(PC) Hammer v. Ola ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JEFFREY HAMMER, ) Case No.: 1:20-cv-01828-SAB (PC) ) 12 Plaintiff, ) ) ORDER DIRECTING CLERK OF COURT TO 13 v. ) RANDOMLY ASSIGN A DISTRICT JUDGE TO THIS ACTION 14 AKINWUMI OLA, et al., ) ) FINDINGS AND RECOMMENDATION 15 Defendants. ) RECOMMENDING DISMISSAL OF THE ) ACTION 16 ) ) (ECF Nos. 7, 8) 17 ) 18 Plaintiff Jeffrey Hammer is proceeding pro se and in forma pauperis in this civil rights action 19 pursuant to 42 U.S.C. § 1983. This matter was referred to a United States Magistrate Judge pursuant 20 to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 Plaintiff filed the instant complaint on December 29, 2020. 22 On February 19, 2021, the Court screened Plaintiff’s complaint, found that no cognizable 23 claims were stated, and granted Plaintiff thirty days to file an amended complaint. (ECF No. 7.) 24 Plaintiff failed to file an amended complaint or otherwise communicate with the Court. Therefore, on 25 March 30, 2021, the Court ordered Plaintiff to show cause within fourteen days why the action should 26 not be dismissed. (ECF No. 8.) Plaintiff has failed to respond to the order to show cause and the time 27 to do so has now passed. Therefore, dismissal is warranted. 28 /// 1 I. 2 SCREENING REQUIREMENT 3 The Court is required to screen complaints brought by prisoners seeking relief against a 4 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court 5 must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally “frivolous 6 or malicious,” that “fail[] to state a claim on which relief may be granted,” or that “seek[] monetary 7 relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); see also 28 8 U.S.C. § 1915A(b). 9 /// 10 A complaint must contain “a short and plain statement of the claim showing that the pleader is 11 entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 12 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do 13 not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 14 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate that each defendant personally participated 15 in the deprivation of Plaintiff’s rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). 16 Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally 17 construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 18 Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be facially plausible, which 19 requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is 20 liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 21 969 (9th Cir. 2009). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, and 22 “facts that are ‘merely consistent with’ a defendant’s liability” falls short of satisfying the plausibility 23 standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969. 24 II. 25 SUMMARY OF ALLEGATIONS 26 The Court accepts Plaintiff’s allegations in his complaint as true only for the purpose of the 27 screening requirement under 28 U.S.C. § 1915. 28 1 Plaintiff contends officials at Avenal State Prison refuse to provide him an MRI for both his 2 shoulders and his right knee. Plaintiff’s left shoulder was dislocated, but he never received an MRI 3 and found out that his rotator cuff could only be repaired with a complete shoulder replacement. 4 Plaintiff had to write an administrative appeal before he received an MRI on his right shoulder, and the 5 result was 50/50 chance to repair the very torn rotator cuff. All of the damage and pain and suffering 6 could have been avoided if he had been given an MRI, but officials refused to do anything besides 7 shots in his shoulders and right knee. 8 Plaintiff’s left could have been repaired without major surgery, and he has now received an 9 MRI or any treatment for his right knee. 10 III. 11 DISCUSSION 12 A. Deliberate Indifference to Serious Medical Need 13 A prisoner’s claim of inadequate medical care does not constitute cruel and unusual punishment 14 in violation of the Eighth Amendment unless the mistreatment rises to the level of “deliberate 15 indifference to serious medical needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting 16 Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two-part test for deliberate indifference requires 17 Plaintiff to show (1) “a ‘serious medical need’ by demonstrating that failure to treat a prisoner’s 18 condition could result in further significant injury or the ‘unnecessary and wanton infliction of pain,’” 19 and (2) “the defendant’s response to the need was deliberately indifferent.” Jett, 439 F.3d at 1096. A 20 defendant does not act in a deliberately indifferent manner unless the defendant “knows of and 21 disregards an excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). 22 “Deliberate indifference is a high legal standard,” Simmons v. Navajo County, Ariz, 609 F.3d 1011, 23 1019 (9th Cir. 2010); Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004), and is shown where there 24 was “a purposeful act or failure to respond to a prisoner’s pain or possible medical need” and the 25 indifference caused harm. Jett, 439 F.3d at 1096. 26 Negligence or medical malpractice do not rise to the level of deliberate indifference. Broughton 27 v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 105-106). “[A] 28 complaint that a physician has been negligent in diagnosing or treating a medical condition does not 1 state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does 2 not become a constitutional violation merely because the victim is a prisoner.” Estelle, 429 U.S. at 106; 3 see also Anderson v. County of Kern, 45 F.3d 1310, 1316 (9th Cir. 1995). Even gross negligence is 4 insufficient to establish deliberate indifference to serious medical needs. See Wood v. Housewright, 5 900 F.2d 1332, 1334 (9th Cir. 1990). Additionally, a prisoner’s mere disagreement with diagnosis or 6 treatment does not support a claim of deliberate indifference. Sanchez v. Vild, 891 F.2d 240, 242 (9th 7 Cir. 1989). 8 Further, a “difference of opinion between a physician and the prisoner—or between medical 9 professionals—concerning what medical care is appropriate does not amount to deliberate indifference.” 10 Snow v. McDaniel, 681 F.3d 978, 987 (9th Cir. 2012) (citing Sanchez v. Vild, 891 F.2d at 242, overruled 11 in part on other grounds, Peralta v. Dillard, 744 F.3d 1076, 1082–83 (9th Cir. 2014); Wilhelm v. Rotman, 12 680 F.3d 1113, 1122–23 (9th Cir. 2012) (citing Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1986)). 13 Rather, Plaintiff “must show that the course of treatment the doctors chose was medically unacceptable 14 under the circumstances and that the defendants chose this course in conscious disregard of an excessive 15 risk to [his] health.” Snow, 681 F.3d at 988 (citing Jackson, 90 F.3d at 332) (internal quotation marks 16 omitted). 17 As an initial matter, besides naming the Defendants in the caption of the complaint, Plaintiff 18 fails to link any of the named Defendants to an affirmative act or omission giving rise to his claim of 19 deliberate indifference. In addition, the mere fact that Defendants did not provide an MRI for his 20 shoulders and right knee, without more, is not sufficient to establish a deliberate indifference claim; 21 there must be an allegation that each Defendant knew that Plaintiff faced a substantial risk of serious 22 harm and decided to disregard that risk when he/she chose to deny the request for an MRI. 23 Accordingly, Plaintiff fails to state a cognizable claim for relief. 24 IV. 25 FAILURE TO OBEY COURT ORDER AND FAILURE TO PROSECUTE 26 Here, the Court screened Plaintiff’s complaint, and on February 19, 2021, an order issued 27 providing Plaintiff with the legal standards that applied to his claims, advising him of the deficiencies 28 that needed to be corrected, and granting him leave to file an amended complaint within thirty days. 1 (ECF No. 7.) Plaintiff did not file a third amended complaint or otherwise respond to the Court’s 2 February 19, 2021 order. Therefore, on March 30, 2021, the Court ordered Plaintiff to show cause 3 within fourteen (14) days why the action should not be dismissed. (ECF No. 8.) Plaintiff failed to 4 respond to the March 30, 2021 order. 5 Local Rule 110 provides that “[f]ailure of counsel or of a party to comply with these Rules or 6 with any order of the Court may be grounds for imposition by the Court of any and all sanctions . . . 7 within the inherent power of the Court.” The Court has the inherent power to control its docket and 8 may, in the exercise of that power, impose sanctions where appropriate, including dismissal of the 9 action. Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000). 10 A court may dismiss an action based on a party’s failure to prosecute an action, failure to obey 11 a court order, or failure to comply with local rules. See, e.g. Ghazali v. Moran, 46 F.3d 52, 53-54 (9th 12 Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 13 (9th Cir. 1992) (dismissal for failure to comply with an order to file an amended complaint); Carey v. 14 King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to comply with local rule requiring 15 pro se plaintiffs to keep court apprised of address); Malone v. United States Postal Serv., 833 F.2d 128, 16 130 (9th Cir. 1987) (dismissal for failure to comply with court order); Henderson v. Duncan, 779 F.2d 17 1421, 1424 (9th Cir. 1986) (dismissal for lack of prosecution and failure to comply with local rules). 18 “In determining whether to dismiss an action for lack of prosecution, the district court is required 19 to consider several factors: ‘(1) the public’s interest in expeditious resolution of litigation; (2) the court’s 20 need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring 21 disposition of cases on their merits; and (5) the availability of less drastic sanctions.’ ” Carey, 856 F.2d 22 at 1440 (quoting Henderson, 779 F.2d at 1423). These factors guide a court in deciding what to do, and 23 are not conditions that must be met in order for a court to take action. In re Phenylpropanolamine (PPA) 24 Products Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006) (citation omitted). 25 In this instance, the public’s interest in expeditious resolution of the litigation and the Court’s 26 need to manage its docket weigh in favor of dismissal. In re Phenylpropanolamine (PPA) Products 27 Liability Litigation, 460 F.3d at 1226. Plaintiff was ordered to file an amended complaint within thirty 28 days of February 19, 2021 and has not done so. Accordingly, the operative pleading is the December 1 29, 2020 complaint which has been found not to state a cognizable claim. Plaintiff’s failure to comply 2 with the order of the Court by filing an amended complaint hinders the Court’s ability to move this 3 action towards disposition. This action can proceed no further without Plaintiff’s compliance with the 4 order and his failure to comply indicates that Plaintiff does not intend to diligently litigate this action. 5 Since it appears that Plaintiff does not intend to litigate this action diligently there arises a 6 rebuttable presumption of prejudice to the defendants in this action. In re Eisen, 31 F.3d 1447, 1452-53 7 (9th Cir. 1994). The risk of prejudice to the defendants also weighs in favor of dismissal. 8 The public policy in favor of deciding cases on their merits is greatly outweighed by the factors 9 in favor of dismissal. It is Plaintiff’s responsibility to move this action forward. In order for this action 10 to proceed, Plaintiff is required to file an amended complaint curing the deficiencies in the operative 11 pleading. Despite being ordered to do so, Plaintiff did not file an amended complaint or respond to the 12 order to show cause and this action cannot simply remain idle on the Court’s docket, unprosecuted. In 13 this instance, the fourth factor does not outweigh Plaintiff’s failure to comply with the Court’s orders. 14 Finally, a court’s warning to a party that their failure to obey the court’s order will result in dismissal 15 satisfies the “consideration of alternatives” requirement. Ferdik, 963 F.2d at 1262; Malone, 833 F.2d 16 at 132-33; Henderson, 779 F.2d at 1424. The Court’s February 19, 2021 order requiring Plaintiff to 17 file an amended complaint expressly stated: “If Plaintiff fails to file an amended complaint in 18 compliance with this order, the Court will recommend to a district judge that this action be dismissed 19 consistent with the reasons stated in this order.” (ECF No. 7.) In addition, the Court’s March 30, 20 2021, order to show cause specifically stated: “Plaintiff shall show cause why this action should not be 21 dismissed for failure to state a cognizable claim, failure to comply with a court order, and failure to 22 prosecute. Failure to comply with this order will result a recommendation to dismiss the action.” 23 (ECF No. 8.) Thus, Plaintiff had adequate warning that dismissal would result from his 24 noncompliance with the Court’s order. 25 V. 26 CONCLUSION AND RECOMMENDATION 27 The Court has screened Plaintiff’s complaint and found that it fails to state a cognizable claim. 28 Plaintiff has failed to comply with the Court’s order to file an amended complaint or respond to the 1 || Court’s order to show why the action should not be dismissed. In considering the factors to □□□□□□□ 2 this action should be dismissed, the Court finds that this action should be dismissed for Plaintiff 3 || failure to state a cognizable claim, failure to obey the February 19, 2021 and March 30, 2021 □□□□□ 4 || and failure to prosecute this action. 5 Accordingly, IT IS HEREBY ORDERED that the Clerk of Court shall randomly assign a Distri 6 || Judge to this action, 7 Further, it is HEREBY RECOMMENDED that this action be DISMISSED for Plaintiff’s failu 8 || to state a claim, failure to comply with a court order, and failure to prosecute. 9 This Findings and Recommendation is submitted to the district judge assigned to this actio 10 || pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within fourteen (14) days | 11 ||service of this Recommendation, Plaintiff may file written objections to this findings ar 12 ||recommendation with the Court. Such a document should be captioned “Objections to Magistra 13 || Judge’s Findings and Recommendation.” The district judge will review the magistrate judge’s Findin; 14 || and Recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that failure to fi 15 || objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheele 16 || 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 17 18 IT IS SO ORDERED. A (Fe 19 || Dated: _ April 22, 2021 OF 20 UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28