Baldwin v. Atchley

[7] 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA [10] ANTHONY LEE BALDWIN, 11 Case No. 20-00676 BLF (PR) Plaintiff, 12 ORDER OF DISMISSAL WITH v. LEAVE TO AMEND; DENYING 13 MOTION FOR APPOINTMENT OF COUNSEL INSTRUCTIONS TO 14 DR. L. GAMBOA, et al., THE CLERK 15 Defendants. 16 (Docket No. 3) [17] 18 Plaintiff, a California state prisoner, filed the instant pro se civil rights action 19 pursuant to 42 U.S.C. § 1983 against employees of Salinas Valley State Prison (“SVSP”), 20 where is currently incarcerated, and officers at the Del Norte County Sheriff’s Office. Dkt. 21 No. 1. Plaintiff has filed a motion for appointment of counsel. Dkt. No. 3. Plaintiff’s 22 motion for leave to proceed in forma pauperis shall be addressed in a separate order. Dkt. 23 No. 2. [24] 25 DISCUSSION 26 A. Standard of Review 27 A federal court must conduct a preliminary screening in any case in which a 1 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 2 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 3 upon which relief may be granted or seek monetary relief from a defendant who is immune 4 from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be liberally 5 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 6 To state a claim under 42 U.S.C. § 1983 , a plaintiff must allege two essential 7 elements: (1) that a right secured by the Constitution or laws of the United States was 8 violated, and (2) that the alleged violation was committed by a person acting under the 9 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 10 B. Plaintiff’s Claims 11 Plaintiff names the following as defendants in this action: Dr. Lawrence Gamboa, 12 Chief Physician and Surgeon at SVSP in 2016; Dr. Darren Bright, Chief Physician and 13 Surgeon at SVSP in 2018; Dr. Rosana Javate, physician and surgeon in B-Facility at 14 SVSP; Dr Mandeep Singh, physician and surgeon at C-Facility in SVSP; Mr. Arik 15 Anderson, Del Norte County Sheriff, and Mr. Bill Stevens, Del Norte County Deputy 16 Sheriff, Jail Commander. Dkt. No. 3. This action is based on the medical care Plaintiff 17 received for two separate injuries, the first to his left shoulder and the second to his face. 18 Plaintiff’s claims also involve two separate groups of defendants located at two different 19 institutions: SVSP and the Del Norte County Jail. Accordingly, it may be that claims and 20 parties have been improperly joined in this matter in violation of Rules 18(a) and 20(a) of 21 the Federal Rules of Civil Procedure. However, it is unnecessary to consider whether 22 severance is appropriate at this time because Plaintiff fails to allege sufficient facts to state 23 a cognizable claim against any named defendant. 24 1. Shoulder Injury 25 Plaintiff claims that he suffered a left shoulder injury at another prison before 26 arriving at SVSP in October 2015. Dkt. No. 1 at 4. His request to see an orthopedic 1 orthopedic surgeon at Twin Cities Memorial Hospital, who recommended an MRI. Id. 2 Plaintiff alleges that Defendant Dr. Gamboa denied the MRI, but that it was later granted 3 after he filed a grievance on the matter. Id. He received the MRI on June 30, 2016, which 4 revealed a “partial thickness tear of the rotator cuff, tendinopathy with impingement.” Id. 5 When Dr. Kowall recommended surgery after a follow-up visit on September 12, 2016, 6 Defendant Dr. Gamboa denied the request. Id. Plaintiff claims he suffered intense pain 7 and dramatically reduced range of motion for the next two years. Id. 8 On May 4, 2018, Plaintiff requested to a follow-up with the orthopedic surgeon, 9 which was denied. Dkt. No. 1 at 5. In February 2018, Plaintiff had suffered a face injury 10 for which he was also seeking treatment. Id. at 4. Dr. Sam Pajong, Plaintiff’s doctor at 11 the time, suggested focusing first on getting Plaintiff’s jaw fixed before dealing with his 12 shoulder. Id. at 6; see infra at 4. Plaintiff agreed with the treatment plan. Id. at 6. 13 After Plaintiff’s jaw surgery was scheduled for August 15, 2018, Dr. Pajong 14 resubmitted the request for a follow up with Dr. Kowall on August 8, 2018, and the request 15 was granted. Id. at 7. Two weeks later on August 22, 2018, Plaintiff saw Dr. Kowall, who 16 stated that his recommendation for surgery remained the same. Id. Plaintiff was approved 17 for surgery on his left shoulder, which he received on December 3, 2018. Id. Dr. Kowall 18 informed Plaintiff that recovery could be quite painful and last up to 6 months, and he 19 prescribed morphine sulphate at 30 mg, twice daily. Id. At this time, Plaintiff was 20 temporarily housed at the Correctional Training Facility (“CTF”) in Soledad as an ad-seg 21 overflow transfer. Id. at 7-8. He claims that the doctors at CTF followed Dr. Kowall’s 22 orders regarding his pain medication. Id. at 8. 23 When Plaintiff was transferred back to SVSP in January 2019, Plaintiff came under 24 the care of Defendant Dr. Rosana Javate, who reduced his pain medication to 15 mg, three 25 times daily. Id. at 8. Plaintiff filed a medical grievance against Dr. Javate for her actions. 26 Id. 1 Department (the “Jail”) for resentencing. Id. The Jail “cut off” his pain medication “for 2 no reason except that the jail’s blanket policy is no opioids.” Id. Plaintiff claims after he 3 filed a grievance, the Jail Commander partially granted the medical accommodation, but 4 the Jail still failed to provide his medication due to the lack of paperwork in his medical 5 file, i.e., the prescription for morphine. Id. He claims that he submitted the grievance to 6 the 4th level review “10 months ago,” but did not receive a response. Id. at 9. 7 On April 10, 2019, Plaintiff was transferred back to SVSP, where he submitted a 8 sick call slip for follow-up and physical therapy, as well as an appointment with Dr. 9 Kowall to renew his pain medication. Id. at 9. Plaintiff was seen by Dr. Javate, who 10 would not renew his pain meds because he was now “weaned” off, but she submitted a 11 request for services for Plaintiff to see Dr. Kowall. Id. On Mary 17, 2019, Plaintiff saw 12 Dr. Kowall who diagnosed “frozen shoulder” due to the lack of physical therapy; he 13 administered a subacromial steroid injection and scheduled a follow-up. Id. A month later 14 on June 17, 2019, Plaintiff had a follow-up with Dr. Kowall to whom he described a lack 15 of improvement in pain but slight improvement of range of motion due to physical therapy. 16 Id. Plaintiff had an additional procedure with Dr. Kowall in December 2019, which 17 involved a “forced manipulation of left shoulder to break up the blockage that had built up 18 and impinged movement.” Id. at 10. 19 Based on the above allegations, Plaintiff asserts that the CDCR caused him to suffer 20 for 2 years with a torn rotator cuff without the benefit of pain management medications, 21 and that the SVSP medical department is “breathtakingly incompetent or so deliberately 22 indifferent.” Id. Plaintiff also claims that the Del Norte Sheriff’s Department is also 23 responsible for contributing to his shoulder becoming frozen because the Jail was “more 24 interested in how to avoid the cost of physical therapy and pain management medication.” 25 Id. at 11. 26 2. Face Injury 1 a cement table while playing football. Id. Plaintiff did not seek medical attention until 2 three weeks later. Dkt. No. 4. On March 13, 2018, he was seen by Defendant Dr. Javate. 3 Id. at 4-5. Plaintiff complained of “intense agony” which prevented him from eating, 4 sleeping and washing his face. Id. at 5. He was only able to open his jaw past “3/4 inch” 5 after which the pain intensified if he tried to bite down,” such that he was only able to eat 6 smooth style peanut butter and over cooked ramen noodles. Id. Plaintiff asserts that he 7 had visible injuries, i.e., blackened eyes and right eyeball that was “solid red from blood.” 8 Id. Plaintiff alleges that Dr. Javate “did not believe he was injured or did not care or [was] 9 too incompetent to diagnose injuries.” Id. Dr. Javate recommended that he drink plenty of 10 water and take aspirin. She also ordered an x-ray which was taken the same day. Id. A 11 few days later, Plaintiff received the x-ray results which showed “irregularity along the 12 anterior nasal spine” among other things. Id. He claims that although he was notified that 13 he was due to see a doctor to discuss the results, he was not seen until he submitted a sick 14 slip approximately two months later. Id. 15 On May 4, 2018, he was seen by Dr. Pajong who submitted a request for services 16 for a CT scan that was approved, although a follow-up with the ortho surgeon was denied. 17 Id.; see supra at 3. The CT scan showed 3 fractures, and Plaintiff was referred to an ENT 18 specialist. Dkt. No. 1 at 5. Plaintiff eventually received surgery on August 15, 2018. Id. 19 at 6. Plaintiff claims that the ENT surgeon informed him that due to the extensive amount 20 of time that had passed since the injury, the surgeon opted to perform a more complicated 21 procedure. Id. Plaintiff alleges that “technically the surgery was a success in that [his] jaw 22 can now move freely,” but that he has a large knot of scar tissue in his cheek that is very 23 uncomfortable. Id. Plaintiff claims that the delay between the injury and the surgery “is 24 directly attributable to Dr. Javate” because she did not believe he was seriously injured 25 despite visible injuries and who did not follow departmental procedure and schedule a 26 follow up to discuss the x-ray results. Id. at 6-7. He claims that “[s]he was either 1 actions or lack thereof are reviewable through litigation.” Id. at 7. 2 3. Deliberate Indifference 3 It appears that Plaintiff is attempting to assert a claim for deliberate indifference to 4 serious medical needs. However, Plaintiff’s allegations are not sufficient to state such a 5 claim against each named defendant. 6 Deliberate indifference to serious medical needs violates the Eighth Amendment’s 7 proscription against cruel and unusual punishment. See Estelle v. Gamble, 429 U.S. 97 , 8 104 (1976); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled in part on 9 other grounds by WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) 10 (en banc); Jones v. Johnson, 781 F.2d 769, 771 (9th Cir. 1986). A determination of 11 “deliberate indifference” involves an examination of two elements: the seriousness of the 12 prisoner’s medical need and the nature of the defendant’s response to that need. See 13 McGuckin, 974 F.2d at 1059 . A “serious” medical need exists if the failure to treat a 14 prisoner’s condition could result in further significant injury or the “unnecessary and 15 wanton infliction of pain.” Id. (citing Estelle, 429 U.S. at 104 ). A prison official is 16 deliberately indifferent if he knows that a prisoner faces a substantial risk of serious harm 17 and disregards that risk by failing to take reasonable steps to abate it. Farmer v. Brennan, [18] 511 U.S. 825, 837 (1994). The prison official must not only “be aware of facts from which 19 the inference could be drawn that a substantial risk of serious harm exists,” but he “must 20 also draw the inference.” Id. If a prison official should have been aware of the risk, but 21 was not, then the official has not violated the Eighth Amendment, no matter how severe 22 the risk. Gibson v. County of Washoe, 290 F.3d 1175, 1188 (9th Cir. 2002). 23 Assuming Plaintiff had serious medical needs, he fails to establish the second 24 element, i.e., that each named defendant acted with deliberate indifference to his serious 25 medical needs. He names as defendants Dr. Lawrence Gamboa, Dr. Darren Bright, Dr. 26 Rosana Javate, Dr. Mandeep Singh, Mr. Arik Anderson, and Mr. Bill Stevens. Dkt. No. 3. 1 Defendants Bright,1 Singh, Anderson, or Stevens to establish that they were personally 2 involved in Plaintiff’s medical care, or much less that they acted with deliberate 3 indifference. To satisfy the second prong for a deliberate indifference claim, Plaintiff must 4 allege that each individual defendant subjectively knew that he faced a substantial risk of 5 serious harm and disregarded that risk by failing to take reasonable steps to abate it. 6 Farmer, 511 U.S. at 837 . If defendant should have been aware but was not, then there is 7 no Eighth Amendment violation. Gibson, 290 F.3d at 1188 . 8 With respect to Defendants Gamboa and Javate, Plaintiff describes their individual 9 actions in more detail, but he again fails to allege that they acted with deliberate 10 indifference. Id. The fact that Defendant Gamboa denied the requests for an MRI and 11 surgery in 2016, without more, is not sufficient to establish a deliberate indifference claim; 12 there must be an allegation that Defendant Gamboa knew that Plaintiff faced a substantial 13 risk of serious harm and decided to disregard that risk when he chose to deny the requests 14 for an MRI and surgery. The same is also true of Plaintiff’s allegations against Defendant 15 Javate. Plaintiff claims that when Defendant Javate saw him for a face injury on March 16 13, 2018, she “did not believe he was injured or did not care or [was] too incompetent to 17 diagnose injuries.” See supra at 4 (emphasis added). He merely speculates as to her 18 motives rather than provide factual allegations. Furthermore, Plaintiff alleges that 19 Defendant Javate ordered an x-ray on the same day, which does not indicate that she 20 disregarded a substantial risk of serious harm and failed to take reasonable steps to abate it. 21 With respect to Defendant Javate’s alleged delay in following up with Plaintiff regarding 22 his x-ray results, Plaintiff again merely speculates: “She was either deliberately indifferent 23 to my injuries and pain or incompetent. Either way her actions or lack thereof are [24] 11 Plaintiff makes one statement involving Dr. Bright: “If the CMO, Dr. Darren Bright, has [25] no faith in the experience and wisdom of the contracted orthopedic surgeon, I’m sure there must be a procedure in place in finding another orthopedic surgeon more in the CMO’s [26] taste.” Dkt. No. 1 at 10. However, this statement involves pure speculation, and there are 1 reviewable through litigation.” See supra at 5 (emphasis added). Plaintiff is mistaken. If 2 Defendant Javate was merely negligent, then her actions were not unconstitutional because 3 a claim of medical malpractice or negligence is insufficient to make out a violation of the 4 Eighth Amendment. See Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004); Hallett 5 v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002); Franklin v. Oregon, 662 F.2d 1337 , 1344 6 (9th Cir. 1981); see, e.g., Frost v. Agnos, 152 F.3d 1124, 1130 (9th Cir. 1998) (finding no 7 merit in claims stemming from alleged delays in administering pain medication, treating 8 broken nose and providing replacement crutch, because claims did not amount to more 9 than negligence); McGuckin, 974 F.2d at 1059 (mere negligence in diagnosing or treating a 10 medical condition, without more, does not violate a prisoner’s 8th Amendment rights). 11 Plaintiff shall be afforded an opportunity to file an amended complaint to state sufficient 12 facts to support an Eighth Amendment claim against the appropriate defendants. 13 In preparing an amended complaint, Plaintiff should keep the following principles 14 in mind. Liability may be imposed on an individual defendant under § 1983 only if 15 Plaintiff can show that the defendant proximately caused the deprivation of a federally 16 protected right. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988); Harris v. City of 17 Roseburg, 664 F.2d 1121, 1125 (9th Cir. 1981). A person deprives another of a 18 constitutional right within the meaning of section 1983 if he does an affirmative act, 19 participates in another’s affirmative act or omits to perform an act which he is legally 20 required to do, that causes the deprivation of which the plaintiff complains. See Leer, 844 21 F.2d at 633. Accordingly, Plaintiff must allege sufficient facts describing each named 22 defendant’s actions or failure to act that caused the violation of his Eighth Amendment 23 rights. 24 Plaintiff is also advised to keep Rules 18(a) and 20(a) of the Federal Rules of Civil 25 Procedure in mind when joining claims and parties in this action. “A party asserting a 26 claim, counterclaim, crossclaim, or third-party claim may join, as independent or 1 18(a). Accordingly, “multiple claims against a single party are fine, but Claim A against 2 Defendant 1 should not be joined with unrelated Claim B against Defendant 2.” George v. 3 Smith, 507 F.3d 605, 607 (7th Cir. 2007). “Unrelated claims against different defendants 4 belong in different suits,” not only to prevent the sort of “morass” that a multi-claim, 5 multi-defendant suit can produce, “but also to ensure that prisoners pay the required filing 6 fees – for the Prison Litigation Reform Act limits to 3 the number of frivolous suits or 7 appeals that any prisoner may file without prepayment of required fees.” Id. (citing 28 8 U.S.C. § 1915 (g)). Furthermore, parties may be joined as defendants in one action only "if 9 any right to relief is asserted against them jointly, severally, or in the alternative with 10 respect to or arising out of the same transaction, occurrence, or series of transactions or 11 occurrences; and any question of law or fact common to all defendants will arise in the 12 action." Fed. R. Civ. P. 20(a)(2). 13 C. Motion for Appointment of Counsel 14 Plaintiff moves for appointment counsel based on his indigency, his imprisonment 15 limits his ability to litigate, complexity of the issues, and he would be better served with 16 counsel at trial. Dkt. No. 3. There is no constitutional right to counsel in a civil case 17 unless an indigent litigant may lose his physical liberty if he loses the litigation. See 18 Lassiter v. Dep’t of Social Services, 452 U.S. 18, 25 (1981); Rand v. Rowland, 113 F.3d 19 1520, 1525 (9th Cir. 1997) (no constitutional right to counsel in § 1983 action), withdrawn 20 in part on other grounds on reh’g en banc, 154 F.3d 952 (9th Cir. 1998) (en banc). The 21 decision to request counsel to represent an indigent litigant under § 1915 is within “the 22 sound discretion of the trial court and is granted only in exceptional circumstances.” 23 Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984). Accordingly, Plaintiff’s motion 24 is DENIED without prejudice for lack of exceptional circumstances. See Agyeman v. 25 Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004); Rand, 113 F.3d at 26 1525 (9th Cir. 1997); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wilborn v. 1 |} Court’s sua sponte appointment of counsel at a future date should the circumstances of this 2 || case warrant such appointment. [3] 4 CONCLUSION 5 For the reasons state above, the Court orders as follows: 6 1. The complaint is DISMISSED with leave to amend. Within twenty-eight 7 || (28) days from the date this order is filed, Plaintiff shall file an amended complaint using 8 || the court’s form complaint. The amended complaint must include the caption and civil 9 case number used in this order, i.e., Case No. C 20-00676 BLE (PR), and the words 10 || “AMENDED COMPLAINT?” on the first page. Plaintiff must answer all the questions on 11 the form in order for the action to proceed. Plaintiff is reminded that the amended 2 complaint supersedes the original, and Plaintiff may not make references to the original 5 13 || complaint. Claims not included in the amended complaint are no longer claims and 5 14 || defendants not named in an amended complaint are no longer defendants. See Ferdik v. 3 15 || Bonzelet, 963 F.2d 1258, 1262 (9th Cir.1992). A 16 Failure to respond in accordance with this order by filing an amended 3 17 complaint in the time provided will result in the dismissal of this action without 18 || prejudice and without further notice to Plaintiff. 19 2. Plaintiff's motion for appointment of counsel is DENIED. Dkt. No. 3. 20 3. The Clerk shall mail two copies of the court’s form complaint to Plaintiff. 71 This order terminates Docket No. 3. 22 IT IS SO ORDERED. 23 || Dated: __ June 3, 2020 Ae. Lays roomy! BETH LABSON FREEMAN United States District Judge 25 Order of Dismissal with Leave to Amend 26 PRO-SE\BLF\CR.20\00676Baldwin_dwlta