(PC) Gosztyla v. Gu ( 2023 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 CHANTELL GOSZTYLA, Case No. 1:22-cv-00610-EPG (PC) 11 Plaintiff, FINDINGS AND RECOMMENDATIONS, 12 RECOMMENDING THAT THIS ACTION v. 13 PROCEED ON PLAINTIFF’S EIGHTH WEI GU, et al., AMENDMENT CLAIM AGAINST 14 DEFENDANT GU FOR DELIBERATE Defendants. INDIFFERENCE TO PLAINTIFF’S 15 SERIOUS MEDICAL NEEDS, AND THAT 16 ALL OTHER CLAIMS AND DEFENDANTS BE DISMISSED 17 (ECF No. 11) 18 19 OBJECTIONS, IF ANY, DUE WITHIN TWENTY-ONE DAYS 20 ORDER DIRECTING CLERK TO ASSIGN 21 DISTRICT JUDGE 22 Chantell Gosztyla (“Plaintiff”) is a state prisoner proceeding pro se and in forma 23 pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the 24 complaint commencing this action on May 23, 2022. (ECF No. 1). 25 On September 8, 2022, the Court screened Plaintiff’s complaint. (ECF No. 10). The 26 Court gave Plaintiff thirty days to either: “a. File a First Amended Complaint; b. Notify the 27 Court in writing that she does not want to file an amended complaint and instead wants to 28 1 proceed only on her Eighth Amendment claim against defendant Gu for deliberate indifference 2 to her serious medical needs; or c. Notify the Court in writing that she wants to stand on her 3 complaint.” (Id. at 9-10). On October 13, 2022, Plaintiff filed a First Amended Complaint, 4 which is now before this Court for screening. (ECF No. 11). 5 The Court has reviewed the First Amended Complaint. Plaintiff alleges that she suffers 6 from subluxation of the fourth lateral rib and chronic pain, but she is not receiving treatment. 7 For the reasons described below, will recommend that this action proceed on Plaintiff’s 8 Eighth Amendment claim against defendant Gu, in his individual and official capacity, for 9 deliberate indifference to Plaintiff’s serious medical needs. The Court will also recommend 10 that all other claims and defendants be dismissed. 11 Plaintiff has twenty-one days from the date of service of these findings and 12 recommendations to file his objections. 13 I. SCREENING REQUIREMENT 14 The Court is required to screen complaints brought by prisoners seeking relief against a 15 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 16 The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 17 legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or 18 that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 19 § 1915A(b)(1), (2). As Plaintiff is proceeding in forma pauperis (ECF No. 7), the Court may 20 also screen the complaint under 28 U.S.C. § 1915. “Notwithstanding any filing fee, or any 21 portion thereof, that may have been paid, the court shall dismiss the case at any time if the court 22 determines that the action or appeal fails to state a claim upon which relief may be granted.” 23 28 U.S.C. § 1915(e)(2)(B)(ii). 24 A complaint is required to contain “a short and plain statement of the claim showing 25 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are 26 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 27 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 28 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A plaintiff must set forth “sufficient 1 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. 2 (quoting Twombly, 550 U.S. at 570). The mere possibility of misconduct falls short of meeting 3 this plausibility standard. Id. at 679. While a plaintiff’s allegations are taken as true, courts 4 “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 5 677, 681 (9th Cir. 2009) (citation and internal quotation marks omitted). Additionally, a 6 plaintiff’s legal conclusions are not accepted as true. Iqbal, 556 U.S. at 678. 7 Pleadings of pro se plaintiffs “must be held to less stringent standards than formal 8 pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding that 9 pro se complaints should continue to be liberally construed after Iqbal). 10 II. SUMMARY OF PLAINTIFF’S FIRST AMENDED COMPLAINT 11 Plaintiff alleges as follows: 12 In 2019, Plaintiff began the process of requesting medical services for her subluxation 13 of the fourth lateral rib. After turning in many Health Care Services Request Forms, Plaintiff 14 finally saw her primary care provider, defendant Dr. Wei Gu. Defendant Gu told Plaintiff that 15 he had never heard of an “unstable rib.” Defendant Gu also refused to review Plaintiff’s full 16 medical history to see that she did have a subluxation of the fourth right lateral rib due to a 17 January 2008 car accident. These records would have also shown defendant Gu that 18 Chiropractic Manipulative Therapy was what Plaintiff had been receiving and what was needed 19 to alleviate the chronic pain and to reestablish rib placement so that physical therapy would be 20 successful in stabilizing the rib. This is known as joint manipulation to reestablish segmental 21 and global joint motion. 22 In November of 2020, defendant Gu ordered x-rays of Plaintiff’s rib. The x-rays were 23 taken on November 16, 2020. According to California Department of Corrections and 24 Rehabilitation (“CDCR”) medical records, the x-rays showed Plaintiff did not have a rib 25 fracture. This was true because Plaintiff suffers from a subluxation of the fourth right lateral 26 rib. 27 At this point in time, defendant Gu continued to refuse to provide medical treatment for 28 Plaintiff’s subluxation of the fourth right lateral rib and continued to refuse to review Plaintiff’s 1 full medical history. 2 When Plaintiff filed a grievance, defendant Ralph Diaz was secretary of the CDCR and 3 ultimately in charge of all CDCR staff and policies. Chiropractic services were not offered or 4 available to inmates per Title 15. However, the only way to properly treat Plaintiff’s 5 subluxation of the fourth lateral rib is by Chiropractic Manipulative Therapy, which is done by 6 a licensed chiropractor. This policy shows deliberate indifference to Plaintiff’s serious medical 7 need. 8 Defendant Kathleen Allison is the current secretary of the CDCR, and licensed 9 chiropractor services are still not offered or available to inmates per Title 15. 10 III. ANALYSIS OF PLAINTIFF’S FIRST AMENDED COMPLAINT 11 A. Section 1983 12 The Civil Rights Act under which this action was filed provides: 13 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes 14 to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities 15 secured by the Constitution and laws, shall be liable to the party injured in an 16 action at law, suit in equity, or other proper proceeding for redress.... 17 42 U.S.C. § 1983. “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely 18 provides ‘a method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 19 490 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see 20 also Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los 21 Angeles, 697 F.3d 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 22 2012); Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). 23 To state a claim under section 1983, a plaintiff must allege that (1) the defendant acted 24 under color of state law, and (2) the defendant deprived him of rights secured by the 25 Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 26 2006); see also Marsh v. County of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing 27 “under color of state law”). A person deprives another of a constitutional right, “within the 28 meaning of § 1983, ‘if he does an affirmative act, participates in another’s affirmative act, or 1 omits to perform an act which he is legally required to do that causes the deprivation of which 2 complaint is made.’” Preschooler II v. Clark County Sch. Bd. of Trs., 479 F.3d 1175, 1183 3 (9th Cir. 2007) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite 4 causal connection may be established when an official sets in motion a ‘series of acts by others 5 which the actor knows or reasonably should know would cause others to inflict’ constitutional 6 harms.” Preschooler II, 479 F.3d at 1183 (quoting Johnson, 588 F.2d at 743). This standard of 7 causation “closely resembles the standard ‘foreseeability’ formulation of proximate cause.” 8 Arnold v. Int’l Bus. Mach. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981); see also Harper v. City 9 of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008). 10 A plaintiff must demonstrate that each named defendant personally participated in the 11 deprivation of his rights. Iqbal, 556 U.S. at 676-77. In other words, there must be an actual 12 connection or link between the actions of the defendants and the deprivation alleged to have 13 been suffered by the plaintiff. See Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 14 658, 691, 695 (1978). 15 Supervisory personnel are not liable under section 1983 for the actions of their 16 employees under a theory of respondeat superior and, therefore, when a named defendant 17 holds a supervisory position, the causal link between the supervisory defendant and the claimed 18 constitutional violation must be specifically alleged. Iqbal, 556 U.S. at 676-77; Fayle v. 19 Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 20 1978). To state a claim for relief under section 1983 based on a theory of supervisory liability, 21 a plaintiff must allege some facts that would support a claim that the supervisory defendants 22 either: were personally involved in the alleged deprivation of constitutional rights, Hansen v. 23 Black, 885 F.2d 642, 646 (9th Cir. 1989); “knew of the violations and failed to act to prevent 24 them,” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); or promulgated or “implement[ed] 25 a policy so deficient that the policy itself is a repudiation of constitutional rights and is the 26 moving force of the constitutional violation,” Hansen, 885 F.2d at 646 (citations and internal 27 quotation marks omitted). 28 For instance, a supervisor may be liable for his or her “own culpable action or inaction 1 in the training, supervision, or control of his [or her] subordinates,” “his [or her] acquiescence 2 in the constitutional deprivations of which the complaint is made,” or “conduct that showed a 3 reckless or callous indifference to the rights of others.” Larez v. City of Los Angeles, 946 F.2d 4 630, 646 (9th Cir. 1991) (citations, internal quotation marks, and brackets omitted). 5 B. Deliberate Indifference to Serious Medical Needs in Violation of the Eighth 6 Amendment 7 “[T]o maintain an Eighth Amendment claim based on prison medical treatment, an 8 inmate must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 9 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). This requires 10 Plaintiff to show (1) “a ‘serious medical need’ by demonstrating that ‘failure to treat a 11 prisoner’s condition could result in further significant injury or the unnecessary and wanton 12 infliction of pain,’” and (2) that “the defendant’s response to the need was deliberately 13 indifferent.” Id. (quoting McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992)) 14 (citation and internal quotations marks omitted), overruled on other grounds by WMX 15 Technologies v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc). 16 Deliberate indifference is established only where the defendant subjectively “knows of 17 and disregards an excessive risk to inmate health and safety.” Toguchi v. Chung, 391 F.3d 18 1051, 1057 (9th Cir. 2004) (emphasis added) (citation and internal quotation marks omitted). 19 Deliberate indifference can be established “by showing (a) a purposeful act or failure to 20 respond to a prisoner’s pain or possible medical need and (b) harm caused by the indifference.” 21 Jett, 439 F.3d at 1096 (citation omitted). Civil recklessness (failure “to act in the face of an 22 unjustifiably high risk of harm that is either known or so obvious that it should be known”) is 23 insufficient to establish an Eighth Amendment violation. Farmer v. Brennan, 511 U.S. 825, 24 836-37 & n.5 (1994) (citations omitted). 25 A difference of opinion between an inmate and prison medical personnel—or between 26 medical professionals—regarding appropriate medical diagnosis and treatment is not enough to 27 establish a deliberate indifference claim. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); 28 Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004). Additionally, “a complaint that a 1 physician has been negligent in diagnosing or treating a medical condition does not state a valid 2 claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not 3 become a constitutional violation merely because the victim is a prisoner.” Estelle, 429 U.S. at 4 106. To establish a difference of opinion rising to the level of deliberate indifference, a 5 “plaintiff must show that the course of treatment the doctors chose was medically unacceptable 6 under the circumstances.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996). 7 Plaintiff alleges that she suffers from subluxation of the fourth lateral rib, as well as 8 chronic pain. She saw defendant Gu in 2019, but he refused to provide treatment and refused 9 to review Plaintiff’s medical history to confirm her diagnoses. The medical records would 10 have shown that Plaintiff has a subluxation of the fourth right lateral rib due to a January 2008 11 car accident. The records would have also shown that Chiropractic Manipulative Therapy was 12 what Plaintiff had been receiving and what was needed to alleviate the chronic pain and to 13 reestablish rib placement so that physical therapy would be successful in stabilizing the rib. In 14 November of 2020 defendant Gu ordered an x-ray, and the x-ray showed no rib fracture, but 15 Plaintiff never complained of a rib fracture. Defendant Gu also continued to refuse to provide 16 treatment and continued to refuse to review Plaintiff’s full medical history. 17 Given Plaintiff’s allegations that her medical records confirm her diagnoses and the 18 treatment she had been receiving, that defendant Gu has refused to review relevant medical 19 records,1 and that defendant Gu refused to provide treatment, the Court finds that Plaintiff’s 20 Eighth Amendment claim against defendant Gu for deliberate indifference to Plaintiff’s serious 21 22 1 Circumstantial evidence, such as evidence of obviousness, can be used to show subjective knowledge. 23 Farmer, 511 U.S. at 842-43 (“Whether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence, cf. 24 Hall 118 (cautioning against ‘confusing a mental state with the proof of its existence’), and a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious. Cf. LaFave 25 & Scott § 3.7, p. 335 (‘[I]f the risk is obvious, so that a reasonable man would realize it, we might well infer that [the defendant] did in fact realize it; but the inference cannot be conclusive, for we know that people are not 26 always conscious of what reasonable people would be conscious of’). For example, if an Eighth Amendment plaintiff presents evidence showing that a substantial risk of inmate attacks was ‘longstanding, pervasive, well- 27 documented, or expressly noted by prison officials in the past, and the circumstances suggest that the defendant- official being sued had been exposed to information concerning the risk and thus ‘must have known’ about it, then 28 such evidence could be sufficient to permit a trier of fact to find that the defendant-official had actual knowledge of the risk.’ Brief for Respondents 22.”) (alterations in original) (footnote omitted). 1 medical needs should proceed past screening. Additionally, while Plaintiff does not specify the 2 capacity in which defendant Gu is being sued, Plaintiff asks for prospective injunctive relief 3 and monetary relief. (ECF No. 9). Thus, the Court will allow the claim to proceed against 4 defendant Gu in both his individual and official capacity. 5 The Court also finds that Plaintiff fails to state a claim against defendants Diaz and 6 Allison. Plaintiff brings claims against them based on their position as Secretary of the CDCR 7 (defendant Diaz was the former Secretary of the CDCR and defendant Allison is the current 8 Secretary). However, as discussed above, there is no respondeat superior liability in section 9 1983 actions. While Plaintiff alleges that they are responsible for personnel and for policy, and 10 that she did not receive necessary treatment because of a policy, these allegations are 11 conclusory. 12 Plaintiff alleges that, pursuant to Title 15, chiropractic services are not available to 13 inmates. However, Plaintiff does not cite to, quote, or summarize any provision of Title 15 that 14 states that chiropractic services are not available to inmates. Moreover, there are no 15 allegations, such as anything defendant Gu said or did, suggesting that defendant Gu failed to 16 provide Plaintiff with treatment because of CDCR policy. In fact, Plaintiff appears to allege 17 that it was defendant Gu’s refusal to review her medical records that caused the failure. 18 Based on the foregoing, the Court finds that only Plaintiff’s Eighth Amendment claim 19 against defendant Gu in his individual and official capacity for deliberate indifference to 20 Plaintiff’s serious medical needs should proceed past screening. 21 IV. CONCLUSION, RECOMMENDATIONS, AND ORDER 22 The Court has screened the First Amended Complaint and finds that this action should 23 proceed on the following claim: Plaintiff’s Eighth Amendment claim against defendant Gu, in 24 his individual and official capacity, for deliberate indifference to Plaintiff’s serious medical 25 needs. The Court also finds that all other claims and defendants should be dismissed. 26 The Court will not recommend that further leave to amend be granted. In the Court’s 27 prior screening order, the Court identified deficiencies in Plaintiff’s complaint, provided 28 Plaintiff with relevant legal standards, and provided Plaintiff with an opportunity to amend her 1 |/complaint. Plaintiff filed her First Amended Complaint with the benefit of the Court’s 2 || screening order, but she failed to cure the deficiencies identified in the screening order. Thus, 3 || it appears that further leave to amend would be futile. 4 Accordingly, based on the foregoing, the Court HEREBY RECOMMENDS that: 5 1. This case proceed on Plaintiff's Eighth Amendment claim against defendant Gu, 6 in his individual and official capacity, for deliberate indifference to Plaintiffs 7 serious medical needs; and 8 2. All other claims and defendants be dismissed for failure to state a claim. 9 These findings and recommendations will be submitted to the United States district 10 || judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within 11 || twenty-one (21) days after being served with these findings and recommendations, Plaintiff 12 || may file written objections with the Court. The document should be captioned “Objections to 13 || Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 14 || objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 15 || Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 16 || (9th Cir. 1991)). 17 Additionally, IT IS ORDERED that the Clerk of Court is directed to assign a district 18 || judge to this case. 19 0 IT IS SO ORDERED. |! Dated: _ February 8, 2023 [Je ey — 22 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28