10 cancer treatment stating, “treatment you were getting since June 2015 and must continue to receive 11 until completion of the treatment plan.” Defendant Baniga granted Plaintiff’s request to reinstate the 12 radiation cancer treatment and medical care. However, Defendant Baniga denied providing Plaintiff a 13 new primary care physician. 14 Plaintiff appeal to the second level of review. Defendant Shiesha as Chief Medical Executive 15 reviewed Plaintiff’s medical records and had the authority to appoint a different primary care 16 physician, but did nothing to correct the misconduct by Dr. Tate. Defendant Shiesha knowingly 17 participated and supported the misconduct by Dr. Tate. 18 Plaintiff appeals the third and final level of review. On December 7, 2015, Defendant Lewis 19 issued a decision which did not address all of Plaintiff’s issues, namely, the request for a different 20 primary care physician. Defendant Lewis stated that Plaintiff “may not be selective in the choice of 21 PCP.” 22 On or about August 24, 2015, Plaintiff filed another medical appeal regarding the 23 discontinuance of the A&D ointment prescription, which was active from June 2015 to June 2016. 24 The A&D ointment was used to treat Plaintiff’s cracked and bloody skin. In August 2015, Defendant 25 Dr. Tate discontinued the A&D ointment for no medical reason. This took place several days after he 26 filed the July 31, 2015, appeal regarding Dr. Tate’s discontinuance of the radiation treatment. 27 /// 28 /// 1 2 III. 3 DISCUSSION 4 A. Deliberate Indifference to Serious Medical Need 5 While the Eighth Amendment of the United States Constitution entitles Plaintiff to medical 6 care, the Eighth Amendment is violated only when a prison official acts with deliberate indifference to 7 an inmate’s serious medical needs. Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012), overruled 8 in part on other grounds, Peralta v. Dillard, 744 F.3d 1076, 1082-83 (9th Cir. 2014); Wilhelm v. 9 Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012); Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). 10 Plaintiff “must show (1) a serious medical need by demonstrating that failure to treat [his] condition 11 could result in further significant injury or the unnecessary and wanton infliction of pain,” and (2) that 12 “the defendant’s response to the need was deliberately indifferent.” Wilhelm, 680 F.3d at 1122 (citing 13 Jett, 439 F.3d at 1096). Deliberate indifference is shown by “(a) a purposeful act or failure to respond 14 to a prisoner’s pain or possible medical need, and (b) harm caused by the indifference.” Wilhelm, 680 15 F.3d at 1122 (citing Jett, 439 F.3d at 1096). The requisite state of mind is one of subjective 16 recklessness, which entails more than ordinary lack of due care. Snow, 681 F.3d at 985 (citation and 17 quotation marks omitted); Wilhelm, 680 F.3d at 1122. In order to establish a claim of deliberate 18 indifference based on a delay in treatment, a plaintiff must show that the delay was harmful. See 19 Hallett v. Morgan, 296 F.3d 732, 745-46 (9th Cir. 2002); Berry v. Bunnell, 39 F.3d 1056, 1057 (9th 20 Cir. 1994). 21 “A difference of opinion between a physician and the prisoner - or between medical 22 professionals - concerning what medical care is appropriate does not amount to deliberate 23 indifference.” Snow, 681 F.3d at 987 (citing Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); 24 Wilhelm, 680 F.3d at 1122-23 (citing Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1986)). Rather, 25 Plaintiff “must show that the course of treatment the doctors chose was medically unacceptable under 26 the circumstances and that the defendants chose this course in conscious disregard of an excessive risk 27 to [his] health.” Snow, 681 F.3d at 988 (citing Jackson, 90 F.3d at 332) (internal quotation marks 28 omitted). In addition, mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this 1 cause of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle 2 v. Gamble, 429 U.S. 97, 105-06 (1976)). “Medical malpractice does not become a constitutional 3 violation merely because the victim is a prisoner.” Estelle, 429 U.S. at 106; Snow, 681 F.3d at 987- 4 88; Wilhelm, 680 F.3d at 1122 (“The deliberate indifference doctrine is limited in scope.”). 5 The prison grievance process does not confer any substantive rights upon inmates, and in 6 general, actions in reviewing and denying inmate appeals does not serve a basis for liability under 7 section 1983. Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988); Ramirez v. Galaza, 334 F.3d 850, 8 860 (9th Cir. 2003). However, if the grievance puts the official on notice of an ongoing constitutional 9 violation, the official may be liable for deliberate indifference when they knowingly fail to respond to 10 an inmate’s requests for help. See Jett v. Penner, 439 F.3d at 1098. 11 1. Radiation Treatment 12 Liberally construed, Plaintiff’s allegations state a cognizable claim against Defendant Dr. Tate 13 for deliberate indifference for the discontinuance of his radiation treatment because he was 14 participating in a civil action. However, Plaintiff fails to state a cognizable claim against Dr. Tate for 15 the discontinuance of certain medication in February 2015, as there are insufficient facts to support a 16 plausible inference of deliberate indifference. In addition, Plaintiff fails to state a cognizable claim 17 against Defendants Shiesha and Lewis for denial of radiation treatment because they reviewed 18 Plaintiff’s grievances after the violation took place and was remedied. See, e.g., Poulson v. Kirkegard, 19 No. CV-14-00043-H-DLC-JTJ, 2015 WL 5943207, at *5 (D. Mont. Mar. 16, 2015) (“If a 20 constitutional violation is complete, however, and a supervisory grievance reviewer is simply making 21 a determination on whether the prison should provide a remedy for a past violation, the supervisory 22 grievance reviewer has no part in causing the constitutional violation”); see also Ford v. Lewis, No. 23 16cv1126-LAB (BLM), 2016 WL 11281412, at *6 (S.D. Cal. Dec. 5, 2016) (same); Salas v. Nichols, 24 No. 17-cv-00663-JST, 2017 WL 2834061, at *6 (N.D. Cal. June 30, 2017) (prison grievance which 25 “only placed particular defendants on notice regarding alleged past constitutional violations, and not 26 ongoing constitutional violations” insufficient to give rise to claim for relief). To the extent Plaintiff 27 contends that these Defendants improperly denied his request to be assigned a new PCP, there was no 28 basis to appoint a new PCP as the radiation treatment was reinstated. In addition, the mere denial of 1 an inmate appeal for a past violation, does not give rise to a cognizable constitutional claim. 2 Accordingly, Plaintiff states a cognizable claim against Defendant Dr. Tate only for deliberate 3 indifference based on the discontinuance of his radiation treatment. 4 2. Prescription for A&D Ointment 5 Assuming Plaintiff’s allegations that due to his radiation treatment, he suffered painful 6 cracked, chapped and bleeding skin meets the objective component of a serious medical need, Plaintiff 7 has failed to demonstrate the subjective component of a claim for deliberate indifference. Plaintiff has 8 failed to demonstrate that any Defendant acted with deliberate indifferent to a substantial risk of 9 serious harm. Plaintiff alleges only that Dr. Tate “denied” him A&D ointment despite having 10 previously filed out the prescription. The mere denial of the ointment, without more, fails to 11 demonstrate that Dr. Tate acted deliberate indifference. See Snow v. McDaniel, 681 F.3d at 987 (“A 12 difference of opinion between a physician and the prisoner - or between medical professionals - 13 concerning what medical care is appropriate does not amount to deliberate indifference.”) Plaintiff 14 does not set forth how he requested the ointment, when he requested the ointment, what response, if 15 any, he received from Dr. Tate, or that Dr. Tate was aware of his need for the ointment after he 16 allegedly filed a grievance against him. Rather, Plaintiff merely alleges that Dr. Tate previously filled 17 out a prescription for the A&D ointment then denied it in retaliation for filing a grievance. Because 18 Plaintiff has not demonstrated deliberate indifference by Defendant Dr. Tate related to the denial of 19 the A&D ointment, his claims against the grievance reviewers also fail. 20 B. Retaliation 21 “Prisoners have a First Amendment right to file grievances against prison officials and to be free 22 from retaliation for doing so.” Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) (citing Brodheim 23 v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009)). “Within the prison context, a viable claim of First 24 Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some adverse 25 action against an inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) 26 chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably 27 advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). To 28 state a cognizable retaliation claim, Plaintiff must establish a nexus between the retaliatory act and the 1 protected activity. Grenning v. Klemme, 34 F.Supp.3d 1144, 1153 (E.D. Wash. 2014). 2 Based on Plaintiff’s allegations, Plaintiff states a cognizable claim for retaliation against 3 Defendant Dr. Tate for the discontinuance of his radiation treatment because he exercised his right to 4 participate in class action lawsuit. See Rizzo v. Dawson, 778 F.2d 527, 531-32 (9th Cir. 1985) 5 (finding assisting others with litigation and brining litigation is protected activity under the First 6 Amendment). 7 However, Plaintiff’s vague and conclusory claim that the denial of the ointment was because 8 Plaintiff filed the July 31, 2015, grievance fails to give rise to a cognizable claim of retaliation. 9 Plaintiff fails to demonstrate that the alleged action in denying him A&D ointment was motivated by 10 retaliation. Further, Plaintiff has failed to allege that Defendant Dr. Tate had knowledge of any 11 alleged grievance previously filed. Plaintiff’s mere speculation is insufficient to give rise to a claim 12 for retaliation. Accordingly, Plaintiff fails to state a cognizable retaliation claim for the denial of the 13 A&D ointment. 14 III. 15 CONCLUSION AND RECOMMENDATIONS 16 For the reasons discussed, the Court finds that Plaintiff has stated a cognizable claim for 17 retaliation for discontinuance of radiation treatment and deliberate indifference to a serious medical need 18 against Defendant Dr. Tate only. Plaintiff was previously notified of the applicable legal standards and 19 the deficiencies in his pleading, and despite guidance from the Court, Plaintiff’s third amended 20 complaint is largely identical to the previous complaints. Based upon the allegations in Plaintiff’s third 21 amended complaint, the Court is persuaded that Plaintiff is unable to allege any additional facts that 22 would support any other cognizable claims for relief, and further amendment would be futile. See 23 Hartmann v. CDCR, 707 F.3d 1114, 1130 (9th Cir. 2013) (“A district court may deny leave to amend 24 when amendment would be futile.”) Based on the nature of the deficiencies at issue, the Court finds 25 that further leave to amend is not warranted. Lopez v. Smith, 203 F.3d 1122, 1130 (9th. Cir. 2000); 26 Noll v. Carlson, 809 F.2d 1446-1449 (9th Cir. 1987). 27 /// 28 /// 1 Based on the foregoing, it is HEREBY RECOMMENDED that: 2 1. This action proceed on Plaintiff's retaliation and deliberate indifference against 3 Defendant Dr. Tate; and 4 2. All other claims and Defendants be dismissed from the action for failure to state a 5 cognizable claim for relief. 6 These Findings and Recommendations will be submitted to the United States District Judge 7 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within twenty-one (21) 8 || days after being served with these Findings and Recommendations, Plaintiff may file written 9 || objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 10 || Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 11 || specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838 12 39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 13 14 IS SO ORDERED. A (re 5 Dated: _ January 24, 2020 OF 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28