(PC) Schmaus v. Covello ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JASON ERIC SCHMAUS, No. 2:20-cv-1356 KJM AC P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 P. COVELLO, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se and in forma pauperis, has filed this civil 18 rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States 19 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On June 23, 2021, the undersigned screened plaintiff’s complaint and determined that it 21 failed to state cognizable claims against certain named defendants. See generally ECF No. 10. 22 Accordingly, plaintiff was instructed to inform the court within fourteen days whether he wished 23 to amend the complaint or to proceed on the viable claims that had been identified therein. The 24 fourteen-day period has ended, and plaintiff has not stated that he would like to amend the 25 complaint. Therefore, for the reasons stated below, it will be recommended that certain 26 defendants and the claims against them be dismissed so that plaintiff can proceed on the viable 27 claim in this action. 28 //// 1 I. THE COMPLAINT 2 The complaint presents three claims against six defendants: Mule Creek State Prison 3 (”MCSP”), Warden P. Covello; Chief Physician and Surgeon Christopher Smith; Chief Medical 4 Executive Dr. Bal; plaintiff’s primary care providers Drs. Wong and Vaughn, and Chief 5 Healthcare Correspondence & Appeals Branch employee S. Gates. See generally ECF No. 1. 6 The claims raised against the defendants allege violations of plaintiff’s First and Eighth 7 Amendment rights. See generally id. at 4-7. 8 Claim One alleges that defendant Smith was deliberately indifferent to plaintiff’s serious 9 medical needs in violation of his Eighth Amendment rights when, after plaintiff had extensive 10 surgery done on his face, defendant Smith took away his pain medication too soon. See ECF No. 11 1 at 4-5. Claim Two alleges that defendant Smith violated plaintiff’s First Amendment right to be 12 free from retaliation when, after plaintiff had filed a grievance to receive pain medication, 13 defendant Smith rescinded plaintiff’s lower bunk chrono because plaintiff refused to sign off on 14 the filed grievance. See id. at 6. This decision, plaintiff alleges, ultimately led to him falling off 15 a top bunk and being physically and mentally injured. See id. Finally, Claim Three alleges that 16 defendants Wong, Vaughn, Bal, Gates, Smith and Covello were deliberately indifferent and 17 ignored plaintiff’s safety needs in violation of his Eighth Amendment rights when none of them 18 intervened to correct defendant Smith’s rescission of plaintiff’s lower bunk chrono before 19 plaintiff fell off the upper bunk. See generally ECF No. 1 at 5, 7. 20 II. SCREENING FINDINGS 21 On screening, the undersigned determined that Claims One and Three – asserting 22 violations of plaintiff’s Eighth Amendment rights – fail to state claims upon which relief may be 23 granted because (1) they do not challenge plaintiff’s medical care per se; (2) the facts as presented 24 do not show that there was an excessive risk of harm in not reinstating plaintiff’s lower bunk 25 chrono or that defendants Smith, Wong and Vaughn had culpable states of mind when they did 26 not; and (3) the claims sound only in negligence, which does not rise to the level of Eighth 27 Amendment violation. See ECF No. 10 at 5. In addition, the undersigned determined that (4) 28 defendant Warden Covello cannot be liable under a respondeat superior theory simply because he 1 hired subordinate defendants, and (5) the alleged mishandling and/or rejection of plaintiff’s 2 appeals by defendants Covello, Bal and Gates does not support liability under Section 1983 3 because inmates are not entitled to a specific grievance procedure under the Constitution. See id. 4 Claim Two, the First Amendment claim raised against defendant Smith, has been 5 determined to reasonably support retaliatory intent given the direct link between defendant 6 Smith’s revocation of plaintiff’s lower bunk chrono after plaintiff refused comply with defendant 7 Smith’s demand that he sign off on the grievance he had filed. See ECF No. 10 at 4. As a result, 8 the undersigned intends to require defendant Smith to respond to Claim Two. See id. 9 III. NO NOTICE ON HOW TO PROCEED 10 In the screening order, plaintiff was given the opportunity either to amend the complaint 11 or to proceed solely on Claim Two against defendant Smith. See ECF No. 10 at 6-8, 10. When 12 the order issued, plaintiff was informed that his failure to return the form Notice on How to 13 Proceed would result in a recommendation that Claims One and Three, and defendants Covello, 14 Bal, Wong, Vaughn and Gates be dismissed from this action. See id. at 8-9. Plaintiff has not 15 filed the notice form, and the fourteen-day period within which he was to do so has expired. 16 Accordingly, IT IS HEREBY RECOMMENDED for the reasons set forth above and in 17 the screening order, ECF No. 10, that: 18 1. Claims One and Three be DISMISSED for failure to state claims upon which relief 19 may be granted; 20 2. Defendants Covello, Bal, Wong, Vaughn, and Gates be DISMISSED; and 21 3. This action proceed solely on Claim Two, plaintiff’s First Amendment retaliation 22 claim against defendant Christopher Smith, a physician and surgeon at Mule Creek State Prison. 23 These findings and recommendations are submitted to the United States District Judge 24 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 25 after being served with these findings and recommendations, plaintiff may file written objections 26 with the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings 27 //// 28 //// 1 | and Recommendations. Plaintiff is advised that failure to file objections within the specified time 2 || may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th 3 || Cir. 1991). 4 | DATED: July 19, 2021 ~ 5 Htttenr— Lhor—e_ ALLISON CLAIRE 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28