(PC) Ruiz v. Bodukam ( 2019 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROGELIO MAY RUIZ, No. 2:19-CV-0146-TLN-DMC-P 12 Plaintiff, 13 v. FINDINGS AND RECCOMMENDATIONS 14 VIJAY BODUKAM, 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 defendants’ unopposed motion to dismiss. (ECF 19 No. 15). 20 21 I. PLAINTIFF’S ALLEGATIONS 22 Plaintiff Rogelio May Ruiz is currently an inmate at California State Prison (CSP) 23 in Represa, CA. See ECF No. 1, pg. 1. Plaintiff names the following as defendants: (1) Vijay 24 Bodukam, (2) Bright, (3) S. Gates, and (4) J. Lewis. Id. at 2. The Court notes that the complaint 25 contains multiple exhibits written in Spanish, as well as sentences which are difficult to interpret. 26 The following is this Court’s understanding of the allegations set forth by plaintiff. 27 /// 28 /// 1 Request for Orthopedic Shoes and Pain Relief 2 Plaintiff submitted multiple requests to defendant Dr. Vijay Bodukam for 3 orthopedic shoes. See ECF No. 1, pg. 3. Plaintiff alleges that in 2014, Dr. Robert Scharffenberg, a 4 non-party, had ordered a permanent “chrono” for plaintiff to have orthopedic shoes. Id. Plaintiff 5 requires these shoes because of pain related to his ankles, hips, and the uneven length of his legs. 6 Id. He claims to not be able to stand on his feet for more than two hours a day without them. Id. 7 After an X-ray was conducted, Bodukam allegedly denied plaintiff’s requests for orthopedic 8 shoes because he believed they were not medically necessary. Id. A non-party radiologist named 9 Mr. Jojo told plaintiff, “Ruiz you have a piece of bone…”, apparently meaning to say that 10 plaintiff had medical issues which needed addressing. Id. Bodukam showed plaintiff a copy of the 11 results and told him that he was “good.” Id. Plaintiff disagrees with Bodukam and calls him a 12 “liar”, but it is unclear from the complaint what plaintiff alleges Bodukam lied about. Id. 13 Plaintiff was given Tylenol or ibuprofen, but the medication apparently did not 14 alleviate his pain and instead caused him nausea. See ECF No. 1, pg. 4. On March 3, 2017, 15 plaintiff submitted a health care appeal for orthopedic shoes. Id. On May 17, 2017, a Reasonable 16 Accommodation Request Panel, including defendant Bright, denied plaintiff’s request for 17 orthopedic shoes and a renewal of his morphine treatment for pain. Id. at 20. The Panel denied the 18 request because, at the time, plaintiff was transferred to Corcoran State Prison. Id. On December 19 5, 2017, defendant’s request for orthopedic shoes was denied by defendant Deputy Director J. 20 Lewis. See ECF No. 1, pg. 14. In his denial, Lewis cited what appears to be Bright’s evaluation 21 and finding that there was “no medical indication for orthotics at this time.” Id; See also ECF No. 22 1, pg. 4. Plaintiff also submitted a request for an MRI scan, but that too was denied. Id. at 4. 23 Request for MRI Scan 24 On July 3, 2018 plaintiff submitted another request for an MRI scan. See ECF No. 25 1, pg. 5. Plaintiff’s allegation here is difficult to understand, but it appears he requested this scan 26 to assess the damage of a previous “at[t]ack” that he endured on February 19, 2016. Id. This 27 attack resulted in plaintiff suffering from a broken nose, and damage to his shoulders, hands, and 28 fingers. Id. This request was denied by doctors R. Dhillon and S. Gates and they instead ordered 1 X-ray scans1 for plaintiff. Id. However, plaintiff claims that they refuse to grant him the X-ray 2 “film photos.” Id. 3 4 II. STANDARD OF REVIEW 5 In considering a motion to dismiss, the court must accept all allegations of material 6 fact in the complaint as true. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). The court must 7 also construe the alleged facts in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 8 416 U.S. 232, 236 (1974); see also Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 9 (1976); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam). All ambiguities or 10 doubts must also be resolved in the plaintiff's favor. See Jenkins v. McKeithen, 395 U.S. 411, 11 421 (1969). However, legally conclusory statements, not supported by actual factual allegations, 12 need not be accepted. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009). In addition, pro se 13 pleadings are held to a less stringent standard than those drafted by lawyers. See Haines v. 14 Kerner, 404 U.S. 519, 520 (1972). 15 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement 16 of the claim showing that the pleader is entitled to relief” in order to “give the defendant fair 17 notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp v. Twombly, 18 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, in order 19 to survive dismissal for failure to state a claim under Rule 12(b)(6), a complaint must contain 20 more than “a formulaic recitation of the elements of a cause of action;” it must contain factual 21 allegations sufficient “to raise a right to relief above the speculative level.” Id. at 555-56. The 22 complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Id. at 23 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the 24 court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 25 Iqbal, 129 S. Ct. at 1949. “The plausibility standard is not akin to a ‘probability requirement,’ but 26 it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting 27 1 Plaintiff’s complaint is hand-written, and it is unclear whether he alleges that Drs. Dhillon and 28 Gates ordered one or two X-ray scans. 1 Twombly, 550 U.S. at 556). “Where a complaint pleads facts that are ‘merely consistent with’ a 2 defendant’s liability, it ‘stops short of the line between possibility and plausibility for entitlement 3 to relief.” Id. (quoting Twombly, 550 U.S. at 557). 4 In deciding a Rule 12(b)(6) motion, the court generally may not consider materials 5 outside the complaint and pleadings. See Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998); 6 Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). The court may, however, consider: (1) 7 documents whose contents are alleged in or attached to the complaint and whose authenticity no 8 party questions, see Branch, 14 F.3d at 454; (2) documents whose authenticity is not in question, 9 and upon which the complaint necessarily relies, but which are not attached to the complaint, see 10 Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001); and (3) documents and materials 11 of which the court may take judicial notice, see Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 12 1994). 13 Finally, leave to amend must be granted “[u]nless it is absolutely clear that no 14 amendment can cure the defects.” Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per 15 curiam); see also Lopez v. Smith, 203 F.3d 1122, 1126 (9th Cir. 2000) (en banc). 16 17 III. DISCUSSION 18 In their unopposed motion to dismiss, defendants argue plaintiff’s complaint fails 19 to state any cognizable 8th Amendment claims. For the reasons discussed below, the court 20 agrees. 21 The treatment a prisoner receives in prison and the conditions under which the 22 prisoner is confined are subject to scrutiny under the Eighth Amendment, which prohibits cruel 23 and unusual punishment. See Helling v. McKinney, 509 U.S. 25, 31 (1993); Farmer v. Brennan, 24 511 U.S. 825, 832 (1994). The Eighth Amendment “. . . embodies broad and idealistic concepts 25 of dignity, civilized standards, humanity, and decency.” Estelle v. Gamble, 429 U.S. 97, 102 26 (1976). Conditions of confinement may, however, be harsh and restrictive. See Rhodes v. 27 Chapman, 452 U.S. 337, 347 (1981). Nonetheless, prison officials must provide prisoners with 28 “food, clothing, shelter, sanitation, medical care, and personal safety.” Toussaint v. McCarthy, 1 801 F.2d 1080, 1107 (9th Cir. 1986). A prison official violates the Eighth Amendment only when 2 two requirements are met: (1) objectively, the official’s act or omission must be so serious such 3 that it results in the denial of the minimal civilized measure of life’s necessities; and (2) 4 subjectively, the prison official must have acted unnecessarily and wantonly for the purpose of 5 inflicting harm. See Farmer, 511 U.S. at 834. Thus, to violate the Eighth Amendment, a prison 6 official must have a “sufficiently culpable mind.” See id. 7 Deliberate indifference to a prisoner’s serious illness or injury, or risks of serious 8 injury or illness, gives rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at 105; 9 see also Farmer, 511 U.S. at 837. This applies to physical as well as dental and mental health 10 needs. See Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982), abrogated on other grounds by 11 Sandin v. Conner, 515 U.S. 472 (1995). An injury or illness is sufficiently serious if the failure to 12 treat a prisoner’s condition could result in further significant injury or the “. . . unnecessary and 13 wanton infliction of pain.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled 14 on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc); see 15 also Doty v. County of Lassen, 37 F.3d 540, 546 (9th Cir. 1994). Factors indicating seriousness 16 are: (1) whether a reasonable doctor would think that the condition is worthy of comment; (2) 17 whether the condition significantly impacts the prisoner’s daily activities; and (3) whether the 18 condition is chronic and accompanied by substantial pain. See Lopez v. Smith, 203 F.3d 1122, 19 1131-32 (9th Cir. 2000) (en banc). 20 The requirement of deliberate indifference is less stringent in medical needs cases 21 than in other Eighth Amendment contexts because the responsibility to provide inmates with 22 medical care does not generally conflict with competing penological concerns. See McGuckin, 23 974 F.2d at 1060. Thus, deference need not be given to the judgment of prison officials as to 24 decisions concerning medical needs. See Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir. 25 1989). The complete denial of medical attention may constitute deliberate indifference. See 26 Toussaint v. McCarthy, 801 F.2d 1080, 1111 (9th Cir. 1986). Delay in providing medical 27 treatment, or interference with medical treatment, may also constitute deliberate indifference. See 28 Lopez, 203 F.3d at 1131. Where delay is alleged, however, the prisoner must also demonstrate 1 that the delay led to further injury. See McGuckin, 974 F.2d at 1060. 2 Negligence in diagnosing or treating a medical condition does not, however, give 3 rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at 106. Moreover, a 4 difference of opinion between the prisoner and medical providers concerning the appropriate 5 course of treatment does not give rise to an Eighth Amendment claim. See Jackson v. McIntosh, 6 90 F.3d 330, 332 (9th Cir. 1996). 7 A. Request for Orthopedic Shoes and Pain Relief 8 1. Defendant Vijay Bodukam 9 Here, plaintiff has failed to state a valid 8th amendment claim against defendant 10 Bodukam. 11 Plaintiff claims that Bodukam deprived him of his constitutional rights by refusing 12 to grant him an accommodation in the form of orthopedic shoes. See ECF No. 1, pg. 3. However, 13 it appears that this denial ultimately stems from a difference of opinion between plaintiff and 14 Bodukam, which does not give rise to an 8th Amendment claim. See Jackson, 90 F.3d at 332. 15 Plaintiff states in his complaint that Bodukam denied his request because the X-ray scan did 16 “…not [show] damage…” and that, in regard to his knee, he was “good.” See ECF No.1, pg. 3. 17 This clearly demonstrates that Bodukam believed that plaintiff did not require an accommodation. 18 Whether it was reasonable for Bodukam to reach this conclusion is not relevant for a claim of 19 deliberate indifference, since negligence in diagnosing a prisoner’s medical condition does not 20 give rise to an 8th Amendment claim. See Estelle, 429 U.S. at 106. Nor is it dispositive that Dr. 21 Scharffenberg had previously granted plaintiff the reasonable accommodation he now seeks. If a 22 doctor decides on a course of treatment for a prisoner different from that of a previous doctor, 23 that, by itself, is merely a difference of opinion. See Victory v. Barber, No. 1:05-CV-01578-LJO- 24 DLB-PC, 2011 WL 13142595, at *7 (E.D. Cal. Feb. 23, 2011) (dismissing inmate-plaintiff’s 25 claim for an eggcrate mattress, finding that “[e]ven if other doctors had provided plaintiff with an 26 eggcrate mattress, that would, at most, amount to difference in medical opinion.”), see also 27 Merritt v. Cate, No. 1:11-CV-00887-GBC PC, 2012 WL 1413882 (E.D. Cal. Apr. 23, 2012). 28 /// 1 Under a theory of deliberate indifference, “…the official must both be aware of 2 facts from which the inference could be drawn that a substantial risk of serious harm exists, and 3 he must also draw the inference.” Farmer, 511 U.S. at 837. Here, plaintiff has not alleged facts 4 which plausibly establish that Bodukam drew such an inference. Therefore, plaintiff has failed to 5 state a valid claim against Vijay Bodukam. 6 Lastly, it should be noted that plaintiff claims that Bodukam “lied” in regard to his 7 treatment of plaintiff. See ECF No.1, pg. 3. The court must accept all allegations of material fact 8 in the complaint as true. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). However, it is not 9 clear as to what Bodukam “lied” about, or what plaintiff is referring to. Therefore, plaintiff should 10 be granted leave to amend his complaint, and any discernable factual allegation that claims 11 Bodukam fabricated facts will be regarded as true. 12 2. Defendant Bright 13 Here, plaintiff has failed to state a valid 8th Amendment claim against defendant 14 Bright. 15 Plaintiff’s 8th Amendment claim against Bright stems from Bright’s denial of 16 plaintiff’s request for orthopedic shoes and the renewal of his morphine treatment. See ECF No. 17 1, pgs. 4, 15, 20. From the complaint, it appears that Bright refused the shoe accommodation 18 request because (1) no preexisting shoe accommodation was found on record and (2) plaintiff 19 already had an upcoming appointment with his primary care provider to discuss his “feet pain….” 20 Id. at 15. As for the denial of morphine for plaintiff’s pain, Bright allegedly refused the renewal 21 because, at that time, plaintiff was transferred to Corcoran State Prison. Id. at 20. It appears that 22 plaintiff eventually returned to CSP in Represa, but no subsequent request for morphine was 23 made. Beyond these denials, plaintiff makes no other factual allegations against Bright regarding 24 his claims. 25 Therefore, what plaintiff has pled is insufficient to establish a claim for deliberate 26 indifference. As discussed above, deliberate indifference requires that, subjectively, a prison 27 official must have acted unnecessarily and wantonly for the purpose of inflicting harm. See 28 Farmer, 511 U.S. at 834. In a practical sense this requires a plaintiff to set forth facts which allege 1 that the defendant, subjectively, knew of a substantial risk of harm to plaintiff and then failed to 2 act. Id. at 837. Here, plaintiff has not alleged that Bright was aware of a substantial risk of serious 3 harm to plaintiff. There is no mention of Bright’s conduct beyond the fact that he denied 4 plaintiff’s administrative appeals for the reasons stated above. Mere administrative review is not a 5 valid basis for deliberate indifference. See Grigsby v. Pfeiffer, No. 1:17-cv-01384-DAD-JLT 6 (PC), 2019 U.S. Dist. LEXIS 70188, at *7-8 (E.D. Cal. Apr. 24, 2019). Therefore, plaintiff has 7 failed to state a valid claim of deliberate indifference against Bright. 8 3. Defendant S. Gates 9 Here, plaintiff has failed to state a valid 8th Amendment claim against defendant 10 S. Gates. 11 To state a claim under 42 U.S.C. § 1983, the plaintiff must allege an actual 12 connection or link between the actions of the named defendants and the alleged deprivations. See 13 Monell v. Dep’t of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). “A 14 person ‘subjects’ another to the deprivation of a constitutional right, within the meaning of 15 § 1983, if he does an affirmative act, participates in another's affirmative acts, or omits to perform 16 an act which he is legally required to do that causes the deprivation of which complaint is made.” 17 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Vague and conclusory allegations 18 concerning the involvement of official personnel in civil rights violations are not sufficient. See 19 Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Rather, the plaintiff must set forth 20 specific facts as to each individual defendant’s causal role in the alleged constitutional 21 deprivation. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). 22 Here, plaintiff has set forth no facts which connect Gates’ alleged misconduct to 23 the loss of plaintiff’s constitutional rights. The only factual allegation made against Gates 24 personally is that he denied plaintiff’s request for an MRI scan and instead ordered X-ray scans. 25 See ECF No. 1, pg. 5. Plaintiff does not describe how Gates’s actions are associated with the 26 denial of his requests for orthopedic shoes. Therefore, here, plaintiff has failed to establish a 27 claim for deliberate indifference against Gates. 28 /// 1 4. Defendant J. Lewis 2 Here, plaintiff has failed to state a valid 8th Amendment claim against defendant J. 3 Lewis. 4 Like plaintiff’s claim against defendant Bright, plaintiff’s claim of deliberate 5 indifference against Lewis rests entirely on defendant’s denial of plaintiff’s administrative appeal. 6 On December 5, 2017, Lewis denied plaintiff’s appeal at the highest administrative level because: 7 (1) plaintiff had already received evaluation and treatment, “including but no limited to: primary 8 care provider evaluation, nursing assessment, accommodations, and medications;” and (2) Bright 9 had decided that there was no medical “indication” for orthotics at this time. See ECF No. 1. Pg. 10 13. As discussed above, mere administrative review is not a valid basis for deliberate 11 indifference. See Grigsby, 2019 U.S. Dist. LEXIS 70188, at *7-8. Plaintiff has not alleged any 12 facts which plausibly establish that Lewis acted unnecessarily and wantonly for the purpose of 13 inflicting harm. Therefore, plaintiff has failed to establish a claim for deliberate indifference 14 against Lewis. 15 B. Request for MRI and Pain Relief 16 1. Defendants Bodukam, Lewis, and Bright 17 As to plaintiff’s allegations regarding the denial of an MRI scan or medical 18 treatment to alleviate his pain, plaintiff has failed to state a valid 8th Amendment claim against 19 the named defendants: Bodukam, Lewis, and Bright. 20 To state a valid claim under 42 U.S.C. § 1983, plaintiff must set forth specific facts 21 as to each individual defendant’s causal role in the alleged constitutional deprivation. See Leer, 22 844 F.2d at 634. However, plaintiff’s complaint is devoid of any factual allegations against the 23 named defendants as concerns his denied requests for an MRI scan and rejected pain relief 24 treatment. See ECF No. 1, pg. 5. The only party who plaintiff identifies as associated with this 25 particular claim is defendant Gates. Therefore, plaintiff has failed to make a causal connection 26 between the three named defendants and his alleged constitutional deprivation and has not 27 established an 8th Amendment claim against them. 28 /// 1 2. Defendant S. Gates 2 As to plaintiff’s allegations regarding the denial of an MRI scan or medical 3 treatment to alleviate his pain, plaintiff has also failed to state a valid 8th Amendment claim 4 against defendant S. Gates. 5 Plaintiff has established that he suffers from a serious medical condition. At this 6 stage of litigation, all alleged facts must be construed in a light most favorable to the plaintiff. 7 See Scheuer, 416 U.S. at 236. Additionally, pro se pleadings are held to a less stringent standard 8 than those drafted by lawyers. See Haines, 404 U.S. at 520. Plaintiff states that he suffered from 9 an attack two years prior to his MRI scan request. See ECF No. 1, pg. 5. This attack resulted in a 10 broken nose and damage to his shoulders, hands, and fingers. Id. He further claims that these 11 injuries continued to cause him pain and that Gates ultimately decided that they warranted X-ray 12 scans. Id. From these allegations, it can reasonably be inferred that plaintiff suffered from 13 chronic pain and that it warranted medical action by his care takers. Such conditions may serve as 14 the basis for an 8th Amendment claim. See Lopez, 203 F.3d at 1131-32. Therefore, plaintiff has 15 set forth facts which plausibly establish that he suffered from a serious medical condition. 16 However, plaintiff has failed to establish that Gates acted with deliberate 17 indifference. As discussed above, a difference of opinion between a prisoner and medical 18 providers concerning the appropriate course of treatment does not give rise to an Eighth 19 Amendment claim. See Jackson, 90 F.3d at 332. Here, plaintiff’s claim stems from the fact that 20 R. Dhillon, a non-party doctor, and Gates refused to order an MRI scan and instead ordered X-ray 21 scans. See ECF No. 1, pg. 5. However, Gates is neither alleged to have fully denied or delayed 22 medical treatment. Plaintiff’s complaint does not allege that Gates acted unnecessarily and 23 wantonly for the purpose of inflicting harm. Nor does plaintiff allege that Gates, in selecting X- 24 ray scans instead of an MRI scan consciously disregarded a known substantial risk of serious 25 harm. From plaintiff’s complaint, this appears to merely be a difference of opinion as to the 26 appropriate course of treatment. Therefore, plaintiff has failed to state a valid 8th Amendment 27 claim. 28 /// 1 IV. CONCLUSION 2 Based on the foregoing, the undersigned recommends that: 3 1. Defendants’ unopposed motion to dismiss (ECF No. 15) be granted; and 4 2. Plaintiff's complaint be dismissed with leave to amend. 5 These findings and recommendations are submitted to the United States District 6 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within 14 days 7 | after being served with these findings and recommendations, any party may file written objections 8 | with the court. Responses to objections shall be filed within 14 days after service of objections. 9 | Failure to file objections within the specified time may waive the right to appeal. See Martinez v. 10 | Yist, 951 F.2d 1153 (9th Cir. 1991). 11 12 13 Dated: October 16, 2019 Ssvcqo_ DENNIS M. COTA 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 11