(PC) Dukes v. Soto ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DARNELL MAURICE DUKES, Case No. 1:21-cv-01570-JLT-HBK (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS CASE1 13 v. FOURTEEN-DAY OBJECTION PERIOD 14 TAMMY SOTO and JOHN PEARCE, (Doc. No. 11) 15 Defendants. 16 17 Pending before the Court for screening under 28 U.S.C. § 1915A is Plaintiff’s First 18 Amended Complaint. (Doc. No. 11, “FAC”). For the reasons set forth below, the undersigned 19 recommends that the district court dismiss the First Amended Complaint because it fails to state 20 any cognizable constitutional claim and close this case as any further amendments would be 21 futile. 22 SCREENING REQUIREMENT 23 Plaintiff commenced this action while in prison and is subject to the Prison Litigation 24 Reform Act (“PLRA”), which requires, inter alia, the court to screen any complaint that seeks 25 relief against a governmental entity, its officers, or its employees before directing service upon 26 any defendant. 28 U.S.C. § 1915A. This requires the Court to identify any cognizable claims and 27 1This matter was referred to the undersigned pursuant to 28 U.S.C. §636(b)(1)(B) and Eastern District of 28 California Local Rule 302 (E.D. Cal. 2022). 1 dismiss the complaint, or any portion, if is frivolous or malicious, that fails to state a claim upon 2 which relief may be granted, or that seeks monetary relief from a defendant who is immune from 3 such relief. See 28 U.S.C. §§ 1915A(b)(1), (2). 4 At the screening stage, the Court accepts the factual allegations in the complaint as true, 5 construes the complaint liberally, and resolves all doubts in the Plaintiff’s favor. Jenkins v. 6 McKeithen, 395 U.S. 411, 421 (1969); Bernhardt v. L.A. County, 339 F.3d 920, 925 (9th Cir. 7 2003). A court does not have to accept as true conclusory allegations, unreasonable inferences, or 8 unwarranted deductions of fact. Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 9 1981). Critical to evaluating a constitutional claim is whether it has an arguable legal and factual 10 basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227. 11 The Federal Rules of Civil Procedure require only that the complaint include “a short and 12 plain statement of the claim showing the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). 13 Nonetheless, a claim must be facially plausible to survive screening. This requires sufficient 14 factual detail to allow the court to reasonably infer that each named defendant is liable for the 15 misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Moss v. U.S. Secret Service, 16 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully is not 17 sufficient, and mere consistency with liability falls short of satisfying the plausibility standard. 18 Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969. Although detailed factual allegations are not 19 required, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 20 statements, do not suffice,” Iqbal, 556 U.S. at 678 (citations omitted), and courts “are not required 21 to indulge unwarranted inferences,” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 22 2009) (internal quotation marks and citation omitted). 23 If an otherwise deficient pleading could be cured by the allegation of other facts, the pro 24 se litigant is entitled to an opportunity to amend their complaint before dismissal of the action. 25 See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc); Lucas v. Department of 26 Corr., 66 F.3d 245, 248 (9th Cir. 1995). However, it is not the role of the Court to advise a pro se 27 litigant on how to cure the defects. Such advice “would undermine district judges’ role as 28 impartial decisionmakers.” Pliler v. Ford, 542 U.S. 225, 231 (2004); see also Lopez, 203 F.3d at 1 1131 n.13. 2 BACKGROUND AND SUMMARY OF OPERATIVE PLEADING 3 Plaintiff, a state prisoner proceeding pro se, initiated this action by filing a civil rights 4 complaint under 42 U.S.C. § 1983. (Doc. No. 1). The Complaint alleged that Tammy Soto, a 5 Registered Nurse at Corcoran State Prison, and John Pearce, Plaintiff’s primary care physician, 6 were deliberately indifferent to his serious medical condition. (Id. at 4). After Plaintiff 7 underwent shoulder surgery Plaintiff was released back to Corcoran State Prison, where 8 Defendants Soto and Pearce prescribed Tylenol with Codeine, rather than Oxycodone with 9 acetaminophen as prescribed by Plaintiff’s shoulder surgeon. (Id. at 4). Plaintiff takes 10 gabapentin and asserts it should not have been mixed with Tylenol with Codeine, which 11 Defendants prescribed for him despite being aware of his use of gabapentin. (Id.). Plaintiff 12 suffered side effects including diarrhea, abdominal pains, and weight loss. (Id.). Plaintiff’s 13 medical records attached reflect, however, that Defendants took several measures to alleviate 14 Plaintiff’s symptoms including changing his pain medication and providing him anti-diarrhea 15 medication. (Id. at 8, 12). Plaintiff also received extensive post-operative care and physical 16 therapy, and Plaintiff stopped complaining of side effects. (Id. at 8-25). The undersigned 17 screened Plaintiff’s Complaint and found it failed to state any cognizable claim because the facts 18 at most described a difference of medical opinion, not medical deliberate indifference. (Doc. No. 19 10 at 6). 20 On March 20, 2023, Plaintiff filed a First Amended Complaint (“FAC”). The incidents 21 giving rise to the FAC are the same as those giving rise to the initial Complaint, and in fact are 22 almost identical to Plaintiff’s initial Complaint. (See Doc. No. 11 at 5-7; Doc. No. 1 at 4-5). The 23 FAC repeats the allegation that Defendants wrongly prescribed him acetaminophen with codeine, 24 despite knowing that he was taking Gabapentin, which should not be mixed. (Doc. No. 11 at 5- 25 7). As a result, Plaintiff suffered side effects including severe diarrhea, inability to hold down 26 food and liquids, severe abdominal pains, and weight loss. (Id.). Plaintiff asserts he is “still 27 suffering the lingering effects from the deliberate indifference and cruel and unusual punishment 28 inflicted by and through RN Tammy Soto and Dr. John Pearce.” (Id. at 7). Plaintiff further 1 asserts he “is presently and was then a patient of the mental health program known as the 2 CCCMS program” and states that Defendants’ actions exacerbated his mental health problems. 3 (Id.). Plaintiff attaches to the FAC copies of his grievances and the institutional responses, as 4 well as copies of his post-surgery medical records reflecting that he was initially prescribed 5 acetaminophen with Oxycodone, which was later changed to acetaminophen with Codeine, and 6 that Plaintiff was already taking Gabapentin. (Id. at 22-35). The FAC also attaches “Drug 7 Education Monographs” concerning Acetaminophen-Codeine and Gabapentin. (Id. at 39-45). 8 At this stage of the proceedings, the Court’s review is limited to the complaint, exhibits 9 attached, and materials incorporated into the complaint by reference, and matters of which the 10 court may take judicial notice. Petrie v. Elec. Game Card, Inc., 761 F.3d 959, 966 (9th Cir. 11 2014); see also Fed. R. Civ. P. 10(c). Because the exhibits are attached and incorporated in the 12 FAC, the Court may consider the exhibits when their authenticity is not questioned. See Lee v. 13 City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001) (noting at 12(b)(6) stage material properly 14 submitted as part of the complaint may be considered without converting the motion to dismiss to 15 a motion for summary judgment). The Court may disregard allegations contradicted by facts 16 established in exhibits to the Complaint. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 17 (9th Cir. 2011) (a plaintiff may plead himself out of a claim by including . . . details contrary to his 18 claims); see also Cooper v. Yates, 2010 WL 4924748, *3 (E.D. Cal. Nov. 29, 2010) (courts may 19 disregard factual allegations contradicted by facts established by reference to exhibits attached to the 20 complaint). 21 The attached documents confirm that Plaintiff underwent shoulder surgery on March 18, 22 2020. (Id. at 11). According to the California Correctional Health Care Services’ response to 23 Plaintiff’s initial grievance, Plaintiff tolerated the procedure well and was discharged on that 24 same day back to prison. (Id.). The same day, the “nursing staff” reviewed the discharge 25 treatment recommendations and the “primary care provider did not find non-formulary use of 26 oxycodone appropriate at that time” and instead prescribed a short-term course of acetaminophen 27 with codeine for post-operative pain management, consistent with the California Correctional 28 Health Care Services (“CCHCS”) guidelines. (Id.). 1 Plaintiff received post-operative follow-up care on March 19, 2020, at which time 2 Plaintiff was encouraged to use pain medication only as needed. (Id. at 11, 18). On March 20, 3 2020, Plaintiff was seen by a Registered Nurse for a dressing change for his surgical wounds and 4 reported symptoms of diarrhea; at that time the nurse prescribed Plaintiff Loperamide, an 5 antidiarrheal. (Id. at 18). On March 22, 2020, Plaintiff submitted a medical grievance noting 6 diarrhea, severe pain, and inability to hold down food resulting in dehydration and loss of sleep. 7 (Id. at 21). On March 24, 2020, Plaintiff reported to the medical department with diarrhea 8 symptoms and was ordered to discontinue acetaminophen with codeine and to start 9 acetaminophen only; he denied unexplained weight loss or gain at that time. (Id. at 18). 10 Plaintiff continued to receive medical care and received a plan of care that included 11 physical therapy and pain medication. (Id. at 11, 19) (noting Plaintiff was provided physical 12 therapy on April 28, 2020, April 30, 2020, May 5, 2020, May 7, 2020, May 12, 2020, May 14, 13 2020, and May 19, 2020). Medical notes reflect that Plaintiff reported to the medical department 14 and he was encouraged to continue a self-exercise program and gentle stretches, and to report to 15 medical for continued monitoring. (Id. at 11). Improvement to Plaintiff’s left shoulder was noted 16 and Plaintiff did not have any medical complaints. (Id.). Plaintiff is enrolled in a Chronic Care 17 Program. (Id.). 18 As relief for his injuries, Plaintiff requests a declaratory judgment finding Defendants’ 19 actions were unconstitutional and monetary damages of $800,000. (Id. at 8). 20 APPLICABLE LAW AND ANALYSIS 21 A. Eighth Amendment Medical Deliberate Indifference 22 Deliberate indifference to the serious medical needs of an incarcerated person constitutes 23 cruel and unusual punishment in violation of the Eighth Amendment. See Estelle v. Gamble, 429 24 U.S. 97, 104 (1976). A finding of “deliberate indifference” involves an examination of two 25 elements: the seriousness of the plaintiff’s medical need (determined objectively) and the nature 26 of the defendant’s response (determined by defendant’s subjective state of mind). See McGuckin 27 v. Smith, 974 F.2d 1050, 1059 (9th Cir.1992), overruled on other grounds, WMX Technologies, 28 Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). On the objective prong, a “serious” 1 medical need “include[s] the existence of an injury that a reasonable doctor or patient would find 2 important and worthy of comment or treatment; the presence of a medical condition that 3 significantly affects an individual’s daily activities; or the existence of chronic and substantial 4 pain.” Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014); Lopez v. Smith, 203 F.3d 1122, 5 1131 (9th Cir. 2000). The subjective prong requires a showing that a prison official knew of and 6 disregarded a serious risk of harm. Farmer v. Brennan, 511 U.S. 825, 837 (1994). Such 7 indifference may appear when a prison official intentionally denies or delays care, or intentionally 8 interferes with treatment once prescribed. Estelle, 429 U.S. at 104-05. 9 If an official fails to recognize a risk to the plaintiff—that is, the official “should have 10 been aware” of a risk, but in fact was not—the official has not violated the Eighth Amendment. 11 Sandoval v. Cnty. of San Diego, 985 F.3d 657, 668 (9th Cir. 2021) (emphasis in original). That is 12 because deliberate indifference is a higher standard than medical malpractice. Thus, a difference 13 of opinion between medical professionals—or between the plaintiff and defendant—generally 14 does not amount to deliberate indifference. See Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 15 2004). An argument that more should have been done to diagnose or treat a condition generally 16 reflects such differences of opinion and not deliberate indifference. Estelle, 429 U.S. at 107. To 17 prevail on a claim involving choices between alternative courses of treatment, a plaintiff must 18 show that the chosen course “was medically unacceptable under the circumstances,” and was 19 chosen “in conscious disregard of an excessive risk” to the plaintiff’s health. Hamby v. 20 Hammond, 821 F.3d 1085, 1092 (9th Cir. 2016). 21 Neither will an “inadvertent failure to provide medical care” sustain a claim, Estelle, 429 22 U.S. at 105, or even gross negligence, Lemire v. California Dep’t of Corr. & Rehab., 726 F.3d 23 1062, 1082 (9th Cir. 2013). Misdiagnosis alone is not a basis for a claim of deliberate medical 24 indifference. Wilhelm v. Rotman, 680 F.3d 1113, 1123 (9th Cir. 2012). A delay in treatment, 25 without more, is likewise insufficient to state a claim. Shapley v. Nevada Bd. of State Prison 26 Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). It is only when an official both recognizes and 27 disregards a risk of substantial harm that a claim for deliberate indifference exists. Peralta v. 28 Dillard, 744 F.3d 1076, 1086 (9th Cir. 2014) (en banc). A plaintiff must also demonstrate harm 1 from the official’s conduct. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). And the 2 defendant’s actions must have been both an actual and proximate cause of this harm. Lemire, 726 3 F.3d at 1074. 4 Following his shoulder surgery on March 18, 2020, Plaintiff experienced a serious 5 medical need, i.e. management of his post-operative pain and rehabilitation of his shoulder. The 6 record reflects that medical staff saw Plaintiff at least 16 times between March 18 and May 26, 7 2020 to manage his recovery, provide physical therapy, and treat his ongoing symptoms. (Doc. 8 No. 11 at 18-19). Medical staff responded promptly to his grievances. (Id.). Plaintiff’s 9 medications were adjusted after he reported side effects from his medication, and new 10 medications were prescribed to address his diarrhea. (Id.). The records show that his shoulder 11 continued to improve, and Plaintiff ceased to complain of weight loss or diarrhea. (Id.). 12 While Defendants helped provide this care, however, the FAC alleges they were 13 deliberately indifferent to the risk posed by changing Plaintiff’s pain medication prescription 14 from oxycodone to acetaminophen-codeine. Plaintiff asserts that “Gabapentin . . . should never 15 be taken with acetaminophen with codeine.” (Doc. No. 11 at 6). The symptoms Plaintiff 16 experienced while taking the two medications, severe diarrhea, weight loss, and severe abdominal 17 pain, “significantly affect[ed]” Plaintiff’s daily activities and are sufficient to establish a serious 18 medical need, satisfying the first prong of the deliberate medical indifference analysis. See 19 Colwell, 763 F.3d at 1066. Again, the record reflects that medical staff promptly responded to 20 this need by prescribing Plaintiff anti-diarrhea medication, adjusting his pain medication, and 21 providing numerous follow-up appointments to check on Plaintiff’s progress and help rehabilitate 22 his shoulder. (Doc. No. 11 at 18-19). 23 The FAC alleges, in effect, that Defendants should have known that such symptoms 24 would result from prescribing Plaintiff acetaminophen-codeine while he was already taking 25 gabapentin. (See Doc. No. 11 at 6-7). The mere fact that a prison official “should have been 26 aware” of a risk, but in fact was not, is insufficient to establish a violation of the Eighth 27 Amendment. Sandoval v. Cnty. of San Diego, 985 F.3d 657, 668 (9th Cir. 2021) (emphasis in 28 original). And the FAC is devoid of facts indicating that Defendants Soto and Pearce knew (or 1 even should have known) that Plaintiff would experience severe symptoms from combining 2 gabapentin and acetaminophen-codeine and nevertheless ordered the prescription. 3 Plaintiff’s assertion that “Gabapentin . . . should never be taken with acetaminophen with 4 codeine” is modestly supported by an exchange Plaintiff describes having with an unnamed nurse 5 in his April 17, 2020 health care grievance, attached to the FAC. (Doc. No. 11 at 19). Plaintiff 6 describes meeting with the nurse, “Jane Doe” where he reported experiencing diarrhea and Jane 7 Doe “told [Plaintiff his] diarrhea is due to the two medication(s) mixed together . . .” (Id.). 8 Assuming the “two medication(s)” being referred to are gabapentin and acetaminophen-codeine, 9 this hearsay account does not establish the nurse’s assessment is correct, that such a severe 10 reaction was likely, or that Defendants Soto and Pearce knew of the risk to Plaintiff of taking the 11 two medications together. 12 Indeed, the drug monographs for acetaminophen-codeine and gabapentin, attached to 13 Plaintiff’s FAC, fail to mention any specific risk posed by combining the drugs. The “drug 14 interactions” section of the gabapentin monograph states in relevant part: 15 Tell your doctor or pharmacist if you are using other products such as opioid pain or cough relievers (such as codeine, hydrocodone), 16 alcohol, marijuana (cannabis), drugs for sleep or anxiety (such as alprazolam, lorazepam, zolpidem), muscle relaxants (such as 17 carisoprodol, cyclobenzaprine), or antihistamines (such as cetirizine, diphenhydramine) . . . do not use this medication with other 18 medications that contain gabapentin. 19 (Id. at 44) (emphasis added). Notably, the guidance advises a patient using gabapentin to inform 20 their physician if they are already using codeine (or other opioids, which Plaintiff was prescribed 21 by Plaintiff’s surgeon). It does not, however, specifically discourage combining gabapentin and 22 codeine or acetaminophen-codeine, state that they should never be mixed, or predict severe 23 symptoms from doing so. (Id. at 43-44). And while the guidance categorically warns against 24 using gabapentin with other medications containing gabapentin, there is no such categorical 25 warning against using gabapentin with acetaminophen-codeine. (Id.). As for the monograph on 26 acetaminophen-codeine, it says nothing about gabapentin. (Id. at 39-41). Thus, the only pertinent 27 medical evidence in the record reflects no well-known risk from combining gabapentin and 28 acetaminophen-codeine. 1 Even if Defendants were aware that taking gabapentin and acetaminophen-codeine could 2 produce side effects like those Plaintiff experienced, claims arising from side effects of 3 medication only state a claim of negligence, not medical deliberate indifference. Wynn v. 4 Angelone, 1994 WL 551434 at *1 (9th Cir. Oct. 6, 1994) (finding that where a doctor prescribed 5 ibuprofen that caused prisoner ill effects, doctor was not deliberately indifferent—most that was 6 shown was negligence or medical malpractice); Pierce v. Lopez, 2012 WL 1424485, at *4–5 7 (E.D. Cal. Apr. 23, 2012) (doctor’s failure to recognize side effects from antibiotics was only 8 negligence, not deliberate indifference); Uhuru v. Greenman, 2009 U.S. Dist. LEXIS 134432, at 9 *24 (C.D. Cal. Sep. 21, 2009) (finding that defendant doctors were “not liable for the side effects 10 of medications used to control plaintiff's mental health” because plaintiff's injuries due to side 11 effects of his medication stated only a claim of negligence); Murillo v. Thornton, 2008 U.S. Dist. 12 LEXIS 1520, at *4, 2008 WL 110899, at *4 (S.D. Cal. Jan. 9, 2008) (prisoner’s allegations that 13 defendant “prescribed him the wrong medication and did not inform him about the side effects,” 14 causing plaintiff “severe stomach aches and headaches for four months,” failed to state an Eighth 15 Amendment claim). Alternatively, Plaintiff describes a difference of medical opinion between 16 Defendants and his surgeon. Thus, at most Plaintiff’s FAC may state a claim of negligence, or a 17 difference of medical opinion, neither of which is sufficient to establish deliberate medical 18 indifference. See Jackson, 90 F.3d at 332. Accordingly, the undersigned finds the FAC fails to 19 state an Eighth Amendment claim against Defendants Soto and Pearce. 20 FINDINGS AND RECOMMENDATION 21 Plaintiff had an opportunity to cure the deficiencies in his initial Complaint. (See Doc. 22 No. 11). In its prior screening order, the Court instructed Plaintiff on the applicable law and 23 pleading requirements. Despite affording Plaintiff an opportunity to correct the deficiencies, the 24 FAC fails to adequately state any plausible § 1983 claim and in fact repeats almost verbatim the 25 allegations made in Plaintiff’s initial Complaint. Thus, the undersigned finds it would be futile to 26 permit Plaintiff to file a second amended complaint and recommends the district court dismiss the 27 FAC without further leave to amend. McKinney v. Baca, 250 F. App’x 781 (9th Cir. 2007) citing 28 Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992) (noting discretion to deny leave to amend 1 | is particularly broad where court has afforded plaintiff one or more opportunities to amend his 2 | complaint); see also Saul v. United States, 928 F.2d 829, 843 (9th Cir. 1991) (A district court can 3 | deny leave “where the amendment would be futile .. . or where the amended complaint would be 4 | subject to dismissal’’). 5 Accordingly, it is RECOMMENDED: 6 The First Amended Complaint be dismissed under § 1915A for failure to state a claim and 7 | the action be dismissed. 8 NOTICE TO PARTIES 9 These findings and recommendations will be submitted to the United States district judge 10 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 11 | days after being served with these findings and recommendations, a party may file written 12 || objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 13 | Findings and Recommendations.” Parties are advised that failure to file objections within the 14 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 15 | 838-39 (Oth Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 16 | Dated: _ July 28, 2023 Mihaw. Wh. foareh Zaskth 18 HELENA M. BARCH-KUCHTA 9 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 10