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Patterson v. Do

United States District Court, E.D. California

April 27, 2017

SAM WONG DO, et al., Defendants.



         Plaintiff, a state prisoner proceeding pro se, 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 by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

         I. Application to Proceed In Forma Pauperis

         Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). ECF No. 2. 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 trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for 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).

         II. Statutory Screening of Prisoner Complaints

         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 where 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). “[A] judge may dismiss [in forma pauperis] claims which are based on indisputably meritless legal theories or whose factual contentions are clearly baseless.” Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989) (citation and internal quotations omitted), superseded by statute on other grounds as stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. Id.

         “Federal Rule of Civil Procedure 8(a)(2) 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 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, 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. (citations omitted). “[T]he pleading must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action.” Id. (alteration in original) (quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure ' 1216 (3d ed. 2004)).

         “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp., 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.” Id. (citing Bell Atl. Corp., 550 U.S. at 556). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976), as well as construe the pleading in the light most favorable to the plaintiff and resolve all doubts in the plaintiff's favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

         III. Complaint

         The complaint consists of allegations against seven different defendants. ECF No. 1 at 3-6. Plaintiff claims he was diagnosed with hepatitis C, genome 1a, in 2011. Id. at 3. Plaintiff claims that defendants Wong and Hashemi violated his rights under the Eighth Amendment when they declined to treat him for hepatitis C. Id. at 3-6. He further alleges that defendants Smiley, Cryer, and Lewis violated his Eighth Amendment rights because they denied his administrative appeals seeking treatment. Id. at 4-6. Smiley, Cryer, and Lewis, as well as defendant Beard, are also alleged to be supervisors who do not enforce medical policies despite being aware of staff's failure to provide treatment. Id. at 6. Plaintiff also claims that defendant Kelso violated his Eighth Amendment rights because Kelso did not order treatment for plaintiff and failed to enforce an existing injunction against the California Department of Corrections and Rehabilitation (“CDCR”) in his capacity as medical Receiver. Id. at 5-6. Plaintiff alleges that each of the defendants knew of his condition, and knew that death would result if it was left untreated. Id. Finally, plaintiff claims the defendants knew of a “CCHCS Health Care Policy” instructing CDCR medical staff that “all [hepatitis] genotypes are allowed treatment through preapproval through the HO CCHCS HCV oversight committee, including treatment options, and monitoring, ” and argues that defendants acted contrary to this policy when they denied treatment. Id. at 5-6.

         Plaintiff seeks compensatory and punitive damages from each defendant. Id. at 6. He also seeks an injunction directing CDCR and defendants Beard and Kelso to designate him a high-risk medical inmate in order to receive hepatitis C treatment. Id. at 5.

         IV. Deliberate Indifference Claims

         A. Eighth Amendment-Deliberate Indifference to Serious Medical Needs

         “[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate must show ‘deliberate indifference to serious medical needs.'” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). This requires plaintiff to show (1) “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, '” and (2) that “the defendant's response to the need was deliberately indifferent.” Id. (quoting McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992) (citation and internal quotations marks omitted), overruled on other grounds WMX Technologies v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc)).

         Deliberate indifference is established only where the defendant subjectively “knows of and disregards an excessive risk to inmate health and safety.” Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (emphasis added) (citation and internal quotation marks omitted). Deliberate indifference can be established “by 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.” Jett, 439 F.3d at 1096 (citation omitted). Civil recklessness (failure “to act in the face of an unjustifiably high risk of harm that is either known or so obvious that it should be known”) is insufficient to establish an Eighth Amendment violation. Farmer v. Brennan, 511 U.S. 825, 836-37 & n.5 (1994) (citations omitted).

         A difference of opinion between an inmate and prison medical personnel - or between medical professionals - regarding appropriate medical diagnosis and treatment is not enough to establish a deliberate indifference claim. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); Toguchi, 391 F.3d at 1058. To establish that a difference of opinion rises to the level of deliberate indifference, plaintiff “must show that the course of treatment the doctors chose was medically unacceptable under the circumstances.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (citation omitted). Additionally, “a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner.” Estelle, 429 U.S. at 106.

         As an initial matter, plaintiff's allegation that he was diagnosed with hepatitis C is sufficient at the pleading stage to present a serious medical need for Eighth Amendment purposes. See Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (Indications that a prisoner has a serious medical need for treatment 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.'” (quoting McGuckin, 974 F.2d at 1059-60)).

         B. The Claim Against Wong Will Require a Response

         In February 2014, plaintiff was seen by his physician, defendant Wong. ECF No. 1 at 3. According to the complaint, Wong determined that plaintiff did not require hepatitis C treatment until his condition worsened. Id. In March 2014, Wong once again determined plaintiff did not require hepatitis C treatment despite his request for treatment. Id. at 4. Plaintiff alleges that at this second appointment, Wong reviewed his blood test results and told him his “liver don't look that bad.” Id. Plaintiff alleges that he had not had “recent lab work” done before this appointment, and that Wong refused to show him his blood test results when he asked. Id. He further alleges that Wong based this second conclusion in part on the opinion of another medical professional who had never examined him, and that Wong was “a bone doctor” who did not possess the “skill or experience” required to provide treatment. Id. at 3-4. Finally, plaintiff avers that defendant Wong failed to follow the “CCHCS Health Care Policy” to provide treatment. Id. at 5. He argues that defendant acted with intent to deliberately cause him further significant injury. Id.

         Plaintiff alleges sufficient facts to show that Wong knew plaintiff had hepatitis C and that he acted with deliberate indifference when he decided not to treat plaintiff. Plaintiff claims that he had not had any “recent lab work” done prior to his appointment in March 2014, which indicates that Wong made a decision to not treat plaintiff without properly testing him to evaluate the progression of his disease. A failure to administer standard diagnostic procedures may show deliberate indifference. See Watson v. Torruella, No. CIV S-06-1475 LKK EFB P, 2009 WL 3246805, at *6, 2009 U.S. Dist. LEXIS 93729, at *15-16 (E.D. Cal. Oct. 7, 2009). Wong knew that plaintiff had hepatitis C after their first meeting in February 2014, and it can be inferred that as a doctor he was aware of the possible risks associated with the disease. Defendant was also likely aware that plaintiff could suffer further significant harm without the medical testing necessary to make a proper diagnosis and provide appropriate treatment at the March 2014 appointment. Moreover, Wong's act of consulting with another physician for treatment advice does not overcome a claim for deliberate indifference since on the facts alleged it can be ...

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