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Johnson v. Silva

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


July 1, 2010

LESLIE JOHNSON, PLAINTIFF,
v.
SILVA, MEDICAL DOCTOR; AKABARA, MEDICAL DOCTOR; LIPSHIR, TRANSPORTATION OFFICER; ESPINOZA, TRANSPORTATION OFFICER; AND S LAMING, REGISTERED NURSE, DEFENDANTS.

The opinion of the court was delivered by: Louisa S Porter United States Magistrate Judge

REPORT AND RECOMMENDATION THAT DEFENDANTS' MOTION TO DISMISS BE GRANTED [Document No. 11]

I. INTRODUCTION

On July 14, 2009, Plaintiff Leslie Johnson, a state prisoner proceeding pro se, filed a complaint pursuant to 42 U.S.C. § 1983 against the following Defendants: George Neotti, warden of the Richard J. Donovan Correctional Facility ("R.J.D."); S. Laming, a registered nurse at R.J.D.; Akbari, Dr. (erroneously sued as Akbara), a medical doctor at R.J.D.; Silva, Dr., a medical doctor at R.J.D.; Liptscher (erroneously sued as Lipshir), a transportation officer at R.J.D.; and Espinoza, a transportation officer at R.J.D. (Doc. No. 1.)*fn1 Plaintiff does not indicate whether he sues Defendants in their individual or official capacities. (Compl. at 2-3.) On October 1, 2009, this Court sua sponte dismissed Defendant Neotti. (Doc. No. 4.) On November 16, 2009, a summons was returned unexecuted by Plaintiff as to Defendant Laming. (Doc. No. 6.)

On December 29, 2009, Defendants Akbari, Silva, Liptscher, and Espinoza filed a Motion to Dismiss Plaintiff's Complaint or Strike Portions Thereof. (Doc. No. 11.) After a thorough review of the parties' papers and all supporting documents, this Court RECOMMENDS Defendant's Motion to Dismiss be GRANTED with leave to amend.

II. BACKGROUND

A. Factual Background

1. Eighth Amendment: Medical Needs

Plaintiff alleges Defendants were deliberately indifferent to his medical needs in violation of his Eighth Amendment right to be free from cruel and unusual punishment. (Compl. at 3.) Plaintiff presents this claim in his Complaint and attaches 109 pages of medical records and other documents to support this claim.

a. Complaint

Plaintiff is an inmate at Richard J. Donovan Correctional Facility ("R.J.D") in San Diego, California. (Compl. at 1.) Plaintiff alleges he was in an automobile accident while returning from Alvarado Hospital to R.J.D on May 2, 2008. (Compl. at 4.) An ambulance arrived at the scene and paramedics examined Plaintiff, who described his injuries and level of pain. (Compl. at 4.) Plaintiff contends a paramedic asked Defendants Liptscher and Espinoza, the transportation officers, if they planned to take Plaintiff to the hospital to be examined. (Compl. at 4.) Plaintiff alleges Defendants Lipstcher and Espinoza told the paramedics they would not bring Plaintiff to a hospital, and instead, Plaintiff would be examined by prison medical staff at R.J.D. (Compl. at 4.) Plaintiff contends Registered Nurse S. Laming examined him at R.J.D.'s medical center. (Compl. at 4.) Plaintiff described his injuries and level of pain to Laming and asked to be examined by a doctor. (Compl. at 4.) Plaintiff alleges Laming told him he was fine, and instructed him to return to his cell, take ibuprofen, and drink tea. (Compl. at 4.)

b. Attachments

Plaintiff's medical records and other supporting documents provide more details on the prison van accident and Plaintiff's medical care after the accident. In a declaration, Plaintiff alleges that on the date of the accident, he had a liver biopsy at Alvarado Hospital. (Decl., Attachments at 2.)*fn2 Plaintiff contends that during the journey back to R.J.D. after the procedure, the prison van he was riding in was struck on the rear end by another vehicle. (Decl., Attachments at 2.) As a result of the accident, Plaintiff claims in his declaration that he was thrust forward and suffered injuries to his shoulder, back, wrist, and the right side of his body. (Decl., Attachments at 3.)*fn3 In a prison appeal form attached to the Complaint, Plaintiff contends his belief that Defendants Liptscher and Espinoza acted in "reckless disregard to the fact that their passenger. was injured" and should have allowed Plaintiff to be treated at a hospital. (Attachments at 5.)

In his declaration, Plaintiff contends he was denied medical treatment after the initial exam by Laming. (Decl., Attachments at 3.) Plaintiff also alleges he was prescribed pain medications by Defendants Akbari and Silva, and other facility doctors only after several months of complaining and filing inmate appeals. (Decl., Attachments at 3.)

The medical records show Plaintiff sought medical care numerous times between May 2, 2008, and October 30, 2008. On May 3, 2008, Plaintiff sought pain medication. (Attachments at 11.) The medical records show a physician ordered pain medication and X-rays, and Plaintiff received a cane to aid his walking. (Attachments at 10, 11, 23.) On May 4, 2008, Plaintiff again sought pain medication and X-rays, and a physician ordered pain medication. (Attachments at 22, 53.) Plaintiff's records also include a prescription for pain medication from May 5, 2008. (Attachments at 27.)

On May 13, 2008, Plaintiff also sought medical care for back pain and chest pain, and a doctor ordered trigger point injections. (Attachments at 15, 26, 45.) On May 13, 2008, a doctor ordered physical therapy, pain medication, and X-rays. (Attachments at 20.) On May 14, 2008, a physician ordered Motrin, which Plaintiff refused. (Attachments at 42.) On May 18, 2008, a physician ordered another pain medication, Toradol. (Attachments m at 21). On May 20, 2008, Plaintiff sought medical care again for pain in his neck, shoulder, and back, and a physician ordered pain medication, X-rays, and an MRI. (Attachments at 14.) On May 21, June 15, and June 16, 2008, Plaintiff again sought medical care for back pain. (Attachments at 43, 39, 38.) On June 20, 2008, a medical care provider indicated in progress notes that pain medication was again prescribed to Plaintiff. (Attachments at 17.)

On July 2, 2008, Plaintiff received trigger point injections, administered by Dr. Glazener at Alvarado Hospital. (Attachments at 8, 65, 69.) On July 14, 2008, Plaintiff again requested medical care for back pain. (Attachments at 30.) In mid-September, Plaintiff received trigger point injections again, and in late October, Plaintiff had an MRI. (Attachments at 7, 16.) In his declaration, Plaintiff alleges after his MRI, orthopedic surgeon Dr. Smith ordered surgery on his shoulder and wrist. (Decl., Attachments at 3.) Plaintiff also claims in his declaration that because he experienced extreme pain after surgery, Dr. Smith prescribed morphine.*fn4 (Decl., Attachments at 3.) Plaintiff contends in his declaration "the [denial] and delay of medical treatment is the reason [his] surgery has not been successful and is why [he is] still suffering in pain and need[s] prescribed narcotics just to sleep." (Decl., Attachments at 2.)

2. First Amendment: Right to Petition the Government

Plaintiff alleges Defendants violated his First Amendment right to petition the government for redress of grievances. (Compl. at 3.) Specifically, Plaintiff alleges he filed an administrative appeal in the prison grievance system, and the appeal was subsequently lost. (Compl. at 6.)Again, Plaintiff presents this claim in his Complaint and attaches documents in support of this claim.

a. Complaint

Plaintiffmentions his access to courts claim twice in his Complaint. First, Plaintiff alleges his CDC 602 Inmate/Parolee Appeal was lost. (Compl. at 6.) Second, Plaintiff contends his appeal was filed on July 22, 2008. (Compl. at 6.)

b. Attachments

Plaintiff provides more detail on his access to courts claim in his Attachments by including three pertinent documents. First, Plaintiff includes a CDC 602 Inmate/Parolee Appeal Form dated May 13, 2008. (Attachments at 4-5.) In his appeal form, Plaintiff requested X-rays and an MRI or a CAT-Scan, and demanded to be informed why R.J.D.'s medical staff failed to treat him immediately following the accident. Plaintiff also mentioned filing a civil suit for damages in his appeal form. Second, Plaintiff also includes a letter from the Inmate Appeals Office dated July 22, 2008, which notified Plaintiff his appeal form was sent to a second level. (Attachments at 58.) Third, Plaintiff included a letter dated February 18, 2009, from Plaintiff to the Office of the Inmate Appeals Branch of the State of California Department of Corrections, inquiring about his third-level appeal. (Attachments at 109.)

B. Procedural Background

On July 14, 2009, Plaintiff filed a complaint against Defendants Neotti, Laming, Akbari, Silva, Liptscher, and Espinoza. (Doc. No. 1.) On August 4, 2009, the Court dismissed the complaint without prejudice for failure to pay filing fees and/or failing to move to proceed in forma pauperis. (Doc. No. 2.) On September 17, 2009, Plaintiff filed a motion for leave to proceed in forma pauperis, (Doc. No. 3) and on October 1, 2009, this Court granted Plaintiff's motion (Doc. No. 4). Also on October 1, 2009, the Court sua sponte dismissed Defendant Neotti. (Doc. No. 4.) On November 16, 2009, a summons was returned unexecuted by Plaintiff as to Defendant Laming. (Doc. No. 6.)

In his Complaint, Plaintiff alleges Defendants violated his First Amendment right to petition the government for redress of grievances and his Eighth Amendment right to be free from cruel and unusual punishment based on Defendant's alleged deliberate indifference to Plaintiff's medical needs. (Compl. at 3-5.)

On December 29, 2009, Defendants Akbari, Silva, Liptscher, and Espinoza filed a Motion to Dismiss Plaintiff's Complaint, or Strike Portions Thereof.*fn5 (Doc. No. 11.) Defendants seek dismissal in whole or in part on the grounds that: (1) Defendants are immune to suit in their official capacities under the Eleventh Amendment; (2) Plaintiff fails to state a claim against Defendants under the Eighth Amendment; (3) Plaintiff fails to state a claim against Defendants under the First Amendment; and (4) Defendants are not liable based on a theory of vicarious liability. (MTD at 2.) Defendants seek to strike as superfluous pages 56, 57, 59-62, and 64-108 of the Complaint's Attachments because they appear to be duplicative. (MTD at 5.) Also, Defendants seek to strike the multiple identical counts in the Complaint as redundant.*fn6 (MTD at 5.)

C. Defendants' Motion to Strike

Defendants contend pages 56, 57, 59-62, and 64-108 of the Complaint's attachments are duplicates and should be stricken. (MTD at 5.) Under Rule 12(f), a party may move to strike "from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." FED.R.CIV.P. 12(f). Upon the Court's review, the pages appear to be duplicative and therefore redundant. Based thereon, it is recommended that the Court strike the duplicate pages of Plaintiff's Attachments, including those on pages 56, 57, 59-62, and 64-108.

III. DISCUSSION

A. Standard of Review

1. Rule 12(b)(6) Motions to Dismiss

A motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the claims in the complaint. See Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 633 (1999).

A complaint must be dismissed if it does not contain "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, __ U.S. __, 129 S.Ct. 1937, 1949 (2009). The court must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn from them, and must construe the complaint in the light most favorable to the plaintiff. Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 973 (9th Cir. 2004) (citing Karam v. City of Burbank, 352 F.3d 1188, 1192 (9th Cir. 2003)); Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995); N.L. Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986).

The court does not look at whether the plaintiff will "ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see Bell Atl. Corp. v. Twombly, 550 U.S. at 563 n.8. A dismissal under Rule 12(b)(6) is generally proper only where there "is no cognizable legal theory or an absence of sufficient facts alleged to support a cognizable legal theory." Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001) (citing Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988)).

The court need not accept conclusory allegations in the complaint as true; rather, it must "examine whether [they] follow from the description of facts as alleged by the plaintiff." Holden v. Hagopian, 978 F.2d 1115, 1121 (9th Cir. 1992) (citation omitted); see Halkin v. VeriFone, Inc., 11 F.3d 865, 868 (9th Cir. 1993); see also Cholla Ready Mix, 382 F.3d at 973 (citing Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994)) (stating that on Rule 12(b)(6) motion, a court "is not required to accept legal conclusions cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged[]"). "Nor is the court required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001).

In addition, when resolving a motion to dismiss for failure to state a claim, courts may not generally consider materials outside the pleadings. Schneider v. Cal. Dep't of Corrs., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998); Jacobellis v. State Farm Fire & Cas. Co., 120 F.3d 171, 172 (9th Cir. 1997); Allarcom Pay Television Ltd. v. Gen. Instrument Corp., 69 F.3d 381, 385 (9th Cir. 1995). "The focus of any Rule 12(b)(6) dismissal... is the complaint." Schneider, 151 F.3d at 1197 n.1. This precludes consideration of "new" allegations that may be raised in a plaintiff's opposition to a motion to dismiss brought pursuant to Rule 12(b)(6). Id. (citing Harrell v. United States, 13 F.3d 232, 236 (7th Cir. 1993).

"When a plaintiff has attached various exhibits to the complaint, those exhibits may be considered in determining whether dismissal [i]s proper...." Parks Sch. of Bus., 51 F.3d at 1484 (citing Cooper v. Bell, 628 F.2d 1208, 1210 n.2 (9th Cir. 1980)). The court may also consider "documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading...." Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994), overruled on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002); Stone v. Writer's Guild of Am. W., Inc., 101 F.3d 1312, 1313-14 (9th Cir. 1996).

2. Standards Applicable to Pro Se Litigants

Where a plaintiff appears in propria persona in a civil rights case, the court must construe the pleadings liberally and afford the plaintiff any benefit of the doubt. Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). The rule of liberal construction is "particularly important in civil rights cases." Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). In giving liberal interpretation to a pro se civil rights complaint, courts may not "supply essential elements of claims that were not initially pled." Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). "Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss." Id.; see also Jones v. Cmty. Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984) (finding conclusory allegations unsupported by facts insufficient to state a claim under § 1983). "The plaintiff must allege with at least some degree of particularity overt acts which defendants engaged in that support the plaintiff's claim." Jones, 733 F.2d at 649 (internal quotation omitted).

Nevertheless, the court must give a pro se litigant leave to amend his complaint "unless it determines that the pleading could not possibly be cured by the allegation of other facts." Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (quotation omitted) (citing Noll v. Carlson, 809 F.2d 1446, 1447 (9th Cir. 1987)). Thus, before a pro se civil rights complaint may be dismissed, the court must provide the plaintiff with a statement of the complaint's deficiencies. Karim-Panahi, 839 F.2d at 623-24. But where amendment of a pro se litigant's complaint would be futile, denial of leave to amend is appropriate. See James v. Giles, 221 F.3d 1074, 1077 (9th Cir. 2000).

3. Stating a Claim Under 42 U.S.C. § 1983

To state a claim under § 1983, the plaintiff must allege facts sufficient to show (1) a person acting "under color of state law" committed the conduct at issue, and (2) the conduct deprived the plaintiff of some right, privilege, or immunity protected by the Constitution or laws of the United States.

B. Immunity Under the Eleventh Amendment

In his Complaint, Plaintiff does not indicate whether he is suing Defendants in their official or individual capacities, nor does he specify the relief he is seeking. (Compl. at 2-3.) Defendants contend they are immune to suit for damages in their official capacities under the Eleventh Amendment. (MTD at 2.) Furthermore, Defendants argue that because this Court lacks jurisdiction to entertain a claim for damages against an official in his or her capacity, Plaintiff's claims against each Defendants in his official capacity should be dismissed or stricken. (MTD at 9.)

The Eleventh Amendment prohibits damage actions against state officials acting in their official capacities. Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 n.10 (1989). However, the Eleventh Amendment "does not bar actions against state officers in their official capacities if the plaintiffs seek only a declaratory judgment or injunctive relief." Chaloux v. Killeen, 886 F.2d 247, 252 (9th Cir. 1989) (internal quotations omitted); Pennhurst, 465 U.S. at 104-06. Nor does the Eleventh Amendment bar damage actions against state officials in their personal capacities. Hafer v. Melo, 502 U.S. 21, 31 (1991). Personal capacity suits seek to impose liability on state officials for acts taken under color of state law. Id. at 25-26. In Hafer, the Court made clear that the Eleventh Amendment does not shield state officials from allegations that they violated a federal right while acting under color of state law. Id. at 29. The Amendment only prohibits damage actions against the "official's office"--actions that are in reality suits against the state itself, rather than its individual officials. Id.; Will, 491 U.S. at 71; Stivers v. Pierce, 71 F.3d 732 (9th Cir. 1995). "It is well established that the Eleventh Amendment does not bar a federal court from granting prospective injunctive relief against an officer of the state who acts outside the bounds of his authority." Porter v. Bd. of Trustees, Manhattan Beach Unified Sch. Dist.. ___ F.3d ___, 2002 WL 31246678 at *9 (9th Cir. Oct. 8, 2002) (quoting Cerrato v. San Francisco Community College Dist., 26 F.3d 968, 973 (9th Cir. 1994); Ex parte Young, 209 U.S. 123, 159-60 (1908)). Injunctive relief, however, is available only if there is a "real or immediate threat that the plaintiff will be wronged again." City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983).

In the Ninth Circuit, courts may presume state officials named as defendants in a 42 U.S.C. § 1983 suit necessarily are sued in their personal capacities even if the complaint does not explicitly mention the capacity in which they are sued. See Romano v. Bible, 169 F.3d 1182, 1186 (9th Cir.) cert. denied, 120 S.Ct. 55 (1999); Shoshone-Bannock Tribes v. Fish & Game Comm'n, 42 F.3d 1278, 1284 (9th Cir. 1994); Cerrato v. San Francisco Community College Dist., 26 F.3d 968, 973 n. 16 (9th Cir. 1994). Where the plaintiff is seeking damages against a state official, this "necessarily implies" a personal capacity suit because damages against a state official based on acts alleged to have been taken in his official capacity would be barred by the Eleventh Amendment. Price v. Akaka, 928 F.2d 824, 828 (9th Cir. 1990); Cerrato, 26 F.3d at 973 n.16.

Plaintiff does not indicate whether he sues Defendants in their individual or official capacities, nor does he specify the relief he is requesting. Further, Plaintiff does not allege he anticipates further violation of his constitutional rights. However, in his inmate appeal form, Plaintiff references filing a lawsuit for damages. (Attachments at 4.) Therefore, Plaintiff is presumably seeking monetary damages.

As discussed above, the Eleventh Amendment bars lawsuits for damages against state officials in their official capacities. Will, 491 U.S. at 71 n.10. Accordingly, the Court presumes Plaintiff sues each Defendant in his personal capacity; otherwise, his lawsuit would be barred by the Eleventh Amendment. Price, 928 F.2d at 828; Cerrato, 26 F.3d at 973 n.16. Assuming, however, the Court does not presume Plaintiff sues each defendant in his personal capacity, the Court recommends Defendants' Motion to Dismiss Plaintiff's First and Eighth Amendment claims against Defendants in their official capacities be GRANTED with prejudice.

C. First Amendment

Plaintiff alleges Defendants violated his First Amendment right to petition the government for redress of grievances. Specifically, Plaintiff alleges his CDC 602 Inmate/Parolee Appeal was lost. (Compl. at 6.) Defendants contend Plaintiff fails to state a cognizable First Amendment claim. (MTD at 2.)

Prisoners have a constitutional right of access to the courts. Lewis v. Casey, 518 U.S. 343, 346 (1996). In Lewis, the United States Supreme Court limited the right of access to the courts to non-frivolous direct criminal appeals, habeas corpus proceedings, and section 1983 actions. See id. at 353 n.3, 354-355. However, the Ninth Circuit has held "the right of meaningful access to the courts extends to established prison grievance procedures." Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir. 1995). The Ninth Circuit points out that in some cases, "a prisoner may be required to exhaust the established prison grievance procedure before securing relief in federal court...In those cases, a prisoner's fundamental right of access to the courts hinges on his ability to access the prison grievance system." Id.

To state a claim for interference with the right of access to the courts, an inmate must establish that inadequate facilities or interfering regulations have actually frustrated or impeded a non-frivolous attack on either his sentence or the conditions of his confinement. Lewis, 518 U.S. at 353. Specifically, the plaintiff must allege a specific instance in which he was denied the tools needed to litigate in a non-frivolous (1) criminal trial or appeal, (2) habeas proceeding, or (3) section 1983 case challenging the condition of his confinement. Lewis, 518 U.S. at 355; Sands v. Lewis, 886 F.2d 1166, 1171 (9th Cir. 1989). The plaintiff must show he suffered an "actual injury," that his efforts to pursue some claim were hindered. Lewis, 518 U.S. at 351. A plaintiff must adequately describe the claim that was hindered and allege facts that show it was actually hindered in some way. Christopher v. Harbury, 536 U.S. 403, 415 (2002). The analysis in Christopher describes two kinds of hindered claims: "forward-looking" claims that are currently being impeded, and "backward-looking" claims that are now impossible to file. Id. at 412-14.

Plaintiff fails to provide any evidence showing he has been denied access to the courts. Prior to filing his lawsuit, Plaintiff filed an inmate appeal at R.J.D., alleging his medical care at the prison was inadequate. (Attachments at 4-5.) In his Complaint, Plaintiff alleges his inmate appeal form was lost. (Compl. at 6.) However, Plaintiff also contends that his appeal was filed on July 22, 2008. (Compl. at 6.) In his Attachments, Plaintiff includes several documents regarding his inmate appeals: (1) an appeal form dated May 13, 2008, (2) a letter from the Inmate Appeals Office dated July 22, 2008, notifying Plaintiff that his appeal was sent to a second level, and (3) a letter dated February 18, 2009, from Plaintiff to the Office of the Inmate Appeals Branch of the State of California Department of Corrections and Rehabilitation, inquiring about his third-level appeal.

(Attachments at 4, 5, 58, 109.) Based on those documents, it is unclear to the Court if or when the Plaintiff's appeal form was lost.

Even assuming Plaintiff's appeal form was lost while in the prison grievance system, Plaintiff does not allege an "actual injury" resulted from the loss as required by Lewis, nor does he explain how the loss of his appeal form has hindered his claims. Lewis, 518 U.S. at 351. Further, Plaintiff does not contend he has a "forward-looking" claim that is currently being impeded by the loss of his appeal form, nor does he claim he has a "backward-looking" claim that cannot be filed due to the loss of the appeal form. Christopher, 536 U.S. at 412-14. In fact, Plaintiff's § 1983 claim, alleging Defendants' deliberate indifference to Plaintiff's medical needs, is unaffected by the loss of his inmate appeal form. At this time, Defendants do not move to dismiss Plaintiff's Eighth Amendment claim based on Plaintiff's failure to exhaust. Therefore, even if Plaintiff's appeal form was lost, failure to exhaust, which could potentially impede Plaintiff's § 1983 claim, is not currently an issue before the Court.

Finally, Plaintiff does not plead any facts suggesting the named Defendants were involved with the loss of his appeal form. In his Complaint, Plaintiff mentions Defendants Liptscher and Espinoza in regards to his medical care immediately following the accident. (Compl. at 4.) In his declaration, Plaintiff mentions Defendants Akbari and Silva in regard to his medical needs in the weeks and months after the accident. (Decl., Attachments at 3.) However, Plaintiff does not suggest any of the Defendants were involved in the loss of his appeal form, nor does he allege the name of anyone he believes is responsible for losing his appeal form. Based thereon, the Court recommends Defendants' Motion to Dismiss Plaintiff's First Amendment claim against Defendants be GRANTED with leave to amend.

D. Eighth Amendment

Plaintiff alleges Defendants were deliberately indifferent to his medical needs in violation of his Eighth Amendment right to be free from cruel and unusual punishment. (Compl. at 3.) Specifically, Plaintiff first alleges Defendants Liptscher and Espinoza, transportation officers, acted in reckless disregard of his medical needs by bringing him to the prison medical facility instead of a hospital after he suffered injuries in a car accident. (Attachments at 5.) Second, Plaintiff alleges medical doctor Defendant Akbari "knew Plaintiff's condition was dire and fail[ed] to prescribe a[n] effective pain medication regimen to help alleviate the pain Plaintiff experienced." (Compl. at 2.) Third, Plaintiff alleges medical doctor Defendant Silva "failed to perform his fiduciary duties to Plaintiff [despite] Plaintiff's insistence. that he was very sick and in pain." (Compl. at 2.) Defendants contend Plaintiff fails to state an Eighth Amendment claim. (MTD at 2.)*fn7

1. Discussion

"[D]eliberate indifference to a prisoner's serious illness or injury states a cause of action under § 1983." Estelle v. Gamble, 429 U.S. 97, 105 (1976). "A determination of 'deliberate indifference' involves an examination of two elements: the seriousness of the prisoner's medical need and the nature of the defendant's response to that need." McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992).

First, "[a] 'serious' medical need exists if the failure to treat a prisoner's condition could result in further significant injury or the 'unnecessary and wanton infliction of pain.'" McGuckin, 974 F.2d at 1059 (quoting Estelle, 429 U.S. at 104).

Second, to establish deliberate indifference, a defendant must purposefully ignore or fail to respond to a prisoner's pain or possible medical need. McGuckin, 974 F.2d at 1060. Deliberate indifference to medical needs occurs when prison officials "'deny, delay, or intentionally interfere with medical treatment.'" Hunt v. Dental Dep't, 865 F.2d 198, 201 (9th Cir. 1989) (quoting Hutchinson v. US, 838 F.2d 390, 394 (9th Cir. 1984)). Specifically, "this is true whether the indifference is manifested by prison doctors in their response to the prisoner's needs, or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed." Estelle, 429 U.S. at 104-05 (footnotes omitted). "In order to show deliberate indifference, an inmate must allege sufficient facts to indicate that prison officials acted with a culpable state of mind." Wilson v. Seiter, 501 U.S. 294, 302 (1991). The indifference to medical needs also must be substantial; inadequate treatment due to malpractice, or even gross negligence, does not amount to a constitutional violation. Estelle, 429 U.S. at 106; Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004) ("Deliberate indifference is a high legal standard.")

(citing Hallett v. Morgan, 296 F.3d 732, 1204 (9th Cir. 2002); Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990)).

The court must focus on the seriousness of the prisoner's medical needs and the nature of the defendants' response to those needs. See McGuckin, 974 F.2d at 1059. Differences in judgment between an inmate and prison medical personnel regarding appropriate medical diagnosis and treatment are not enough to establish a deliberate indifference claim. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). Further, a prison inmate has no independent constitutional right to outside medical care additional and supplemental to the medical care provided by the prison staff within the institution. See Roberts v. Spalding, 783 F.2d 867, 870 (9th Cir. 1986).

2. Defendants Liptscher and Espinoza

As to Defendants Liptscher and Espinoza, Plaintiff fails to plead sufficient facts indicating they were deliberately indifferent to his medical needs. In his inmate appeal form, Plaintiff alleges Defendants Liptscher and Espinoza acted with reckless disregard to Plaintiff's medical needs by returning Plaintiff to R.J.D.'s medical center instead of bringing him to a hospital following the vehicle accident. (Attachments at 5.) Plaintiff adequately pleads sufficient facts for the first element of deliberate indifference, his serious medical need. McGuckin, 974 F.2d at 1059. In his declaration, Plaintiff states that, following the car accident, he experienced pain in his wrist, shoulder, back, and the right side of his body, and paramedics indicated Plaintiff should receive medical treatment. (Decl., Attachments at 2, 3.) A failure to treat Plaintiff's injuries or alleviate his pain with medication likely would have resulted in "unnecessary and wanton infliction of pain," and thus Plaintiff adequately pleads sufficient facts to demonstrate his serious medical need. McGuckin, 974 F.2d at 1059 (quoting Estelle, 429 U.S. at 104).

However, Plaintiff has not adequately plead sufficient facts for the second element that Defendants acted with a culpable state of mind in denying, delaying, or interfering with Plaintiff's medical care. Wilson, 501 U.S. at 302; Hunt, 865 F.2d at 201. Rather, the record shows Defendants Liptscher and Espinoza returned Plaintiff to R.J.D. after the car accident, and Plaintiff received medical treatment the same afternoon at the prison medical center. (Compl. at 4.) Therefore, Defendants Liptscher and Espinonza ensured Plaintiff received prompt medical care by driving him back to R.J.D. after the accident and did not deny, delay, or interfere with Plaintiff's medical care. Additionally, although Plaintiff preferred to receive treatment for his injuries at a community hospital instead of at R.J.D., he had no constitutional right to outside medical care. Roberts, 783 F.2d at 870. Thus, Plaintiff does not allege facts indicating Defendants Liptscher and Espinoza acted with a culpable state of mind in denying, delaying, or interfering with Plaintiff's medical care. Wilson, 501 U.S. at 302; Hunt, 865 F.2d at 201.

3. Defendants Akbari and Silva

As to Defendants Akbari and Silva, both medical doctors, Plaintiff fails to plead sufficient facts showing they were deliberately indifferent to his medical needs. Plaintiff mentions Defendants Akbari and Silva by name twice respectively in his allegations in the Complaint and in his declaration in his Attachments. On page 2 of the Complaint, Plaintiff alleges Dr. Akbari failed to prescribe effective pain medication and Defendant Silva failed to perform his fiduciary duties. In his declaration on page 3 of the Attachments, Plaintiff alleges Defendants Akbari and Silva prescribed him pain medications only after several months of complaining.

Several references to Defendants Akbari and Silva also appear in the medical records contained in the Attachments. On medical forms dated May 3, 4, 5, and 8, 2008, it appears Defendant Akbari evaluated Plaintiff's injuries, prescribed pain medication, and ordered X-rays. (Attachments at 27, 48, 51, 54.) On page 7, Defendant Silva is listed as the ordering physician for an MRI Plaintiff underwent in October of 2008.*fn8

As discussed above, Plaintiff has plead sufficient facts for the first element of deliberate indifference to medical needs by demonstrating his serious medical need. However, Plaintiff has not met the second element by alleging facts that show Defendants Akbari and Silva acted with a culpable state of mind in purposefully ignoring or failing to respond to his serious medical needs. Wilson, 501 U.S. at 302; McGuckin, 974 F.2d at 1060. Plaintiff's medical records show that Defendant Akbari prescribed pain medication and ordered X-Rays in the days following the car accident. (Attachments at 27, 48, 51, 54.) The medical records contradict Plaintiff's allegation that Defendant Akbari prescribed medication only after months of complaining. (Attachments at 3.)

Based on Plaintiff's medical records, there is no evidence Defendant Akbari acted with a culpable state of mind by purposefully ignoring or failing to respond to Plaintiff's medical needs. Wilson, 501 U.S. at 302; McGuckin, 974 F.2d at 1060. On the contrary, Defendant Akbari appears to have responded to Plaintiff's complaints of pain by prescribing medication and ordering X-Rays. Although Plaintiff requested X-Rays and an MRI or a CAT-Scan, a difference of opinion between an inmate and a medical provider over medical treatment does not amount to deliberate indifference. (Attachments at 5; Sanchez, 891 F.2d at 242.)

With regard to Defendant Silva, Plaintiff does not provide details about how the Defendant "failed to perform his fiduciary duties." (Compl. at 2.) The only reference to Defendant Silva in the medical records shows that Defendant Silva ordered an MRI for Plaintiff, which Plaintiff underwent in October. (Attachments at 7.) Plaintiff does not contend he had other contact with Defendant Silva in the months before his MRI during which Defendant Silva ignored his serious medical needs. McGuckin, 974 F.2d at 1060. Although Plaintiff alleges that Defendant Silva also prescribed medication after months of Plaintiff's complaining, the medical records do not support that contention. Thus, Plaintiff does not allege facts indicating Defendant Silva acted with a culpable state of mind in purposefully ignoring or failing to respond to Plaintiff's medical needs. Wilson, 501 U.S. at 302; McGuckin, 974 F.2d at 1060.

Plaintiff has not adequately plead facts that meet the high legal standard for deliberate indifference for any of the Defendants. Toguchi, 391 F.3d at 1060. Based thereon, the Court recommends Defendants' Motion to Dismiss Plaintiff's Eighth Amendment Claim of deliberate indifference to his medical needs against Defendants Liptscher, Espinoza, Akbari, and Silva be GRANTED with leave to amend.

E. Respondeat Superior

Plaintiff alleges Defendants Akbari, Silva, Liptscher, and Espinoza each committed constitutional violations.*fn9 Defendants contend any effort to impute liability on any Defendants under a theory of vicarious liability or respondeat superior would be impermissible if it were alleged. (MTD at 13.)

Liability for a civil rights violation under Section 1983 may not be based on a theory of respondeat superior. Monell v. Dep't of Social Services of City of New York, 436 U.S. 658, 693 (1978). "Liability under [§] 1983 arises only upon a showing of personal participation by the defendant." Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Therefore, "a supervisory official, such as a warden, may be liable under Section 1983 only if he was personally involved in the constitutional deprivation, or if there was a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation." Henry v. Sanchez, 923 F. Supp. 1266, 1272 (C.D. Cal. 1996). For there to be a sufficient causal connection, the official must have known of a constitutional violation; it is not enough to claim that an official should have known of a constitutional deprivation because of a complaint brought through the prison appeals system. Barry v. Ratelle, 985 F. Supp. 1235, 1239 (S.D. Cal. 1997).

It is unclear if Plaintiff suggests any of the Defendants are liable under a theory of respondeat superior. Rather, Plaintiff appears to allege each was personally involved in violating his constitutional rights and presumably sues each Defendant in his individual capacity, as discussed above. Assuming, however, Plaintiff sues any Defendants based upon a theory of respondeat superior, the Court recommends Defendants' Motion to Dismiss Plaintiff's First and Eighth Amendment claims against Defendants be GRANTED.

F. Dismissal For Failure to Serve

A review of the Court's docket indicates no proof of service has been filed as to Defendant S. Laming. See Walker v. Sumner, 14 F.3d 1415, 1421-22 (9th Cir. 1994) (where a pro se plaintiff fails to provide the Marshal with sufficient information to effect service, the court's sua sponte dismissal of those unserved defendants is appropriate under Fed.R.Civ.P. 4(m)).

Accordingly, this Court RECOMMENDS Plaintiff to show cause no later than July 19, 2010, why the claims against this Defendant should not be dismissed for want of prosecution pursuant to Fed.R.Civ.P. 4(m). If Plaintiff wishes to proceed with his claims against this Defendant he must provide the Court with proof of proper service by July 26, 2010. If he does neither, the Court recommends Defendant Laming be dismissed from this action in accordance with Fed.R.Civ.P. 4(m)).

IV. CONCLUSION

For the reasons set forth herein, it is recommended that Defendants' motion to dismiss be GRANTED. The Court recommends that:

(1) Defendants' Motion to Dismiss Plaintiff's First and Eighth Amendment claims against Defendants in their official capacities be GRANTED with prejudice.

(2) Defendants' Motion to Dismiss Plaintiff's First Amendment claim against Defendants be GRANTED with leave to amend.

(3) Defendants' Motion to Dismiss Plaintiff's Eighth Amendment claim of deliberate indifference to his medical needs against Defendants be GRANTED with leave to amend.

(4) Defendants' Motion to Dismiss Plaintiff's First and Eighth Amendment claims against Defendants based on a theory of respondeat superior be GRANTED.

(5) Plaintiff shall show cause why the claims against Defendant S. Laming should not be dismissed. If Plaintiff wishes to proceed with his claims against this Defendant, he must provide the Court with proof of proper service.

This Report and Recommendation of the undersigned Magistrate Judge is submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1) (1994).

This Report and Recommendation will be submitted to the United States District Court judge assigned to this case pursuant to the provisions of 28 U.S.C. § 636(b)(1). Any party may file written objections with the Court and serve a copy on all parties on or before July 26, 2010. This document should be captioned "Objections to Report and Recommendation." Any reply to the objections shall be served and filed no later than 14 days after being served with the objections. The parties are further advised that failure to file objections within the specified time may waive the right to appeal the district court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

IT IS SO ORDERED.


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