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Lacedric W. Johnson v. D.K. Sisto

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


January 26, 2012

LACEDRIC W. JOHNSON, PLAINTIFF,
v.
D.K. SISTO, WARDEN, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

I. Introduction

Plaintiff is a state prisoner, proceeding without counsel and in forma pauperis, with an action filed pursuant to 42 U.S.C. § 1983. On June 7, 2011, defendants Deur and Shockley filed a motion to dismiss*fn1 on the grounds that the second amended complaint ("SAC") fails to state cognizable claims under the Eighth Amendment, and that defendants are entitled to qualified immunity. On July 26, 2011, defendant Sisto filed a motion to dismiss on the grounds that the SAC fails to state a cognizable Eighth Amendment claim, and that defendant Sisto is entitled to qualified immunity. For the reasons set forth below, the undersigned recommends that both motions be granted.

II. Plaintiff's Second Amended Complaint

Plaintiff is proceeding on the SAC filed February 22, 2010, against sixteen defendants, alleging three separate causes of action. (Dkt. Nos 23 (SAC); 25 (Order) at 3.)*fn2

Defendants Traquina, Freeman, Singh, Eck, Cate, Gentry, Dechant, Nuerhring, and Greer have filed an answer. (Dkt. No. 36.) Defendants Shockley, Sisto, and Deur filed motions to dismiss.

On July 23, 2006, plaintiff was ordered to cuff up and, after cuffing up, plaintiff alleges Correctional Officer Sillivan became aggressive, so plaintiff ran toward staff and camera coverage, allegedly for plaintiff's safety due to the isolated area in which plaintiff was cuffed. (Dkt. No. 23 at 5.) Plaintiff alleges he stopped in front of the "B" control booth, at which time Sillivan, running full speed, allegedly "tackled plaintiff and knocked him face down to the ground with the full weight of [Sillivan's] body." (Id.) While plaintiff was laying on the ground, plaintiff alleges defendant Freeman "ran over and did a 'knee-drop' with the full weight of his body on the plaintiff's back and shoulder causing instant pain." (Id.)

After the staffs' alleged use of force (dkt. no. 23 at 58-59), plaintiff was escorted to the primary clinic to be medically cleared for placement in administrative segregation ("ad seg"). (Dkt. No. 23 at 62.) Plaintiff alleges defendant Deur, a Registered Nurse, interviewed plaintiff about his injuries, and [plaintiff] informed Deur he sustained back injuries and numbness. She failed to evaluate, treat or document plaintiff's injuries on 7219 medical form and simply disregarded his injury complaint with no intention of providing plaintiff any medical care. Plaintiff described the pain in the back and shoulder but couldn't describe[] numbness. Ex. D-17.

(Dkt. No. 23 at 6.) Exhibit D-17 is a copy of defendant Deur's medical report of injury, dated July 23, 2006, which states no injuries were found, plaintiff was ambulatory, and that plaintiff's statement of the circumstances of the injury or unusual occurrence was "don't know how to describe it." (Dkt. No. 23 at 96.) Using the 24 hour clock, the report of injury reflects that the alleged incident occurred at 1630, and that defendant Deur was notified at 1643, saw plaintiff at 1644, and released plaintiff at 1645, with the notation "Cleared for housing per custody." (Id.)

Plaintiff acknowledges he was then placed on contraband surveillance watch ("CSW")*fn3 "for possession of concealed contraband," (dkt. no. 23 at 6), beginning on July 23, 2006, through August 4, 2006, during which plaintiff alleges he was "tortured." (SAC at 4-5.) Plaintiff was placed in an administrative segregation cell and was restrained to a bunk on his back by four-point leather restraints. (SAC at 6.) Plaintiff was clothed in only boxer shorts until July 27, 2006, when defendant Nuehring ordered Correctional Officer Jones to put plaintiff in a jumpsuit, which plaintiff contends was too small. (SAC at 7.)

During the CSW, plaintiff alleges he was subjected to the following conditions: continuous exposure to air conditioning; insufficient bedding, which consisted of one thin sheet; insufficient clothing, which was only one pair of boxer shorts until July 27, 2006, when plaintiff was provided a jumpsuit that was allegedly too small and cut off plaintiff's circulation; extremely limited exercise; constant exposure to light and noise; and limited movement during sleep. (SAC at 6-7.) Plaintiff alleges he suffered back and neck pain, delusions and anxiety, high blood pressure and high cholesterol, stress and sleep deprivation. (SAC at 7.) On August 4, 2006, plaintiff allegedly suffered an onset of paraplegia of the lower extremities requiring plaintiff's evacuation by helicopter to the John Muer Medical Center in Walnut Creek, California. (SAC at 12.)

Further, plaintiff alleges that on July 27, 2006, defendant Sisto headed an ad-seg committee meeting at plaintiff's cell door, while plaintiff "lay spread eagle in boxer shorts." (SAC at 8.) Plaintiff alleges that on July 27, 2006, defendant Shockley "came to the cell door to observe plaintiff," and on July 28, 2006, defendant Shockley led a "tour of numerous officials of both genders as plaintiff lay secured to a bunk on display." (SAC at 8.)

Plaintiff also alleges defendant Sisto "promulgated and endorsed a 4-point restraint immobilization intensive observation CW policy/procedure to investigate plaintiff for possession of concealed contraband," citing prison disciplinary RVR S1-06-08-0393.*fn4 (SAC at 6.) The appended prison disciplinary, Log No. SOL 07-0123, dated February 26, 2007, reflects defendant Sisto signed a second level appeal response addressing plaintiff's claims that his due process rights were violated during the July 29, 2006, hearing on the rules violation report ("RVR"), Log S1-06-07-0393, and that the RVR was false. (Dkt. No. 23 at 24.) Defendant Sisto denied the appeal. (Id.)

III. Causes of Action

In connection with the defendants who have moved to dismiss plaintiff's claims herein, pursuant to the court's March 26, 2010 order, plaintiff stated a viable cause of action against defendants Sisto and Shockley for unlawful conditions of confinement (Claim II), and against defendant Deur for deliberate indifference to a serious medical need (Claim III). (Dkt. No. 25 at 3.)

IV. Legal Standards - Motion to Dismiss

Rule 12(b)(6) of the Federal Rules of Civil Procedures provides for motions to dismiss for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6).

In considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must accept as true the allegations of the complaint in question, Erickson v. Pardus, 551 U.S. 89 (2007), and construe the pleading in the light most favorable to the plaintiff. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969); Meek v. County of Riverside, 183 F.3d 962, 965 (9th Cir. 1999). Still, to survive dismissal for failure to state a claim, a pro se complaint must contain more than "naked assertions," "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other words, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Furthermore, a claim upon which the court can grant relief must have facial plausibility. Twombly, 550 U.S. at 570. "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." Iqbal, 129 S. Ct. at 1949. Attachments to a complaint are considered to be part of the complaint for purposes of a motion to dismiss for failure to state a claim. Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir.1990).

A motion to dismiss for failure to state a claim should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). In general, pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). The court has an obligation to construe such pleadings liberally. Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc). However, the court's liberal interpretation of a pro se complaint may not supply essential elements of the claim that were not pled. Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

A. Conditions of Confinement

Defendants Shockley and Sisto move to dismiss plaintiff's claim that defendants Sisto and Shockley violated the Eighth Amendment by subjecting plaintiff to unconstitutional prison conditions.

i. Legal Standard for Conditions of Confinement Claim

In order to state a claim for violation of the Eighth Amendment, the plaintiff must allege facts sufficient to support a claim that prison officials knew of and disregarded a substantial risk of serious harm to the plaintiff. Farmer v. Brennan, 511 U.S. 825, 847 (1994); Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998). A plaintiff who claims that the conditions of his confinement fall below the constitutional standard must make two showings. "First, the plaintiff must make an 'objective' showing that the deprivation was 'sufficiently serious' to form the basis for an Eighth Amendment violation." Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000) (citation omitted). "The Constitution . . . 'does not mandate comfortable prisons, and only those deprivations denying 'the minimal civilized measure of life's necessities' are sufficiently grave to form the basis of an Eighth Amendment violation." Wilson v. Seiter, 501 U.S. 294, 298 (1991) (citations omitted). Second, the prisoner must make a "subjective" showing that prison officials acted with the requisite culpable intent such that the infliction of pain is "unnecessary and wanton." In prison conditions cases, prison officials act with the requisite culpable intent when they act with deliberate indifference to the inmate's suffering.

Anderson v. County of Kern, 45 F.3d 1310, 1312 (9th Cir. 1995).

ii. Application

a. Defendant Shockley

Plaintiff's allegations against defendant Shockley in both the SAC, and as supplemented in plaintiff's opposition, fail to state a cognizable conditions of confinement claim in violation of the Eighth Amendment. First, the alleged facts that defendant Shockley came to plaintiff's cell on July 27, 2006, to observe plaintiff, or that defendant Shockley led a "tour" of men and women "as plaintiff lay secured to a bunk on display," on July 28, 2006, without more, do not rise to the level of deliberate indifference. Civil rights liability under 42 U.S.C. § 1983 may be imposed on a defendant if the plaintiff can demonstrate that the defendant proximately caused the deprivation of a federally protected right. Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). In the complaint, "[a] plaintiff must allege facts, not simply conclusions, that show that an individual was personally involved in the deprivation of his civil rights." Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). Plaintiff does not state that defendant Shockley personally participated in plaintiff's physical restraint, or was responsible for plaintiff's placement and retention in the CSW, or for monitoring plaintiff during the CSW. Plaintiff alleges no facts demonstrating that defendant Shockley played any role in the CSW. Indeed, plaintiff alleges that defendant Shockley only observed plaintiff on two separate occasions of unspecific duration or scope.

Second, a prison official may be liable under the Eighth Amendment for denying humane conditions of confinement only if he knew that the inmate faced a substantial risk of harm and disregarded that risk by failing to take reasonable measures to abate it. Farmer, 511 U.S. at 837-45. Here, plaintiff was restrained to a bunk in four point restraints. It is unclear whether plaintiff was clothed in his boxer shorts at the time defendant Shockley first observed plaintiff in restraints, or whether he had changed into the jumpsuit by that time. But, even if defendant Shockley viewed plaintiff clothed in boxer shorts and restrained to the bunk, plaintiff has alleged no facts demonstrating that defendant Shockley was aware that plaintiff was at risk. Plaintiff does not describe the duration of time that defendant Shockley observed plaintiff on the two occasions. Plaintiff does not allege any facts suggesting Shockley was aware of how long plaintiff had been placed in restraints, the reason for the restraints, or whether the restraints were applied continuously.

Plaintiff now claims that the alleged violation of plaintiff's constitutional rights was "apparent from a visual stance," because plaintiff was "secured at the wrist above the head and at the ankles spread-eagle to the four corners of the bunk in inadequate clothing and bedding," and Cal. Code Regs. tit. 15 § 3268.2 required plaintiff to be restrained in waist restraints. (Dkt. No. 107 at 5-6.) Plaintiff alleges that because defendant Shockley was acting as Associate Warden, he had knowledge of Title 15 regulations, policies and procedures in restraint use and CSW procedure, yet failed to act to protect plaintiff from unsafe conditions of confinement.

However, the court is unable to draw such an inference from such bare factual allegations. Observing plaintiff on two occasions, for an unknown length of time, even restrained above the head and at the ankles, does not suggest defendant Shockley became aware of an allegedly "tortuous" condition of confinement as described by plaintiff, or that defendant Shockley's subsequent failure to act constituted deliberate indifference. Plaintiff alleges no facts demonstrating that defendant Shockley was aware that plaintiff had been inappropriately restrained for four days, or was otherwise aware of the allegedly "tortuous" conditions of confinement as described by plaintiff. By the next day, plaintiff was clothed in a jumpsuit, and plaintiff provides no further factual allegations to support his claim that defendant Shockley's observance of plaintiff in restraints violated plaintiff's Eighth Amendment rights.

Also, in the allegation that defendant Shockley "observed" plaintiff on either day, plaintiff fails to allege that any interaction took place between plaintiff and defendant Shockley. Plaintiff does not allege that he asked defendant Shockley for assistance, or that Shockley was somehow made aware plaintiff was experiencing distress or needed attention. Where a prisoner alleges injuries stemming from unsafe conditions of confinement, prison officials may be held liable only if they acted with "deliberate indifference to a substantial risk of serious harm." Frost, 152 F.3d at 1128. Thus, plaintiff's allegations in the opposition that, during the first week plaintiff was placed in restraints, defendant Shockley observed plaintiff on one occasion, and "led a tour of people to observe plaintiff" the next day, are insufficient to demonstrate that defendant Shockley knew of and disregarded a substantial risk of serious harm to plaintiff. Plaintiff has alleged no facts demonstrating that defendant Shockley was aware plaintiff endured any physical or medical distress or pain, or whether plaintiff did not have access to medical care while plaintiff was restrained.

Finally, plaintiff has also failed to allege facts demonstrating that defendant Shockley was legally required to act under the circumstances. "A person 'subjects' another to the deprivation of a constitutional right, within the meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts, or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Plaintiff now claims that defendant Shockley is an Associate Warden, was familiar with restraint policy, and had the authority to intervene. (Dkt. No. 107 at 6.) However, plaintiff fails to allege facts demonstrating defendant Shockley was aware plaintiff's restraint posed any danger to plaintiff's health, or was inflicting pain, such that defendant Shockley was aware of any need to intervene on plaintiff's behalf. Plaintiff has also failed to demonstrate defendant Shockley had a duty to intervene.

For all of the above reasons, plaintiff has failed to state a cognizable civil rights claim against defendant Shockley, and the motion to dismiss defendant Shockley should be granted. The facts as pled demonstrate that plaintiff is unable to amend his claim against defendant Shockley to rectify the above deficiencies. Accordingly, plaintiff should not be permitted to amend the SAC to reallege his claims against defendant Shockley.*fn5

b. Defendant Sisto

Plaintiff's claims against defendant Sisto fail for the same reasons plaintiff's claims against defendant Shockley fail. Plaintiff alleges defendant Sisto headed up an ad seg committee meeting at plaintiff's cell door on July 27, 2006. In his opposition, plaintiff claims defendant Sisto failed to intervene after Sisto "personally observed" plaintiff in four point restraints on July 27, 2006. (Dkt. No. 114 at 6.) However, plaintiff fails to set forth facts as to how long Sisto observed plaintiff, or whether Sisto was aware plaintiff was in CSW, or for how long plaintiff had been restrained. Defendant Sisto's observance of plaintiff in restraints, on one occasion, is insufficient to demonstrate deliberate indifference. While plaintiff alleges defendant Sisto was heading up an ad seg committee meeting, plaintiff raises no factual allegations concerning the nature of the meeting, i.e. whether the members were discussing inmates housed in ad seg, or whether the members were discussing administrative or other matters. The simple reference to this meeting, without more, is insufficient to raise an inference that defendant Sisto was aware of plaintiff's situation.

Plaintiff appears to contend defendant Sisto was responsible based on his role as Warden. (Id.) As set forth above, the civil rights statute requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See Monell v. Department of Social Servs., 436 U.S. 658, 692 (1978) ("Congress did not intend § 1983 liability to attach where . . . causation [is] absent."); Rizzo v. Goode, 423 U.S. 362 (1976) (no affirmative link between the incidents of police misconduct and the adoption of any plan or policy demonstrating their authorization or approval of such misconduct). "A person 'subjects' another to the deprivation of a constitutional right, within the meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made." Duffy, 588 F.2d at 743.

Moreover, supervisory personnel are generally not liable under § 1983 for the actions of their employees under a theory of respondeat superior and, therefore, when a named defendant holds a supervisorial position, the causal link between him and the claimed constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979) (no liability where there is no allegation of personal participation); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978), cert. denied, 442 U.S. 941 (1979) (no liability where there is no evidence of personal participation). Vague and conclusory allegations concerning the involvement of official personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982) (complaint devoid of specific factual allegations of personal participation is insufficient).

Plaintiff has alleged no facts as to defendant Sisto's personal participation in the CSW, other than to claim Sisto witnessed plaintiff's situation on one occasion, at some point during the fourth day plaintiff was held in CSW. Plaintiff claims Sisto had the authority to intervene, but fails to demonstrate facts suggesting Sisto was aware of any need to intervene. Plaintiff does not allege that his continued restraint was approved by defendant Sisto. Plaintiff appears to contend that defendant Sisto should have been aware that plaintiff's rights were violated when Sisto viewed plaintiff restrained to a fixed object, in four point restraints. However, viewing plaintiff in four point restraints on one occasion would not, without more, raise an inference that defendant Sisto was aware of a violation. Also, plaintiff does not allege he spoke with Sisto or attempted to make Sisto aware that plaintiff required assistance. Plaintiff includes generic arguments as to all defendants, and re-argues his allegations concerning those defendants responsible for the CSW, but fails to articulate how those allegations pertain to defendant Sisto, who observed plaintiff only once, and for an unspecified period of time, during the CSW. Supervisory defendants are liable for their own misconduct, not for the misconduct of their subordinates. Iqbal, 129 S. Ct. at 1949. Plaintiff fails to allege facts demonstrating defendant Sisto was deliberately indifferent based on Sisto's role as Warden.

Finally, plaintiff alleges that defendant Sisto, and other defendants, promulgated a "four point restraint immobilization intensive observation CSW policy/procedure" which resulted in plaintiff being "secured on his back for eleven days [until] plaintiff was air lifted to John Muer Medical Center." (Dkt. No. 23 at 6.) In support of this claim, plaintiff cites a prison disciplinary in which defendant Sisto denied plaintiff's administrative appeal concerning the CSW. Plaintiff also appends a copy of the CDCR DOM Section 52050 "Arrest Search and Seizure," dated August 2006, which is signed by defendants Sisto and Traquina. (Dkt. No. 114 at 24-29.) Plaintiff alleges defendant Sisto implemented this allegedly more lenient policy after plaintiff was flown to John Muir Medical Center on August 4, 2006. (Dkt. No. 114 at 9.)

Supervisory officials may be liable even without overt personal participation in the offensive act if they promulgated or "implemented a policy so deficient that the policy 'itself is a repudiation of constitutional rights' and is 'the moving force of the constitutional violation.'" Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989) (internal citations omitted); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).

Defendant Sisto contends plaintiff alleges no additional facts indicating that Sisto promulgated or "implemented a policy so deficient that the policy 'itself is a repudiation of constitutional rights' and is 'the moving force of the constitutional violation.'" Hansen, 885 F.2d at 646. Defendant argues that plaintiff's simply restates his conclusory statement that defendant Sisto promulgated and implemented the CSW policy imposed on plaintiff, without additional factual support, which defendant contends is insufficient.

Although plaintiff alleges that defendant Sisto promulgated the policy used to subject plaintiff to the CSW at issue here, plaintiff has failed to allege additional facts linking defendant Sisto to the CSW policy. The fact that defendant Sisto implemented a search policy in August of 2006, after plaintiff's release from the CSW, does not demonstrate, or raise an inference, that defendant Sisto promulgated or implemented the CSW policy in effect at the time plaintiff was held in the CSW at issue here. Rather, the alleged corrective policy suggests that defendant Sisto believed the policy needed to be revised. Moreover, plaintiff fails to allege facts demonstrating that there was a policy in place that authorized the conditions imposed on plaintiff. Indeed, plaintiff argues that defendant Sisto "as Warden and subordinate staff at CSPSolano [were] deliberate[ly] indifferent based upon the fact they failed to follow their own rules and policy procedures." (Dkt. No. 114 at 8.)

Thus, plaintiff has not alleged facts demonstrating that the conditions to which plaintiff was subjected were administered pursuant to a policy defendant Sisto implemented. Plaintiff has not alleged sufficient facts supporting the existence of a policy or practice of subjecting inmates to four point restraints for extended periods of time or under the conditions as alleged by plaintiff, or linking defendant Sisto to such a policy. Plaintiff cites no other incidents where an inmate was subjected to such an extended period of similar restraint. Thus, plaintiff's policy claim against defendant Sisto should also be dismissed.

For all of the above reasons, defendant Sisto's motion to dismiss should be granted.

B. Medical Care

Defendant Deur moves to dismiss plaintiff's claim that defendant Deur was deliberately indifferent to plaintiff's serious medical needs.

i. Legal Standard for Deliberate Indifference to Medical Needs

In order to state a claim for relief under the Eighth Amendment for inadequate prison medical care, plaintiff must allege "deliberate indifference to serious medical needs." Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)). A medical need is serious if "the failure to treat a prisoner's condition could result in further significant injury or the 'unnecessary and wanton infliction of pain.'" McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992) (quoting Estelle, 429 U.S. at 104), overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). Deliberate indifference is proved by evidence that a prison official "knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer, 511 U.S. at 837. Mere negligence is insufficient for Eighth Amendment liability. Frost, 152 F.3d at 1128.

Whether a defendant had requisite knowledge of a substantial risk is a question of fact and a fact finder may conclude that a defendant knew of a substantial risk based on the fact that the risk was obvious. Farmer, 511 U.S. at 842. While the obviousness of the risk is not conclusive, a defendant cannot escape liability if the evidence shows that the defendant merely refused to verify underlying facts or declined to confirm inferences that he strongly suspected to be true. Id. "Prison officials are deliberately indifferent to a prisoner's serious medical needs when they deny, delay, or intentionally interfere with medical treatment." Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) (internal citations and quotation marks omitted). Deliberate indifference 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), or "may be shown by circumstantial evidence when the facts are sufficient to demonstrate that a defendant actually knew of a risk of harm." Lolli v. County of Orange, 351 F.3d 410, 421 (9th Cir. 2003). Deliberate indifference in the medical context may also be shown by a purposeful act or failure to respond to a prisoner's pain or possible medical need. Jett, 439 F.3d at 1096. A mere difference of opinion between a prisoner and prison medical staff as to appropriate medical care does not give rise to a § 1983 claim. Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981).

ii. Application to Defendant Deur

Defendants argue that plaintiff failed to state facts showing that his pain or numbness in his back or shoulder constituted a serious medical need. Defendants state plaintiff set forth no facts showing that plaintiff told Deur of symptoms or circumstances, other than back pain and numbness, indicating a serious medical condition; nor that Deur knew how plaintiff was injured; nor that plaintiff had any obvious signs of injury, such as swelling, bleeding or bruising. (Dkt. No. 94 at 8.) Defendants contend that plaintiff's allegations state, at most, a difference of opinion as to appropriate medical care, or a negligent failure to discover an injury. In the SAC, plaintiff claims that defendant Deur "failed to evaluate, treat or document plaintiff's injuries, with no intention of providing plaintiff any medical care." (Dkt. No. 23 at 6.) In his opposition, plaintiff now states he told Deur that plaintiff suffered back pain and numbness because two guards tackled him. (Dkt. No. 107 at 3.) Plaintiff argues that Deur "denied plaintiff medical evaluation or treatment" for injuries he "made known to her" which was a "direct causation of pain and suffering" during the subsequent CSW. (Dkt. No. 107 at 6.)

Mere negligence on the part of the defendant is not sufficient to establish liability, but rather, the defendant's conduct must have been wanton. Farmer, 511 U.S. at 835; Frost, 152 F.3d at 1128. Also, negligence or medical malpractice in diagnosing or treating a condition is not a constitutional violation. Estelle, 429 U.S. at 106; Hallett, 296 F.3d at 744.

The medical record completed by defendant Deur, a Registered Nurse, and provided by plaintiff (dkt. no. 23 at 96), reflects plaintiff was seen by defendant Deur for "pread/seg admission" on July 23, 2006, for an incident that occurred at 1630 (using a 24-hour clock). (Id.) Plaintiff was ambulatory, arrived at 1643, and was seen by defendant Deur at 1644. Defendant Deur described plaintiff's statement of the injury as, "don't know how to describe it." (Id.) Deur noted, however, that no injuries were found, and that there was no pepper spray exposure. (Id.) At 1645, plaintiff was "cleared for housing per custody." (Id.)

Plaintiff fails to demonstrate that defendant Deur knew of and disregarded an excessive risk to plaintiff's health or safety. Plaintiff alleges no facts demonstrating that plaintiff was suffering from a bulging disk at the time he presented to Deur, or that defendant Deur knew plaintiff was suffering from a bulging disk in his back. Also, plaintiff alleges no facts that Deur knew that plaintiff was to undergo a CSW, or would undergo a CSW for a period of twelve days (July 23, 2006, to August 4, 2006), or even what type of restraints would be used if Deur was informed plaintiff was to be placed in a CSW. The medical record reflects "pre-ad seg admission," and that plaintiff was "cleared for housing," and does not state plaintiff would be subject to a CSW.

Plaintiff was ambulatory when seen by Deur. In his opposition, plaintiff states Deur "partially documented the interview, and plaintiff conceded in the SAC that he "couldn't describe numbness" (dkt. no. 23 at 6), which is consistent with Deur's note in the medical record.

Despite plaintiff's allegations that Deur's actions (or inactions) caused him pain and suffering during the CSW, plaintiff does not allege he was suffering from severe pain when he presented to Deur, and plaintiff alleges no visible injuries were evident at that time. Plaintiff does allege that he made "dozens" of complaints of pain to CSW officers and medical staff from July 23, 2006 through August 4, 2006. (Dkt. No. 23 at 12.) However, plaintiff does not allege that Deur treated plaintiff during the CSW, or that defendant Deur was responsible for treating plaintiff during the CSW.

While the court is troubled by the minuscule amount of time defendant Deur spent with plaintiff prior to his placement in ad seg,*fn6 plaintiff has not alleged facts demonstrating Deur's failure to take additional steps was wanton. Plaintiff has failed to allege facts showing Deur was aware of a serious medical need, yet deliberately failed to treat it. Plaintiff was ambulatory at the time he was seen by Deur, and was not complaining of severe pain. Plaintiff has failed to allege facts demonstrating that during the one minute Deur spent with plaintiff, Deur was aware of a serious medical need that required additional medical treatment. Plaintiff must allege an omission sufficiently harmful to demonstrate defendant Deur was deliberately indifferent when she failed to provide medical treatment that plaintiff now believes Deur should have provided. Plaintiff has failed to do so. Accordingly, defendant Deur's motion to dismiss should be granted.

V. Qualified Immunity

Defendants also contend that they are entitled to qualified immunity. In light of the above recommendations, the court need not address this alternative argument.

VI. Conclusion

For all of the reasons set forth above, this court recommends that defendant's motion to dismiss be granted, and plaintiff's claims against defendants Shockley, Sisto, and Deur be dismissed, without leave to amend, based on plaintiff's failure to state a cognizable civil rights claim. Fed. R. Civ. P. 12(b)(6).

IT IS HEREBY RECOMMENDED that:

1. Defendant Shockley's June 7, 2011 motion to dismiss (dkt. no. 94) be granted;

2. Defendant Sisto's July 26, 2011 motion to dismiss (dkt. no. 110) be granted;

3. Defendant Deur's June 7, 2011 motion to dismiss (dkt. no. 94) be granted; and

4. Plaintiff's claims against defendants Sisto, Shockley and Deur be dismissed. These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be filed and served within fourteen days after service of the objections. The parties are 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).


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