(PC) Carter v. California Health Care Services

[8] UNITED STATES DISTRICT COURT [9] EASTERN DISTRICT OF CALIFORNIA [10] 11 KEITH REAGAN CARTER, 1:17-cv-01374-DAD-GSA-PC 12 Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE BE 13 v. DISMISSED, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM 14 CALIFORNIA HEALTH CARE (ECF No. 20.) SERVICES, et al., 15 OBJECTIONS, IF ANY, DUE IN FOURTEEN Defendants. (14) DAYS [18] 19 I. BACKGROUND 20 Keith Reagan Carter (“Plaintiff”) is a state prisoner proceeding pro se and in forma 21 pauperis with this civil rights action pursuant to 42 U.S.C. § 1983 . On October 12, 2017, Plaintiff 22 filed the Complaint commencing this action. (ECF No. 1.) On July 24, 2018, the court dismissed 23 the Complaint for failure to state a claim, with leave to amend. (ECF No. 14.) On August 1, 24 2018, Plaintiff filed the First Amended Complaint. (ECF No. 15.) 25 On April 15, 2019, Plaintiff filed a motion for leave to file a supplemental complaint. 26 (ECF No. 18.) On April 22, 2019, the court denied Plaintiff’s motion for leave to file a 27 supplemental complaint but granted Plaintiff leave to file a Second Amended Complaint. (ECF 28 No. 19.) On May 3, 2019, Plaintiff filed the Second Amended Complaint. (ECF No. 20.) 1 The Second Amended Complaint is now before the court for screening. 28 U.S.C. § 2 1915A. 3 II. SCREENING REQUIREMENT 4 The court is required to screen complaints brought by prisoners seeking relief against a 5 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 6 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 7 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 8 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 9 “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall 10 dismiss the case at any time if the court determines that the action or appeal fails to state a claim 11 upon which relief may be granted.” 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 that 13 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 14 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)). While a plaintiff’s allegations are taken 17 as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, 18 Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). To state 19 a viable claim, Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim 20 to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678-79 ; Moss v. U.S. Secret Service, [21] 572 F.3d 962, 969 (9th Cir. 2009). While factual allegations are accepted as true, legal 22 conclusions are not. Id. The mere possibility of misconduct falls short of meeting this 23 plausibility standard. Id. 24 III. SUMMARY OF SECOND AMENDED COMPLAINT 25 Plaintiff is currently incarcerated at Sierra Conservation Center in Jamestown, California. 26 The events at issue in the Second Amended Complaint allegedly occurred at the California 27 /// 28 /// 1 Correctional Institution (CCI) in Tehachapi, California, when Plaintiff was incarcerated there in 2 the custody of the California Department of Corrections and Rehabilitation (CDCR). Plaintiff 3 names as defendants the California State Dental Health Receiver, CDCR, J. Sullivan (Warden) 4 and Jassol (Nurse) (collectively, “Defendants”). 5 Plaintiff alleges as follows. On November 22, 2016, Plaintiff received a free dental exam 6 where it was recommended that all of his teeth be removed because of periodontal bone loss. 7 Plaintiff agreed to the recommended treatment plan. On November 29, 2016, Plaintiff had two 8 teeth extracted and discovered that his account had been debited $5.00 for a co-pay that should 9 have been waived per CCR 15 § 3354.2(c)(4)(D). Plaintiff contends that he never submitted a 10 CDCR 7632 form to initiate a treatment that had already been recommended, and therefore his 11 visit was a follow-up visit. 12 Plaintiff filed a CDCR form 22 to request the return of his funds. The request was denied. 13 Plaintiff then filed an administrative appeal and was denied the return of his $5.00 co-pay at all 14 three levels of the appeals process. Plaintiff then filed a petition for writ of habeas corpus in 15 Kern County Superior Court, which was denied. 16 On March 1, 2019, CDCR’s Health Care Receiver abolished the $5.00 co-payment while 17 this case was pending. Plaintiff seeks to obtain all of the $5.00 co-payments taken “during this 18 time.” 2ACP, ECF No. 20 at 4. 19 Plaintiff seeks to recover all of the $5.00 copayments taken from him and damages of 20 $24,620.00. 21 IV. PLAINTIFF’S CLAIMS 22 The Civil Rights Act under which this action was filed provides: 23 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 to 24 be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities 25 secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . . [27] 42 U.S.C. § 1983 . [28] 1 “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a 2 method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 490 U.S. 386 , 3 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137 , 144 n.3 (1979)); see also Chapman v. 4 Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los Angeles, 697 F.3d 5 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730 , 734 (9th Cir. 2012); Anderson v. 6 Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). 7 To state a claim under section 1983, a plaintiff must allege that (1) the defendant acted 8 under color of state law and (2) the defendant deprived him of rights secured by the Constitution 9 or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); see also 10 Marsh v. Cnty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing “under color of 11 state law”). A person deprives another of a constitutional right, “within the meaning of § 1983, 12 ‘if he does an affirmative act, participates in another’s affirmative act, or omits to perform an act 13 which he is legally required to do that causes the deprivation of which complaint is made.’” 14 Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175 , 1183 (9th Cir. 2007) (quoting 15 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite causal connection may be 16 established when an official sets in motion a ‘series of acts by others which the actor knows or 17 reasonably should know would cause others to inflict’ constitutional harms.” Preschooler II, 479 18 F.3d at 1183 (quoting Johnson, 588 F.2d at 743 ). This standard of causation “closely resembles 19 the standard ‘foreseeability’ formulation of proximate cause.” Arnold v. Int’l Bus. Mach. Corp., [20] 637 F.2d 1350, 1355 (9th Cir. 1981); see also Harper v. City of Los Angeles, 533 F.3d 1010 , 21 1026 (9th Cir. 2008). 22 A. Eleventh Amendment Immunity 23 Plaintiff names the CDCR as a defendant. Plaintiff may not sustain an action against a 24 state agency. The Eleventh Amendment prohibits federal courts from hearing suits brought 25 against an unconsenting state. Brooks v. Sulphur Springs Valley Elec. Co., 951 F.2d 1050 , 1053 26 (9th Cir. 1991) (internal citations omitted); see also Tennessee v. Lane, 541 U.S. 509, 517 (2004); 27 /// 28 /// 1 Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 267-68 (1997); Clark v. California, 123 2 F.3d 1267 , 1269 (9th Cir. 1997). The Eleventh Amendment bars suits against state agencies as 3 well as those where the state itself is named as a defendant. See P.R. Aqueduct & Sewer Auth. 4 v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993); Beentjes v. Placer Cnty. Air Pollution Control 5 Dist., 397 F.3d 775, 777 (9th Cir. 2005); Savage v. Glendale Union High Sch., 343 F.3d 1036 , 6 1040 (9th Cir. 2003); see also Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per 7 curiam) (stating that Board of Corrections is agency entitled to immunity); Taylor v. List, 880 8 F.2d 1040 , 1045 (9th Cir. 1989) (concluding that Nevada Department of Prisons was a state 9 agency entitled to Eleventh Amendment immunity). Because CDCR is a state agency, it is 10 entitled to Eleventh Amendment immunity from suit. Therefore, the court finds that Plaintiff 11 fails to state a claim against defendant CDCR. 12 B. Personal Participation 13 “Liability under [§] 1983 arises only upon a showing of personal participation by the 14 defendant. A supervisor is only liable for the constitutional violations of . . . subordinates if the 15 supervisor participated in or directed the violations, or knew of the violations and failed to act to 16 prevent them. There is no respondeat superior liability under [§] 1983.” Id. (citations omitted). 17 Plaintiff must demonstrate that each defendant, through his or her own individual actions, 18 violated Plaintiff=s constitutional rights. Iqbal, 556 U.S. at 676 ; Corales v. Bennett, 567 F.3d 19 554, 570 (9th Cir. 2009). 20 In the Second Amended Complaint, Plaintiff fails to allege facts showing that any of the 21 individual defendants personally acted against him. Plaintiff fails to attribute any personal act to 22 the Receiver, Warden Sullivan, or Nurse Jassol. Plaintiff cannot state a claim against these 23 defendants unless he demonstrates in his allegations that each of them, identified by name, 24 personally acted or failed to act, violating Plaintiff’s rights. Liability may not be imposed under 25 a theory of respondeat superior, and there must exist some causal connection between the 26 conduct of each named defendant and the violation at issue. Iqbal, 556 U.S. at 676-77 ; Lemire 27 /// 28 /// 1 v. California Dept. of Corrections and Rehabilitation, 726 F.3d 1062, 1074-75 (9th Cir. 2013); 2 Lacey v. Maricopa County, 693 F.3d 896, 915-16 (9th Cir. 2012) (en banc); Starr v. Baca, 652 3 F.3d 1202 , 1205-08 (9th Cir. 2011), cert. denied, 132 S.Ct. 2101 (2012). 4 Therefore, the court finds that Plaintiff fails to state a claim against the Receiver, Warden 5 Sullivan, or Nurse Jassol. 6 C. Medical/Dental Claim -- Eighth Amendment 7 “Dental care is one of the most important medical needs of inmates. Accordingly, the 8 Eighth Amendment requires that prisoners be provided with a system of ready access to adequate 9 dental care.” Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir. 1989) (internal citations and 10 quotation omitted). “[T]o maintain an Eighth Amendment claim based on prison medical 11 treatment, an inmate must show ‘deliberate indifference to serious medical needs.’” Jett v. 12 Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97 , 104 13 (1976)). The two-part test for deliberate indifference requires the plaintiff to show (1) “‘a serious 14 medical need’ by demonstrating that ‘failure to treat a prisoner=s condition could result in further 15 significant injury or the unnecessary and wanton infliction of pain,’” and (2) “the defendant’s 16 response to the need was deliberately indifferent.” Jett, 439 F.3d at 1096 (quoting McGuckin v. 17 Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. 18 Miller, 104 F.3d 1133 , 1136 (9th Cir. 1997) (en banc) (internal quotations omitted)). Deliberate 19 indifference is shown by “a purposeful act or failure to respond to a prisoner’s pain or possible 20 medical need, and harm caused by the indifference.” Id. (citing McGuckin, 974 F.2d at 1060). 21 Deliberate indifference may be manifested “when prison officials deny, delay or intentionally 22 interfere with medical treatment, or it may be shown by the way in which prison physicians 23 provide medical care.” Id. Where a prisoner is alleging a delay in receiving medical treatment, 24 the delay must have led to further harm in order for the prisoner to make a claim of deliberate 25 indifference to serious medical needs. McGuckin at 1060 (citing Shapely v. Nevada Bd. of State 26 Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985)). 27 /// 28 /// 1 Plaintiff alleges that he suffered from periodontal bone loss. This allegation is sufficient 2 to demonstrate a serious medical need. However, Plaintiff has not made allegations against any 3 defendant that meet the standard for deliberate indifference to Plaintiff’s dental health. Plaintiff 4 has not identified his dentist by name or named the dentist as a defendant, and there are no 5 allegations that the dentist or any other defendant disregarded a risk of harm to Plaintiff’s dental 6 health, causing him injury. Plaintiff alleges that he was examined by the dentist who 7 recommended that his teeth be removed due to bone loss, and Plaintiff agreed with this treatment 8 plan. At a later visit, two of Plaintiff’s teeth were extracted. 9 Here, Plaintiff does not allege that any defendant failed to provide dental care to him or 10 delayed his receipt of dental or medical care, but rather that he was required to pay for dental 11 care while imprisoned. See Gardner v. Wilson, 959 F.Supp. 1224, 1228 (C.D. Cal. 1997). In 12 effect, Plaintiff claims that although he had funds to pay a nominal $5.00 co-payment he has a 13 constitutional right to free medical treatment while imprisoned. Id. There is no merit to Plaintiff's 14 claim. As the Ninth Circuit has found that an inmate does not state a claim under the Eighth 15 Amendment when he cannot allege that he was denied medical treatment because he was unable 16 to pay a nominal co-payment or fee. Id. (citing Shapely, 766 F.2d at 408 ; see also Reynolds v. 17 Wagner, 936 F.Supp. 1216, 1223 (E.D. Pa. 1996) (“although the government must provide 18 medical care, the Supreme Court has never held the government must pay for it”); Bihms v. 19 Klevenhagen, 928 F.Supp. 717, 718 (S.D. Tex. 1996) (“If the inmate can pay for his medical 20 care, then the state may require reimbursement.”); Johnson v. Department of Pub. Safety & Corr. 21 Serv., 885 F.Supp. 817, 820 (D. Md. 1995) (“because the policy mandates that no one shall be 22 refused treatment for an inability to pay, the co-pay policy will not result in a denial of care”); 23 Martin v. Debruyn, 880 F.Supp. 610, 614 (N.D. Ind. 1995) (“Nothing in the Eighth Amendment 24 . . . requires a state to provide an inmate, free of charge, with a necessary commodity that would 25 not be free outside the prison walls and which the inmate has the legal means to obtain.”); cf. 26 Revere v. Massachusetts General Hospital, 463 U.S. 239 , 245 n. 7, 103 S.Ct. 2979 , 2984 n.7, 77 27 /// 28 /// 1 L.Ed.2d 605 (1983) (“Nothing we say here affects any right a hospital or governmental entity 2 may have to recover from a detainee the cost of the medical services provided to him.”). 3 Therefore, the court finds that Plaintiff has not stated a claim for relief under the Eighth 4 Amendment. 5 D. Due Process -- Fourteenth Amendment 6 Pursuant to the state penal code, “[i]nmates shall be charged and inmates shall pay a fee 7 of five dollars ($5.00) for each inmate-initiated health care visit.” Cal.Penal Code § 5007.5(a). 1 8 This fee is “charged to the trust account of the inmate.” Id. § 5007.5(b). 9 Plaintiff alleges that funds were improperly taken from his prison account for a $5.00 co10 payment for his dental care, in violation of “CCR Title 15 § 3354.2(c)(4)(D).” 2ACP, Doc. 20 11 at 3. According to Plaintiff, the co-pay should have been waived purportedly because the health 12 care visits were not “inmate-initiated” health care visits. Cal.Penal Code § 5007.5(a) (formerly 13 Cal. Code Regs. tit. 15 § 3354.2). Furthermore, Plaintiff asserts that on March 1, 2019, the CDCR 14 Health Care Receiver abolished the $5.00 co-payments while this case was pending and Plaintiff 15 seeks to recover “all $5 co-payments taken during this time.” 2ACP, ECF No. 20 at 4. 16 “Due process protections extend only to deprivations of protected interests,” Shinault v. 17 Hawks, 782 F.3d 1053, 1057 (9th Cir. 2015) (citing Bd. of Regents of State Colls. v. Roth, 408 18 U.S. 564 , 569-70 (1972)), and prisoners have a protected property interest in the funds in their 19 prison trust accounts, Shinault, 782 F.3d at 1057 (citing Quick v. Jones, 754 F.2d 1521 , 1523 20 (9th Cir. 1985)). However, while an authorized, intentional deprivation of property is actionable 21 under the Due Process Clause, see Hudson v. Palmer, 468 U.S. 517, 532, n.13 , 104 S.Ct. 3194 22 (1984) (citing Logan v. Zimmerman Brush Co., 455 U.S. 422, 435-36 , 102 S.Ct. 1148 (1982)); 23 Quick, 754 F.2d at 1524 , “[a]n unauthorized intentional deprivation of property by a state 24 employee does not constitute a violation of the procedural requirements of the Due Process 25 /// 26 /// [28] 1 Cal.Penal Code § 5007.5 was previously numbered Cal. Code Regs. tit. 15 § 3354.2. 1 Clause of the Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is 2 available,@ Hudson, 468 U.S. at 533 . 3 Plaintiff alleges in the Second Amended Complaint that his rights were violated by an 4 “unauthorized intentional deprivation under the Fourteenth Amendment.” 2ACP, ECF No. 20 at 5 4. A state agency “violates the Due Process Clause of the Fourteenth Amendment when it 6 prescribes and enforces forfeitures of property ‘[w]ithout underlying [statutory] authority and 7 competent procedural protections.’” Nevada Dept. of Corrections v. Greene, 648 F.3d 1014 , 8 1019 (9th Cir. 2011) (quoting Vance v. Barrett, 345 F.3d 1083, 1090 (9th Cir. 2003)). 9 To the extent that Plaintiff alleges the trust account deductions forming the basis for his 10 procedural due process claim were not authorized by the state and were allegedly imposed by 11 staff in direct contravention of the state’s procedures governing such deductions, these 12 deductions are not redressable under the Due Process Clause. Hudson, 468 U.S. at 533 (“The 13 state can no more anticipate and control in advance the random and unauthorized intentional 14 conduct of its employees than it can anticipate similar negligence conduct,” and such a 15 deprivation “does not constitute a violation of the procedural requirements of the Due Process 16 Clause of the Fourteenth Amendment if the state “provides a suitable postdeprivation remedy.”); 17 Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994) (“California law provides an adequate 18 post-deprivation remedy for any property deprivations.”). Here, Plaintiff has an adequate remedy 19 under California law. See Cal. Gov’t Code §§ 810-895; Barnett, 31 F.3d at 816-17 . 20 To the extent that any process is due to Plaintiff, Quick, 754 F.2d at 1523 ; Campbell v. 21 Miller, 787 F.2d 217, 222 (7th Cir.), cert. denied, 479 U.S. 1019 , 107 S.Ct. 673 , 93 L.Ed.2d 724 22 (1986), the process due is minimal. Gardner, 959 F. Supp. at 1229 . Plaintiff had notice of the 23 law which authorized the CDCR to charge him. Further, there is a grievance system available at 24 the prison which was utilized by Plaintiff to challenge any erroneous charges against his inmate 25 account. Cal.Code Regs. tit. 15, § 3084.1 (1995), id. Due Process requires no more than notice 26 and the post-deprivation grievance process. Id. (citing Myers v. Klevenhagen, 97 F.3d 91 , 95– 27 /// 28 /// 1 96 (5th Cir. 1996) (notice and adequate post-deprivation remedy); Reynolds, 936 F.Supp. at 1227 2 (same); Scott v. Angelone, 771 F.Supp. 1064, 1067 (D.Nev. 1991) (no due process violation 3 where money for medical charges deducted from inmate’s account)). Here, Plaintiff has not set 4 forth a claim for relief under the due process clause of the Fourteenth Amendment. Accordingly, 5 the court finds that Plaintiff fails to state a cognizable federal due process violation for the 6 deprivation of his property. 7 V. CONCLUSION AND RECOMMENDATIONS 8 For the reasons set forth above, the court finds that Plaintiff fails to state a cognizable 9 claim against any of the Defendants in the Second Amended Complaint. Therefore, the court 10 shall recommend that this case be dismissed for failure to state a claim. 11 Under Rule 15(a) of the Federal Rules of Civil Procedure, “[t]he court should freely give 12 leave to amend when justice so requires.” Here, the court previously granted Plaintiff leave to 13 amend the complaint, with ample guidance by the court. Plaintiff has not stated any claims upon 14 which relief may be granted under § 1983 in the Second Amended Complaint. The court is 15 persuaded that Plaintiff is unable to allege any facts, based upon the circumstances he challenges, 16 that would state a cognizable claim. “A district court may deny leave to amend when amendment 17 would be futile.” Hartmann v. CDCR, 707 F.3d 1114, 1130 (9th Cir. 2013). The court finds that 18 the deficiencies outlined above are not capable of being cured by amendment, and therefore 19 further leave to amend should not be granted. 28 U.S.C. § 1915 (e)(2)(B)(ii); Lopez v. Smith, [20] 203 F.3d 1122, 1127 (9th Cir. 2000). 21 Therefore, based on the foregoing, IT IS HEREBY RECOMMENDED that: 22 1. This case be DISMISSED, with prejudice, for failure to state a claim upon which 23 relief may be granted under § 1983; and 24 2. The Clerk be directed to CLOSE this case. 25 These findings and recommendations will be submitted to the United States District Judge 26 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1). Within fourteen days 27 of the date of service of these findings and recommendations, Plaintiff may file written objections 28 with the court. The document should be captioned “Objections to Magistrate Judge’s Findings 1 and Recommendations.” Plaintiff is advised that failure to file objections within the specified 2 time may result in waiver of the right to appeal the district court’s order. Wilkerson v. Wheeler, [3] 772 F.3d 834, 839 (9th Cir. Nov. 18, 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th 4 Cir. 1991)). [5] IT IS SO ORDERED. [6] 7 Dated: August 15, 2019 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE