The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Plaintiff is a state prisoner proceeding without counsel. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983, and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302.
Plaintiff originally filed this action in the United States District Court for the Northern District of California. On January 31, 2012, the Northern District transferred the instant action to this court.
Plaintiff submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.
Plaintiff is required to pay the statutory filing fee of $350.00 for this action.
28 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the initial partial filing fee from plaintiff's prison trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated to make monthly payments of twenty percent of the preceding month's income credited to plaintiff's prison trust account. These payments will be forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff's account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).
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).
A claim is legally frivolous when it lacks an arguable basis either in law or in fact.
Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) ("a judge may dismiss [in forma pauperis] claims which are based on indisputably meritless legal theories or whose factual contentions are clearly baseless."); Franklin, 745 F.2d at 1227.
Rule 8(a)(2) of the Federal Rules of Civil Procedure "requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). In order to survive dismissal for failure to state a claim, a complaint must contain more than "a formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Id. However, "[s]pecific facts are not necessary; the statement [of facts] need only 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic Corp., 550 U.S. at 555) (citations and internal quotations marks omitted). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, id., and construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
II. Legal Standard for Eighth Amendment Claim
Because plaintiff alleges inadequate medical care, the undersigned sets forth herein the legal standard for Eighth Amendment claims alleging inadequate medical care.
Generally, deliberate indifference to a serious medical need presents a cognizable claim for a violation of the Eighth Amendment's prohibition against cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 104 (1976). According to Farmer v. Brennan, 511 U.S. 825, 847 (1994), "deliberate indifference" to a serious medical need exists "if [the prison official] knows that [the] inmate [ ] face[s] a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it." The deliberate indifference standard "is less stringent in cases involving a prisoner's medical needs than in other cases involving harm to incarcerated individuals because 'the State's responsibility to provide inmates with medical care ordinarily does not conflict with competing administrative concerns.'" McGuckin v. Smith, 974 F.2d 1050, 1060 (9th Cir. 1992) (quoting Hudson v. McMillian, 503 U.S. 1, 6 (1992)), overruled on other grounds by WMX Technologies, Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997). Specifically, a determination of "deliberate indifference" involves two elements: (1) the seriousness of the prisoner's medical needs; and (2) the nature of the defendant's responses to those needs. McGuckin, 974 F.2d at 1059.
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." Id. (citing Estelle, 429 U.S. at 104). Examples of instances where a prisoner has a "serious" need for medical attention include the existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain. McGuckin, 974 F.2d at 1059-60 (citing Wood v. Housewright, 900 F.2d 1332, 1337-41 (9th Cir. 1990)).
Second, the nature of a defendant's responses must be such that the defendant purposefully ignores or fails to respond to a prisoner's pain or possible medical need in order for "deliberate indifference" to be established. McGuckin, 974 F.2d at 1060. Deliberate indifference may occur when prison officials deny, delay, or intentionally interfere with medical treatment, or may be shown by the way in which prison physicians provide medical care." Hutchinson v. United States, 838 F.2d 390, 392 (9th Cir. 1988). In order for deliberate indifference to be established, there must first be a purposeful act or failure to act on the part of the defendant and resulting harm. See McGuckin, 974 F.2d at 1060. "A defendant must purposefully ignore or fail to respond to a prisoner's pain or possible medical need in order for deliberate indifference to be established." Id. Second, there must be a resulting harm from the defendant's activities. Id. The needless suffering of pain may be sufficient to demonstrate further harm. Clement v. Gomez, 298 F.3d 898, 904 (9th Cir. 2002).
Mere differences of opinion concerning the appropriate treatment cannot be the basis of an Eighth Amendment violation. Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996);
Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981). However, a physician need not fail to treat an inmate altogether in order to violate that inmate's Eighth Amendment rights. Ortiz v. City of Imperial, 884 F.2d 1312, 1314 (9th Cir. 1989). A failure to competently treat a serious medical condition, even if some treatment is prescribed, may constitute deliberate indifference in a particular case. Id.
III. Screening of Complaint
The undersigned herein screens the complaint filed February 20, 2012. The complaint names 23 defendants: 1) Director of the California Department of Corrections and Rehabilitation ("CDCR") Tate; 2) J. Clark Kelso; 3) High Desert State Prison ("HDSP") Warden Gower; 4) CDCR Assistant for Prison Health Care Yip: 5) CDCR Chief of Health Care Appeals Walker; 6) CDCR Acting Chief of Health Care Appeals Warren; 7) CDCR Chief of Health Care Appeals Zamora; 8) CDCR Health Care Appeals employee Flemings; 9) HDSP Chief Medical Officer ("CMO") Swingle; 10) HDSP Associate Warden Dewey; 11) HDSP Correctional Sergeant Glenn; 12) HDSP Dr. Lee; 13) HDSP Dr. Pomozal; 14) HDSP Physician's Assistant Medina; 15) HDSP Nurse French; 16) HDSP Nurse Friedenpelt; 17) HDSP Nurse Burnett; 18) HDSP Nurse Pearsall; 19) HDSP Licensed Vocational Nurse ("LVN") Marvin: 20) HDSP LVN Garcia; 21) HDSP LVN Irving; 22) HDSP Appeals Coordinator Frazier; and 23) HDSP Appeals Coordinator Garbutt.
Plaintiff alleges that he received inadequate medical care for hepatitis C, cancer, scoliosis and osteoporosis, an infection on his head and mental illness.
Claims Involving Pain Medication
Plaintiff alleges that defendant Lee refused to prescribe adequate pain medication. (Dkt. No. 20 at 27.) Plaintiff alleges that on October 18, 2011, defendant Lee granted plaintiff's request for Tramadol. (Id.) Plaintiff alleges that on October 21, 2011, defendant Lee discontinued the Tramadol because plaintiff requested an increased dose. (Id.) Plaintiff alleges that on November 21, 2011, defendant Lee "denies the same medication to raise the dosage."
(Id.) In support of this claim, plaintiff cites exhibits K and N, filed in support of the complaint on February 23, 2012. (Dkt. No. 22.)
Exhibit K includes a memorandum signed by defendant Lee on February 10, 2011, denying plaintiff's First Level Appeal. (Dkt. No. 22-1 at 14-15.) In this grievance, plaintiff alleged that for the past two months, he had been telling Dr. Hoffman that the pain medication was not helping. (Id. at 14.) Plaintiff sated that Dr. Hoffman refused to raise the morphine dose, but added Tylenol # 3. (Id.) Plaintiff stated that he was not getting enough morphine and requested either that the morphine dose be increased or that he be placed on some pain medication other than morphine. (Id.) In denying plaintiff's appeal, defendant Lee stated that a primary care provider had evaluated plaintiff and determined that his request was not medically necessary. (Id.) This grievance does not mention Tramadol.
Exhibit N includes a memorandum signed by defendant Lee on October 18, 2011, denying plaintiff's First Level Appeal. (Id. at 41-42.) In this grievance, plaintiff requested several medications including Tramadol. (Id. at 41.) Defendant Lee granted this grievance, stating that on September 14, 2011, the triage nurse told plaintiff that defendant Pomazal had discontinued several medications, including Tramadol. (Id.) Defendant Lee responded that all of the medications, including Tramadol, were renewed. (Id.)
Exhibit K is not directly relevant to plaintiff's claim that defendant Lee denied plaintiff's requests for Tramadol in October and November 2011. Exhibit N supports plaintiff's claim that defendant Lee granted plaintiff's request for Tramadol on October 18, 2011.
Plaintiff's claims that defendant Lee discontinued the Tramadol on October 21, 2011, but then refused to raise plaintiff's dose of Tramadol on November 21, 2011 are confusing. It appears that at some time between October 21, 2011, and November 21, 2011, plaintiff again began receiving Tramadol. It is difficult to evaluate plaintiff's claims against defendant Lee without knowing when Tramadol was re-prescribed for plaintiff after October 21, 2011. It is also not clear what dose of Tramadol plaintiff sought on November 21, 2011. For these reasons, the undersigned cannot determine whether plaintiff has stated a colorable Eighth Amendment claim against defendant Lee. Accordingly, these claims are dismissed with leave to amend. If plaintiff files an amended complaint, he must clarify when he was re-prescribed Tramadol after defendant Lee allegedly discontinued this prescription on October 21, 2011. Plaintiff shall also address the dose of Tramadol he received after October 21, 2011 and the dose defendant Lee allegedly refused to prescribe on November 21, 2011.
Plaintiff alleges that in November 2008, defendant Medina tried to get plaintiff to sign a pain contract. (Dkt. No. 20 at 27.) Plaintiff alleges that a pain contract denies a prisoner the right to go "man down" during a medical emergency. (Id.) Plaintiff does not claim that he signed the pain contract. Plaintiff does not allege that he suffered any injury as a result of not signing the pain contract. The fact that defendant Medina allegedly asked plaintiff to sign a pain contract does not alone state a colorable Eighth Amendment claim. Accordingly, this claim is dismissed with leave to amend.
Plaintiff alleges that on January 8, 2009, he woke up feeling sharp pains in his chest area and left side. (Id. at 29.) Defendant Burnett allegedly came to examine plaintiff. (Id.) Because plaintiff was in great pain, plaintiff alleges that defendant Burnett could not touch him on his chest or left side. (Id.) Plaintiff alleges that defendant Burnett called a doctor, but there were no doctors in the prison on third watch. (Id.) Plaintiff alleges that "all these doctors kept refusing to give plaintiff proper and adequate pain medications" even though "they knew plaintiff has cancer in right lung." (Id.) Plaintiff goes on to allege that a few days later, defendant Medina told plaintiff that he believed that plaintiff had lung cancer, but refused to prescribe any pain medication. (Id. at 31.) In support of this claim, plaintiff cites his Exhibit O.
Plaintiff's exhibit O is a copy of the Director's Level Decision dated January 27, 2010, addressing plaintiff's grievance regarding the January 8, 2009 incident. (Dkt. 22-1 at 53.) This grievance states that on January 8, 2009, defendant Medina instructed the triage nurse to tell plaintiff to take nitroglycerin then rest. (Id.)
Plaintiff's claim that on January 8, 2009, defendant Burnett called a doctor to examine plaintiff does not state a colorable Eighth Amendment claim. Plaintiff does not allege that defendant Burnett refused to treat plaintiff or otherwise provided improper care. Accordingly, these claims against defendant Burnett are dismissed with leave to amend.
Plaintiff's claim that a few days later defendant Medina told plaintiff that he "believed" he had lung cancer, but refused to provide pain medication is vague and conclusory. Plaintiff does not allege when this examination took place or describe the circumstances of this examination in any greater detail. Because this claim is vague and conclusory, it is dismissed with leave to amend. If plaintiff is challenging defendant Medina's order that plaintiff take nitroglycerin then rest, he must clarify this in an amended complaint. Plaintiff must also describe how this order that he take nitroglycerin constituted inadequate medical care.
Plaintiff alleges that he sent letters to the office of defendant Kelso, the receiver appointed to manage the CDCR medical care system. (Dkt. 20 at 21-22.) Plaintiff alleges that his letters were sent to the Controlled Correspondence Unit ("CCU") rather than defendant Kelso. (Id.) The CCU is apparently part of the receiver's office. Plaintiff alleges that his letters concerned inadequate pain medication. (Id.) Plaintiff alleges that the CCU did not adequately address his concerns. In support of this claim, plaintiff refers to his exhibits AA through GG.
Exhibit AA is a letter sent to plaintiff from N. Warren, the Staff Services Manager I of the CCU dated February 13, 2009. (Dkt. No. 22-2 at 30-32.) This letter states that the Prison Health Care Receivership received four letters from plaintiff dated November 19, 2008, December 3 and 17, 2008, and January 25, 2009, concerning medical care at HDSP. (Id. at 30.) The letter identifies plaintiff's medical concerns which included inadequate pain medication. (Id.) The letter goes on to state that CCU contacted HDSP medical staff who reviewed plaintiff's Unit Health Record and medical appeals history. (Id. at 31.) The letter describes the medical care plaintiff received, as reflected in these records. (Id.) The letter concludes that "[b]ased on the information received and reviewed, it appears HDSP medical staff is providing for your health and treatment concerns, including referrals to specialists when medically necessary." (Id.) Plaintiff argues that by accepting the representations of prison officials regarding the health care they provided to plaintiff, defendant Kelso violated his Eighth Amendment rights.
The undersigned has not found that plaintiff stated any colorable claims for inadequate pain medication against defendants at HDSP during 2008 and 2009, i.e., the dates the letter from the CCU addresses. For this reason, the undersigned cannot find that defendant Kelso's office failed to adequately investigate plaintiff's claims of inadequate pain medication during that time. Exhibits BB through GG do not include any further communications to plaintiff from defendant Kelso's office. For these reasons, the claims against defendant Kelso are dismissed with leave to amend.
Plaintiff alleges that exhibit DD includes letters to defendant Warden Gower from plaintiff containing complaints regarding alleged inadequate medical care. (Dkt. No. 20 at 24-25.) Exhibit DD includes a letter from plaintiff to the Director of Internal Affairs complaining about race-based lock downs and the delay in processing two Health Care Appeals alleging inadequate medical care. (Dkt. No. 22-2 at 47.) Also included in Exhibit DD is a memorandum to plaintiff from former HDSP Warden McDonald stating that plaintiff's letter to the Officer of Internal ...