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John D. Francis v. Gill

February 21, 2013

JOHN D. FRANCIS,
PLAINTIFF,
v.
GILL, ET AL.,
DEFENDANTS.



ORDER REGARDING FINDINGS AND RECOMMENDATIONS CONCERNING PLAINTIFF'S MOTION FOR TEMPORARY RESTRAINING ORDER AND WHETHER THE COMPLAINT STATES A CLAIM (Docs. 9, 14, & 15)

ORDER

I. Background

Plaintiff, John D. Francis ("Plaintiff"), is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983 on allegations of deliberate indifference to his serious medical needs in violation of his rights under the Eighth Amendment. Plaintiff filed the Complaint in this action on April 17, 2012 which was screened and dismissed with leave to amend. (Docs. 1, 12.) On May 24, 2012, Plaintiff filed a motion for temporary restraining order. (Doc. 9.) On November 15, 2012, Plaintiff filed the First Amended Complaint. (Doc. 14.) On November 30, 2012, a Findings and Recommendation ("the F&R") issued recommending that Plaintiff's motion for temporary restraining order be denied and that the action be dismissed for failure to state a claim. (Doc. 15.) For the reasons delineated herein, adoption of the Findings and Recommendation is declined.

II. Temporary Restraining Order

On May 24, 2012, Plaintiff filed a motion seeking a preliminary injunction requiring prison officials to provide him with adequate medical care. The F&R recommended denying this motion finding that Plaintiff had not met his burden as the moving party, that he failed to state a cognizable claim, and thus failed to demonstrate a likelihood of success on the merits or raise serious questions going to the merits. (Doc. 15, F&R, pp. 7-8.)

However, as a threshold matter, Plaintiff must establish that he has standing to seek preliminary injunctive relief. Summers v. Earth Island Institute, 555 U.S. 488, 493-94, 129 S.Ct. 1142, 1149 (2009); Mayfield v. United States, 599 F.3d 964, 969 (9th Cir. 2010). Plaintiff "must show that he is under threat of suffering an 'injury in fact' that is concrete and particularized; the threat must be actual and imminent, not conjectural or hypothetical; it must be fairly traceable to challenged conduct of the defendant; and it must be likely that a favorable judicial decision will prevent or redress the injury." Summers, 555 U.S. at 493 (citation and quotation marks omitted); Mayfield, 599 F.3d at 969.

The medical care claims that Plaintiff alleges arise from events which occurred at California State Prison, Corcoran (CSPC). Plaintiff is currently housed at Pleasant Valley State Prison (PVSP). Accordingly, Plaintiff lacks standing to seek relief directed at remedying his current conditions of confinement at PVSP and cannot show that he is under a threat of suffering at the hands of the Defendants named in this action. Further, to the extent that his motion for temporary restraining order sought relief to remedy his conditions of confinement for the time he was at CSPC, it was rendered moot on his transfer to PVSP. See Dilley v. Gunn, 64 F.3d 1365, 1368 (9th Cir. 1995); Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1991). Thus, Plaintiff's motion for a preliminary injunction is denied, though not on the basis recommended in the F&R.*fn1

III. The First Amended Complaint

The Court must screen Plaintiff's pleadings and dismiss if it fails to state a claim on which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii).

In the First Amended Complaint, Plaintiff names the following as defendants: (1) the Federal Receiver;*fn2 (2) R. Gill, D.O.; (3) Warden of CSPC; (4) J. Yu, D.O.; (5) Eger Clerk, M.D.; (6) C. McCabe, M.D.; (7) W. Ulit, M.D.; (8) B. Burr; (9) L. Karen, M.D.; (10) J. Ruff (Psychologist); (11) C.M.O. Jeffrey J. Wang; (12) Teresa Macias (Corcoran Hospital C.E.O); and (13) all the doctors on the Medical Authorization Review (MAR) Committee in July 2010 and October 2011. (Doc. 14, 1st AC, pg. 3.) Plaintiff seeks relief via an order that he be examined by a pain specialist and that the CDCR cease giving Plaintiff medication only to take it away which causes him to suffer severe pain and muscle spasms. (Id.) Plaintiff also seeks monetary damages for pain, suffering and mental anguish. (Id.) Only some of Plaintiff's allegations are cognizable or amenable to amendment. Thus, Plaintiff may either choose to proceed on the cognizable claims identified herein, or he may choose to file a second amended complaint to correct the identified deficiencies in some of the claims. However, a few of his claims are not amenable to amendment and the Defendants against whom these claims are raised are dismissed with prejudice.

To maintain an Eighth Amendment claim based on medical care in prison, a plaintiff must first "show a serious medical need by demonstrating that failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain. Second, the plaintiff must show the defendants' response to the need was deliberately indifferent." Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (quoting Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quotation marks omitted)).

The existence of a condition or injury that a reasonable doctor would find important and worthy of comment or treatment, the presence of a medical condition that significantly affects an individual's daily activities, and the existence of chronic or substantial pain are indications of a serious medical need. Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (citing McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc)) (quotation marks omitted); Doty v. County of Lassen, 37 F.3d 540, 546 n.3 (9th Cir. 1994). Plaintiff's allegation of severe enough back and neck pain and muscle spam to warrant Class A pain medications, for screening purposes, presents a serious medical condition.

The second prong requires showing: (a) a purposeful act or failure to respond to a prisoner's pain or possible medical need and (b) harm caused by the indifference. Wilhelm, 680 F.3d at 1122 (quoting Jett, 439 F.3d at 1096). More generally, deliberate indifference "may appear when prison officials deny, delay or intentionally interfere with medical treatment, or it may be shown by the way in which prison physicians provide medical care." Id. (internal quotation marks omitted). Under Jett, "[a] prisoner need not show his harm was substantial." Id.; see also McGuckin, 974 F.2d at 1060 ("[A] finding that the defendant's activities resulted in 'substantial' harm to the prisoner is not necessary.").

A. Medical Defendants

Plaintiff alleges: that Defendant Dr. Gill gave Plaintiff "Class A" drugs to treat Plaintiff's back and neck and then took them away for non-medical reasons; that Defendant Dr. McCabe knew the extent of Plaintiff's injuries and refused to treat Plaintiff causing severe pain; and that Defendant Dr. Ulit allegedly gave Plaintiff "Class A" drugs periodically to decrease the pain and then took them away for no medical reason, which left Plaintiff in severe pain. (Doc. 14, 1st AC, pg. 3.) These allegations state cognizable claims for deliberate indifference to Plaintiff's serious medical needs in violation of the Eighth Amendment against Defendants Dr. Gill, Dr. McCabe, and Dr. Ulit.

Plaintiff alleges that Defendant Ruff (psychologist) was a part of the MAR committee and he refused Plaintiff's request for strong pain medication, which left him in severe pain, because Plaintiff "refused class by J. Ruff." (Id.) Defendant Ruff's refusal of strong pain medications due to Plaintiff's refusal to attend a class equates to a difference of opinion regarding pain treatment methods, which does not amount to deliberate indifference. See Estelle v. Gamble 429 U.S. 97, 107 (1976). This analysis extends to the MAR committee since Defendant Ruff is the only person Plaintiff identifies as a member of the MAR committee and the refusal of strong pain medications when Plaintiff refused to attend a class by Defendant Ruff is the only action/inaction alleged regarding the MAR committee. Plaintiff's allegations are insufficient to state a cognizable claim against Psychologist Ruff and are not amenable to amendment.

Plaintiff also alleges that the doctors on the MAR committee took away Plaintiff's pain medication for a non-medical reason and left Plaintiff in severe pain. Plaintiff does not explain the process by which the doctors on the MAR committee were involved in his medical care. Plaintiff also does not explain the basis upon which ...


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