(PC) Perkins v. Saipher ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CALVIN PERKINS, No. 2:19-CV-2096-TLN-CKD P 12 Plaintiff, 13 v. ORDER 14 MARSHALL SAIPHER, 15 Defendant. 16 17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights 18 action filed pursuant to 42 U.S.C. § 1983. On April 3, 2020, the court issued Findings and 19 Recommendations that plaintiff’s complaint be dismissed for failing to state a claim. The order 20 explained that plaintiff’s complaint was construed as a challenge to the conditions of his 21 confinement. Based on plaintiff’s objections, however, the court vacated its Findings and 22 Recommendations on April 29, 2020 and dismissed plaintiff’s complaint with leave to amend. 23 ECF No. 10. In so doing, the court provided plaintiff with the requisite legal standard for an 24 Eighth Amendment deliberate indifference claim. On May 4, 2020 plaintiff filed a first amended 25 complaint which is now before the court for screening.1 ECF No. 11. 26 ///// 27 1 The filing date was determined by using the prison mailbox rule. Houston v. Lack, 487 U.S. 28 266 (1988). 1 I. Screening Requirement 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 will independently dismiss a complaint or portion thereof if the prisoner has raised claims 5 that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be 6 granted, or that seek monetary relief from a defendant who is immune from such relief. 28 7 U.S.C. § 1915A(b)(1),(2). 8 II. Allegations in the First Amended Complaint 9 At all times relevant to the allegations in the complaint, plaintiff was an inmate at the 10 California Health Care Facility (“CHCF”). Since 2017, plaintiff has been issued orthopedic shoes 11 as a result of bunions on his big toes and diabetes. ECF No. 11 at 1. In approximately December 12 2018, his right orthopedic shoe developed a hole which affected plaintiff’s ability to walk. Id. 13 Plaintiff submitted a medical request form for a new pair of orthopedic shoes on January 4, 2019 14 as well as February 19, 2019. Id. at 3. On an unspecified date, plaintiff was seen by defendant 15 Marshall Saipher, M.D., who told him that he was not going to issue plaintiff a new pair of 16 orthopedic shoes because they were not medically necessary. Id. Plaintiff submitted a health care 17 grievance form on February 19, 2019. Id. Plaintiff was finally issued a new pair of orthopedic 18 shoes on June 25, 2019. Id. Plaintiff requests compensatory and punitive damages based on 19 defendant Saipher’s deliberate indifference to his serious medical need for orthopedic shoes. 20 III. Legal Standards 21 Denial or delay of medical care for a prisoner’s serious medical needs may constitute a 22 violation of the prisoner’s Eighth and Fourteenth Amendment rights. Estelle v. Gamble, 429 U.S. 23 97, 104-05 (1976). An individual is liable for such a violation only when the individual is 24 deliberately indifferent to a prisoner’s serious medical needs. Id.; see Jett v. Penner, 439 F.3d 25 1091, 1096 (9th Cir. 2006); Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002); Lopez v. 26 Smith, 203 F.3d 1122, 1131-32 (9th Cir. 2000). 27 In the Ninth Circuit, the test for deliberate indifference consists of two parts. Jett, 439 28 F.3d at 1096, citing McGuckin v. Smith, 974 F.2d 1050 (9th Cir. 1991), overruled on other 1 grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc). First, the 2 plaintiff must show a “serious medical need” by demonstrating that “failure to treat a prisoner’s 3 condition could result in further significant injury or the ‘unnecessary and wanton infliction of 4 pain.’” Id., citing Estelle, 429 U.S. at 104. “Examples of serious medical needs include ‘[t]he 5 existence of an injury that a reasonable doctor or patient would find important and worthy of 6 comment or treatment; the presence of a medical condition that significantly affects an 7 individual’s daily activities; or the existence of chronic and substantial pain.’” Lopez, 203 F. 3d 8 at 1131-1132, citing McGuckin, 974 F.2d at 1059-60. 9 Second, the plaintiff must show the defendant’s response to the need was deliberately 10 indifferent. Jett, 439 F.3d at 1096. This second prong is satisfied by showing (a) a purposeful act 11 or failure to respond to a prisoner’s pain or possible medical need and (b) harm caused by the 12 indifference. Id. Under this standard, the prison official must not only “be aware of facts from 13 which the inference could be drawn that a substantial risk of serious harm exists,” but that person 14 “must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). This “subjective 15 approach” focuses only “on what a defendant’s mental attitude actually was.” Id. at 839. A 16 showing of merely negligent medical care is not enough to establish a constitutional violation. 17 Frost v. Agnos, 152 F.3d 1124, 1130 (9th Cir. 1998), citing Estelle, 429 U.S. at 105-106. A 18 difference of opinion about the proper course of treatment is not deliberate indifference, nor does 19 a dispute between a prisoner and prison officials over the necessity for or extent of medical 20 treatment amount to a constitutional violation. See, e.g., Toguchi v. Chung, 391 F.3d 1051, 1058 21 (9th Cir. 2004); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). Furthermore, mere delay of 22 medical treatment, “without more, is insufficient to state a claim of deliberate medical 23 indifference.” Shapley v. Nev. Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). 24 Where a prisoner alleges that delay of medical treatment evinces deliberate indifference, the 25 prisoner must show that the delay caused “significant harm and that Defendants should have 26 known this to be the case.” Hallett, 296 F.3d at 745-46; see McGuckin, 974 F.2d at 1060. 27 IV. Analysis 28 The court has reviewed plaintiff’s first amended complaint and finds that it fails to state a 1 claim upon which relief can be granted under federal law. In this court’s April 29, 2020 2 screening order, plaintiff was advised of the legal standards governing Eighth Amendment 3 deliberate indifference claims. In particular, plaintiff was advised that mere delay of medical 4 treatment, “without more, is insufficient to state a claim of deliberate medical indifference.” 5 Shapley v. Nev. Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). The allegations 6 in plaintiff’s amended complaint demonstrate a maximum delay of five months between 7 plaintiff’s first request for, and his receipt of, a new pair of orthopedic shoes. It is not clear from 8 the amended complaint when defendant Saipher refused to provide plaintiff the orthopedic shoes, 9 but, even assuming that this occurred in January 2019, such a delay does not rise to the level of an 10 Eighth Amendment violation. Accordingly, plaintiff’s first amended complaint will be dismissed 11 for failing to state a claim upon which relief can be granted. 12 V. Leave to Amend 13 If the court finds that a complaint or claim should be dismissed for failure to state a claim, 14 the court has discretion to dismiss with or without leave to amend. Leave to amend should be 15 granted if it appears possible that the defects in the complaint could be corrected, especially if a 16 plaintiff is pro se. Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc); Cato v. 17 United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (“A pro se litigant must be given leave to 18 amend his or her complaint, and some notice of its deficiencies, unless it is absolutely clear that 19 the deficiencies of the complaint could not be cured by amendment.” (citation omitted). 20 However, if, after careful consideration, it is clear that a claim cannot be cured by amendment, 21 the Court may dismiss without leave to amend. Cato, 70 F.3d at 1105-06. It appears that plaintiff 22 may not have received the court’s April 29, 2020 order containing the specific Eighth 23 Amendment deliberate indifference standard before he filed his amended complaint. Therefore, 24 out of an abundance of caution and in light of plaintiff’s pro se status, the court will grant him one 25 last opportunity to amend his complaint. 26 VI. Plain Language Summary for Pro Se Party 27 The following information is meant to explain this order in plain English and is not 28 intended as legal advice. wOAOe 2 □□ IY PRIN INES MVOC tw POO Vee TOY VI 1 Your amended complaint is being dismissed because it fails to state any cognizable claim 2 | for relief. Because you may not have received the court’s April 29, 2020 order containing the 3 | Eighth Amendment deliberate indifference standard before you filed the amended complaint, you 4 | are being given one last opportunity to file a second amended complaint. If you choose to do so, 5 | pay careful attention to the legal standards explained in this order. 6 In accordance with the above, IT IS HEREBY ORDERED that: 7 1. Plaintiffs first amended complaint is dismissed with leave to amend. 8 2. Within 30 days from the date of service of this order, plaintiff may file a second 9 amended complaint that complies with the requirements of the Civil Rights Act, the 10 Federal Rules of Civil Procedure, and the Local Rules of Practice. The second 11 amended complaint must bear the docket number assigned this case and must be 12 labeled “Second Amended Complaint.” Failure to file an amended complaint in 13 accordance with this order will result in a recommendation that this action be 14 dismissed. 15 || Dated: September 28, 2020 CA rd ht / {o— 16 CAROLYN K.DELANEY 17 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 | 12/perk2096.screen.docx 24 25 26 27 28