(PC) Miron v. Krpan ( 2019 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ARON MIRON, No. 2:18-CV-3267-JAM-DMC-P 12 Plaintiff, 13 v. FINDINGS AND RECCOMMENDATIONS 14 J. KRPAN, 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’ motion to dismiss. (ECF No. 13). 19 20 I. PLAINTIFF’S ALLEGATIONS 21 Plaintiff Aron Miron is a prisoner at California Health Care Facility in Stockton, 22 CA and names the following as defendants: (1) J. Krpan; (2) K. Kaur; (3) N. Malakkla; and (4) A. 23 Adams. See ECF No.1, pgs. 1-2. Plaintiff alleges two claims for relief under the 8th Amendment, 24 as outlined below. 25 /// 26 /// 27 /// 28 /// 1 Claim I – Request for Mattress 2 Plaintiff suffers from constant pain due to a spinal injury. See ECF No. 1, pg. 3. 3 Plaintiff alleges that a prior physician, not named in the complaint, authorized the use of a “pain- 4 reducing mattress,” but that defendant Dr. Kaur later revoked that authorization on April 10, 5 2018. Id. At the Institutional Level Response, Kaur denied plaintiff’s request, stating that 6 “…certain miscellaneous supplies or property, such as bedding…shall not be considered medical 7 supplies, DME, or medically necessary accommodations and are not prescribed or ordered by 8 health care staff.” See ECF No. 1, pg. 22. Also, Kaur stated that “[m]edical needs can and do 9 change over time . . . . The fact that you may have been allowed certain medical appliances or 10 chronos at one prison and later denied one or more of the same chronos at a different prison . . . is 11 not evidence of inadequate medical care . . . .” Id. 12 Plaintiff appealed the denial of the mattress to the highest level of the 13 administrative process, Headquarters’ Level Response, but was ultimately denied on July 25, 14 2018. See ECF No. 1, pg. 19. The denial stated in part, “[o]n April 3, 2018, you were seen and 15 evaluated in the Physical Medicine and Rehabilitation clinic regarding your specialty mattress, 16 where it was noted you had no skin breakdown or pressure ulcer history and you did not meet the 17 criteria for a pressure reducing support surface….” Id. 18 Plaintiff claims that these denials amount to a violation of his 8th Amendment rights and 19 that all named defendants “…bear some responsibility.” See ECF No. 1, pg. 3. 20 Claim II – Request for Knee Surgery 21 Plaintiff also claims to suffer from “increasingly unbearable pain” in his left knee. 22 See ECF No. 1, pg. 4. On April 18, 2017, an MRI exam was conducted on plaintiff’s knee on the 23 orders of defendant Dr. Krpan, after which, plaintiff requested medical treatment to help deal with 24 the pain. Id. Krpan allegedly delayed providing plaintiff with medical treatment and lagged in 25 ordering corrective surgery despite repeated requests by plaintiff. Id. Plaintiff filed a medical 26 grievance but was denied by defendant Malakkla on October 18, 2017. Id. 27 /// 28 /// 1 On November 1, 2017, plaintiff had an orthopedic consultation, and the health care 2 provider recommended left total knee replacement. See ECF No. 1, pg. 35. On December 2, 2017, 3 plaintiff had a follow-up primary care provider encounter with Krpan regarding the consultation. 4 Id. Krpan “noted” the orthopedic consultation’s recommendation, but plaintiff allegedly refused 5 surgery and instead requested a knee brace. Id. However, plaintiff denies making such a refusal 6 and claims to have never been offered surgery. See ECF No. 1, pg. 4. After further requests for 7 medical assistance, his grievance was once again denied on March 2, 2018. Id. Also, on May 7, 8 2018, plaintiff was noted as being able to ambulate with a walker, was in “no acute distress,” and 9 his “activities of daily living were not limited.” See ECF No. 1, pg. 35. Since then, plaintiff has 10 had to endure “…extreme pain and suffering….” See ECF No. 1, pg. 4. Plaintiff alleges this 11 conduct constitutes a violation of his 8th Amendment rights. 12 13 II. STANDARD OF REVIEW 14 In considering a motion to dismiss, the court must accept all allegations of material 15 fact in the complaint as true. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). The court must 16 also construe the alleged facts in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 17 416 U.S. 232, 236 (1974); see also Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 18 (1976); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam). All ambiguities or 19 doubts must also be resolved in the plaintiff's favor. See Jenkins v. McKeithen, 395 U.S. 411, 20 421 (1969). However, legally conclusory statements, not supported by actual factual allegations, 21 need not be accepted. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009). In addition, pro se 22 pleadings are held to a less stringent standard than those drafted by lawyers. See Haines v. 23 Kerner, 404 U.S. 519, 520 (1972). 24 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement 25 of the claim showing that the pleader is entitled to relief” in order to “give the defendant fair 26 notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp v. Twombly, 27 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, in order 28 to survive dismissal for failure to state a claim under Rule 12(b)(6), a complaint must contain 1 more than “a formulaic recitation of the elements of a cause of action;” it must contain factual 2 allegations sufficient “to raise a right to relief above the speculative level.” Id. at 555-56. The 3 complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Id. at 4 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the 5 court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 6 Iqbal, 129 S. Ct. at 1949. “The plausibility standard is not akin to a ‘probability requirement,’ but 7 it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting 8 Twombly, 550 U.S. at 556). “Where a complaint pleads facts that are ‘merely consistent with’ a 9 defendant’s liability, it ‘stops short of the line between possibility and plausibility for entitlement 10 to relief.” Id. (quoting Twombly, 550 U.S. at 557). 11 In deciding a Rule 12(b)(6) motion, the court generally may not consider materials 12 outside the complaint and pleadings. See Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998); 13 Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). The court may, however, consider: (1) 14 documents whose contents are alleged in or attached to the complaint and whose authenticity no 15 party questions, see Branch, 14 F.3d at 454; (2) documents whose authenticity is not in question, 16 and upon which the complaint necessarily relies, but which are not attached to the complaint, see 17 Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001); and (3) documents and materials 18 of which the court may take judicial notice, see Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 19 1994). 20 Finally, leave to amend must be granted “[u]nless it is absolutely clear that no 21 amendment can cure the defects.” Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per 22 curiam); see also Lopez v. Smith, 203 F.3d 1122, 1126 (9th Cir. 2000) (en banc). 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 III. DISCUSSION 2 The treatment a prisoner receives in prison and the conditions under which the 3 prisoner is confined are subject to scrutiny under the Eighth Amendment, which prohibits cruel 4 and unusual punishment. See Helling v. McKinney, 509 U.S. 25, 31 (1993); Farmer v. Brennan, 5 511 U.S. 825, 832 (1994). The Eighth Amendment “. . . embodies broad and idealistic concepts 6 of dignity, civilized standards, humanity, and decency.” Estelle v. Gamble, 429 U.S. 97, 102 7 (1976). Conditions of confinement may, however, be harsh and restrictive. See Rhodes v. 8 Chapman, 452 U.S. 337, 347 (1981). Nonetheless, prison officials must provide prisoners with 9 “food, clothing, shelter, sanitation, medical care, and personal safety.” Toussaint v. McCarthy, 10 801 F.2d 1080, 1107 (9th Cir. 1986). A prison official violates the Eighth Amendment only when 11 two requirements are met: (1) objectively, the official’s act or omission must be so serious such 12 that it results in the denial of the minimal civilized measure of life’s necessities; and (2) 13 subjectively, the prison official must have acted unnecessarily and wantonly for the purpose of 14 inflicting harm. See Farmer, 511 U.S. at 834. Thus, to violate the Eighth Amendment, a prison 15 official must have a “sufficiently culpable mind.” See id. 16 Deliberate indifference to a prisoner’s serious illness or injury, or risks of serious 17 injury or illness, gives rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at 105; 18 see also Farmer, 511 U.S. at 837. This applies to physical as well as dental and mental health 19 needs. See Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982), abrogated on other grounds by 20 Sandin v. Conner, 515 U.S. 472 (1995). An injury or illness is sufficiently serious if the failure to 21 treat a prisoner’s condition could result in further significant injury or the “. . . unnecessary and 22 wanton infliction of pain.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled 23 on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc); see 24 also Doty v. County of Lassen, 37 F.3d 540, 546 (9th Cir. 1994). Factors indicating seriousness 25 are: (1) whether a reasonable doctor would think that the condition is worthy of comment; (2) 26 whether the condition significantly impacts the prisoner’s daily activities; and (3) whether the 27 condition is chronic and accompanied by substantial pain. See Lopez v. Smith, 203 F.3d 1122, 28 1131-32 (9th Cir. 2000) (en banc). 1 The requirement of deliberate indifference is less stringent in medical needs cases 2 than in other Eighth Amendment contexts because the responsibility to provide inmates with 3 medical care does not generally conflict with competing penological concerns. See McGuckin, 4 974 F.2d at 1060. Thus, deference need not be given to the judgment of prison officials as to 5 decisions concerning medical needs. See Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir. 6 1989). The complete denial of medical attention may constitute deliberate indifference. See 7 Toussaint v. McCarthy, 801 F.2d 1080, 1111 (9th Cir. 1986). Delay in providing medical 8 treatment, or interference with medical treatment, may also constitute deliberate indifference. See 9 Lopez, 203 F.3d at 1131. Where delay is alleged, however, the prisoner must also demonstrate 10 that the delay led to further injury. See McGuckin, 974 F.2d at 1060. 11 Negligence in diagnosing or treating a medical condition does not, however, give 12 rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at 106. Moreover, a 13 difference of opinion between the prisoner and medical providers concerning the appropriate 14 course of treatment does not give rise to an Eighth Amendment claim. See Jackson v. McIntosh, 15 90 F.3d 330, 332 (9th Cir. 1996). 16 A. Request for Special Mattress (Claim I) 17 1. Defendants N. Malakkla and A. Adams 18 Here, as to defendants Malakkla and Adams, plaintiff has failed to allege facts which 19 establish an 8th Amendment claim regarding the request for a pain-reducing mattress. 20 To state a claim under 42 U.S.C. § 1983, the plaintiff must allege an actual 21 connection or link between the actions of the named defendants and the alleged deprivations. See 22 Monell v. Dep’t of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). “A 23 person ‘subjects’ another to the deprivation of a constitutional right, within the meaning of 24 § 1983, if he does an affirmative act, participates in another's affirmative acts, or omits to perform 25 an act which he is legally required to do that causes the deprivation of which complaint is made.” 26 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Vague and conclusory allegations 27 concerning the involvement of official personnel in civil rights violations are not sufficient. See 28 Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Rather, the plaintiff must set forth 1 specific facts as to each individual defendant’s causal role in the alleged constitutional 2 deprivation. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). 3 Plaintiff’s complaint fails to articulate how Malakkla or Adams personally 4 participated in the denial of his special-mattress request. Malakkla is only specifically referenced 5 in regard to plaintiff’s knee surgery request, not his mattress request, and Adams is not personally 6 referenced at all. Even with the most generous of inferences given to plaintiff’s complaint, the 7 only causal connection between the denial of his mattress and these named defendants is 8 plaintiff’s statement that “[a]ll supervisory doctors at CHCF. [sic] bear some responsibility in 9 this.” ECF. 1, pg. 3. This is at best a conclusory allegation that does not identify each individual 10 defendant’s causal role in the alleged constitutional deprivation. 11 2. Defendant K. Kaur 12 Here, as to defendant Kaur, plaintiff has failed to allege facts which establish an 13 8th Amendment claim regarding the request for a pain-reducing mattress. 14 Plaintiff’s complaint properly alleges that he is at risk of suffering from a serious 15 medical condition. Plaintiff claims that, as a result of being denied the pain-reducing mattress, he 16 is “unable to get adequate sleep” which may reduce his “constant pain and suffering.” See ECF. 17 No. 1, pg. 3. Severe and chronic pain is a sufficiently serious medical condition which may 18 establish an 8th Amendment claim, (see Lopez, 203 F.3d at 1131-32). However, even assuming 19 arguendo that plaintiff’s medical condition is sufficiently serious, he has not set forth facts which 20 plausibly establish that Kaur acted unnecessarily and wantonly for the purpose of inflicting harm. 21 Under a theory of deliberate indifference, “…the official must both be aware of facts from which 22 the inference could be drawn that a substantial risk of serious harm exists, and he must also draw 23 the inference.” Farmer at 837. Here, plaintiff’s factual allegations, construed in the most generous 24 light, do not propose that Kaur knew that plaintiff was in risk of serious injury or illness when he 25 denied plaintiff the pain-reducing mattress. Plaintiff’s complaint shows that his medical requests 26 were reviewed, but ultimately denied because he did not meet the necessary medical criteria. See 27 ECF. No. 1, pg. 19. 28 /// 1 Plaintiff feels differently and argues that he should receive a pain-reducing 2 mattress because he was previously authorized one. See ECF No.1, pgs. 18, 25. However, such a 3 disagreement is ultimately a difference of opinion and does not support a plausible 8th 4 Amendment claim. See Stamper v. Blackwell (E.D. Cal., Apr. 8, 2011, No. 1:10-CV-00155-SKO 5 PC) 2011 WL 1344588, at 3 (demonstrating that the denial of specialized bedding which was 6 previously authorized by a different official, does not, by itself, support a plausible 8th 7 Amendment claim). This finding does not suggest that plaintiff’s complaint is devoid of factual 8 allegations of misconduct. Plaintiff alleges that Kaur was on notice that he suffered from pain and 9 that Kaur was aware that a previous physician had thought it appropriate for plaintiff be given a 10 special mattress as an accommodation. See ECF No.1, pg. 18. From this, it may be plausible to 11 claim that Kaur failed to act in a reasonable manner by denying his request. However, this alleged 12 failure to act in the face of plaintiff’s pain at most gives rise to a claim of negligence. While this 13 may be sufficient to allege common law medical malpractice, it does not establish an 8th 14 Amendment claim. Therefore, plaintiff has failed to state a valid claim against defendant Kaur. 15 3. Defendant Krpan 16 In his opposition to defendants’ motion, plaintiff concedes that defendant Krpan 17 should be dismissed from Claim I. See ECF No. 16, pg. 2, lines 18-20. 18 B. Request for Knee Surgery (Claim II) 19 1. Defendant A. Adams 20 Under the standards outlined above, plaintiff has failed to establish a causal 21 connection between defendant Adams’ conduct and an alleged constitutional deprivation. 22 Plaintiff’s complaint is devoid of particular factual allegations aimed at Adams. Adams is only 23 referenced in the complaint in his identification as a defendant and as Chief Medical Executive at 24 California Health Care Facility. See ECF No. 1, pg. 2. There is no mention of what, if anything, 25 defendant did or did not do in relation to plaintiff’s delayed knee surgery. Without more facts, the 26 Court cannot conduct any meaningful analysis as to Adams’ causal role in the alleged 27 constitutional deprivation. Therefore, plaintiff has failed to state a cognizable claim against A. 28 Adams. 1 2. Defendant J. Krpan 2 Plaintiff has stated a cognizable claim of deliberate indifference against defendant 3 Krpan regarding the deprivation of knee surgery. 4 In defendant’s motion to dismiss, there is a comparison to Merrit v. Cate (2012). 5 See ECF No. 13-1, pgs. 7-8 (referencing Merritt v. Cate, No. 1:11-CV-00887-GBC PC, 2012 WL 6 1413882 (E.D. Cal. Apr. 23, 2012). In that case an independent orthopedic surgeon recommended 7 surgery to repair the torn meniscus of a prison inmate, but the inmate’s primary care physician 8 determined that surgery was not medically necessary, and opted instead for physical therapy, 9 Ibuprofen, and self-directed exercises. Id. During screening, the court found that the 10 inmate failed to state a claim because the inmate’s claim was a mere difference of opinion. Id. 11 (citing Merritt v. Cate, citing Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996)). 12 Defendant argues that, like that case, Krpan here determined that knee surgery was 13 not necessary, finding that plaintiff could get by with a walker and knee brace, that he was not in 14 distress, and that his activities of daily living were not impacted. ECF No.13-1, pg. 8 (citing ECF 15 No. 1, pg. 35). However, this comparison does not consider the full context of plaintiff’s 16 complaint. Unlike the physician in Merrit, Krpan’s proposed difference of opinion was made on 17 May 7, 2018, roughly six moths after an outpatient orthopedic consultation recommended 18 complete knee replacement surgery. See ECF No.1, pg. 35. In that six-month period, there is no 19 record of Krpan dismissing the recommendation or disagreeing with it. On the contrary, the 20 complaint’s allegations, coupled with the attached documents, allow a reasonable inference that 21 Krpan agreed with the recommendation. 22 Prior to the recommendation for surgery, Krpan ordered MRI scans of plaintiff’s 23 left knee, noted it as being in sub-par condition, and was aware of patient’s outside orthopedic 24 consultation. See ECF No.1, pgs. 13-14. Krpan was informed of the orthopedic recommendation 25 of total knee replacement surgery and “noted it.” See ECF No.1, pg. 35. It is not clear from the 26 relevant document whether “noted it” means that Krpan agreed with the recommendation. 27 However, given that all ambiguities at this stage must be resolved in the plaintiff’s favor, coupled 28 with the liberal interpretation allowed in the analysis of the pleadings of pro se litigants, it can 1 logically be inferred that, at the time, Krpan did agree with the recommendation. 2 After Krpan “noted” the recommendation, it was alleged that plaintiff “did not 3 want to proceed with surgery but requested a knee brace.” See ECF No. 1, pg. 25. This may 4 suggest that plaintiff had the option to accept the recommended surgery with Krpan’s, at least 5 tacit, approval. Also, plaintiff’s denial letter for further knee-based treatment at the highest 6 administrative level states that his issues were discussed in December, 20171 and that he “elected 7 to have a knee brace in lieu of surgery.” See ECF No. 1, pg. 42. Again, this may plausibly 8 demonstrate that plaintiff needed surgery and that the surgery would have been made available to 9 him if accepted during his interaction with Krpan. Despite this, plaintiff was never scheduled for 10 surgery, allegedly because he elected to forgo surgery in favor of a knee brace. However, plaintiff 11 adamantly denies this refusal and argues that he was never offered surgery. See ECF No. 1, pgs. 12 37, 41. At this stage of litigation, these assertions must be taken as true. See Erickson, 551 U.S. at 13 93-94. 14 Therefore, from plaintiff’s pleadings, it can plausibly be inferred that (1) plaintiff 15 was suffering from chronic and severe pain in his left knee; (2) Krpan, as his primary care 16 provider was made aware of this condition; (3) Krpan found it medically necessary to conduct 17 MRI examinations and, if not ordered, at least acquiesced to orthopedic consultations; (4) those 18 orthopedic consultations recommended a complete replacement surgery for the plaintiff’s left 19 knee; (5) Krpan concurred with this recommendation for at least six months; (6) despite this 20 concurrence, ordered no such surgery; and (7) as a result of this denial, plaintiff continued to 21 suffer chronic pain in his knee. While future discovery may dispel these inferences, at this early 22 stage of litigation, the alleged facts must be construed in a light most favorable to the plaintiff. 23 See Scheuer, 416 U.S. at 236. Thus, plaintiff has sufficiently asserted an 8th Amendment claim of 24 deliberate indifference against defendant Krpan regarding this issue. 25 /// 26 1 The document states, “Records indicate your issues were discussed and on December 12, 2017, you 27 elected to have a knee brace in lieu of surgery.” ECF No. 1, pg. 42. It is not clear whether this date was a clerical error and the letter meant to refer to the discussion with Krpan on December 2, 2017, or whether “December 12, 28 2017” refers to a separate discussion. Regardless, the substantive analysis is unaffected. 1 3. Defendant N. Malakkla 2 Plaintiff has failed to state a valid claim against defendant Malakkla. Plaintiff 3 alleges that Malakkla denied his medical grievance on March 2, 2018 and that he “endure[d] 4 extreme pain and suffering due to the inaction and deliberate indifference expressed by the 5 medical staff….” See ECF No. 1, pg. 4. As discussed above in section (III)(1)(B), it is not enough 6 for a plaintiff to allege facts from which a substantial risk of serious harm could be inferred; that 7 inference must be alleged to have been made by the defendant. See Farmer, 511 U.S. at 837. 8 Except for these two statements, one of which is simply a conclusory recitation of the law, 9 plaintiff puts forth no other facts from which it could plausibly be asserted that Malakkla deprived 10 plaintiff of his constitutional rights. Therefore, plaintiff has failed to assert an 8th Amendment 11 claim against defendant Malakkla. 12 4. Defendant Kaur 13 In his opposition to defendants’ motion, plaintiff concedes that defendant Kaur 14 should be dismissed from Claim II. See ECF No. 16, pg. 2, lines 21-22. 15 16 IV. CONCLUSION 17 Based on the foregoing, the undersigned recommends that: 18 1. Defendants’ motion to dismiss (ECF No. 13) be granted in part and denied 19 in part; 20 2. Defendants’ motion be denied as to plaintiff’s 8th Amendment claim 21 against defendant J. Krpan regarding the request for knee surgery; 22 3. Defendants’ motion to dismiss be granted as to all other claims and 23 defendants; 24 4. Plaintiff be granted leave to file a first amended complaint, if he so wishes; 25 and 26 /// 27 /// 28 /// 1 5. If no first amended complaint is filed within the time permitted by the 2 | court, the action proceed on plaintiffs original complaint against defendant Krpan only on 3 | plaintiff's claim regarding the request for knee surgery. 4 These findings and recommendations are submitted to the United States District 5 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within 14 days 6 | after being served with these findings and recommendations, any party may file written objections 7 | with the court. Responses to objections shall be filed within 14 days after service of objections. 8 | Failure to file objections within the specified time may waive the right to appeal. See Martinez v. 9 | Yist, 951 F.2d 1153 (9th Cir. 1991). 10 11 12 } Dated: October 16, 2019 Ssvcqo_ 13 DENNIS M. COTA 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12