(PC) McDaniel v. Daniels ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 CLIFTON J. MCDANIEL, No. 2:20-cv-00895-TLN-CKD 11 Plaintiff, 12 v. ORDER 13 DANIELS, et al., 14 Defendants. 15 16 Plaintiff is a state prisoner proceeding pro se in this civil rights action filed pursuant to 42 17 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 18 U.S.C. § 636(b)(1). 19 Plaintiff requests leave to proceed in forma pauperis. As plaintiff has submitted a 20 declaration that makes the showing required by 28 U.S.C. § 1915(a), his request will be granted. 21 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 22 1914(a), 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the 23 initial partial filing fee from plaintiff’s trust account and forward it to the Clerk of the Court. 24 Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding 25 month’s income credited to plaintiff’s prison trust account. These payments will be forwarded by 26 the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s account 27 exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2). 28 1 I. Screening Standard 2 The court is required to screen complaints brought by prisoners seeking relief against a 3 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 4 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 5 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 6 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 7 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 8 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 9 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 10 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 11 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 12 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 13 Cir. 1989); Franklin, 745 F.2d at 1227. 14 In order to avoid dismissal for failure to state a claim a complaint must contain more than 15 “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause 16 of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, 17 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 18 statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim 19 upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A 20 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 21 the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. 22 at 678. When considering whether a complaint states a claim upon which relief can be granted, 23 the court must accept the allegations as true, Erickson v. Pardus, 551 U.S. 89, 93-94 (2007), and 24 construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 25 U.S. 232, 236 (1974). 26 II. Allegations in the Complaint 27 At all times relevant to the allegations in the complaint, plaintiff was an inmate in the 28 custody of the California Department of Corrections and Rehabilitation. Plaintiff was diagnosed 1 with Stage 4 lung cancer prior to his transfer to the California Institution for Men (“CIM”). At 2 that institution, he asked his primary care physician, Dr. Daniels, for a second medical opinion 3 concerning the treatment and prognosis of his medical condition. Dr. Daniels denied this request 4 and scheduled his third cycle of treatment. 5 On a subsequent unspecified date, plaintiff was transferred to Corcoran State Prison even 6 though his underlying medical condition and race made him more susceptible to contracting 7 Valley Fever. Plaintiff alleges that this transfer was retaliatory, but he does not identify the 8 individuals on the CIM Classification Committee who were responsible. 9 Plaintiff alleges that following his subsequent transfer to the California Medical Facility 10 (“CMF”), his primary care physician, Dr. Angie Hood-Medland, failed to order a consultation 11 with an oncologist in a timely fashion, did not order a full body CAT scan, let his pain and 12 chronic cancer medications expire, and did not order him a lower bunk. Plaintiff also alleges that 13 defendant nurses G. Dahal and Rayon withheld his chronic medications and even issued him false 14 disciplinary charges for asking for his medications. 15 By way of relief, plaintiff seeks injunctive relief in the form of a second medical opinion 16 as well as compensatory and punitive damages. 17 III. Legal Standards 18 A. Eighth Amendment Deliberate Indifference to a Serious Medical Need 19 Denial or delay of medical care for a prisoner’s serious medical needs may constitute a 20 violation of the prisoner’s Eighth and Fourteenth Amendment rights. Estelle v. Gamble, 429 U.S. 21 97, 104-05 (1976). An individual is liable for such a violation only when the individual is 22 deliberately indifferent to a prisoner’s serious medical needs. Id.; see Jett v. Penner, 439 F.3d 23 1091, 1096 (9th Cir. 2006); Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002); Lopez v. 24 Smith, 203 F.3d 1122, 1131-32 (9th Cir. 2000). 25 In the Ninth Circuit, the test for deliberate indifference consists of two parts. Jett, 439 26 F.3d at 1096, citing McGuckin v. Smith, 974 F.2d 1050 (9th Cir. 1991), overruled on other 27 grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc). First, the 28 plaintiff must show a “serious medical need” by demonstrating that “failure to treat a prisoner’s 1 condition could result in further significant injury or the ‘unnecessary and wanton infliction of 2 pain.’” Id., citing Estelle, 429 U.S. at 104. “Examples of serious medical needs include ‘[t]he 3 existence of an injury that a reasonable doctor or patient would find important and worthy of 4 comment or treatment; the presence of a medical condition that significantly affects an 5 individual’s daily activities; or the existence of chronic and substantial pain.’” Lopez, 203 F. 3d 6 at 1131-1132, citing McGuckin, 974 F.2d at 1059-60. 7 Second, the plaintiff must show the defendant’s response to the need was deliberately 8 indifferent. Jett, 439 F.3d at 1096. This second prong is satisfied by showing (a) a purposeful act 9 or failure to respond to a prisoner’s pain or possible medical need and (b) harm caused by the 10 indifference. Id. Under this standard, the prison official must not only “be aware of facts from 11 which the inference could be drawn that a substantial risk of serious harm exists,” but that person 12 “must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). This “subjective 13 approach” focuses only “on what a defendant’s mental attitude actually was.” Id. at 839. A 14 showing of merely negligent medical care is not enough to establish a constitutional violation. 15 Frost v. Agnos, 152 F.3d 1124, 1130 (9th Cir. 1998), citing Estelle, 429 U.S. at 105-106. A 16 difference of opinion about the proper course of treatment is not deliberate indifference, nor does 17 a dispute between a prisoner and prison officials over the necessity for or extent of medical 18 treatment amount to a constitutional violation. See, e.g., Toguchi v. Chung, 391 F.3d 1051, 1058 19 (9th Cir. 2004); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). Furthermore, mere delay of 20 medical treatment, “without more, is insufficient to state a claim of deliberate medical 21 indifference.” Shapley v. Nev. Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). 22 Where a prisoner alleges that delay of medical treatment evinces deliberate indifference, the 23 prisoner must show that the delay caused “significant harm and that Defendants should have 24 known this to be the case.” Hallett, 296 F.3d at 745-46; see McGuckin, 974 F.2d at 1060. 25 B. First Amendment Retaliation 26 Prison officials generally cannot retaliate against inmates for exercising First Amendment 27 rights. Rizzo v. Dawson, 778 F.2d 527, 531 (9th Cir. 1985). Because a prisoner’s First 28 Amendment rights are necessarily curtailed, however, a successful retaliation claim requires a 1 finding that “the prison authorities’ retaliatory action did not advance legitimate goals of the 2 correctional institution or was not tailored narrowly enough to achieve such goals.” Id. at 532. 3 The plaintiff bears the burden of pleading and proving the absence of legitimate correctional 4 goals for the conduct of which he complains. Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995). 5 Also, in order to state a claim for retaliation, plaintiff must point to facts indicating a causal 6 connection between the adverse action and the protected conduct. Watison v. Carter, 668 F.3d 7 1108, 1114 (9th Cir. 2012). 8 C. Disciplinary Actions 9 A prisoner has no constitutionally-guaranteed immunity from being falsely or wrongly 10 accused of conduct that may lead to disciplinary sanctions. See Sprouse v. Babcock, 870 F.2d 11 450, 452 (8th Cir. 1989). As long as a prisoner is afforded procedural due process in the 12 disciplinary hearing, allegations of a fabricated charge generally fail to state a claim under section 13 1983. See Hanrahan v. Lane, 747 F.2d 1137, 1140– 41 (7th Cir. 1984). An exception exists 14 when the fabrication of charges infringed on the inmate's substantive constitutional rights, such as 15 when false charges are made in retaliation for an inmate's exercise of a constitutionally protected 16 right. See Sprouse, 870 F.2d at 452 (holding that filing of a false disciplinary charge in retaliation 17 for a grievance filed by an inmate is actionable under section 1983). 18 IV. Analysis 19 The court has reviewed plaintiff’s complaint and, for the limited purposes of § 1915A 20 screening, finds that it states a potentially cognizable Eighth Amendment deliberate indifference 21 claim against defendant Hood-Medland based on allegations that she: 1) did not order 22 consultations with an oncologist in a timely fashion; 2) did not order a full body CAT scan; 3) let 23 plaintiff’s pain and cancer medications expire; and, 4) did not order plaintiff a lower bunk. 24 However, plaintiff has not stated a claim for relief against defendant Daniels for denying him a 25 second medical opinion. Defendant Daniels’ failure to obtain a second medical opinion does not 26 rise to the level of a constitutional violation. See Roberts v. Spalding, 783 F.2d 867, 870 (9th Cir. 27 1986) (finding that “[a] prison inmate has no independent constitutional right to outside medical 28 care additional and supplemental to the medical care provided by the prison staff within the 1 institution.”) (citations omitted). The allegations against defendant Daniels do not establish 2 deliberate indifference because plaintiff had already initiated the recommended treatment plan for 3 his lung cancer by the time he requested a second opinion. Plaintiff does not allege a cognizable 4 claim against defendants Dahal and Rayon who allegedly wrote false disciplinary reports about 5 plaintiff because there is no allegation that they were written in retaliation for plaintiff’s prior 6 grievances or other protected conduct. As alleged in the complaint, plaintiff also fails to state an 7 Eighth Amendment deliberate indifference claim against defendants Dahal and Rayon for 8 withholding his chronic medications because plaintiff does not specify when and how many times 9 this occurred or even what medication(s) they failed to provide him. Absent this specificity, 10 plaintiff’s allegations do not meet the requirement for a “short and plain statement of the claim 11 showing that the pleader is entitled to relief….” Fed. R. Civ. P. 8(a)(2). 12 Plaintiff may elect to proceed on the Eighth Amendment claim against defendant Hood- 13 Medland or, in the alternative, he may elect to amend his complaint to attempt to cure the 14 deficiencies identified in this order. See Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) 15 (en banc) (district courts must afford pro se litigants an opportunity to amend to correct any 16 deficiency in their complaints). If plaintiff chooses to proceed on the Eighth Amendment claim 17 found cognizable in this screening order, the court will construe this as a request to voluntarily 18 dismiss the remaining claim against defendants Daniels, Dahal, and Rayon pursuant to Rule 19 41(a)(1)(i) of the Federal Rules of Civil Procedure. 20 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions 21 complained of have resulted in a deprivation of plaintiff’s constitutional rights. See Ellis v. 22 Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, in his amended complaint, plaintiff must allege in 23 specific terms how each named defendant is involved. There can be no liability under 42 U.S.C. 24 § 1983 unless there is some affirmative link or connection between a defendant’s actions and the 25 claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976). Furthermore, vague and conclusory 26 allegations of official participation in civil rights violations are not sufficient. Ivey v. Board of 27 Regents, 673 F.2d 266, 268 (9th Cir. 1982). 28 Finally, plaintiff is informed that the court cannot refer to a prior pleading in order to 1 make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended 2 complaint be complete in itself without reference to any prior pleading. This is because, as a 3 general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 4 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no 5 longer serves any function in the case. Therefore, in an amended complaint, as in an original 6 complaint, each claim and the involvement of each defendant must be sufficiently alleged. 7 V. Plain Language Summary for Pro Se Party 8 The following information is meant to explain this order in plain English and is not 9 intended as legal advice. 10 Some of the allegations in the complaint state claims for relief against the defendants, and 11 some do not. You may choose to file an amended complaint to try to fix these problems. You 12 must decide if you want to (1) proceed immediately on the Eighth Amendment claims against 13 defendant Hood-Medland; or, (2) try to amend the complaint to fix the problems identified in this 14 order with respect to the other defendants. Once you decide, you must complete the attached 15 Notice of Election form by checking only one of the appropriate boxes and return it to the court. 16 Once the court receives the Notice of Election, it will issue an order telling you what you 17 need to do next (i.e. file an amended complaint or wait for the defendants to be served with a 18 copy of the complaint). If you do not return this Notice, the court will order service of the 19 complaint only on the claims found cognizable in this screening order and will recommend 20 dismissing the remaining claims. 21 In accordance with the above, IT IS HEREBY ORDERED that: 22 1. Plaintiff’s motions for leave to proceed in forma pauperis (ECF No. 5, 10) are granted. 23 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 24 is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 25 § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 26 California Department of Corrections and Rehabilitation filed concurrently herewith. 27 3. Plaintiff has the option to proceed immediately on the Eighth Amendment claims 28 against defendant Hood-Medland or plaintiff may choose to amend the complaint to fix the wOASe 2 PRIN INES MVOC to POO VOPLOPEeN FP OAyt 1 | deficiencies identified in this order with respect to the remaining defendants and claims. 2 4. Within 21 days from the date of this order, plaintiff shall complete and return the 3 | attached Notice of Election form notifying the court whether he wants to proceed on the screened 4 | complaint or whether he wants time to file a first amended complaint. 5 5. If plaintiff fails to return the attached Notice of Election within the time provided, the 6 | court will construe this failure as consent to dismiss the deficient claims and proceed only on the 7 | cognizable claims identified above. 8 || Dated: August 17, 2020 i; dp. | bie ? CAROLYN K. DELANEY : 10 UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 | 12/mcda0895.option.docx 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 CLIFTON J. MCDANIEL, 11 Plaintiff, No. 2:20-cv-00895-TLN-CKD 12 v. NOTICE OF ELECTION 13 DANIELS, et al., 14 Defendants. 15 16 Check only one option: 17 _____ Plaintiff wants to proceed immediately on the Eighth Amendment claims against 18 defendant Hood-Medland. Plaintiff voluntarily dismisses the remaining defendants; or, 19 _____ Plaintiff wants time to file a first amended complaint. 20 21 22 DATED: 23 24 25 ____________________ Plaintiff 26 27 28