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Hightower v. Schwarzenegger

August 31, 2010

THOMAS HIGHTOWER, PLAINTIFF,
v.
ARNOLD SCHWARZENEGGER, ET. AL., DEFENDANTS.



The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS ACTION PROCEED ONLY AGAINST DEFENDANTS J. KLARICH, K. NYGUEN, D. DEERING, S. WU, AND A. SANTA CRUZ AND THAT DEFENDANT SCHWARZENEGGER BE DISMISSED OBJECTIONS, IF ANY, DUE IN 30 DAYS (Doc. 141)

Findings and Recommendations Following Screening of Third Amended Complaint

I. Procedural History

Plaintiff, Thomas A. Hightower ("Plaintiff") is a state prisoner proceeding pro se and in formal pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on July 29, 2004. (Doc. 1.) On February 24, 2006, the Court dismissed Plaintiff's Complaint, with leave to amend, for failure to comply with Federal Rule of Civil Procedure 8(a). (Doc. 13.) Plaintiff filed a First Amended Complaint on June 28, 2006. (Doc. 21.) On March 8, 2007, the Court dismissed Plaintiff's First Amended Complaint, for failure to state cognizable claims, with leave to amend. (Doc. 23.) On August 13, 2007, Plaintiff filed his Second Amended Complaint. (Doc. 31.) On March 19, 2008, the Court issued Findings and Recommendations to dismiss uncognizable claims and to allow service on cognizable claims, which were adopted on July 8, 2008. (Docs. 32, 38.) Defendant Figueroa filed a motion to dismiss under Fed. R. Civ. P. 12(b) and 12(b)(6), on which Findings and Recommendations to grant have issued and been adopted. (Docs. 69, 116, 121.) Various other Defendants also filed motions to dismiss under Fed. R. Civ. P. 12(b) and 12(b)(6). (Docs. 75, 97.) Upon reviewing those motions, it was determined that Plaintiff's Second Amended Complaint should be re-screened in light of the new pleading standards that were ushered in by the Supreme Court's opinion in Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949 (2009). See Moss v. U.S. Secret Service, 572 F.3d 962, 968-69 (9th Cir. 2009), ref. Iqbal; Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The Second Amended Complaint was found to be replete with general conclusions -- which were insufficient to state cognizable claims in light of Iqbal -- and to contain multiple, unrelated claims in violation of Rule 18 of the Federal Rules of Civil Procedure. Since it was possible that Plaintiff could amend to state factual allegations, sans conclusions and unrelated claims, to correct the deficiencies in his pleading, the Second Amended Complaint was dismissed with leave to amend. (Docs. 123 and 129.)

After requesting and receiving extensions of time, Plaintiff filed the Third Amended Complaint which is presently before the Court. (Doc. 141.) For the reasons that follow, the Court recommends that this action proceed only on Plaintiff's claims against Defendants Dr. Klarich, Dr. Nyguen, Dr. Deering, Dr. Wu, and Capt. A. Santa Cruz under the Eight Amendment for deliberate indifference to his serious medical needs, and against Captain A. Santa Cruz for unconstitutional retaliation under the First Amendment; and that all other claims and Defendants be dismissed with prejudice.

II. Screening Requirement

The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii) (emphasis added). A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 129 S.Ct. at 1949 (ref. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusion are not. Id. at 1949.

A. Summary of Claims in the Third Amended Complaint

Plaintiff is currently housed at Mule Creek State Prison ("MCSP") in Ione, California, but complains of acts which occurred while he was housed at California Substance Abuse Treatment Facility and State Prison ("SATF") in Corcoran, California. Plaintiff seeks declaratory relief and monetary damages. The only Defendants named by Plaintiff in the Third Amended Complaint are: A. Schwarzenegger; Dr. Klarich; Dr. Nyguen; Dr. Deering; Dr. Wu, and A. Santa Cruz. All other previously named Defendants should be dismissed from this action.

B. Legal Standards*fn1

1. Eighth Amendment -- Deliberate Indifference to Serious Medical Needs

Where a prisoner's Eighth Amendment claim is one of inadequate medical care, the prisoner must allege and prove "acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106 (1976). Such a claim has 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.1991). A medical need is serious "if the failure to treat the 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). Indications of a serious medical need include "the presence of a medical condition that significantly affects an individual's daily activities." Id. at 1059-60. By establishing the existence of a serious medical need, a prisoner satisfies the objective requirement for proving an Eighth Amendment violation. Farmer v. Brennan, 511 U.S. 825, 834 (1994).

If a prisoner establishes the existence of a serious medical need, he or she must then show that prison officials responded to the serious medical need with deliberate indifference. Id. In general, deliberate indifference may be shown when prison officials deny, delay, or intentionally interfere with medical treatment, or it may be shown by the way in which prison officials provide medical care. Hutchinson v. United States, 838 F.2d 390, 393-94 (9th Cir.1988). Deliberate indifference can be manifested by prison guards intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed. Estelle, 429 U.S. at 104-05. To establish a claim of deliberate indifference arising from delay, a plaintiff must show that the delay was harmful. See Berry v. Bunnell, 39 F.3d 1056, 1057 (9th Cir.1994) (per curiam); McGuckin, 974 F.2d at 1059; Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir.1990); Hunt v. Dental Dep't, 865 F.2d 198, 200 (9th Cir.1989). Only delays that cause substantial harm violate the Eighth Amendment. Berry 39 F.3d at 1057 ref Wood, 900 F.2d at 1335.

As to Dr. Klarich, Plaintiff alleges that he submitted to Defendant Dr. Klarich over a period of almost a year and a half (04/15/2002 - 11/20/2003) and that he presented with obvious indicators of end stage liver disease, respiratory distress, COPD w/emphysema, seizure disorder, spinal disease, and GI disease. (Doc. 141, 3rd Amd. Compl., 10:10-12:14.) Plaintiff alleges that Defendant Dr. Klarich: (1) knew of Plaintiff's high ammonia levels and mental confusion, yet intentionally disregarded the severity of Plaintiff's medical status and only prescribed medical cell feedings; (2) knew of Plaintiff's respiratory distress symptoms of suffocation and black-outs ("obvious indications of acute emphysema, bronchitis, asthma attacks") and yet failed to prescribe chest x-rays and breathing treatments; (3) and knew of Plaintiff's degenerative spinal and facet disease, arthritis, bone spurring and the fact that Plaintiff was in obvious acute distress from pain, yet only prescribed over the counter Ibuprofen for pain, knowing that this would leave Plaintiff in severe pain at all times. (Id., at ¶¶ 15-25.) These allegations are sufficient to state a cognizable claim against Defendant Dr. Klarich for deliberate indifference to Plaintiff's serious medical needs.

Plaintiff alleges that he submitted to Defendant Dr. Nyguen for slightly over a year (09/20/2002 - 11/22/2003) and that he presented with obvious indicators of end stage liver disease, and respiratory distress, COPD w/emphysema, seizure disorder, spinal disease, and GI disease. (Id. at 14:8-15:20, 21:1-22:19.) Plaintiff alleges that Dr. Nyguen: (1) knew of Plaintiff's high ammonia levels and mental confusion, yet intentionally disregarded the severity of Plaintiff's medical status ("mental confusion presentation [end stage liver failure indicators]") and only prescribed over the counter antacids and routine blood work for GI conditions; (2) knew of Plaintiff's respiratory distress symptoms and yet failed to prescribe chest x-rays or breathing treatments thus causing oxygen deprivation and blackouts; (3) knew of Plaintiff's degenerative spinal and facet disease, arthritis, bone spurring and realized that Plaintiff presented in obvious acute distress from pain, yet only prescribed over the counter Ibuprofen for pain, knowing that this would leave Plaintiff in sever pain at all times. (Id. at ¶¶ 34-41.) Plaintiff alleges that in August of 2003, he was seen by Defendant Dr. Nyguen for renewal of all medications, including his anti-seizure medication Tegratol and interferon which Defendant Dr. Nyguen had allowed to expire. (Id. at ¶ 58.) Knowing that Plaintiff's life and health were at risk without these medications, Defendant Dr. Nyguen refused to see Plaintiff, did not renew his medications for weeks, and did not see Plaintiff for a re-scheduled appointment until weeks later. (Id.) On September 15, 2003, Defendant Dr. Nyguen saw Plaintiff for being bedridden due to excessive illnesses secondary to his ...


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