(PC) Guy v. Bick

— 1 — — 2 — — 3 — — 4 — — 5 — — 6 — — 7 — 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA — 10 — 11 GLEN LEON GUY, Case No. 2:21-CV-00823-WBS-JDP (PC) 12 Plaintiff, FINDING AND RECOMMENDATION THAT DEFENDANT HARF’S MOTION TO 13 v. DISMISS BE DENIED 14 JOSEPH BICK, et al., ECF No. 24 15 Defendants. OBJECTIONS DUE IN FOURTEEN DAYS — 16 — — 17 — 18 Plaintiff, a state prisoner proceeding without counsel in this action under 42 U.S.C. 19 § 1983, alleges that defendants violated his Eighth Amendment rights when they denied him 20 treatment for pain following shoulder surgery. Defendant Harf, who performed the surgery 21 under contract with the California Department of Corrections and Rehabilitation (“CDCR”), 22 moves to dismiss plaintiff’s claims against him, arguing that he acted pursuant to instruction or 23 policy set by defendant Bick, and thus did not act with deliberate indifference. ECF No. 24. 24 This argument is unpersuasive, and I recommend that his motion be denied. — 25 — — 26 — — 27 — — 28 — 1 Legal Standards 2 A. Motion to Dismiss 3 “Dismissal under Rule 12(b)(6) is proper when the complaint either (1) lacks a 4 cognizable legal theory or (2) fails to allege sufficient facts to support a cognizable legal theory.” 5 Somers v. Apple, Inc., 729 F.3d 953, 959 (9th Cir. 2013). Rule 8 of the Federal Rules of Civil 6 Procedure requires a complaint to contain “a short and plain statement of the claim showing that 7 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “To survive a motion to dismiss, a 8 complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that 9 is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. 10 Twombly, 550 U.S. 544, 570 (2007)). A claim has facial plausibility when a plaintiff “pleads 11 factual content that allows the court to draw the reasonable inference that the defendant is liable 12 for the misconduct alleged.” Iqbal, 556 U.S. at 678 . 13 The court construes a pro se litigant’s complaint liberally, see Haines v. Kerner, 404 U.S. 14 519, 520 (1972) (per curiam), and will only dismiss a pro se complaint “if it appears beyond 15 doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him 16 to relief,” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017) (quoting Nordstrom v. 17 Ryan, 762 F.3d 903, 908 (9th Cir. 2014)). The rule of liberal construction is “particularly 18 important in civil rights cases.” Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). In 19 giving liberal interpretation to a pro se civil rights complaint, courts may not “supply essential 20 elements of claims that were not initially pled.” Ivey v. Bd. of Regents of the Univ. of Alaska, — 21 — 673 F.2d 266, 268 (9th Cir. 1982). 22 B. Eighth Amendment Deliberate Indifference to Medical Needs 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)). The two26 prong test for deliberate indifference requires a plaintiff to show (1) “‘a serious medical need’ by 27 demonstrating that ‘failure to treat a prisoner’s condition could result in further significant injury 28 or the unnecessary and wanton infliction of pain,’” and (2) that “the defendant’s response to the 1 need was deliberately indifferent.” Jett, 439 F.3d at 1096 (quoting McGuckin v. Smith, 974 F.2d 2 1050, 1059 (9th Cir. 1992)). 3 “This second prong—defendant’s response to the need was deliberately indifferent—is 4 satisfied by showing (a) a purposeful act or failure to respond to a prisoner’s pain or possible 5 medical need and (b) harm caused by the indifference.” Id. (citing McGuckin, 974 F.2d at 1060 ). 6 Indifference may be manifest “when prison officials deny, delay or intentionally interfere with 7 medical treatment, or it may be shown by the way in which prison physicians provide medical 8 care.” Id. “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051 , 9 1060 (9th Cir. 2004). “Under this standard, the prison official must not only ‘be aware of the 10 facts from which the inference could be drawn that a substantial risk of serious harm exists,’ but 11 that person ‘must also draw the inference.’” Id. at 1057 (quoting Farmer v. Brennan, 511 U.S. 12 825, 837 (1994)). “If a prison official should have been aware of the risk, but was not, then the 13 official has not violated the Eighth Amendment, no matter how severe the risk.” Id. (quoting 14 Gibson v. Cnty. of Washoe, 290 F.3d 1175, 1188 (9th Cir. 2002)). 15 Background 16 Plaintiff alleges that on June 13, 2019, defendant Harf—an orthopedic surgeon at Salinas 17 Valley Hospital—performed surgery on his shoulder to repair a torn labrum. ECF No. 1 at 6. 18 While still in the recovery room, plaintiff began to experience increasing post-surgery pains as 19 his anesthetic wore off, prompting him to request pain medication from Harf. Id. Harf allegedly 20 “chuckled, and then informed plaintiff that ‘your doctor at the prison, ah doctor Bick, ordered 21 me not to prescribe any pain management per policy.’” Id. According to plaintiff, Harf added, 22 “you are going to be in extreme pain, there’s nothing that I can do about that.” Id. Upon 23 returning to the prison, the attending nurse reviewed Harf’s discharge instructions and—noting 24 that “there’s no recommendation for pain medication”—declined to treat plaintiff’s “extreme 25 pain.” Id. at 6-7. Six days later, plaintiff’s primary care provider, defendant Saukhla, informed 26 him that he would not be provided pain medication due to prison policy. Id. at 7. Responding to 27 plaintiff’s subsequent grievance, defendant Bick wrote “your surgeon did not order any pain 28 medication. We apologize that you experienced this postoperative pain.” ECF Id. at 7, 22. 1 Plaintiff brought this action against defendants Bick, Saukhla, and Harf, alleging that 2 they were deliberately indifferent to his medical needs in violation of the Eighth Amendment 3 and that they were negligent under California law. Defendant Harf moves to dismiss under Rule 4 12(b)(6) for failure to state a claim. 5 Analysis 6 At the outset, I note that defendant Harf’s challenge to the sufficiency of plaintiff’s 7 allegations necessarily requires reconsideration of June 20, 2021 screening order, which found 8 that plaintiff adequately pled Eighth Amendment and negligence claims against all defendants 9 other than former-defendant Harper. ECF No. 10. Nothing in Harf’s motion warrants 10 reconsideration of that finding. 11 According to the complaint, Harf performed plaintiff’s shoulder surgery and then 12 declined to prescribe him pain medication. Harf argues that this conduct does not amount to 13 deliberate indifference to plaintiff’s serious medical needs because he acted at the direction of 14 defendant Bick. ECF No. 24. This argument is unpersuasive. He “cite[s] no authority for the 15 proposition that ‘following policy’ is an absolute defense to a deliberate indifference claim.” 16 Baca v. Biter, No. 1:15-CV-01916-DAD-JDP, 2019 WL 1353707 , at *1 (E.D. Cal. Mar. 26, 17 2019). Indeed, the fact that he based his decision entirely on administrative policy or instruction 18 from defendant Bick—rather than his own medical judgment—supports an inference that he was 19 deliberately indifferent to plaintiff’s medical needs. See Colwell v. Bannister, 763 F.3d 1060 , 20 1063 (9th Cir. 2014) (“[T]he blanket, categorical denial of medically indicated surgery solely on 21 the basis of an administrative policy . . . is the paradigm of deliberate indifference.”). Although 22 Harf may have been in a difficult position, “as a medical provider [he] could not merely rely 23 upon following a policy when following it, as here, would result in denying plaintiff necessary 24 pain medication.” Franklin v. Dudley, No. 2:07-CV-2259-KJM-KJN, 2011 WL 2493770 , at *5 25 (E.D. Cal. June 22, 2011) (denying qualified immunity to a physician’s assistant who enforced a 26 prison’s no-narcotics policy by refusing to prescribe a stronger pain reliever than Tylenol, and 27 explaining that “[a] blanket policy denying narcotic pain medication to inmates in the general — 28 — 1 population regardless of medical need . . . is ‘patently violative of fundamental constitutional 2 principles’”) (quoting Grossman v. City of Portland, 33 F.3d 1200, 1209 (9th Cir. 1994)). 3 Harf argues that, even if not an absolute defense, his statement that “[plaintiff’s] pain 4 management would be handled by Dr. Bick and CMF” indicates that he was not deliberately 5 indifferent. ECF No. 24 at 7. But Harf does not provide support for that assertion. The only 6 statement attributed to Harf in the complaint reads: “‘Your doctor at the prison, ah doctor Bick, 7 ordered not to prescribe any pain management for you per policy. You are going to be in 8 ‘extreme’ pain, there’s nothing that I can do about that, it would subside eventually.’” ECF 9 No. 1 at 6. The complaint adds that Harf informed plaintiff that he would “send follow up 10 instructions back to the prison.” Id. Plaintiff’s allegations indicate that Harf knew that his 11 actions were already causing plaintiff pain and would cause him further extreme pain. 12 Intentionally refusing to provide pain medication to a prisoner recovering from surgery—even 13 for short periods—constitutes a violation of the Eighth Amendment. See Looman v. Wick, 329 14 F. App’x 729 (9th Cir. 2009) (denying summary judgment to doctor who withheld pain 15 medication from a prisoner-plaintiff for eight hours on the day after the plaintiff’s hernia 16 surgery); Franklin, 2011 WL 2493770 , at *5. 17 Defendant Harf also argues that the complaint does not allege that his actions were a 18 “cause-in-fact” of plaintiff’s pain. ECF No. 24 at 7. This argument is unpersuasive and is 19 similarly unsupported by any identified legal authority. “Conduct is a factual cause of harm 20 when the harm would not have occurred absent the conduct.” Restatement (Third) of Torts § 26 21 (2010). Had Harf provided plaintiff pain medication in the recovery room, when plaintiff 22 requested them, plaintiff might not have been in severe pain. Plaintiff has accordingly pled 23 factual causation. 24 Finally, defendant Harf argues that he is not liable for professional negligence under 25 California law because Bick’s instruction—or CDCR policy—limited his legal duty to provide 26 pain medication to plaintiff. ECF No. 24 at 8. Where a plaintiff alleges sufficient facts to state a 27 § 1983 claim of deliberate indifference, it follows that they have also sufficiently pled a 28 negligence cause of action. See Lemire v. California Dep’t of Corr. & Rehab., 726 F.3d 1062 , 1 1081-82 (9th Cir. 2013) (holding that the bar for a deliberate indifference claim is significantly 2 higher than that for a negligence claim), accord Est. of Silva v. City of San Diego, No. 3:18-CV3 2282-L-MSB, 2020 WL 6946011 , at *21 (S.D. Cal. Nov. 25, 2020). 4 To be sure, plaintiff’s allegations suggest inconsistencies between the statements of 5 defendants Bick, Harf, and Saukhla as to their understanding of the policy, instruction, or 6 individual responsibility that led to plaintiff’s extreme pain. For instance, Bick did not 7 acknowledge the policy in his response to plaintiff’s grievance, instead simply stating that “the 8 surgeon did not order any pain medication.” ECF No. 1 at 6. Ostensibly, Harf hopes that the 9 court will infer from these allegations that the prescription of any pain medication was beyond 10 the scope of his duty of care. But he has cited no legal authority to support this inference and, in 11 any case, drawing such an inference in defendant’s favor is inappropriate at this juncture. See 12 Manzarek v. St. Paul Fire & Mar. Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008) (In deciding a 13 motion under Rule 12(b)(6), the court must “construe the pleadings in the light most favorable to 14 the non-moving party.”). Plaintiff’s allegations therefore state both an Eighth Amendment and 15 professional negligence claim against defendant Harf. 16 Accordingly, it is RECOMMENDED that defendant Harf’s motion to dismiss, ECF 17 No. 24, be denied. 18 I submit these findings and recommendations to the district judge under 28 U.S.C. 19 § 636(b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, 20 Eastern District of California. The parties may, within 14 days of the service of the findings and 21 recommendations, file written objections to the findings and recommendations with the court. 22 Such objections should be captioned “Objections to Magistrate Judge’s Findings and 23 Recommendations.” The district judge will review the findings and recommendations under 28 24 U.S.C. § 636 (b)(1)(C). — 25 — — 26 — — 27 — — 28 — — 1 — | 1718 SO ORDERED. 3 ( — Dated: __April 27, 2022 Jess Vote 4 JEREMY D. PETERSON ; UNITED STATES MAGISTRATE JUDGE — 7 — — 8 — — 9 — — 10 — ul — 12 — — 13 — — 14 — — 15 — — 16 — — 7 — — 18 — — 19 — — 20 — — 21 — — 29 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 —