(PC) Wilhelm v. Aung ( 2020 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 STEVE WILHELM, No. 2:20-CV-01682-DMC-P 12 Plaintiff, 13 v. ORDER 14 SANDARD AUNG, et al., 15 Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 42 U.S.C. § 1983. Pending before the Court is Plaintiff’s original complaint. See ECF No. 1. 19 The Court is required to screen complaints brought by prisoners seeking relief 20 against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 21 § 1915A(a). The Court must dismiss a complaint or portion thereof if it: (1) is frivolous or 22 malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief 23 from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover, 24 the Federal Rules of Civil Procedure require that complaints contain a “. . . short and plain 25 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This 26 means that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d 27 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the 28 complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon which it 1 rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because Plaintiff must allege 2 with at least some degree of particularity overt acts by specific defendants which support the 3 claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is 4 impossible for the Court to conduct the screening required by law when the allegations are vague 5 and conclusory. 6 7 I. PLAINTIFF’S ALLEGATIONS 8 Plaintiff is a 70-year-old prisoner incarcerated at Mule Creek State Prison 9 (“MCSP”). ECF No. 1 at 1. Defendants, Dr. Sandar Aung and Dr. W. Vaughn, are medical 10 doctors at MCSP. Id. at 2. Plaintiff alleges that Dr. Aung and Dr. Vaughn showed deliberate 11 indifference to his serious medical needs in violation of the Eighth Amendment to the United 12 States Constitution. Id. at 3–5. 13 Plaintiff contends that he had several medical appointments with Dr. Aung from 14 May 2018 to December 2019, all of which primarily concerned foot pain. Id. at 3. At each 15 appointment, Plaintiff complained of foot pain brought on by ill-fitting, state-issued boots that he 16 was required to wear to work in MCSP’s vocational programs. Id. Plaintiff complained to Dr. 17 Aung that the inadequate boots were two sizes too wide, caused painful lumps on his heels, and 18 exacerbated underlying degenerative disease of the spine and arthritis in his back. Id. at 4. Dr. 19 Aung denied Plaintiff’s written request to see a podiatrist. Id. And although Dr. Aung scheduled 20 Plaintiff an appointment with a podiatrist after Plaintiff complained of foot problems to a prison 21 nurse, Dr. Aung subsequently cancelled the appointment and would only prescribe pain 22 medication that did not resolve Plaintiff’s condition. Id. at 3–4. 23 Dr. Aung, on multiple occasions, recommended that Plaintiff buy lifts or soft shoes 24 from the inmate package catalogue. Id. But Plaintiff always explained to her that lifts are not 25 available for purchase in the catalogue and that he could not wear soft shoes because he was 26 required to wear boots to continue working his assignments to MCSP’s welding and maintenance 27 vocational programs. Id. Because of Dr. Aung’s failure to schedule Plaintiff an appointment with 28 a podiatrist or adequately address his foot pain, Plaintiff dropped out of the welding and 1 maintenance programs because both required him to stand on his feet all day and he could not 2 tolerate the pain. ECF No. 1 at 3-4. Plaintiff’s foot pain accordingly went unresolved and he 3 contends that Dr. Aung was deliberately indifferent by ignoring his serious and enduring medical 4 condition. Id. 5 Plaintiff further alleges that Dr. Vaughn, MCSP’s Chief Physician and Surgeon, 6 also exhibited deliberate indifference to Plaintiff’s serious medical need by denying Plaintiff’s 7 appeal of Dr. Aung’s decisions. Id. 8 9 II. DISCUSSION 10 Plaintiff’s complaint is sufficient to state a claim against Dr. Aung for deliberate 11 indifference to Plaintiff’s serious medical needs. Plaintiff does not, however, make sufficient 12 factual allegations to state a cognizable claim against Dr. Vaughn. The Court will provide 13 Plaintiff an opportunity to amend his complaint. 14 The treatment a prisoner receives in prison and the conditions under which the 15 prisoner is confined are subject to scrutiny under the Eighth Amendment, which prohibits cruel 16 and unusual punishment. See Helling v. McKinney, 509 U.S. 25, 31 (1993); Farmer v. Brennan, 17 511 U.S. 825, 832 (1994). The Eighth Amendment “embodies broad and idealistic concepts of 18 dignity, civilized standards, humanity, and decency.” Estelle v. Gamble, 429 U.S. 97, 102 19 (1976). Conditions of confinement may, however, be harsh and restrictive. See Rhodes v. 20 Chapman, 452 U.S. 337, 347 (1981). Nonetheless, prison officials must provide prisoners with 21 “food, clothing, shelter, sanitation, medical care, and personal safety.” Toussaint v. McCarthy, 22 801 F.2d 1080, 1107 (9th Cir. 1986). A prison official violates the Eighth Amendment only when 23 two requirements are met: (1) objectively, the official’s act or omission must be so serious such 24 that it results in the denial of the minimal civilized measure of life’s necessities; and (2) 25 subjectively, the prison official must have acted unnecessarily and wantonly for the purpose of 26 inflicting harm. See Farmer, 511 U.S. at 834. Thus, to violate the Eighth Amendment, a prison 27 official must have a “sufficiently culpable mind.” See id. 28 / / / 1 Deliberate indifference to a prisoner’s serious illness or injury, or risks of serious 2 injury or illness, gives rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at 105; 3 see also Farmer, 511 U.S. at 837. This applies to physical as well as dental and mental health 4 needs. See Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982). An injury or illness is 5 sufficiently serious if the failure to treat a prisoner’s condition could result in further significant 6 injury or the “unnecessary and wanton infliction of pain.” McGuckin v. Smith, 974 F.2d 1050, 7 1059 (9th Cir. 1992); see also Doty v. County of Lassen, 37 F.3d 540, 546 (9th Cir. 1994). 8 Factors indicating seriousness are: (1) whether a reasonable doctor would think that the condition 9 is worthy of comment; (2) whether the condition significantly impacts the prisoner’s daily 10 activities; and (3) whether the condition is chronic and accompanied by substantial pain. See 11 Lopez v. Smith, 203 F.3d 1122, 1131-32 (9th Cir. 2000) (en banc). 12 The requirement of deliberate indifference is less stringent in medical needs cases 13 than in other Eighth Amendment contexts because the responsibility to provide inmates with 14 medical care does not generally conflict with competing penological concerns. See McGuckin, 15 974 F.2d at 1060. Thus, deference need not be given to the judgment of prison officials as to 16 decisions concerning medical needs. See Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir. 17 1989). The complete denial of medical attention may constitute deliberate indifference. See 18 Toussaint v. McCarthy, 801 F.2d 1080, 1111 (9th Cir. 1986). Delay in providing medical 19 treatment, or interference with medical treatment, may also constitute deliberate indifference. See 20 Lopez, 203 F.3d at 1131. Where delay is alleged, however, the prisoner must also demonstrate 21 that the delay led to further injury. See McGuckin, 974 F.2d at 1060. 22 Negligence in diagnosing or treating a medical condition does not, however, give 23 rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at 106. Moreover, a 24 difference of opinion between the prisoner and medical providers concerning the appropriate 25 course of treatment does not give rise to an Eighth Amendment claim. See Jackson v. McIntosh, 26 90 F.3d 330, 332 (9th Cir. 1996). 27 / / / 28 / / / 1 Plaintiff’s allegations against Dr. Aung satisfy the screening process. To her 2 credit, Dr. Aung ostensibly followed up on Plaintiff’s requests for consultations and prescribed 3 him with pain medication. Her alleged failure, nevertheless, to address Plaintiff’s ongoing foot 4 pain, and Plaintiff’s lack of alternative recourse, is at least enough to meet the less stringent 5 deliberate indifference standard in medical needs contexts. Plaintiff complained on multiple 6 occasions about ill-fitting, state-provided boots, significant foot pain, and lumps on his heels that 7 exacerbated serious underlying degenerative ailments and made it difficult to fulfill his vocational 8 duties. Yet, Dr. Aung regularly gave Plaintiff advice that she had reason to know was not 9 suitable for Plaintiff’s case; Plaintiff routinely told Dr. Aung that he did not have access to lifts 10 and could not wear softer shoes and continue in the welding or maintenance programs. Taking 11 Plaintiff’s allegations as true, a reasonable doctor would likely have thought Plaintiff’s plain 12 worthy of further comment. Plaintiff’s pain is allegedly chronic and substantial, and Dr. Aung’s 13 failure to investigate it beyond prescribing ineffective pain medication significantly impacted 14 Plaintiff’s daily quality of life, forcing him to drop out of his vocational programs when he could 15 no longer tolerate the pain of having to be on his feet. Dr. Aung’s alleged disregard of Plaintiff’s 16 inability to follow her advice, combined with her refusal to schedule and then ultimate 17 cancellation of an appointment for Plaintiff with a podiatrist, suggests a failure to treat that 18 resulted in unnecessary, wanton infliction of pain and aggravation of other serious ailments. 19 Plaintiff’s allegations against Dr. Vaughn, however, do not state a cognizable 20 claim for deliberate indifference to serious medical needs contrary to the Eighth Amendment. 21 Prisoners do have a First Amendment right to petition the government for redress of grievances, 22 so interference with the grievance process may, in certain circumstances, implicate the First 23 Amendment. See Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2005); Bradley v. Hall, 64 24 F.3d 1276, 1279 (9th Cir. 1995). But there are no constitutional requirements regarding how a 25 grievance system is operated; the prison grievance procedure does not confer any substantive 26 rights upon inmates and actions in reviewing appeals cannot serve as a basis for liability under 27 section 1983. See, e.g., Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003); Buckley v. 28 Barlow, 997 F.2d 494, 495 (8th Cir. 1993). The denial, rejection, or cancellation of a grievance 1 does not violate any constitutionally protected right. See, e.g., Armenta v. Burns, No. 1:20-cv- 2 00968-BAM (PC), 2020 WL 5816499, at *3 (E.D. Cal. Sept. 30, 2020); Rushdan v. Gear, No. 3 1:16-cv-01017-BAM (PC), 2018 WL 2229259, at *6 (E.D. Cal. May 16, 2018). 4 Simply linking Dr. Vaughn to the denial of an administrative appeal and making 5 conclusory allegations that he was deliberately indifferent to a serious medical need in denying 6 the appeal does not plausibly demonstrate that he violated the Eighth Amendment. Plaintiff’s 7 complaint contains no grounds indicating that Dr. Vaughn’s denial of Plaintiff’s appeal was 8 anything more than an administrative decision. Without more, Dr. Vaughn’s alleged actions do 9 not violate the Eighth Amendment. Because additional factual allegations might give rise to a 10 cognizable claim, however, amendment is appropriate. 11 12 III. CONCLUSION 13 Because it is possible that the deficiencies identified in this order may be cured by 14 amending the complaint, Plaintiff is entitled to leave to amend. See Lopez v. Smith, 203 F.3d 15 1122, 1126, 1131 (9th Cir. 2000) (en banc). Plaintiff is informed that, as a general rule, an 16 amended complaint supersedes the original complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 17 1262 (9th Cir. 1992). Therefore, if Plaintiff amends the complaint, the Court cannot refer to the 18 prior pleading in order to make Plaintiff's amended complaint complete. See Local Rule 220. An 19 amended complaint must be complete in itself without reference to any prior pleading. See id. 20 If Plaintiff chooses to amend the complaint, Plaintiff must demonstrate how the 21 conditions complained of have resulted in a deprivation of Plaintiff’s constitutional rights. See 22 Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms how 23 each named defendant is involved, and must set forth some affirmative link or connection 24 between each defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d 25 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 26 / / / 27 / / / 28 / / / 1 Because the complaint appears to otherwise state cognizable claims, if no amended 2 | complaint is filed within the time allowed therefor, the Court will issue findings and 3 || recommendations that the claims identified herein as defective be dismissed, as well as such 4 | further orders as are necessary for service of process as to the cognizable claims. 5 Accordingly, IT IS HEREBY ORDERED that Plaintiff may file a first amended 6 | complaint within 30 days of the date of service of this order. 4 8 9 | Dated: November 2, 2020 Ssvcqo_ 10 DENNIS M. COTA 11 UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28