(PC) Cortinas v. Ikegbu ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LARRY WILLIAM CORTINAS, No. 2:23-cv-00285-TLN-CKD P 12 Plaintiff, 13 v. ORDER and FINDINGS AND RECOMMENDATIONS 14 N. IKEGBU, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner appearing pro se and in forma pauperis in this civil rights 18 action pursuant to 42 U.S.C. § 1983. This matter was referred to a United States Magistrate 19 Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. Currently pending before the 20 court is plaintiff’s first amended complaint for screening. 21 I. Screening Requirement 22 As plaintiff was previously advised, the court is required to screen complaints brought by 23 prisoners seeking relief against a governmental entity or officer or employee of a governmental 24 entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the 25 prisoner has raised claims that are legally “frivolous or malicious,” that fail to state a claim upon 26 which relief may be granted, or that seek monetary relief from a defendant who is immune from 27 such relief. 28 U.S.C. § 1915A(b)(1), (2). 28 ///// 1 II. Allegations in the First Amended Complaint 2 At all times relevant to the allegations in the amended complaint, plaintiff was a prisoner 3 at the California Medical Facility (“CMF”). Named as defendants are four medical providers at 4 CMF in addition to the acting warden, current warden, the head of the Health Care Services 5 Appeals Branch, the Governor of California, and Does 1-10. 6 Plaintiff alleges that on May 20, 2022, defendants Ikegbu and Osman ordered his doctor 7 to reduce, and then eventually discontinue, plaintiff’s prescription for morphine, Lyrica and 8 Baclofen in deliberate indifference to his serious medical need for pain management. On this 9 same date, these defendants denied plaintiff follow-up care with Dr. Senegor, a neurosurgeon 10 outside the California Department of Corrections and Rehabilitation (“CDCR”). Defendant 11 Ikegbu fabricated medical reports indicating that plaintiff had a steady gait and had tested positive 12 for heroin in order to deny him needed surgery on or about April 2023. Defendant Patterson 13 assisted these defendants in denying plaintiff follow-up care with Dr. Senegor by refusing to 14 submit the surgery request to CDCR headquarters for approval. Defendant Haile did not increase 15 plaintiff’s morphine or add additional pain medications in deliberate indifference to plaintiff’s 16 serious medical needs. 17 With respect to the acting warden of CMF and the chief of the Health Care Services’ 18 Appeals branch, plaintiff contends that they assisted defendants Ikegbu and Osman in denying the 19 necessary follow-up care with Dr. Senegor. However, the amended complaint does not contain 20 any factual details as to how the warden or a grievance administrator were responsible for making 21 plaintiff’s medical treatment decisions. 22 Plaintiff made defendants Osman, Patterson, Gates, Newsom, Benavidez, and Cuevas 23 aware of the denial of his recommended surgery through written correspondence to them. 24 Lastly, plaintiff alleges that defendants Ikegbu, Osman, Gates, Benavidez, Cueva, and 25 Newsom engaged in a civil conspiracy to deny him necessary medical care. 26 III. Analysis 27 After conducting the required screening, the undersigned finds that plaintiff has stated a 28 cognizable Eighth Amendment deliberate indifference claim against defendants Ikegbu, Osman, 1 Haile, and Patterson. Service of the first amended complaint will be ordered on these defendants 2 by a separate order filed contemporaneously herewith. The undersigned further finds that the 3 additional claims in the amended complaint fail to state a claim for relief against the remaining 4 defendants for the reasons outlined below. 5 To the extent that plaintiff alleges that defendants Osman, Patterson, Gates, Newsom, 6 Benavidez, and Cueva were all made aware of the denial of plaintiff’s back surgery, this is not 7 enough to state a federal claim against these defendants based on their supervisory capacity. See 8 ECF No. 14 at 6. Government officials may not be held liable for the unconstitutional conduct of 9 their subordinates under a theory of respondeat superior. Ashcroft v. Iqbal, 556 U.S. 662, 677 10 (2009) (“In a § 1983 suit ... the term “supervisory liability” is a misnomer. Absent vicarious 11 liability, each Government official, his or her title notwithstanding is only liable for his or her 12 own misconduct.”). When the named defendant holds a supervisory position, the causal link 13 between the defendant and the claimed constitutional violation must be specifically alleged; that 14 is, a plaintiff must allege some facts indicating that the defendant either personally participated in 15 or directed the alleged deprivation of constitutional rights or knew of the violations and failed to 16 act to prevent them. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Taylor v. List, 880 17 F.2d 1040, 1045 (9th Cir. 1989); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). The 18 amended complaint indicates that these defendants were alerted to the asserted constitutional 19 violations after they had already occurred. Therefore, plaintiff has failed to state a claim against 20 defendants Osman, Patterson, Gates, Newsom, Benavidez, and Cueva. 21 Just as in the original complaint, plaintiff raises an entirely conclusory civil conspiracy 22 claim against defendants Ikegbu, Osman, Gates, Benavidez, Cueva, and Newsom. See ECF No. 23 14 at 7. However, to state a claim for conspiracy under 42 U.S.C. § 1983, plaintiff must plead 24 specific facts showing an agreement or meeting of the minds between defendants to violate his 25 constitutional rights. Woodrum v. Woodward Cty., 866 F.2d 1121, 1126 (9th Cir. 1989). 26 Plaintiff has once again failed to include any specific facts demonstrating an agreement among 27 these defendants to violate his constitutional rights. Therefore, the first amended complaint does 28 not properly plead a civil conspiracy claim against any named defendant. 1 Although plaintiff alleges a First Amendment retaliation claim against defendants Ikegbu, 2 Osman, Gates, Patterson, and Benavidez, the undersigned finds that the allegations are 3 insufficient to state a claim. The amended complaint asserts that these defendants denied him 4 needed surgery to prevent him from obtaining medical evidence to prove the full extent of his 5 injuries from correctional officers who beat him in 2018. However, the amended complaint 6 asserts that the basis for the denial of plaintiff’s surgery was “apart [sic] of a larger design policy 7 of cost savings and why CDCR has remained unconstitutional in there [sic] health care services.” 8 ECF No. 14 at 8. This does not adequately connect the denial of plaintiff’s surgery to any of his 9 protected conduct in order to state a valid retaliation claim. See Rhodes v. Robinson, 408 F.3d 10 559 567-68 (9th Cir. 2005) (stating all five elements of a First Amendment retaliation claim). 11 Therefore, even liberally construing plaintiff’s amended complaint, he has failed to adequately 12 plead a retaliation claim against any defendant. 13 The amended complaint does not link any of the asserted constitutional violations to Does 14 1-10 who are also named as defendants. The civil rights statute requires that there be an actual 15 connection or link between the actions of the defendants and the deprivation alleged to have been 16 suffered by plaintiff. See Monell v. Department of Social Services, 436 U.S. 658 (1978); Rizzo 17 v. Goode, 423 U.S. 362 (1976). The Ninth Circuit has held that “[a] person ‘subjects' another to 18 the deprivation of a constitutional right, within the meaning of section 1983, if he does an 19 affirmative act, participates in another's affirmative acts or omits to perform an act which he is 20 legally required to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 21 588 F.2d 740, 743 (9th Cir. 1978) (citation omitted). Based on plaintiff’s failure to link Does 1- 22 10 with some affirmative act or omission that demonstrates a violation of plaintiff's federal rights, 23 he has failed to state any claim for relief against them. 24 IV. Leave to Amend 25 Leave to amend should be granted if it appears possible that the defects in the complaint 26 could be corrected, especially if a plaintiff is pro se. Lopez v. Smith, 203 F.3d 1122, 1130-31 27 (9th Cir. 2000) (en banc). However, if, after careful consideration, it is clear that a claim cannot 28 be cured by amendment, the court may dismiss without leave to amend. Cato, 70 F.3d at 1105- 1 06. Based on this analysis, the undersigned recommends that all claims against defendants 2 Osman, Patterson, Gates, Newsom, Benavidez, Cueva, and Does 1-10 as well as the civil 3 conspiracy and First Amendment retaliation claims defendant Ikegbu be dismissed without 4 further leave to amend. It does not appear to the court that the identified defects in the claims are 5 curable, especially since plaintiff has already been provided the opportunity to do so after being 6 given the requisite legal standards to state a claim. See Klamath-Lake Pharm. Ass’n v. Klamath 7 Med. Serv. Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983) (holding that while leave to amend shall 8 be freely given, the court does not have to allow futile amendments). 9 V. Plain Language Summary for Pro Se Party 10 The following information is meant to explain this order in plain English and is not 11 intended as legal advice. 12 The court has reviewed the allegations in your first amended complaint and determined 13 that some state cognizable claims and others do not. The court is ordering service on defendants 14 Ikegbu, Osman, Haile and Patterson for Eighth Amendment deliberate indifference claims, but 15 recommending that the remaining claims and defendants be dismissed without further leave to 16 amend. 17 If you disagree with this recommendation to dismiss certain claims, you may file a written 18 explanation as to why it is not correct within 14 days from the date of this order. Label your 19 explanation as “Objections to Magistrate Judge’s Findings and Recommendations.” 20 Accordingly, IT IS HEREBY ORDERED that this case proceed on plaintiff’s first 21 amended complaint stating an Eighth Amendment deliberate indifference claim against 22 defendants Ikegbu, Osman, Haile and Patterson. 23 IT IS FURTHER RECOMMENDED that all claims against defendants Osman, Patterson, 24 Gates, Newsom, Benavidez, Cueva, and Does 1-10 as well as the civil conspiracy and First 25 Amendment retaliation claims defendant Ikegbu be dismissed without further leave to amend. 26 These findings and recommendations are submitted to the United States District Judge 27 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 28 after being served with these findings and recommendations, any party may file written 1 | objections with the court and serve a copy on all parties. Such a document should be captioned 2 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 3 || objections shall be served and filed within fourteen days after service of the objections. The 4 || parties are advised that failure to file objections within the specified time may waive the right to 5 || appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 6 | Dated: November 1, 2023 / a8 } i | / p , {a ce 7 CAROLYNK. DELANEY 8 UNITED STATES MAGISTRATE JUDGE 9 10 1] 12 13 14 12/cort0285.F&R.screening 15 16 17 18 19 20 21 22 23 24 25 26 27 28