Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Rivera v. Zewart

United States District Court, N.D. California

June 20, 2017

OMAR RIVERA, Plaintiff,
v.
T. ZEWART, et al., Defendants.

          ORDER OF DISMISSAL WITH LEAVE TO AMEND

          MARIA-ELENA JAMES United States Magistrate Judge

         INTRODUCTION

         Plaintiff, an inmate at Salinas Valley State Prison (“SVSP”) in Soledad, California, filed this pro se civil rights action pursuant to 42 U.S.C. § 1983. The Court dismissed his complaint with leave to amend. Dkt. No. 6. His amended complaint (Dkt. No. 9) is now before the Court for review under 28 U.S.C. § 1915A.

         ANALYSIS

         A. Standard of Review

         A federal court must engage in a preliminary screening of any case in which a prisoner seeks redress from a governmental entity, or from an officer or an employee of a governmental entity. 28 U.S.C. § 1915A(a). In its review, the Court must identify any cognizable claims, and dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b) (1), (2). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

         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.” Fed.R.Civ.P. 8(a)(2). “Specific facts are not necessary; the statement 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) (citations omitted). “[A] plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. . . . Factual allegations must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). A complaint must proffer “enough facts to state a claim to relief that is plausible on its face.” Id. at 570.

         To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a right secured by the Constitution or laws of the United States was violated; and (2) that the violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

         B. Legal Claims

         The complaint makes the following allegations.

         On July 8, 2011, named defendant Dr. Thomas Zewart performed an arthroscopic meniscectomy on Plaintiff's right medial meniscus which failed because it was “not adequately performed at the prevailing medical standards” because Dr. Zewart was hampered by economic restrictions. Dkt. No. 9 at 8, 10.

         On February 4, 2015, named defendant Dr. Marshall Lewis performed a second arthroscopic meniscectomy on Plaintiff's right medial meniscus, “which was done below the professional norm” because Dr. Lewis was hampered by economic restrictions. Dkt. No. 9 at 8, 10. The failure to adequately perform this second arthroscopic meniscectomy exacerbated Plaintiff's pain and suffering. Id.

         On May 20, 2015, named defendant Dr. Tuvera met with Plaintiff in response to his complaint of severe pain in his right knee which Plaintiff attributed to his failed February 2015 arthroscopic meniscectomy. Dkt. No. 9 at 17-18. Despite Plaintiff's complaints, Dr. Tuvera never examined Plaintiff's right knee; declared that Plaintiff was not in pain; and denied Plaintiff further healthcare. Id.

         On May 26, 2015, Plaintiff filed a grievance regarding Dr. Tuvera's failure to treat him on May 20, 2015, which was assigned the number HC-15-05392. Dkt. No. 9 at 18. Dr. Tuvera denied Plaintiff's grievance to cover up his negligence. Id. Named defendant Dr. Gamboa contributed to Plaintiff's pain and suffering by affirming Dr. Tuvera's denial. Id. Named defendant Dr. Kumar intentionally contributed to the denial of adequate medical care by affirming Dr. Tuvera and Dr. Gamboa's denial of Plaintiff's grievance, in violation of Plaintiff's due process rights. Id. Named defendant J. Lewis contributed to the denial of adequate medical care and pain management by affirming Dr. Tuvera's, Dr. Gamboa's, and Dr. Kumar's denial of Plaintiff's grievance, in violation of Plaintiff's due process rights.

         Plaintiff also alleges generally that defendants Bourne, Birdsong, Law San Fu, Lott, Tuvera, Gamboa, and Kumar failed to provide Plaintiff with adequate medical care and were deliberately indifferent. Dkt. No. 9 at 8-9. Plaintiff further alleges that, as Deputy Director of Policy and Risk Management, Defendant J. Lewis is required to properly execute prison regulations, and Deputy Director Lewis failed to properly execute prison regulations, thereby denying Plaintiff adequate health care and pain management. Id. at 9. Plaintiff also alleges that he, and other prisoners, receive medical care that is lesser in quality than the medical care received by non-inmates. Id. at 10-11, 15.

         Plaintiff also names the following correctional officials as defendants: CDCR Secretary of Operations J.A. Beard; Steven Kernan; J. Solis; SVSP Warden and SVSP Medical Committee member R.T.C. Grounds; SVSP Warden and SVSP Medical Committee member W. L. Muniz; and Does 1-50.[1] Dkt. No. 9 at 9. Plaintiff alleges that defendants Grounds, Muniz and Beard are responsible for enforcing prison regulations and ensuring that prison employees adhere to prison regulations. Id. at 9.

         C. DISCUSSION

         1. Defendants Beard, Grounds, and Muniz

         With respect to named defendants SVSP Warden Grounds, SVSP Warden Muniz, and CDCR Secretary Beard, Plaintiff's claim against these defendants fails for the same reason as noted in the initial screening order. In the initial screening order, the claims against SVSP Warden Grounds, SVSP Warden Muniz, and CDCR Secretary Beard were dismissed because Plaintiff sought to hold them liable under a theory of supervisory liability. Dkt. No. 6 at 6-7.

         In the amended complaint, Plaintiff alleges that SVSP Warden Grounds, SVSP Warden Muniz, and CDCR Secretary Beard are liable under § 1983 for the following reasons: (1) SVSP Warden Grounds, SVSP Warden Muniz, and CDCR Secretary Beard are responsible for enforcing prison regulations and ensuring that prison employees adhere to prison regulations, and that their failure to do so resulted in inadequate medical care, Dkt. No. 9 at 9; (2) as members of SVSP's Medical Committee, SVSP Warden Grounds and SVSP Warden Muniz review medical decisions and have “final say on health care policy, procedure, practice, and the authorization of treatment, ” and, in this context, contributed to the inadequate medical care received by Plaintiff, id. at 12; and (3) SVSP Warden Grounds, SVSP Warden Muniz, and CDCR Secretary Beard creating a grievance system that does not provide a remedy, in violation of the Fourteenth Amendment, when they received grievances and letters from Plaintiff and from the Prison Law Office, but returned these grievances to the SVSP medical personnel named in the grievances and letters without instructing the named SVSP medical personnel how to address Plaintiff's concerns. Plaintiff's first two arguments seek to again hold SVSP Warden Grounds, SVSP Warden Muniz, and CDCR Secretary Beard liable in their capacity as supervisors and therefore do not state § 1983 liability. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (holding that there is no respondeat superior liability under § 1983). Knowledge and acquiescence of a subordinate's misconduct is insufficient to establish liability; each government official is only liable for his or her own misconduct. See Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009). However, as discussed in the earlier screening order, a supervisor may be liable for a subordinate's actions in certain specific circumstances. To state a claim for relief under §1983 based on a theory of supervisory liability, Plaintiff must allege some facts that would support a claim that (1) each of these supervisory defendants proximately caused the deprivation of rights of which Plaintiff complains, see Harris v. City of Roseburg, 664 F.2d 1121, 1125 (9th Cir. 1981); or (2) each of these supervisory defendants failed to properly train or supervise personnel resulting in the alleged deprivation, Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 680 (9th Cir. 1984); (3) the alleged deprivation resulted from custom or policy for which each of the supervisory defendants was responsible, see id.; or (4) each of the supervisory defendants knew of the alleged ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.