(PC) Uriel Garcia v. Powell ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 URIEL GARCIA, Case No. 1:19-cv-01631-JLT (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS ACTION FOR FAILURE TO 13 v. STATE A CLAIM 14 POWELL, et al., 21-DAY DEADLINE 15 Defendants. Clerk of the Court to Assign a District Judge 16 17 Uriel Garcia alleges the defendants denied him adequate medical care in violation of the 18 Eighth Amendment. (Doc. 11.) The Court finds that Plaintiff’s second amended complaint fails to 19 state a claim on which relief can be granted. Given that Plaintiff has received two opportunities to 20 amend (Docs. 7, 10), the Court finds that further amendment would be futile. See Akhtar v. Mesa, 21 698 F.3d 1202, 1212-13 (9th Cir. 2012). The Court therefore recommends that this action be 22 dismissed for failure to state a claim. 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 complaint is frivolous or malicious, 27 fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b). The Court should dismiss a complaint if 1 it lacks a cognizable legal theory or fails to allege sufficient facts to support a cognizable legal 2 theory. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 3 II. PLEADING REQUIREMENTS 4 A. Federal Rule of Civil Procedure 8(a) 5 “Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited 6 exceptions.” Swierkiewicz v. Sorema N. A., 534 U.S. 506, 513 (2002). A complaint must contain 7 “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. 8 Civ. P. 8(a)(2). “Such a statement must simply give the defendant fair notice of what the 9 plaintiff’s claim is and the grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512 (internal 10 quotation marks and citation omitted). 11 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a 12 cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 13 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiffs 14 must set forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its 15 face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). Factual allegations are 16 accepted as true, but legal conclusions are not. Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. 17 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. PLAINTIFF’S FACTUAL ALLEGATIONS1 12 Plaintiff alleges that he injured his finger during the first week of January 2019. (Doc. 11 13 at 3.) Though he showed his finger to Nurse Powell on multiple occasions, she only provided him 14 bandages to wrap it and told him he would be fine. (Id.) On January 22, 2019, Plaintiff saw Dr. 15 Kokor, who issued an “urgent medical treatment order.” (Id.) Thereafter, Plaintiff saw Nurse 16 Hurtado via telemedicine videoconference, who diagnosed Plaintiff with a fractured finger. (Id. at 17 4.) Plaintiff states that he was not scheduled for surgery at that time and instead “sent back to his 18 cell to suffer.” (Id. at 4-5.) Plaintiff saw Nurse Hurtado again on February 20, 2019. (Id. at 5.) At 19 that time, either Nurse Hurtado or Chief Medical Executive Godwin scheduled Plaintiff for 20 corrective surgery on February 27, 2019. (See id. at 3-4, 5.) Plaintiff alleges these defendants 21 violated state regulations by not scheduling the surgery within three days of Dr. Kokor’s order on 22 January 22. (Id. at 3, 5.) 23 Dr. Swafford performed corrective surgery on Plaintiff’s finger on February 27, 2019. (Id. 24 at 6.) Plaintiff states that the surgery caused him “nerve damage from [his] hand up to his neck” 25 and left his finger “crooked.” (Id.) Plaintiff alleges Dr. Swafford damaged both the previously 26 injured finger as well as the “small finger next to it.” (Id. at 6-7.) Nevertheless, Plaintiff continues 27 to be returned to the “malpracticing surgeon.” (Id. at 8.) 1 IV. DISCUSSION 2 “Prison officials violate the Eighth Amendment if they are ‘deliberate[ly] indifferen[t] to 3 [a prisoner’s] serious medical needs.’” Peralta v. Dillard, 744 F.3d 1076, 1081 (9th Cir. 2014) 4 (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). “This is true whether the indifference is 5 manifested by … doctors in their response to the prisoner’s needs or by … guards in intentionally 6 denying or delaying access to medical care.” Estelle, 429 U.S. at 104-05. “A medical need is 7 serious if failure to treat it will result in significant injury or the unnecessary and wanton 8 infliction of pain.” Peralta, 744 F.3d at 1081 (internal quotation marks and citations omitted). “A 9 prison official is deliberately indifferent to that need if he ‘knows of and disregards an excessive 10 risk to inmate health.’” Id. at 1082 (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). 11 The test for deliberate indifference is two-pronged and has objective and subjective 12 components. See Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012). To establish such a 13 claim, a prisoner must first “show a serious medical need by demonstrating that failure to treat 14 [the] prisoner’s condition could result in further significant injury or the unnecessary and wanton 15 infliction of pain. Second, the plaintiff must show the defendants’ response to the need was 16 deliberately indifferent.” Id. (internal quotation marks and citation omitted). 17 As to the first, objective prong, “[i]ndications that a plaintiff has a serious medical need 18 include ‘[t]he existence of an injury that a reasonable doctor or patient would find important and 19 worthy of comment or treatment; the presence of a medical condition that significantly affects an 20 individual’s daily activities; or the existence of chronic and substantial pain.’” Colwell v. 21 Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014) (citation omitted). 22 As to the second, subjective prong, deliberate indifference “describes a state of mind more 23 blameworthy than negligence” and “requires more than ordinary lack of due care for the 24 prisoner’s interests or safety.” Farmer v. Brennan, 511 U.S. 825, 835 (1994) (internal quotation 25 marks and citation omitted). Deliberate indifference exists where a prison official “knows that 26 [an] inmate[] face[s] a substantial risk of serious harm and disregards that risk by failing to take 27 reasonable measures to abate it.” Id. at 847. In medical cases, this requires showing, “(a) a 1 caused by the indifference.” Wilhelm, 680 F.3d at 1122 (citation omitted). “A prisoner need not 2 show his harm was substantial; however, such would provide additional support for the inmate’s 3 claim that the defendant was deliberately indifferent to his needs.” Jett v. Penner, 439 F.3d 1091, 4 1096 (9th Cir. 2006) (citation omitted). 5 “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 1060 6 (9th Cir. 2004). “Under this standard, the prison official must not only ‘be aware of facts from 7 which the inference could be drawn that a substantial risk of serious harm exists,’ but [he] ‘must 8 also draw the inference.’” Id. at 1057 (quoting Farmer, 511 U.S. at 837). “If a [prison official] 9 should have been aware of the risk, but was not, then the [official] has not violated the Eighth 10 Amendment, no matter how severe the risk.’” Id. (internal quotation marks and citation omitted). 11 Plaintiff’s fracture to his finger is an injury that a reasonable doctor would find worthy of 12 treatment; thus, it satisfies the first, objective prong. See Colwell, 763 F.3d at 1066. Plaintiff’s 13 allegations, however, do not satisfy the second, subjective prong. Plaintiff therefore does not state 14 a cognizable deliberate indifference claim. 15 With respect to Nurse Powell, Plaintiff alleges that, after showing his finger to the 16 defendant, she told him that he would be fine and provided him with bandages. (Doc. 11 at 3.) 17 These allegations fail to show that the nurse “drew the inference” that he was at a substantial risk 18 of serious harm, particularly since Plaintiff had not yet been diagnosed with a fracture. (See id. at 19 4). Furthermore, Plaintiff contends that the worsening of his finger’s condition and nerve damage 20 were caused by Dr. Swafford during surgery. (Id. at 6.) Thus, Plaintiff’s allegations do not show 21 that Powell’s failure to diagnose the fracture caused the injuries of which he complains. 22 With respect to Chief Medical Executive Godwin, Plaintiff alleges the defendant 23 scheduled corrective surgery for February 27, 2019. (Id. at 3-4.) Plaintiff contends that Godwin 24 should have scheduled the surgery sooner, given Dr. Kokor’s issuance of an “urgent medical 25 treatment order” on January 22, 2019. (See id.) Liberally construing these allegations, Plaintiff 26 shows, at most, a difference of medical opinion between Godwin and Kokor. Such difference of 27 opinion does not amount to deliberate indifference. Toguchi, 391 F.3d at 1059-60. Plaintiff’s 1 was “medically unacceptable” and done “in conscious disregard of an excessive risk to [his] 2 health.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (citations omitted). Furthermore, 3 the allegations also do not show that Godwin’s actions caused the injuries of which he complains. 4 With respect to Nurse Hurtado, Plaintiff alleges the nurse diagnosed him with a fracture 5 on January 22, 2019, but that she did not refer him for surgery until February 20, 2019, and did 6 not schedule him for the surgery until February 27, 2019. (Doc. 11 at 4-5). As with Godwin, these 7 allegations fail to show that Hurtado’s actions were medically unacceptable and done in disregard 8 of an excessive risk to his health. And, as with Godwin and Powell, the allegations fail to show 9 that Hurtado’s actions caused the injuries of which he complains. 10 Plaintiff also alleges that Godwin and Hurtado violated state regulations by not scheduling 11 him for surgery within 3 days of Dr. Kokor’s “urgent medical treatment order.” (Id. at 3, 5.) The 12 Court is unsure to which regulation Plaintiff is referring, and the Court is skeptical that a 13 regulation provides for such a specific timeframe with respect to surgeries without the input of 14 inmates’ treating health care providers. But even assuming that Plaintiff is correct, such violations 15 would not show that the defendants were deliberately indifferent. See Berreondo v. Akanno, No. 16 1:11-cv-00432-LJO, 2013 WL 5569913, at *13 (E.D. Cal. 2013) (“failure to comply with CDCR 17 regulations does not state a claim for deliberate indifference”); see also Cousins v. Lockyer, 568 18 F.3d 1063, 1070 (9th Cir. 2009) (“state departmental regulations do not establish a federal 19 constitutional violation”) (citations omitted). The allegations must show that the defendants were 20 aware of a significant risk to his health and disregarded that risk. Farmer, 511 U.S. at 847. 21 Plaintiff’s allegations do not make this showing. 22 Lastly, with respect to Dr. Swafford, Plaintiff alleges the defendant committed 23 malpractice while performing surgery on his finger, causing the finger’s condition to worsen, 24 injuring a second finger, and causing nerve damage. (Doc. 11 at 6-7.) These allegations may state 25 a claim of medical negligence under state law.2 A claim of medical negligence requires that a 26 medical professional deviate from the applicable standard of care. See Estate of Conners by 27 2 The Court does not decide the matter. Because Plaintiff does not state a cognizable claim under federal law, the 1 Meredith v. O'Connor, 846 F.2d 1205, 1208 (9th Cir. 1988). A claim of deliberate indifference 2 under the Eighth Amendment, on the other hand, requires a “purposeful act or failure to respond 3 to a prisoner’s … medical need.” Wilhelm, 680 F.3d at 1122. Plaintiff’s allegations against 4 Swafford do not meet the high standard of deliberate indifference. 5 V. CONCLUSION AND RECOMMENDATION 6 For the reasons set forth above, Plaintiff’s second amended complaint (Doc. 11) fails to 7 state a claim on which relief can be granted. Given that Plaintiff has received two opportunities to 8 amend, the Court finds that further amendment would be futile. See Akhtar v. Mesa, 698 F.3d 9 1202, 1212-13 (9th Cir. 2012). Accordingly, the Court DIRECTS the Clerk of the Court to assign 10 a district judge and RECOMMENDS that this action be dismissed for failure to state a claim. 11 These Findings and Recommendations will be submitted to the United States District 12 Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 21 days 13 of the date of service of these Findings and Recommendations, Plaintiff may file written 14 objections with the Court. The document should be captioned, “Objections to Magistrate Judge’s 15 Findings and Recommendations.” Plaintiff’s failure to file objections within the specified time 16 may result in waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 17 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 18 IT IS SO ORDERED. 19 20 Dated: December 31, 2020 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27