(PC) Calderon v. Gamboa

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 JOSE GUADALUPE CALDERON, Case No. 1:19-cv-00167-EPG (PC) 11 Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ALL 12 v. CLAIMS AND DEFENDANTS 13 LAWRENCE GAMBOA, et al., (ECF No. 18) 14 Defendants. OBJECTIONS, IF ANY, DUE WITHIN TWENTY-ONE (21) DAYS 15 ORDER DIRECTING CLERK TO ASSIGN 16 DISTRICT JUDGE 17 Jose Calderon (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 18 in this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the complaint 19 commencing this action on November 20, 2018. (ECF No. 1). The Court screened the 20 complaint, finding no cognizable claims and giving Plaintiff leave to amend, on October 7, 21 2019. (ECF No. 17). Plaintiff filed a First Amended Complaint (“FAC”) on October 18, 2019. 22 (ECF No. 18). Plaintiff generally alleges that he was misdiagnosed as having gout for years, 23 while the correct diagnosis was myopathy. 24 The Court has reviewed the FAC and recommends dismissing the FAC without leave to 25 amend. Plaintiff may file objections to these findings and recommendations within twenty-one 26 days of the date of service of this order, which will be reviewed by the district judge. 27 \\\ 28 \\\ 1 I. SCREENING REQUIREMENT 2 The Court is required to screen complaints brought by prisoners seeking relief against a 3 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 4 The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 5 legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or 6 that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 7 § 1915A(b)(1), (2). As Plaintiff is proceeding in forma pauperis (ECF No. 6), the Court may 8 also screen the complaint under 28 U.S.C. § 1915. “Notwithstanding any filing fee, or any 9 portion thereof, that may have been paid, the court shall dismiss the case at any time if the court 10 determines that the action or appeal fails to state a claim upon which relief may be granted.” 11 28 U.S.C. § 1915(e)(2)(B)(ii). 12 A complaint is required to contain “a short and plain statement of the claim showing 13 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are 14 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 15 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 16 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient 17 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. 18 (quoting Twombly, 550 U.S. at 570). The mere possibility of misconduct falls short of meeting 19 this plausibility standard. Id. at 679. While a plaintiff’s allegations are taken as true, courts 20 “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 21 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). Additionally, a 22 plaintiff’s legal conclusions are not accepted as true. Iqbal, 556 U.S. at 678. 23 Pleadings of pro se plaintiffs “must be held to less stringent standards than formal 24 pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding that 25 pro se complaints should continue to be liberally construed after Iqbal). 26 \\\ 27 \\\ 28 \\\ 1 II. SUMMARY OF PLAINTIFF’S FIRST AMENDED COMPLAINT 2 Plaintiff claims that while incarcerated at Salinas Valley State Prison (“SVSP”), he was 3 medically treated for gout over a range of nine years. However, there was no evidence of 4 Plaintiff having gout and newer examinations showed this was a misdiagnosis by Defendant 5 Magdy on August 13, 2009. On May 11, 2018, Rheumatology confirmed the misdiagnosis and 6 determined that Plaintiff is actually suffering from myopathy. 7 Plaintiff spent about five years in SVSP. He was seen there by Defendant Dr. Danials 8 Magdy and Defendant Dr. Lawrence Gamboa. Plaintiff always told them that he was losing 9 strength and mobility. About a year later he was told that he had “gout.” Plaintiff believed 10 them. Later, when Plaintiff educated himself about gout, he learned that his symptoms were 11 not related to gout. His feet, legs, and right big toe never got inflamed. Plaintiff told 12 Defendant Dr. Magdy and Defendant Dr. Gamboa that perhaps his disease or condition was 13 something else. Plaintiff was also misdiagnosed with left ankle pain. 14 Plaintiff started taking Allopurinol for gout. His health got worse. Plaintiff told his 15 doctors he could not run or jump. On January 31, 2009, and May 9, 2010, Plaintiff kept 16 complaining about pain. 17 On March 8, 2010, Plaintiff “was misdiagnosed with ‘chronic arthitis [sic]’ and that 18 ‘gout’ was normal.” But his doctors kept telling him that he had gout. 19 On March 22, 2011, Plaintiff told Defendant Dr. Gamboa that he still had pain. 20 On June 9, 2011, Defendant Dr. Gamboa found out that Plaintiff had many bacteria, yet 21 he never told Plaintiff about the bacteria. 22 On January 18, 2012, Plaintiff submitted a CDC 7362 form, stating that he had 23 shortness of breath and that on two occasions he almost passed out. 24 On August 28, 2012, Defendant Dr. Gamboa knew that Plaintiff’s uric acid was in 25 range, but kept telling Plaintiff that he had gout. 26 On September 9, 2012, Plaintiff submitted another CDC 7362 form, stating that all he 27 wanted was to sleep, and that he was feeling very feeble. His doctors kept telling him that this 28 was due to the gout. 1 On October 8, 2012, on a request form 22, Plaintiff told Defendant Dr. Gamboa that he 2 did not care about Plaintiff. Plaintiff told Defendant Dr. Gamboa that if he gets sicker, and he 3 finds out the Dr. Gamboa was aware but did not do anything, he would sue Dr. Gamboa. 4 On March 3, 2013, Plaintiff requested the assistance of a translator. 5 In a note dated March 14, 2013, Plaintiff stated that he did not believe he had gout. 6 On April 2, 2013, Plaintiff requested an MRI, but did not receive one. 7 Plaintiff was transferred to Corcoran State Prison on or about May 2013. Plaintiff was 8 medicated for the misdiagnosed gout from May of 2013 until October of 2017 at Corcoran 9 State Prison. Throughout this time Plaintiff always told his doctors that he was losing his 10 mobility and strength. None of the doctors took the time to re-evaluate him. 11 Defendant Dr. Jong Moon prescribed Plaintiff Allopurinol for gout when Plaintiff 12 arrived at Corcoran State Prison. Defendant Dr. Moon did not re-evaluate Plaintiff to make 13 sure he had gout. Plaintiff’s medical file stated that uric acid was normal, but Defendant Dr. 14 Moon did not take this into consideration. On February 28, 2013, Defendant Dr. Moon ordered 15 a blood test, which showed Plaintiff’s uric acid in range. Yet, Defendant Dr. Moon did not stop 16 the medication for gout. 17 On or about June 24, 2016, Defendant Nurse Practitioner Isabel Mathos saw Plaintiff. 18 She ordered more blood tests due to the lipomas on Plaintiff’s lower back. She allowed the 19 gout medication to continue to be administered. On or about June 12, 2016, Plaintiff told 20 Defendant Mathos that he did not have any swelling or inflammation. Plaintiff had a blood test 21 on or about February 27, 2016, which came back within normal limits. Gout was stable, but 22 she did not stop the medication. On or about July 29, 2015, Plaintiff told Defendant Mathos 23 that he was not able to jump or run, and that his knees were very weak. Plaintiff tried to jump 24 in front of her. Plaintiff also laid down on the floor to show her that he was not able to do even 25 one push-up. Defendant Mathos looked at him and smiled. She ordered a knee brace and 26 insoles, but Plaintiff never received them. On a blood test Defendant Mathos discovered that 27 Plaintiff’s calcium and creatinine were out of range, but “[s]he never informed.” 28 On or about August 8, 2016, Defendant Dr. M. Mays saw Plaintiff. Defendant Dr. 1 Mays denied Plaintiff a special diet and informed Plaintiff that his medical records did not 2 show any indication of gout. 3 On or about August 11, 2016, Defendant Dr. Mays reported a blood test showing that 4 Plaintiff’s calcium was 10.5 out of range, but she did not inform Plaintiff. 5 On or about September 8, 2016, Defendant Dr. Mays stated that a review of Plaintiff’s 6 current medical records does not demonstrate any objective indication of gout. She also stated 7 that Plaintiff’s physical complaints may be arising from some other condition. Yet, she did not 8 stop the medication. 9 On September 19, 2016, Plaintiff stated on a 602 that a review of his current medical 10 records does not demonstrate any objective indication of gout. Plaintiff complained that he had 11 been given medication for something he did not have. Plaintiff accused the medical department 12 of committing a fraud against the federal government and state treasury, as these agencies paid 13 for paying for medication that was not needed. 14 Defendant Dr. Mays did not stop the medication for gout. 15 On or about September 15, 2016, Defendant Dr. Br. Phi saw Plaintiff and ordered blood 16 tests and x-rays. Defendant Dr. Phi allowed the gout medication to continue, and Plaintiff 17 continued taking his prescribed medication. On or about April 24, 2017, Defendant Dr. Phi 18 saw Plaintiff again. Plaintiff told him that he had fatigue and low energy. Defendant Dr. Phi 19 noticed that Plaintiff’s right knee is greater than his left. Defendant Dr. Phi stated 20 “questionable gout uric acid level” stable at 5.4, continue with Allopurinol. He also stated it 21 could be mental health related. A blood test reported on September 21, 2016, by Defendant Dr. 22 Phi discovered that Plaintiff’s creatinine was out of range, but Defendant Dr. Phi never 23 informed Plaintiff. 24 On of about June 21, 2017, Defendant Nurse Practitioner Patricia Rouch saw Plaintiff 25 and ordered more blood tests. She diagnosed Plaintiff with scoliosis due to his back being 26 crooked and lipomas. Defendant Rouch allowed the gout medication to continue, and Plaintiff 27 continued taking his prescribed medication. Through a blood test Defendant Rouch discovered 28 that Plaintiff had creatinine kinase, but she did not tell Plaintiff. Instead, she told him he had 1 scoliosis, which was a misdiagnosis. Plaintiff told her he was losing his mobility. She made 2 Plaintiff remove his t-shirt and asked why Plaintiff’s hands were so slender. Plaintiff showed 3 her that he could not jump. Defendant Rouch also told Plaintiff that if he were in Mexico he 4 would not be receiving the treatment he was getting in this country, and that he would be 5 sleeping without a mattress. 6 On or about November 1, 2017, Defendant P.A. Nancy Siegrist saw Plaintiff and 7 ordered more blood tests, along with a feces test. She allowed the gout medication to continue. 8 She stated that Plaintiff could be suffering from stomach bacteria and blood bacteria. 9 Plaintiff arrived at Avenal State Prison on or about October 3, 2017. Without reviewing 10 his medical file, Defendant P.A. Nancy Siegrist and Defendant Dr. Jasmine Biol prescribed 11 Allopurinol for gout. When Plaintiff saw Defendant Siegrist, Plaintiff told her how he was 12 feeling. She spent some time reading Plaintiff’s file and asked some questions. She then spoke 13 with another person and stated that Plaintiff was really sick. She ordered a blood test and a 14 fecal test. Plaintiff told her that his problem was weakness. 15 The next time Plaintiff went to see the doctor he was seen by Defendant Dr. Biol, who 16 took away his lower bed chrono. Plaintiff told her that he was very sick, but she told Plaintiff 17 the he was young and needed to drink more water and work out. Plaintiff told her that his 18 whole body was shutting down and he was always in pain. 19 The third time he went to see the doctor he was seen by Defendant Siegrist. He asked if 20 she could be his doctor, but she said she was working in another yard. 21 On or about November 16, 2017, “both defendants” knew that Plaintiff had elevated 22 creatine kinase, but they did not stop the gout medication. One of these defendants noted that 23 Allopurinol-D can cause myositis. 24 In February of 2018 Defendant Dr. Biol stopped the gout medication because it was 25 causing diarrhea. 26 On May 11, 2018, it was confirmed that Plaintiff did not have gout. 27 When Defendant Dr. Biol stopped the medication for gout, she told Plaintiff it was the 28 cause of his diarrhea. She also told Plaintiff to stop working out, but did not say why. She 1 never told Plaintiff that he could have myopathy. She always lied to Plaintiff. Plaintiff has a 2 fatty liver, but she told him the test was normal. Plaintiff told her she was lying, because 3 Plaintiff already knew he had a fatty liver, but she did not want to tell him. 4 On or about May 11, 2018, Plaintiff was taken to Rheumatologist Dr. R. Kotha, who 5 affirmed that Plaintiff was not suffering from gout. Dr. Kotha told Plaintiff that his real 6 condition is myopathy. For more than a year Plaintiff has been treated for myopathy. 7 In February of 2018 a doctor working for the National Lawyers Guild, Dr. Jamie 8 Weinstein, independently reviewed Plaintiff’s medical records. She believes that Plaintiff’s 9 pain and weakness are not caused by gout. She also did not believe that Plaintiff had arthritis 10 or scoliosis. 11 Plaintiff’s health has deteriorated. He has lost all strength to function properly, and 12 suffers from pain on his back. Lipomas have built on his back, but Plaintiff was informed that 13 lipomas are not supposed to cause pain. Now, Plaintiff’s back if inflamed and the pain in his 14 back is “getting out of control.” 15 III. ANALYSIS OF PLAINTIFF’S CLAIMS 16 A. Section 1983 17 The Civil Rights Act under which this action was filed provides: 18 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 19 causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or 20 immunities secured by the Constitution and laws, shall be liable to the party 21 injured in an action at law, suit in equity, or other proper proceeding for redress.... 22 42 U.S.C. § 1983. “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely 23 provides ‘a method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 24 490 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see 25 also Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los 26 Angeles, 697 F.3d 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 27 2012); Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). 28 1 To state a claim under section 1983, a plaintiff must allege that (1) the defendant acted 2 under color of state law, and (2) the defendant deprived him of rights secured by the 3 Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 4 2006); see also Marsh v. Cnty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing 5 “under color of state law”). A person deprives another of a constitutional right, “within the 6 meaning of § 1983, ‘if he does an affirmative act, participates in another's affirmative act, or 7 omits to perform an act which he is legally required to do that causes the deprivation of which 8 complaint is made.’” Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th 9 Cir. 2007) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite 10 causal connection may be established when an official sets in motion a ‘series of acts by others 11 which the actor knows or reasonably should know would cause others to inflict’ constitutional 12 harms.” Preschooler II, 479 F.3d at 1183 (quoting Johnson, 588 F.2d at 743). This standard of 13 causation “closely resembles the standard ‘foreseeability’ formulation of proximate cause.” 14 Arnold v. Int'l Bus. Mach. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981); see also Harper v. City 15 of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008). 16 Additionally, a plaintiff must demonstrate that each named defendant personally 17 participated in the deprivation of his rights. Iqbal, 556 U.S. at 676-77. In other words, there 18 must be an actual connection or link between the actions of the defendants and the deprivation 19 alleged to have been suffered by Plaintiff. See Monell v. Dep't of Soc. Servs. of City of N.Y., 20 436 U.S. 658, 691, 695 (1978). 21 B. Deliberate Indifference to Serious Medical Needs in Violation of the Eighth 22 Amendment 23 “[T]o maintain an Eighth Amendment claim based on prison medical treatment, an 24 inmate must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 25 1091, 1096 (9th Cir. 2006), (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). This 26 requires Plaintiff to show (1) “a ‘serious medical need’ by demonstrating that ‘failure to treat a 27 prisoner’s condition could result in further significant injury or the unnecessary and wanton 28 infliction of pain,’” and (2) that “the defendant's response to the need was deliberately 1 indifferent.” Id. (quoting McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992) (citation 2 and internal quotations marks omitted), overruled on other grounds by WMX Technologies v. 3 Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc)). 4 Deliberate indifference is established only where the defendant subjectively “knows of 5 and disregards an excessive risk to inmate health and safety.” Toguchi v. Chung, 391 F.3d 6 1051, 1057 (9th Cir. 2004) (emphasis added) (citation and internal quotation marks omitted). 7 Deliberate indifference can be established “by showing (a) a purposeful act or failure to 8 respond to a prisoner's pain or possible medical need and (b) harm caused by the indifference.” 9 Jett, 439 F.3d at 1096 (citation omitted). Civil recklessness (failure “to act in the face of an 10 unjustifiably high risk of harm that is either known or so obvious that it should be known”) is 11 insufficient to establish an Eighth Amendment violation. Farmer v. Brennan, 511 U.S. 825, 12 836-37 & n.5 (1994) (citations omitted). 13 A difference of opinion between an inmate and prison medical personnel—or between 14 medical professionals—regarding appropriate medical diagnosis and treatment is not enough to 15 establish a deliberate indifference claim. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); 16 Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004). Additionally, “a complaint that a 17 physician has been negligent in diagnosing or treating a medical condition does not state a valid 18 claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not 19 become a constitutional violation merely because the victim is a prisoner.” Estelle, 429 U.S. at 20 106. To establish a difference of opinion rising to the level of deliberate indifference, a 21 “plaintiff must show that the course of treatment the doctors chose was medically unacceptable 22 under the circumstances.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996). 23 The Court finds that Plaintiff has failed to state a cognizable Eighth Amendment claim 24 against any defendant. Plaintiff’s complaint largely stems from the allegation that Defendants 25 treated Plaintiff with gout medication, even though, as it turned out, Plaintiff does not have 26 gout. However, there is no indication that any defendant was deliberately indifferent to 27 Plaintiff’s serious medical needs under these legal standards. It appears that every defendant 28 ordered some form of treatment and/or test. While the gout diagnosis was allegedly incorrect, 1 there are no allegations suggesting that any defendant prescribed gout medication despite 2 knowing that Plaintiff did not have gout, or that any defendant purposefully failed to respond to 3 Plaintiff’s medical needs. “[A] complaint that a physician has been negligent in diagnosing or 4 treating a medical condition does not state a valid claim of medical mistreatment under the 5 Eighth Amendment. Medical malpractice does not become a constitutional violation merely 6 because the victim is a prisoner.” Estelle, 429 U.S. at 106. Even if Plaintiff’s doctors were 7 wrong with their diagnosis, this alone is not enough to establish a constitutional claim.1 8 Plaintiff does make allegations that certain defendants did not inform him of certain test 9 results, but there are no allegations in the complaint that this failure to inform harmed Plaintiff 10 or that the Defendant medical professional believed that withholding such information would 11 harm him. 12 IV. CONCLUSION AND RECOMMENDATIONS 13 The Court has screened Plaintiff’s FAC and finds that Plaintiff failed to state any 14 cognizable claims. Thus, the Court recommends that Plaintiff’s FAC be dismissed, with 15 prejudice, for failure to state a claim, and that the Clerk of Court be directed to close this case. 16 The Court does not recommend granting further leave to amend because the Court 17 provided Plaintiff with an opportunity to amend his complaint with the benefit of the legal 18 standards above, and Plaintiff filed his FAC with the guidance of those legal standards. 19 These findings and recommendations will be submitted to the district judge assigned to 20 this case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within twenty-one (21) 21 days after being served with these findings and recommendations, Plaintiff may file written 22 23 1 The Court does not address whether Plaintiff has stated a tort claim for negligence or medical 24 malpractice against any defendant. Plaintiff does not assert such a claim in his complaint. Additionally, Plaintiff did not plead compliance with California’s Government Claims Act. California’s Government Claims Act 25 requires that a tort claim against a public entity or its employees be presented to the California Victim Compensation and Government Claims Board, formerly known as the State Board of Control, no more than six 26 months after the cause of action accrues. Cal. Gov’t Code §§ 905.2, 910, 911.2, 945.4, 950–950.2. Presentation of a written claim, and action on or rejection of the claim are conditions precedent to suit. State v. Superior Court 27 of Kings County (Bodde), 32 Cal.4th 1234, 1245 (Cal. 2004); Mangold v. California Pub. Utils. Comm’n, 67 F.3d 1470, 1477 (9th Cir. 1995). To state a tort claim against a public entity or employee, a plaintiff must allege 28 compliance with the Government Claims Act. Bodde, 32 Cal.4th at 1245; Mangold, 67 F.3d at 1477; Karim- Panahi v. Los Angeles Police Dept., 839 F.2d 621, 627 (9th Cir. 1988). 1 || objections with the Court. Such a document should be captioned “Objections to Magistrate 2 || Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections 3 || within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 4 || 772 F.3d 834, 839 (9th Cir. 2014) (quoting Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 5 1991)). 6 Additionally, IT IS ORDERED that the Clerk of Court is directed to assign a district 7 || judge to this case. 8 9 IT IS SO ORDERED. 10 | Dated: _ October 30, 2019 [Jee ey — 11 UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11