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Williams v. Hill

United States District Court, E.D. California

April 26, 2017

TERRY ELI HILL, M.D., et al ., Defendants.




         Plaintiff Brett Lee Williams is a state prisoner proceeding pro se and in forma pauperis in this civil rights action brought under 42 U.S.C. § 1983. Plaintiff filed his initial complaint on April 18, 2016. On June 20, 2016, the Court dismissed Plaintiff's complaint with leave to amend. On July 27, 2016, Plaintiff filed a first amended complaint, which is currently before the Court for screening. On August 5, 2016, Plaintiff filed a document titled “Judicial Notice of Continuing Violation of Retatiation [sic]” (“Plaintiff's Notice”).[1] Doc. 8.

         The Court is required to screen complaints brought by prisoners seeking relief against a government 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 frivolous, malicious, 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). The § 1915A screening standard “incorporates the familiar standard applied in the context of failure to state a claim under Federal rule of Civil Procedure 12(b)(6).” Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012). When a plaintiff is proceeding in forma pauperis but § 1915A does not apply, “the court ‘shall dismiss the case at any time if the court determines' that the action ‘is frivolous or malicious, ' ‘fails to state a claim on which relief may be granted, ' or ‘seeks monetary relief against a defendant who is immune from such relief.'” Pierce v. San Francisco Exam'r, No. 15-CV-06051-EMC, 2016 WL 2851649, at *1 (N.D. Cal. May 16, 2016) (quoting 28 U.S.C. § 1915(e)(2)). An inmate who has had three or more prior actions or appeals dismissed on one of these three bases, and has not alleged imminent danger of serious physical injury, does not qualify to proceed in forma pauperis. See 28 U.S.C. § 1915(g).

         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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff's allegations are taken as true, courts are “not required to indulge unwarranted inferences.” Metzler Inv. GMBH v. Corinthian Colls., Inc., 540 F.2d 1049, 1064 (9th Cir. 2008).

         Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally construed and to have any doubt resolved in their favor. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). To survive screening, a plaintiff's claims must be facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678. The mere possibility that a defendant acted unlawfully is not sufficient. Id.


         Plaintiff brings claims against the following Defendants in their individual and official capacities: (1) Terry Eli Hill, M.D., Chief Medical Officer/Receiver for California Correctional Health Care Service (“CCHCS”); (2) J. Lewis, Deputy Director of Policy and Risk Management Services; (3) C. Kerie, staff member at Policy and Risk Management Services; (4) R. J. Rackley, Warden of Folsom State Prison (“FSP”); (5) Teresa Kamura-Yip, FSP Chief Executive Officer Health Care; (6) K. Yount, FSP Health Care Appeals Coordinator; (7) E. Flores, M.D., at North Kern State Prison (“NKSP”); I. Ogbuehi, FNP[2] at Pleasant Valley State Prison (“PVSP”); Benjamin Lee, M.D., at FSP. Doc. 9 at ¶¶ 6-14.

         All facts are taken from Plaintiff's first amended complaint and assumed to be true only for the purpose of this screening. Plaintiff was incarcerated at California Correctional Institute (“CCI”) from August 11, 2005, until an unknown date, [3] California State Prison Corcoran (“CSP-COR”) from November 23, 2005 to April 7, 2008, NKSP from April 7, 2008 until July 27, 2010, and PVSP from July 27, 2010, until January 9, 2013. Doc. 9 at ¶ 5. Plaintiff has been incarcerated at FSP since January 10, 2013. Id. Since October 2005, Plaintiff has been enrolled in a chronic care program for his arteriosclerosis. Id.

         When Plaintiff entered CCI on August 11, 2005, he did not have any nighttime breathing problems. Doc. 9 at ¶ 20. Plaintiff was diagnosed with allergic rhinitis while at CSP-COR, sometime between November 23, 2005 and April 7, 2008. Id. At that time, he was prescribed chlorpheniramine for nasal congestion. Id. On November 20, 2007, the California Department of Corrections issued a memorandum pertaining to the California Department of Public Health's recommendation that African American inmates be removed from areas in the San Joaquin Valley where coccidioides immitis spores[4]were endemic. Doc. 9 at ¶ 17.

         On August 12, 2008, after Plaintiff was transferred to NKSP, Dr. V.V. Kitts diagnosed Plaintiff with chronic sinusitis without deformed septum. Doc. 9 at ¶ 21. On June 2, 2009, Dr. W. Suesberry diagnosed Plaintiff with a deformed/deviated septum, prescribed a trial of loratadine or singulair, and referred Plaintiff for a second opinion on the turbinectomy Plaintiff requested, noting that Plaintiff was steroid-resistant and chlorpheniramine was not effective against allergic rhinitis. Doc. 9 at ¶ 21; Doc. 9 at 49-50. On July 28, 2009, Dr. Flores told Plaintiff that a second opinion would be at his own expense, and that the recommendations from Drs. Kitts and Suesberry had been administratively rejected. Doc. 9 at ¶ 22. Dr. Flores also attempted to persuade Plaintiff to stop seeking a turbinectomy. Id.

         On July 21, 2010, Dr. D. Vega diagnosed Plaintiff with suspected upper airway resistance syndrome and obstructive apnea, and performed a sleep study of Plaintiff. Doc. 9 at ¶ 22; Doc. 9 at 55.[5]He also recommended a second night of sleep study to complete a CPAP titration. Id. Plaintiff transferred to PVSP on July 27, 2010, and the sleep study results were not forwarded from NKSP for 21 months. Doc. 9 at ¶ 22. On May 7, 2012, Ms. Ogbuehi denied the second night of sleep study and noted that the previous study indicated that Plaintiff had intermittent snoring. Doc. 9 at ¶ 24. Ms. Ogbuhei continued Plaintiff on the same treatment and medications. Id. On February 9, 2015, Betty Irwin, a nurse at FSP, associated Plaintiff's allergic rhinitis with prior exposure to cocci. Doc. 9 at ¶ 15.

         Plaintiff filed grievance FSP-HC-15015653 at FSP on January 7, 2015, stating his refusal to participate in a cocci screening program and opposing any change in his medical classification. Doc. 9 at ¶ 28; Doc. 9 at 25. Dr. Lee interviewed Plaintiff in connection with his grievance on January 26, 2015. Doc. 9 at 29. He told Plaintiff that his request to not participate in the cocci screening program had been granted, and explained that Plaintiff's medical classification was controlled by CCHCS, but that Dr. Lee did not have any information that Plaintiff's medical status would change. Id. Plaintiff's appeal was partially granted at first level review on January 27, 2015. Id. On February 10, 2015, Plaintiff sought second level review arguing that the first level appeal had not addressed his allegations of deliberate indifference and initial exposure to cocci. Doc. 9 at 26. The second level review request was accepted and Plaintiff's claims were denied on March 9, 2015. Id. Plaintiff sought third level review on March 15, 2015, stating that “[t]he deliberate indifference to the initial exposure to cocci is the reason for the 602.” Id. In the third level review letter of June 5 2015, CCHCS denied Plaintiff's appeal, noting that on May 27, 2014, Plaintiff received a medical classification designating him as high risk and precluding Plaintiff for endorsement to Avenal State Prison and PVSP. Doc. 9 at 27. The letter also stated that the review exhausted Plaintiff's administrative remedies of FSP-HC-15015653. Id.

         Mr. Lewis's office sent Plaintiff's third level review completion letter to the FSP-HC appeals office rather than to Plaintiff directly. Doc. 9 at ¶ 30. Plaintiff filed a second grievance on March 9, 2015. Doc. 9 at ¶ 31. On March 24, 2015, the NKSP Health Care Appeals Office cancelled Plaintiff's appeal related to grievance NKSP-HC-15026065 because the appeal had not been filed within 30 calendar days of the event leading to the filing of the appeal. Doc. 9 at 38. Plaintiff received the cancellation notice on April 8, 2015. Doc. 9 at 38. Plaintiff wrote on the cancellation notice that the notice constituted retaliation, that the grievance concerned a change in circumstances creating a new issue for FSP-HC-15015653, that the “only charting that connects [Plaintiff's] allergic Rhinits and Sleep Apnea [sic], for which treatment was refused at NKSP, and Cocci [sic] was 2-9-15 charting-herein the circumstances for this grievance, ” that the NKSP providers refused to respond to Plaintiff's form 22, and that no one signed for the notice or Plaintiff's form 602. Doc. 9 at 38. On April 9, 2015, Plaintiff received a notice that his appeal FSP-HC-15015749 was rejected because it was submitted at the wrong level. Doc. 9 at 39, 42. He appealed the cancellation notice and rejection notice with appeal NKSP-HC-15026308 on April 22, 2015. Doc. 9 at ¶ 31; Doc. 9 at 39. Plaintiff received a cancellation notice for NKSP-HC-15026308 stating that his appeal NKSP-HC-15026065 had been cancelled because it was not timely filed, and directing him to contact FSP Medical Appeal Office for his concerns regarding FSP-HC-15015749. Doc. 9 at 43. Third level review generated another cancellation notice on September 11, 2015. Doc. 9 at ¶ 31.

         K. Winters, the appeals coordinator at FSP-HC, and Ms. Kerie refused to process an appeal form filed by Plaintiff on May 5, 2015, instructing Plaintiff to remove an appendix. Doc. 9 at ¶ 32; Doc. 9 at 44. Plaintiff filed appeal number FSP-HC-15015838 in response and resubmitted FSP-HC-1501749. Doc. 9 at 44. He alleged that Ms. Kerie's rejection of his appeal violated his First and Fourteenth Amendment rights and made the appeal process unavailable to him, and sought monetary compensation and surgery for his allergic rhinitis. Doc. 9 at 46, 69. On June 5, 2015, Plaintiff's appeal was assigned to the Health Care Appeal Office for response with a due date of July 2, 2015. Doc. 9 at 61. The appeal bypassed first level review and Plaintiff interviewed Ms. Yount on June 5, 2015, and Dr. Lee on July 6, 2015. Doc. 9 at 45, 69. On July 2, 2015, Ms. Yount missed the deadline for first level review, and on July 3, 2015, Ms. Kamura-Yip missed the deadline for second level review. Doc. 9 at ¶¶ 34-35. On July 13, 2015, [6] Plaintiff's second level review determination noted that his request for monetary compensation was not within the scope of the internal appeals process and denied his appeal. Doc. 9 at 69-70. Plaintiff continued to appeal the determination and added an allegation that “Dr. Lee's interview results were predetermined by SLR.” Doc 9 at 45. He also alleged that first level review was bypassed in order to prevent his timely filing of an action with the Claims Board. Doc. 9 at 47. On October 8, 2015, FSP-HC-15015838 was denied, exhausting Plaintiff's administrative remedies. Doc. 9 at 73. Plaintiff submitted a claim to the Claims Board on August 4, 2015, which was rejected at a September 17, 2015, meeting. Doc. 9 at 75.

         Plaintiff brings his §1983 claims against the various Defendants under three causes of action.[7]The first cause of action alleges that Defendants violated Plaintiff's rights under the Eighth Amendment and its state law counterpart, Article I, § 17 of the California Constitution (“§ 17”)[8] by demonstrating deliberate indifference to his serious medical needs and by ignoring the health hazards posed by cocci to African-American and chronic care program inmates. Doc. 9 at ¶¶ 39-47. Plaintiff seeks punitive damages as well as injunctive and declaratory relief. Doc. 9 at ¶ 48. Plaintiff's second cause of action alleges that Defendants violated his right to free speech under the First Amendment and Article I § 2 of the California Constitution (“§ 2”).[9] Doc. 9 at ¶¶ 49-59. Plaintiff alleges that Defendants violated his free speech rights by retaliating against him for filing grievances related to “the systemwide [sic] use of an underground policy and practice to ignore the health hazards” presented by cocci. Doc. 9 at ¶ 51. Plaintiff seeks punitive damages and injunctive and declaratory relief. Doc. 9 at ¶ 59. Plaintiff's third cause of action alleges due process and equal protection violations of his rights under the Fourteenth Amendment and Article I, § 7 of the California Constitution (“§7”).[10] Doc. 9 at ¶ 60-71. Plaintiff alleges that Defendants did so “by not being forthcoming regarding African American and inmates in chronic care programs were at risk to the hazards cocci posed [sic].” Doc. 9 at ¶ 62. He seeks punitive damages and injunctive and declaratory relief. Doc. 9 at ¶ 71.

         III. ANALYSIS

         A. Plaintiff's Complaint Fails to State a Claim

         1. Plaintiff's State Law Claims

         Plaintiff brings claims under 42 U.S.C. § 1983 alleging that Defendants violated sections 2, 7 and 17 of the California Constitution. Doc. 9 at ¶¶ 42, 54, 63. Section 1983 “provides a cause of action against any person who, under the color of state law, abridges rights unambiguously created by the Constitution or laws of the United States.” Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 2012) (internal quotation marks and citations omitted) (citations omitted). “Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks omitted). As the Ninth Circuit has held, while a § 1983 action may be brought “when a violation of a state law causes the deprivation of a right protected by the United States Constitution, ” § 1983 does not offer redress when “the violation of a state law amounts to the deprivation of a state-created interest that reaches beyond that guaranteed by the federal Constitution.” Lovell v. Poway Unified School Dist., 90 F.3d 367, 369 (9th Cir. 1996). Therefore, the provisions of the California Constitution which Plaintiff invokes here cannot form the basis of a § 1983 claim. The rights and interests guaranteed by the federal Constitution and federal laws constitute the only rights which may be vindicated by a § 1983 action. To the extent that sections 2, 7, and 17 provide broader protection than the First, Fourteenth, and Eighth ...

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