(PC) Steward v. Pfeiffer

[6] UNITED STATES DISTRICT COURT [7] EASTERN DISTRICT OF CALIFORNIA [9] DONNY STEWARD, Case No. 1:19-cv-01022-DAD-EPG (PC) [10] Plaintiff, FINDINGS AND RECOMMENDATIONS 11 RECOMMENDING THAT ALL CLAIMS v. AND ALL DEFENDANTS BE DISMISSED 12 WITH PREJUDICE AND WITHOUT LEAVE CHRISTIAN PFEIFFER, et al., TO AMEND [13] Defendants. (ECF No. 21) [14] THIRTY DAY DEADLINE [16] 17 Plaintiff, Donny Steward, is proceeding pro se and in forma pauperis in this civil rights 18 action pursuant to 42 U.S.C. § 1983 . Plaintiff filed the Complaint commencing this action on 19 July 26, 2019. (ECF No. 1.) The Complaint brought claims against various defendants alleging 20 that they violated Plaintiff’s rights under the Fourth, Fifth, Sixth, Seventh, Eighth, and 21 Fourteenth Amendments by using excessive force against him on May 16, 2019; depriving him 22 of adequate medical treatment for injuries suffered during the May 16, 2019, incident; 23 retaliating against him by filing false disciplinary reports in relation to the May 16, 2019, 24 incident; and denying him adequate process in his disciplinary hearings. The Court screened 25 Plaintiff’s Complaint and found that the Complaint failed to state any cognizable claim. (ECF 26 No. 18.) The Court granted Plaintiff leave to file an amended complaint. (Id.) 27 On December 20, 2019, Plaintiff filed a First Amended Complaint (“FAC”). The FAC 28 brings the federal claims of excessive force and inadequate medical care related to the May 16, 1 2019, incident that Plaintiff included in the original Complaint. The FAC also includes claims 2 that were not included in the original Complaint, including federal claims related to incidents 3 alleged to have occurred in August and October 2019, and various state law claims. 4 The Court has screened the FAC. For the reasons discussed below, the Court 5 recommends that Plaintiff’s federal claims related to the May 16, 2019, incident be dismissed 6 with prejudice; that Plaintiff’s new federal claims related to the alleged August and October 7 2019 incidents and his state law claims be dismissed without prejudice; and that this case be 8 dismissed, and the case be closed. 9 I. SCREENING REQUIREMENT 10 The Court is required to screen complaints brought by inmates seeking relief against a 11 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 12 The Court must dismiss a complaint or portion thereof if the inmate has raised claims that are 13 legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or 14 that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 15 1915A(b)(1), (2). As Plaintiff is proceeding in forma pauperis, the Court may also screen the 16 complaint under 28 U.S.C. § 1915 . “Notwithstanding any filing fee, or any portion thereof, that 17 may have been paid, the court shall dismiss the case at any time if the court determines that the 18 action or appeal fails to state a claim upon which relief may be granted.” 28 U.S.C. § 19 1915(e)(2)(B)(ii). 20 A complaint is required to contain “a short and plain statement of the claim showing 21 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 22 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 23 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 24 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient 25 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. 26 (quoting Twombly, 550 U.S. at 570 ). The mere possibility of misconduct falls short of meeting 27 this plausibility standard. Id. at 679 . While a plaintiff’s allegations are taken as true, courts “are 28 not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677 , 1 681 (9th Cir. 2009) (citation and quotation marks omitted). Additionally, a plaintiff’s legal 2 conclusions are not accepted as true. Iqbal, 556 U.S. at 678 . 3 Pleadings of pro se plaintiffs “must be held to less stringent standards than formal 4 pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding that 5 pro se complaints should continue to be liberally construed after Iqbal). 6 II. ALLEGATIONS IN THE FIRST AMENDED COMPLAINT 7 The FAC alleges that the following occurred while Plaintiff was incarcerated at Kern 8 Valley State Prison. 9 A. May 16, 2019, Incident 10 On May 16, 2019, inmate Washington was in an argument with another inmate. 11 Correction officers Yeary, Villegas, Licea, Carrillo, Ramirez, Urbano, Chavez, and Cruz came 12 onto Plaintiff’s unit on Section B of Facility C. One of the officers had Washington sit down at 13 a table so that inmates could be searched and released to the yard. Carrillo opened the doors on 14 the bottom tier of the cell block first. Plaintiff, whose cell is located at the end of the bottom 15 tier, came out of his cell once the door was opened. 16 Plaintiff with clothing in his hands put clothing on the table across from [where] Washington (porter) was seated, to put his mobility 17 vest on. Washington got up and came around the table and took a wild clenched fist punch at Plaintiff’s face and Plaintiff ducked out [18] of the way. No order was given to inmate Washington to stop 19 fighting. Immediately after Washington missed the attempt to punch Plaintiff’s face, Washington quickly grabbed Plaintiff’s cane 20 and swung it at Plaintiff’s face. Plaintiff moved out of the way and when Washington trie[d] to reverse his swing Plaintiff grabbed 21 him and took him to the floor and tried to restrain him (Washington). That is when c/o Yeary, c/o Villegas (unit officer) 22 and others assaulted Plaintiff; those others were c/o Licea, c/o J. Carrillo (in control manning the unlock for the yard release), C. 23 Ramirez, J. Urbano . . . . It was Sgt Cruz who came into the unit as c/o Yeary had placed Plaintiff in cuffs and was forcing Plaintiff to 24 his feet by his thumbs after he had been simultaneously pepper sprayed and shot with 40 mm launch twice during and after 25 Plaintiff had released inmate Washington. It was c/o Yeary, c/o Villegas, c/o Licea, c/o Ramirez who used their pepper spray on 26 Plaintiff, with c/o Carrillo shooting two 40 mm launcher bullets at Plaintiff hitting Plaintiff in the upper leg and left thigh, causing [27] irreparable damage. 28 (ECF No. 21 at 15-16.) 1 B. Medical Treatment Following May 16, 2019, Incident 2 Following the May 16, 2019, incident, Plaintiff was taken to the patio by Officer 3 Chavez. Plaintiff was blinded by the pepper spray that had been sprayed only 15 inches from 4 his eyes and caused temporary vision loss for about an hour. On the patio, “Plaintiff was 5 ordered to his knees with a fractured leg and an open gash on the leg and on the left hip to 6 decontaminate for two minutes or less” by putting his head under the faucet. 7 While still out on the patio, Plaintiff was examined by RN Cudal. “Plaintiff had pepper 8 spray up his nose and while being examined by RN Cudal, Plaintiff was threatened by Chavez 9 that if he did not stop sneezing he would be placed in Ad. Seg.” After the exam, “Plaintiff 10 suffered being placed in a holding cell in the program office. An officer had to go to my cell for 11 my inhaler because of my choking and loosing consciousness. After an hour Plaintiff was 12 allowed to sign a [] chrono and was released to where he walked back to his unit and pleaded 13 [with] c/o Carrillo for a shower to decontaminate.” (ECF No. 21 at 17.) Plaintiff’s wounds 14 needed medical attention and although Plaintiff submitted several 7362s, he received only a 3015 day supply of Tylenol and an x-ray for the leg injury from the May 16, 2019, incident. 16 The injury report for the May 16, 2019, incident was signed by both RN Cudal and RN 17 Blankenship. However, Blankenship did not screen or examine Plaintiff on May 16, 2019. “As 18 the months went by Blankenship examined my leg with Dr. Ulit three times setting up 19 appointments for operations and physical therapy which has not happened all of 7 months 20 now.” (ECF No. 21 at 18.) 21 “Plaintiff’s leg wound left a very large knot on it after healing that is hard, and painful 22 and somehow did not show up on the x-rays of the leg. On October 8, 2019, Plaintiff was on 23 appointment to see Screening Nurse Blankenship. I showed her my leg and the knot that does 24 not show on x-ray and her response was ‘What’s the problem—you’re not dead!’ We argued 25 about her cancelling my appointments” and treatment regarding an injury to Plaintiff’s hand. 26 “When Plaintiff mentioned litigation Blankenship said ‘F_ _ k you and get out of my office,’ 27 with c/o Johnson saying the same thing.” (ECF No. 21 at 18-19.) 28 //// 1 C. August 2019 and October 2019 Incidents 2 The FAC includes new claims for retaliation and inadequate medical care related to 3 incidents alleged to have occurred in August and October 2019. For the reasons discussed 4 below, the Court finds that Plaintiff has not stated a cognizable federal claim in relation to the 5 May 16, 2019, incident and the Court recommends dismissing those claims with prejudice. In 6 light of this recommendation, the Court does not screen or discuss Plaintiff’s new federal 7 claims related to August and October 2019 incidents. Instead, the Court recommends that these 8 new claims be dismissed without prejudice so that Plaintiff can file a separate action in which 9 he can pursue the new claims. Accordingly, the Court does not include factual allegations 10 related to the August and October 2019 incidents. 11 III. 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 14 Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the 15 deprivation of any rights, privileges, or immunities 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.... [18] 42 U.S.C. § 1983 . “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely 19 provides ‘a method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, [20] 490 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137 , 144 n.3 (1979)); see 21 also Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los 22 Angeles, 697 F.3d 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730 , 734 (9th Cir. 23 2012); Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). 24 To state a claim under § 1983, a plaintiff must allege that (1) the defendant acted under 25 color of state law, and (2) the defendant deprived him of rights secured by the Constitution or 26 federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); see also 27 Marsh v. Cnty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing “under color of 28 state law”). A person deprives another of a constitutional right, “within the meaning of § 1983, 1 ‘if he does an affirmative act, participates in another's affirmative act, or omits to perform an 2 act which he is legally required to do that causes the deprivation of which complaint is made.’” 3 Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175 , 1183 (9th Cir. 2007) (quoting 4 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite causal connection may be 5 established when an official sets in motion a ‘series of acts by others which the actor knows or 6 reasonably should know would cause others to inflict’ constitutional harms.” Preschooler II, 7 479 F.3d at 1183 (quoting Johnson, 588 F.2d at 743 ). This standard of causation “closely 8 resembles the standard ‘foreseeability’ formulation of proximate cause.” Arnold v. Int'l Bus. 9 Mach. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981); see also Harper v. City of Los Angeles, 533 10 F.3d 1010 , 1026 (9th Cir. 2008). 11 Additionally, a plaintiff must demonstrate that each named defendant personally 12 participated in the deprivation of his rights. Iqbal, 556 U.S. at 676-77 . In other words, there 13 must be an actual connection or link between the actions of the defendants and the deprivation 14 alleged to have been suffered by Plaintiff. See Monell v. Dep't of Soc. Servs. of City of N.Y., 436 15 U.S. 658 , 691, 695 (1978). 16 “Local governing bodies… can be sued directly under § 1983 for monetary, 17 declaratory, or injunctive relief where… the action that is alleged to be unconstitutional 18 implements or executes a policy statement, ordinance, regulation, or decision officially adopted 19 and promulgated by that body’s officers.” Monell, 436 U.S. at 690 (footnote omitted). 20 “Plaintiffs who seek to impose liability on local governments under § 1983 must prove 21 that action pursuant to official municipal policy caused their injury. Official municipal policy 22 includes the decisions of a government's lawmakers, the acts of its policymaking officials, and 23 practices so persistent and widespread as to practically have the force of law. These are 24 action[s] for which the municipality is actually responsible.” Connick v. Thompson, 563 U.S. 25 51, 60–61 (2011) (internal citations and quotations omitted) (alteration in original). 26 Supervisory personnel are generally not liable under § 1983 for the actions of their 27 employees under a theory of respondeat superior and, therefore, when a named defendant holds 28 a supervisory position, the causal link between him and the claimed constitutional violation 1 must be specifically alleged. Iqbal, 556 U.S. at 676-77 ; Fayle v. Stapley, 607 F.2d 858 , 862 2 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). To state a claim for 3 relief under § 1983 based on a theory of supervisory liability, a plaintiff must allege some facts 4 that would support a claim that the supervisory defendants either personally participated in the 5 alleged deprivation of constitutional rights; knew of the violations and failed to act to prevent 6 them; or promulgated or “implement[ed] a policy so deficient that the policy itself is a 7 repudiation of constitutional rights' and is ‘the moving force of the constitutional violation.” 8 Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989) (citations and internal quotation marks 9 omitted); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). For instance, a supervisor may be 10 liable for his “own culpable action or inaction in the training, supervision, or control of his 11 subordinates,” “his acquiescence in the constitutional deprivations of which the complaint is 12 made,” or “conduct that showed a reckless or callous indifference to the rights of others.” Larez 13 v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991) (internal citations, quotation marks, 14 and alterations omitted). 15 IV. ANALYSIS OF PLAINTIFF’S CLAIMS 16 A. Eighth Amendment Excessive Force Claim 17 “In its prohibition of ‘cruel and unusual punishments,’ the Eighth Amendment places 18 restraints on prison officials, who may not . . . use excessive physical force against prisoners.” 19 Farmer v. Brennan, 511 U.S. 825, 832 , 114 S. Ct. 1970, 1976 , 128 L. Ed. 2d 811 (1994) (citing 20 Hudson v. McMillian, 503 U.S. 1 (1992)). “[W]henever prison officials stand accused of using 21 excessive physical force in violation of the [Eighth Amendment], the core judicial inquiry is . . . 22 whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously 23 and sadistically to cause harm.” Hudson, 503 U.S. at 6 -7 (citing Whitley v. Albers, 475 U.S. 312 24 (1986)). 25 When determining whether the force was excessive, the court looks to the “extent of the 26 injury suffered by an inmate . . . , the need for application of force, the relationship between 27 that need and the amount of force used, the threat ‘reasonably perceived by the responsible 28 officials,’ and ‘any efforts made to temper the severity of a forceful response.’” Hudson, 503 1 U.S. at 7 (quoting Whitley, 475 U.S. at 321 ). While de minimis uses of physical force generally 2 do not implicate the Eighth Amendment, significant injury need not be evident in the context of 3 an excessive force claim, because “[w]hen prison officials maliciously and sadistically use 4 force to cause harm, contemporary standards of decency always are violated.” Hudson, 503 5 U.S. at 9 (citing Whitley, 475 U.S. at 327 ). 6 Here, Plaintiff alleges excessive force claims against Defendants Yeary, Villegas, Licea, 7 Carillo, Ramirez, Urbano, Chavez, and Cruz. Plaintiff alleges that these defendants are 8 correctional officers at KVSP who were on duty and present during the May 16, 2019, incident, 9 and that they are the officers who used excessive force against Plaintiff by using excessive 10 pepper spray on Plaintiff (Yeary, Villegas, Licea, Ramirez), by shooting two 40 mm “launcher 11 bullets” at Plaintiff and hitting Plaintiff on the upper leg and left thigh (Carrillo), and forcing 12 Plaintiff to his feet by his thumbs (Cruz). 13 A comparison of the facts alleged in the FAC and the facts alleged in the original 14 Complaint regarding the May 16, 2019, incident reveals that Plaintiff excluded key factual 15 allegations from the FAC that were part of the original Complaint and has included factual 16 allegations in the FAC that are inconsistent with or contradict allegations in the original 17 Complaint. In light of these contradictions, the Court relies on facts alleged in the original 18 Complaint and recommends striking those inconsistent or contradictory portions of the FAC. 19 See Harbridge v. Schwarzenegger, No. CV 07-4486-GW SH, 2011 WL 6960830 , at *8 (C.D. 20 Cal. Aug. 31, 2011) (Collecting cases and explaining “[w]here allegations in an amended 21 complaint contradict those in a prior complaint, a district court need not accept the new alleged 22 facts as true, and may, in fact, strike the changed allegations as ‘false and sham.’”), report and 23 recommendation adopted sub nom. by Harbridge v. Sumpter, No. CV 07-4486-GW SH, 2012 24 WL 33176 (C.D. Cal. Jan. 5, 2012). 25 Plaintiff’s original Complaint, alleged the following: 26 At approximately 9:20 a.m., on May 16, 2019, there was a call over the intercom that it was “five minutes to yard release,” 27 and seven to eight correction officers entered Unit B, C-Yard, Building #2, to secure the release of inmates from their cells and [28] out to the yard. Inmate [Washington] (V06127) was a porter in the unit that morning and Plaintiff was in his cell (C2-111 Lower 1 Yard), which was five cells down from Inmate [Washington]. [Washington] had been arguing with another inmate, so a 2 correctional officer, who was located in control, told [Washington] to keep the noise down or he ([Washington]) would be put into his [3] cell. [Washington] responded by claiming that this officer was 4 being racist. One of the officers who had come into Unit B for yard 5 release told [Washington] to have a seat. The bottom tier cell doors were then opened and Plaintiff, whose cell was the last to open, 6 came out and set his cane on the opposite side of the table from where [Washington] was seated. While Plaintiff was putting on his 7 mobility vest, [Washington] got up, came around the table behind Plaintiff and swung at Plaintiff with his fist, attempting to punch 8 Plaintiff in the face. Plaintiff was able to duck and avoid the punch. [Washington] immediately grabbed Plaintiff’s cane from the table 9 and swung it at Plaintiff’s face, which Plaintiff again avoided by ducking. [Washington] was in the process of reversing his grip to 10 swing again when Plaintiff grabbed [Washington], disarmed [Washington] by taking away the cane, and took [Washington] to 11 the floor. After Plaintiff took [Washington] to the floor, [Washington] attempted to get up and Plaintiff restrained [12] [Washington] on the floor by getting on top [Washington’s] back and holding [Washington] by the waist. [13] None of the seven to eight officers who had entered Unit B 14 did or said anything until after Plaintiff was restraining [Washington] on the floor. Plaintiff was then shot with a 40 mm 15 “Launcher” in the thigh and the knee, and was pepper sprayed twice in the face from 12” to 15” away from his eyes. Then, 16 several more canisters were “simultaneously being sprayed all over me. I held my breath as I continued to hold [Washington] down for 17 fear of him yet trying to punch and wrestle away. That’s when two blows to my tricep caused me to release Inmate [Washington].” 18 Plaintiff was ordered to put his hands behind his back and lay on his stomach. He was grabbed by his thumbs and his thumbs 19 were twisted so hard that his thumb knuckles were painful and swollen for over a month. [20] (ECF No. 18 (Screening Order summarizing allegations in the original Complaint).) 1 [21] Plaintiff’s allegations demonstrate that after Washington attempted to hit Plaintiff, [22] Plaintiff took Washington to the floor, got on top of Washington and held Washington around [23] the waist to keep him pinned to the floor; that Plaintiff continued to keep Washington pinned to [24] the floor and refused to let go of Washington despite the force that was being used against him, [26] 1 In the original Complaint, Plaintiff alleged that the inmate who tried to hit him was [27] named “Williams.” In the FAC, Plaintiff alleges that the inmate who tried to hit him was named 28 “Washington.” Accordingly, the Court has replaced the name “Williams” with the name “Washington.” 1 including the use of pepper spray by Villegas, Yeary, Licea, and Ramirez. Instead, Plaintiff 2 states that, in response to the pepper spray, he merely held his breath and continued to hold 3 Washington down, and that he only released Washington after an officer struck two blows to 4 Plaintiff’s tricep. Although Plaintiff now alleges that these defendants used pepper spray and 5 launcher bullets on him after he released Washington, these allegations contradict Plaintiff’s 6 previous allegations and should accordingly be deemed stricken. 7 Viewing the allegations from the original Complaint, supplemented only by allegations 8 in the FAC that are consistent with and do not contradict the allegations in the original 9 Complaint, the Court finds that Plaintiff’s own facts establish that the pepper spray, “launcher 10 bullets,” and other force used against Plaintiff during the May 16, 2019, incident was needed to 11 “maintain or restore discipline” and was not used “maliciously and sadistically to cause harm.” 12 Hudson, 503 U.S. at 6-7 . Thus, Plaintiff has failed to state a cognizable excessive force claim 13 against Defendants Yeary, Villegas, Licea, Carrillo, Ramirez, Urbano, Chavez, and Cruz. 14 B. Right to Personal Security Claim 15 Prison officials must take reasonable measures to guarantee the safety of inmates. 16 See Hudson v. Palmer, 468 U.S. 517, 526-27 (1984). A prison official can be liable for 17 failing to protect inmates only if: (1) there is an “excessive” and “substantial risk of 18 serious harm,” and (2) the official is subjectively aware of that risk but deliberately 19 ignores it. Farmer v. Brennan, 511 U.S. 825, 828-29 (1994). 20 Here, Plaintiff alleges that Washington came around the table and immediately 21 threw a punch at Plaintiff’s face, which Plaintiff avoided by ducking; that Washington 22 immediately grabbed Plaintiff’s cane from the table and swung it at Plaintiff’s face, 23 which Plaintiff again avoided by ducking; and that Washington was in the process of 24 reversing his grip on the cane when Plaintiff charged Washington and took him to the 25 floor. Plaintiff also alleges that Defendants Yeary, Villegas, Licea, Carrillo, Ramirez, 26 Urbano, Chavez, and Cruz were present during the incident and did nothing to stop 27 Washington when Washington attempted to hit Plaintiff. 28 Plaintiff has failed to allege facts demonstrating that Defendants noticed what was 1 happening, that they subjectively knew that there was an excessive and substantial risk of 2 serious harm to Plaintiff, and that they had time to intervene to stop Washington. 3 Accordingly, Plaintiff has failed to state a cognizable failure to protect claim against 4 Defendants Yeary, Villegas, Licea, Carrillo, Ramirez, Urbano, Chavez, and Cruz. 5 C. Inadequate Medical Care Claims Related to May 16, 2019, Incident [6] A prisoner can establish an Eighth Amendment violation arising from deficient medical [7] care if he can prove that prison officials were deliberately indifferent to a serious medical need. [8] Estelle v. Gamble, 429 U.S. 97, 104 (1976). Assuming the medical need is “serious,” a plaintiff [9] must show that the defendant acted with deliberate indifference to that need. Id. “Deliberate [10] indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). [11] It entails something more than medical malpractice or even gross negligence. Id. Deliberate [12] indifference exists when a prison official “knows of and disregards an excessive risk to inmate [13] health or safety; the official must both be aware of the facts from which the inference could be [14] drawn that a substantial risk of serious harm exists, and he must also draw the inference.” [15] Farmer v. Brennan, 511 U.S. 825, 837 (1994). [16] Critically, “a difference of opinion between a physician and the prisoner—or between [17] medical professionals—concerning what medical care is appropriate does not amount to [18] deliberate indifference.” Snow v. McDaniel, 681 F.3d 978, 987 (9th Cir. 2012) (citing Sanchez [19] v. Vild, 891 F.2d 240, 242 (9th Cir. 1989)), overruled on other grounds by Peralta v. Dillard, [20] 744 F.3d 1076, 1083 (9th Cir. 2014). Instead, to establish deliberate indifference in the context [21] of a difference of opinion between a physician and the prisoner or between medical providers, [22] the prisoner “‘must show that the course of treatment the doctors chose was medically [23] unacceptable under the circumstances’ and that the defendants ‘chose this course in conscious [24] disregard of an excessive risk to plaintiffs health.’” Id. at 988 (quoting Jackson v. McIntosh, 90 25 F.3d 330, 332 (9th Cir. 1996)). In other words, where there has been some arguably appropriate [26] treatment, deliberate indifference cannot be established merely by showing disagreement with [27] the physician but only by showing that the defendant chose a course of treatment knowing that [28] it was inappropriate. Put differently, a court cannot substitute its judgment for that of a medical 1 professional, but it can examine a medical professional’s good faith in selecting a course of 2 treatment. 3 Plaintiff brings a claim of deliberate indifference to serious medical needs for injuries 4 suffered during the May 16, 2019, incident against four defendants: Defendant Chavez, 5 Defendant Cudal, Defendant Blankenship, and Defendant Rohrdanz. 6 1. Defendant Chavez 7 Plaintiff alleges that Defendant Chavez is the correctional officer who took care of the 8 decontamination process on the patio following the May 16, 2019, incident. Plaintiff alleges 9 that Chavez ordered Plaintiff onto his knees and instructed Plaintiff to bend down and put his 10 head under a faucet attached to the building, gave Plaintiff about two minutes to rinse, and then 11 told Plaintiff that was all the water he was going to get, even though Plaintiff complained about 12 the burning pepper spray and asserted that he had the right to a “proper decontamination 13 treatment.” Plaintiff also alleges that he was sneezing because he had pepper spray in his nose 14 and that Chavez threatened that if Plaintiff did not stop sneezing, he would be placed in Ad 15 Seg. Plaintiff was then seen and questioned by RN Cudal regarding Plaintiff’s injuries. After 16 Cudal completed this screening, Chavez placed Plaintiff into a holding cell, where Plaintiff was 17 held for 30 minutes. Chavez then released Plaintiff to his unit and told Plaintiff to ask the unit 18 officer whether Plaintiff could take a shower. 19 Plaintiff’s allegations are insufficient to demonstrate that Chavez—who is not a medical 20 professional—was being deliberately indifferent to Plaintiff’s serious medical needs. To the 21 contrary, although Chavez gave Plaintiff limited time to rinse his head, Plaintiff was then 22 screened by a medical professional in Chavez’s presence and before Chavez put Plaintiff into 23 the holding cell and then released Plaintiff back onto his unit. Chavez even suggested that 24 Plaintiff seek to take a shower, presumably so that Plaintiff could remove any remaining pepper 25 spray. 26 Chavez’s alleged conduct does not demonstrate that Chavez knew of and disregarded an 27 excessive risk to Plaintiff’s health or safety. The allegations are accordingly insufficient to state 28 a cognizable claim of deliberate indifference to serious medical needs against Defendant 1 Chavez. See Farmer, 511 U.S. at 837 . 2 2. Defendant Cudal 3 Plaintiff alleges he was seen by RN Cudal on May 16, 2019, after he had been allowed 4 to rinse his eyes and while he was still on the patio standing naked. Cudal asked Plaintiff if he 5 had any injuries and Plaintiff showed Cudal his upper left leg where the 40 mm launcher had 6 bashed into and caused about a one inch long and deep wound on Plaintiff’s leg and “smashed” 7 Plaintiff’s bone. Cudal saw that the flesh wound was “laid open and bleeding dark red blood.” 8 Cudal completed the injury report while they were on the patio and the injury report was 9 submitted to RN Blankenship. Cudal did not provide any treatment for Plaintiff’s injuries. 10 Plaintiff alleges that the injury report stated that Cudal had screened Plaintiff on May 16, 2019, 11 but that this statement was false because neither Cudal nor Blankenship provided Plaintiff with 12 any treatment for the wound on his leg and his “smashed bone.” Finally, Plaintiff alleges that 13 because of the negligence of Cudal, Plaintiff has a “bone protruding out about an inch high on 14 my leg.” 15 Plaintiff’s allegations are insufficient to state a claim for deliberate indifference against 16 Defendant Cudal. First, although Plaintiff alleges that Cudal falsely stated in the injury report 17 that she had screened Plaintiff, Plaintiff also alleges that Cudal saw Plaintiff, asked him about 18 his injuries, and that Plaintiff showed Cudal his injuries, including the wound on his leg. These 19 allegations demonstrate that Cudal did screen Plaintiff. That Cudal did not immediately provide 20 any treatment for Plaintiff’s injuries does not make her report stating that she screened Plaintiff 21 false. 22 Second, a one inch wound on Plaintiff’s leg, although it is alleged to have also been 23 deep, does not, without more, rise to the level of a serious medical need, and Cudal’s failure to 24 provide treatment for that wound does not, by itself, demonstrate deliberate indifference. See 25 Estelle, 429 U.S. at 104 (inmate must show that medical need is “serious,” and that the 26 defendant acted with deliberate indifference to that need). 27 Third, although Plaintiff alleges he had a “smashed” or “crushed” bone, he has not [28] 1 alleged that there was a break in the bone2 or other injury to his bone that was obviously 2 serious; or that Cudal actually knew about a serious injury to Plaintiff’s bone and that, despite 3 this knowledge, she consciously chose to disregard the injury. See id. Plaintiff’s disagreement 4 with Cudal’s decision not to provide treatment for the “smashed” bone does not, without more, 5 demonstrate deliberate indifference to Plaintiff’s serious medical needs. Snow, 681 F.3d at 987 6 (“[A] difference of opinion between a physician and the prisoner—or between medical 7 professionals—concerning what medical care is appropriate does not amount to deliberate 8 indifference.”); Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (setting forth standard for 9 deliberate indifference to serious medical needs, and explaining that a prisoner must show harm 10 “caused by” the indifference to establish deliberate indifference); Toguchi, 391 F.3d at 1057 -58 11 (prisoner’s difference of opinion with prison medical authorities is insufficient to state a 12 deliberate indifference claim). 13 Finally, although Plaintiff alleges that Cudal acted negligently in relation to the bump 14 that developed on Plaintiff’s leg, negligence is insufficient to state a claim for deliberate 15 indifference under the Eighth Amendment. Id. at 106 (only deliberate indifference violates the 16 Eighth Amendment; negligence in diagnosing or treatment is insufficient); Whitey v. Albers, [17] 475 U.S. 312, 319 (1986) (deliberate indifference requires “more than ordinary lack of due care 18 for the prisoner’s interests or safety”); Toguchi, 391 F.3d at 1057-58 (negligence is insufficient 19 to state a deliberate indifference claim). 20 For these reasons, the FAC fails to state a cognizable claim against Defendant Cudal for 21 deliberate indifference to serious medical needs. 22 3. Defendant Blankenship 23 Plaintiff alleges that fifteen days after the May 16, 2019, incident, after Plaintiff had 24 submitted four requests for medical treatment for the crushed bone and wound on Plaintiff’s 25 leg, and a golf-ball sized knot that developed on Plaintiff’s leg, he was finally seen by [26] 2 Although Plaintiff alleges in the FAC that his leg was “fractured,” the Court finds this [27] contradictory to Plaintiff’s original complaint regarding the injury on Plaintiff’s leg as being 28 “smashed” or “crushed” and resulting in a bump. The Court accordingly rejects Plaintiff’s attempt in the FAC to characterize Plaintiff’s injury as a fracture. 1 Blankenship. Plaintiff requested treatment and an x-ray. Blankenship screened Plaintiff and 2 told him that his leg was healing up properly, and that “everything looks good and is healing up 3 just fine.” Plaintiff alleges that this was not true because Plaintiff had a golf-ball sized knot on 4 his leg that was causing him a great deal of pain and suffering, and that the wound on his leg 5 was still only partially healed. Plaintiff alleges that he requested and was given an x-ray of his 6 leg and that Dr. Rohrdanz, Plaintiff’s primary care physician, reviewed the x-ray results and 7 stated, “Your test results are essentially within normal limits or are unchanged, and no provider 8 follow-up is required.” Plaintiff alleges that he submitted requests for an outside doctor’s 9 opinion and therapy but that these requests have not been answered by Blankenship. Plaintiff 10 also admits that the bump on his leg did not show up on the x-ray. 11 Plaintiff’s allegations are insufficient to state a claim for deliberate indifference to 12 serious medical needs against Defendant Blankenship. First, as discussed above in relation to 13 Cudal, the one inch wound on Plaintiff’s leg does not rise to the level of a serious medical 14 need, and Blankenship’s failure to provide treatment to Plaintiff for that wound does not by 15 itself demonstrate deliberate indifference. See Estelle, 429 U.S. at 104 (inmate must show that 16 a medical need is “serious” and that the defendant acted with deliberate indifference to that 17 need); Jett, 439 F.3d at 1096 (setting forth standard for deliberate indifference to serious 18 medical needs and explaining that a prisoner must show harm “caused by” the indifference to 19 establish deliberate indifference). 20 Second, Blankenship examined Plaintiff and determined that his wounds looked good 21 and were “healing up just fine”; Plaintiff received an x-ray of his leg and his primary care 22 physician said that no further treatment was needed; and Blankenship again examined Plaintiff 23 and told Plaintiff everything was fine. Thus, Plaintiff was seen and examined twice by 24 Blankenship, and received an x-ray of his leg with a determination by Dr. Rohrdanz that no 25 further treatment was needed. Although Plaintiff disagrees with the treatment—or 26 determination that no further treatment was needed—and alleges he had a bump protruding 27 from his leg that required treatment, Plaintiff’s allegations merely demonstrate that Plaintiff 28 disagreed with Blankenship’s decision that no treatment was needed. This difference of opinion 1 as to the need for further treatment does not amount to deliberate indifference. Snow, 681 F.3d 2 at 987 (“[A] difference of opinion between a physician and the prisoner—or between medical 3 professionals—concerning what medical care is appropriate does not amount to deliberate 4 indifference.”); Toguchi, 391 F.3d at 1057-58 (prisoner’s difference of opinion with prison 5 medical authorities is insufficient to state a deliberate indifference claim). 6 Third, Plaintiff’s allegations demonstrate that his leg was x-rayed, and that the bump on 7 his leg did not show up on the x-ray. Plaintiff does not allege facts demonstrating that any delay 8 in obtaining an x-ray resulted in further harm to Plaintiff. Indeed, the bump on Plaintiff’s leg 9 did not even show up on the x-ray. Further, Dr. Rohrdanz reviewed the x-ray and determined 10 that no further treatment was needed. Thus, Plaintiff has not alleged facts sufficient to state a 11 claim for deliberate indifference based on what appears to be a few-week delay in receiving the 12 x-ray. See Hallett v. Morgan, 296 F.3d 732, 746 (9th Cir. 2002) (prisoner alleging deliberate 13 indifference based on delay in treatment must show that delay led to further injury). 14 Fourth, although Plaintiff alleges that his requests for an outside doctor’s opinion and 15 treatment have been ignored, Plaintiff has no independent constitutional right to outside 16 medical care additional and supplemental to the care provided by prison medical staff. Roberts 17 v. Spalding, 783 F.2d 867, 870 (9th Cir. 1986) (“A prison inmate has no independent 18 constitutional right to outside medical care additional and supplemental to the medical care 19 provided by the prison staff within the institution.”). Thus, Blankenship’s alleged failure to 20 respond to Plaintiff’s request for care by a doctor outside of the prison does not demonstrate 21 deliberate indifference. 22 Finally, Plaintiff’s allegations that Blankenship acted negligently in relation to the bump 23 that developed on Plaintiff’s leg are insufficient to state a claim under the Eighth Amendment. [24] Estelle at 106 (only deliberate indifference violates the Eighth Amendment; negligence in 25 diagnosing or treatment is insufficient); Whitey, 475 U.S. at 319 (deliberate indifference 26 requires “more than ordinary lack of due care for the prisoner’s interests or safety”). 27 For these reasons, Plaintiff’s factual allegations are insufficient to state a claim against 28 Defendant Blankenship for deliberate indifference to serious medical needs. 1 4. Defendant Rohrdanz 2 Plaintiff alleges that he received an x-ray and that Defendant Rohrdanz, Plaintiff’s 3 primary care physician, reviewed the x-ray and stated that the test results “are essentially within 4 normal limits or are unchanged, and no provider follow-up is required.” These allegations 5 contradict Plaintiff’s allegation that his requests for x-rays were ignored and he had not 6 received x-rays. 7 Plaintiff also alleges that he has not been seen by Dr. Rohrdanz and that Dr. Rohrdanz 8 has not responded to Plaintiff’s urgent medical requests despite Plaintiff’s submission of six or 9 seven 7362 sick call request forms. However, as discussed above, Plaintiff has been seen by 10 RN Blankenship at least twice, and Dr. Rohrdanz examined Plaintiff’s x-rays and determined 11 that no additional treatment was needed. The failure of Dr. Rohrdanz to personally examine 12 Plaintiff does not demonstrate deliberate indifference, nor does Plaintiff’s disagreement with 13 Dr. Rohrdanz’s determination that no follow-up was needed. See Snow, 681 F.3d at 987 (“[A] 14 difference of opinion between a physician and the prisoner—or between medical 15 professionals—concerning what medical care is appropriate does not amount to deliberate 16 indifference.”); Toguchi, 391 F.3d at 1057-58 (prisoner’s difference of opinion with prison 17 medical authorities is insufficient to state a deliberate indifference claim). 18 For these reasons, Plaintiff’s allegations are insufficient to state a claim against 19 Defendant Rohrdanz for deliberate indifference to serious medical needs. 20 D. Claim against Defendant Washington 21 Defendant Washington is the inmate who allegedly attempted to hit Plaintiff on May 16, 22 2019. Based on the allegations in the Complaint, Washington was not acting under color of 23 state law and did not deprive Plaintiff of any rights secured by the Constitution or federal law. 24 Thus, Plaintiff has not stated and cannot state a cognizable claim against Washington under 25 § 1983. See Long, 442 F.3d at 1185 (to state a claim under § 1983, a plaintiff must allege that 26 the defendant acted under color of state law, and the defendant deprived him of rights secured 27 by the Constitution or federal law). 28 //// 1 E. New Federal Claims related to Alleged August and October 2019 Incidents 2 As discussed above, the FAC includes new federal claims for retaliation and inadequate 3 medical care related to alleged incidents in August and October 2019. However, Plaintiff has 4 not stated a cognizable federal claim related to the May 16, 2019, incident, on which his 5 original Complaint was based. The Court thus does not screen or discuss Plaintiff’s new federal 6 claims brought in the FAC related to the August and October 2019 incidents. Instead, the Court 7 recommends that these new claims be dismissed without prejudice. If Plaintiff wishes to pursue 8 these new federal claims, he may do so by filing a separate action. 9 F. State Law Claims 10 The complaint also alleges various state law claims. However, Plaintiff has failed to 11 state a cognizable federal claim related to the May 16, 2019, incident on which his original 12 Complaint was based. Further, the Court is recommending dismissing without prejudice 13 Plaintiff’s new federal claims related to August and October 2019 incidents. The Court 14 therefore recommends declining to exercise supplemental jurisdiction over Plaintiff’s putative 15 state law claims.3. Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988) (when federal 16 claims are eliminated before trial, district courts should usually decline to exercise 17 supplemental jurisdiction). 18 G. Leave to Amend Should be Denied 19 If the Court finds that a complaint should be dismissed for failure to state a claim, the 20 Court has discretion to dismiss with or without leave to amend. See Lopez v. Smith, 203 F.3d 21 1122, 1126-30 (9th Cir. 2000) (en banc). Leave to amend should be granted if it appears 22 possible that the defects in the complaint could be corrected, especially if a plaintiff is pro se. 23 See id. at 1130-31; see also Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (“A pro 24 se litigant must be given leave to amend his or her complaint, and some notice of its 25 deficiencies, unless it is absolutely clear that the deficiencies of the complaint could not be 26 cured by amendment.”) (citation omitted). However, if, after careful consideration, it is clear [27] 28 3 The court takes no position on whether Plaintiff would be able to successfully pursue his claim in state court. 1 that a complaint cannot be cured by amendment, the Court may dismiss without leave to 2 amend. Cato, 70 F.3d at 1005-06 . 3 After careful consideration, the Court finds that Plaintiff’s allegations against 4 Defendants related to the May 16, 2019, incident cannot establish a plausible federal claim as a 5 matter of law and that amendment would accordingly be futile. Plaintiff’s underlying factual 6 allegations are clear. The issue is that the factual circumstances raised by Plaintiff in relation to 7 the May 16, 2019, incident do not give rise to a constitutional claim.4 8 V. RECOMMENDATIONS 9 IT IS HEREBY RECOMMENDED: 10 1. That Plaintiff’s federal claims related to the May 16, 2019, incident be dismissed 11 with prejudice; 12 2. That Plaintiff’s new federal claims related to alleged incidents in August and 13 October 2019, be dismissed without prejudice; 14 3. That Plaintiff’s state law claims be dismissed without prejudice; and 15 4. That the Clerk of the Court be directed to close this case. 16 These findings and recommendations will be submitted to the United States district 17 judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636 (b)(1). Within 18 thirty (30) days after being served with these findings and recommendations, Plaintiff may file 19 written objections with the Court. The document should be captioned “Objections to Magistrate 20 Judge’s Findings and Recommendations.” 21 \\\ 22 \\\ 23 \\\ 24 \\\ 25 \\\ [27] 4 The Court has not screened and expresses no opinion as to whether Plaintiff’s 28 allegations regarding alleged August and October 2019 incidents state a cognizable federal claim, or whether Plaintiff has stated any cognizable state law claim. 1 Plaintiff is advised that failure to file objections within the specified time may result in 2 || the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) 3 || (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). [4] 5 IT IS SO ORDERED. Dated: _ February 10, 2020 [see hey 7 UNITED STATES MAGISTRATE JUDGE [28] an