(PC) Ring v. Allenby ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ANDREW ARLINGTON RING, Case No. 1:18-cv-01283-NONE-JLT (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS 13 v. TO DISMISS ACTION FOR FAILURE TO STATE A COGNIZABLE CLAIM 14 C. ALLENBY, et al., 21-DAY DEADLINE 15 Defendants. 16 17 Plaintiff’s second amended complaint (Doc. 22) is before the Court for screening pursuant 18 to 28 U.S.C. § 1915A. For the reasons set forth below, the complaint fails to state a claim on 19 which relief can be granted. Because Plaintiff has received two prior opportunities to amend (see 20 Docs. 10, 14), and his pleading has the same deficiencies as prior complaints, the Court finds that 21 further amendment would be futile. See Akhtar v. Mesa, 698 F.3d 1202, 1212-13 (9th Cir. 2012). 22 The Court, therefore, recommends that this action be dismissed. 23 I. SCREENING REQUIREMENT 24 The Court is required to screen complaints brought by prisoners seeking relief against a 25 governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 26 The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 27 legally frivolous or malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b). The 1 Court should dismiss a complaint if it lacks a cognizable legal theory or fails to allege sufficient 2 facts to support a cognizable legal theory. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 3 699 (9th Cir. 1990). 4 II. PLEADING REQUIREMENTS 5 A. Federal Rule of Civil Procedure 8(a) 6 “Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited 7 exceptions.” Swierkiewicz v. Sorema N. A., 534 U.S. 506, 513 (2002). A complaint must contain 8 “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. 9 Civ. Pro. 8(a)(2). “Such a statement must simply give the defendant fair notice of what the 10 plaintiff's claim is and the grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512 (internal 11 quotation marks and citation omitted). 12 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a 13 cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 14 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must 15 set forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.’” 16 Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). Factual allegations are accepted as 17 true, but legal conclusions are not. Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). 18 The Court construes pleadings of pro se prisoners liberally and affords them the benefit of 19 any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citation omitted). However, “the 20 liberal pleading standard … applies only to a plaintiff’s factual allegations,” not his legal theories. 21 Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989). Furthermore, “a liberal interpretation of a civil 22 rights complaint may not supply essential elements of the claim that were not initially pled,” 23 Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (internal quotation 24 marks and citation omitted), and courts “are not required to indulge unwarranted inferences.” Doe 25 I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and 26 citation omitted). The “sheer possibility that a defendant has acted unlawfully” is not sufficient to 27 state a cognizable claim, and “facts that are merely consistent with a defendant’s liability” fall 1 B. Linkage and Causation 2 Section 1983 provides a cause of action for the violation of constitutional or other federal 3 rights by persons acting under color of state law. See 42 U.S.C. § 1983. To state a claim under 4 section 1983, a plaintiff must show a causal connection or link between the actions of the 5 defendants and the deprivation alleged to have been suffered by the plaintiff. See Rizzo v. Goode, 6 423 U.S. 362, 373-75 (1976). The Ninth Circuit has held that “[a] person ‘subjects’ another to the 7 deprivation of a constitutional right, within the meaning of section 1983, if he does an affirmative 8 act, participates in another’s affirmative acts, or omits to perform an act which he is legally 9 required to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 10 F.2d 740, 743 (9th Cir. 1978) (citation omitted). 11 III. DISCUSSION 12 A. Plaintiff’s Factual Allegations1 13 Mr. Ring is civilly detained at Coalinga State Hospital. (See Doc. 22 at 1-3.) On June 24, 14 2014, Plaintiff visited Dr. Newbarld due to problems with his eyesight. (Id. at 3.) Dr. Newbarld 15 referred Plaintiff to Dr. Garcia, an optometrist, who recommended that Plaintiff be tested for 16 glaucoma. (Id.) Plaintiff received the testing on September 23, 2014. (Id.) 17 After analyzing the test results, Dr. Hatwalker referred Plaintiff back to Dr. Garcia. (Id. at 18 4.) Plaintiff’s follow-up appointment was scheduled for December 23, 2014; however, “for 19 reason[s] unknown plaintiff was not seen again by Dr. Garcia until April 28[], 2015.” (Id.) 20 In 2016, Dr. Powers replaced Dr. Hatwalker as Plaintiff’s “unit doctor.” (Id.) Plaintiff 21 raised the problems regarding his eyesight with Dr. Powers “several times,” who replied, “that he 22 would look into it.” (Id.) 23 In 2017, Plaintiff was referred to Dr. Rasheed (id.), an eye surgeon at an outside hospital 24 (see id. at 2). Dr. Rasheed prescribed “special drops” for Plaintiff. (Id. at 5.) “[F]or reasons 25 unknown the order was never processed and … plaintiff did not receive the drops prescribed.” 26 (Id.) Dr. Powers prescribed different eye drops for Plaintiff. (See id. at 37.) 27 /// 1 Dr. Rasheed performed surgery on Plaintiff’s eye. (Id. at 5.) During the surgery, Plaintiff 2 “started feeling extreme pain, which he … stated … to Dr. Rasheed, who responded by simply 3 ordering plaintiff not to move.” (Id.) Plaintiff told Dr. Rasheed that “it felt like he was pulling on 4 the eye itself, but plaintiff[’s] complaints were … ignored.” (Id.) 5 After the surgery, Plaintiff visited Dr. Garcia, who told Plaintiff that Dr. Rasheed “had 6 tore his optic nerves.” (Id. at 6.) Plaintiff later told Dr. Powers that he wanted a second opinion 7 from a different surgeon, but Dr. Powers referred Plaintiff back to Dr. Rasheed. (Id.) Plaintiff 8 visited Dr. Rasheed on March 15, 2018, who told Plaintiff “that there was nothing he could do.” 9 (Id.) Plaintiff now suffers from blindness. (Id. at 3.) 10 Plaintiff sues Drs. Newbarld, Hatwalker, Powers, and Rasheed. (Doc. 1 at 1, 2-3.) Plaintiff 11 alleges the defendants denied or delayed proper medical care. (Id. at 3.) 12 B. Plaintiff’s Claim for Relief 13 To determine whether the conditions of confinement of civilly committed persons are 14 constitutionally adequate, courts look to the substantive due process component of the Fourteenth 15 Amendment. See Youngberg v. Romeo, 457 U.S. 307, 314-319 (1982); Jones v. Blanas, 393 F.3d 16 918, 931 (9th Cir. 2004). “Involuntarily committed patients in state mental health hospitals have a 17 … due process right to be provided safe conditions by the hospital administrators…. [W]hether a 18 hospital administrator has violated a patient’s constitutional rights is determined by whether the 19 administrator’s conduct diverges from that of a reasonable professional.” Mitchell v. Washington, 20 818 F.3d 436, 443 (9th Cir. 2016) (internal quotation marks and citation omitted). “[A] decision, 21 ‘if made by a professional,2 is presumptively valid; liability may be imposed only when the 22 decision by the professional is such a substantial departure from accepted professional judgment, 23 practice, or standards as to demonstrate that the person responsible actually did not base the 24 decision on such a judgment.’” Id. (quoting Youngberg, 457 U.S. 307 at 323). 25 “The Youngberg [professional judgment] standard differs from the ‘deliberate 26 indifference’ standard used in Eighth Amendment cruel and unusual punishment cases, in that 27 2 1 ‘[p]ersons who have been involuntarily committed are entitled to more considerate treatment and 2 conditions of confinement than criminals whose conditions of confinement are designed to 3 punish.’” Mitchell, 818 F.3d at 443 (quoting Youngberg, 457 U.S. at 321-22) (citation and 4 emphases omitted). The Youngberg standard is an objective standard, and it equates “to that 5 required in ordinary tort cases for a finding of conscious indifference amounting to gross 6 negligence.” Ammons v. Washington Dep’t of Soc. & Health Servs., 648 F.3d 1020, 1029 (9th Cir. 7 2011) (internal quotation marks and citations omitted). 8 “Conscious indifference,” though less severe than “deliberate indifference,” is “more 9 stringent than that required for a finding of negligence, which may be demonstrated by a 10 professional’s mere failure to exercise the level of care expected of other professionals in the 11 same field.” Estate of Conners by Meredith v. O'Connor, 846 F.2d 1205, 1208 (9th Cir. 1988). 12 Under the Youngberg standard, “‘the Constitution only requires that the courts make certain that 13 professional judgment in fact was exercised. It is not appropriate for the courts to specify which 14 of several professionally acceptable choices should have been made.’” Ray Robertson v. Contra 15 Costa Cty., No. 15-CV-02549-WHO, 2016 WL 4259135, at *4 (N.D. Cal. 2016) (quoting 16 Youngberg, 457 U.S. at 321). 17 Plaintiff alleges that he suffers from a debilitating medical condition. (Doc. 22 at 3.) 18 Under the stringent Youngberg standard, though, Plaintiff’s allegations do not establish a 19 cognizable constitutional claim. 20 With respect to Drs. Newbarld and Hatwalker, Plaintiff alleges that the doctors referred 21 Plaintiff to Dr. Garcia, an optometrist, after Plaintiff complained of his eyesight and showed signs 22 of glaucoma. (Doc. 22 at 3-4.) Plaintiff does not allege that the doctors committed any 23 misconduct. 24 With respect to Dr. Powers, Plaintiff alleges that the doctor (1) referred Plaintiff to Dr. 25 Rasheed, an eye surgeon, in 2017, (2) failed to order the specific eyedrops that Dr. Rasheed 26 prescribed pre-surgery, and (3) referred Plaintiff back to Dr. Rasheed post-surgery when he 27 requested a second opinion regarding his torn optic nerves. (See id. at 4-6, 37.) These allegations 1 professional judgment, practice, or standards as to demonstrate that [he] … did not base the 2 decision on such a judgment.” Youngberg, 457 U.S. 307 at 323. Dr. Powers’ failure to order the 3 specific eyedrops prescribed by Dr. Rasheed, at most, shows a difference in medical opinion. 4 However, a difference in opinion, without more, does not show that Dr. Powers was consciously 5 indifferent to Plaintiff’s medical needs. See Ray Robertson, 2016 WL 4259135, at *4. 6 With respect to Dr. Rasheed, Plaintiff alleges that, according to Dr. Garcia, the defendant 7 damaged his optic nerves while conducting surgery. (Doc. 22 at 5-6.) These allegations may state 8 a claim of medical negligence under state law. However, as explained in the Court’s second 9 screening order, mere negligence does not amount to gross negligence or conscious indifference. 10 (Doc. 14 at 8.) Moreover, Plaintiff’s allegations do not provide any basis to find that Dr. Rasheed, 11 a surgeon at an outside hospital, was acting under color of state law when he performed Plaintiff’s 12 surgery. As explained in the Court’s first screening order, “[t]his does not preclude Plaintiff from 13 proceeding against Dr. Rasheed for medical malpractice … under California law [in state court], 14 but it prohibits a claim against Dr. Rasheed” under 42 U.S.C. § 1983. (Doc. 10 at 10.) 15 IV. CONCLUSION AND RECOMMENDATION 16 For the reasons set forth above, Plaintiff’s second amended complaint (Doc. 22) fails to 17 state a claim on which relief can be granted. Given Plaintiff’s prior two opportunities to amend, 18 the Court finds that further amendment would be futile. See Akhtar v. Mesa, 698 F.3d 1202, 1212- 19 13 (9th Cir. 2012). Accordingly, the Court RECOMMENDS that this action be DISMISSED for 20 failure to state a cognizable claim. 21 These Findings and Recommendations will be submitted to the United States District 22 Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 21 days 23 of the date of service of these Findings and Recommendations, Plaintiff may file written 24 objections with the Court. The document should be captioned, “Objections to Magistrate Judge’s 25 Findings and Recommendations.” 26 /// 27 /// 1 Plaintiff’s failure to file objections within the specified time may result in waiver of his 2 rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 3 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 4 IT IS SO ORDERED. 5 6 Dated: June 29, 2020 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27