United States District Court, E.D. California
VESTER L. PATTERSON, Plaintiff,
SAM WONG DO, et al., Defendants.
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE.
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).
Application to Proceed In Forma Pauperis
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.
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).
Statutory Screening of Prisoner Complaints
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. §
“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and internal quotations omitted), superseded by statute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
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)).
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).
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.
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.
Deliberate Indifference Claims
Eighth Amendment-Deliberate Indifference to Serious
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)
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).
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.
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)).
The Claim Against Wong Will Require a Response
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.
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 ...