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Jackson v. Galang

United States District Court, E.D. California

September 7, 2017

CURTIS VAUGHN JACKSON, JR., Plaintiff,
v.
CARMELINO L. GALANG, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS

          CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE

         Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court are defendants' motions to dismiss (Docs. 33 and 40).

         I. PLAINTIFF'S ALLEGATIONS

         This action proceeds on the original complaint. Plaintiff names the following as defendants: Galang; Wolfson; Smiley; Dator; Horowitz; and Wong. According to plaintiff, he suffered a “grade three” separation of his right shoulder on September 20, 2014. Plaintiff states that an “urgent referral” for an outside orthopedic consult was placed that same day by the emergency room doctor. Plaintiff was seen by defendant Galang, a doctor at San Joaquin General Hospital, on September 26, 2014.

         Plaintiff states that he was seen on December 1, 2014, by defendant Wong, apparently a prison doctor, to discuss the scheduling of plaintiff's surgery. Plaintiff alleges that defendant Wong “denied my previously prescribed medication treatment by refusal to renew dose of morphine at 30 mg twice a day which was managing my pain level.” Plaintiff claims that defendant Wong's intentional interference left him in severe pain. Plaintiff alleges that defendant Wong knew that plaintiff would suffer pain if his dose of pain medication was decreased.

         Plaintiff alleges that defendant Smiley, a doctor at the prison, “delayed to act in a urgent manner as ordered by emergency room. . . .” Plaintiff adds that defendant Smiley delayed three months before approving surgery which occurred on December 18, 2014. Plaintiff claims that he was seen by defendant Horowitz on December 23, 2014, for a post-operative follow up and that defendant Horowitz refused to prescribe antibiotics.

         Plaintiff claims that defendant Dator, apparently a prison nurse, failed to change the dressings on his wound following the first surgery and that he was left in bloody dressings for six days. He also claims that, following the first surgery, he “experienced severe increased pain and swelling with a large lump sticking up in right shoulder approximately 10 days after surgery.” Plaintiff states that he notified “medical officials” on January 3, 2015, and again on January 5, 2015, requesting to see a doctor but that he was not seen until January 7, 2015, when defendant Dator “finally call plaintiff to medical. . . .” According to plaintiff:

Defendant M. Dator stated to me he refused to see me in 24-48 hours after required time limits because Plaintiff complains to much. Defendant M. Dator, RN, refuse to forward by case to (TTA) emergency room for further evaluation and x-rays. Instead, defendant sent me back to cell without medical treatment, and a large plate sticking up from my right shoulder and having breakthrough pain.

         Next, plaintiff states that defendant Galang performed a second surgery on January 15, 2015, because the first had been unsuccessful. Plaintiff claims that defendant Smiley scheduled plaintiff for a post-operative outside follow up on January 30, 2015. At that time, x-rays were obtained which, according to plaintiff, showed that the January 15, 2015, second surgery had also been unsuccessful. According to plaintiff, on January 23, 2015, he complained to defendant Horowitz that the second surgery was also unsuccessful and that “the plate was displaced.” Plaintiff claims that defendant Horowitz “misdiagnose” the plate as merely scar tissue. Defendant Horowitz continued plaintiff's pain medication but refused to order further x-rays.

         Plaintiff was scheduled for a further outside follow up with defendant Galang on February 4, 2015. Plaintiff states that this follow up never occurred because he was admitted to the hospital crisis care unit on February 3, 2015, for depression and emotional issues. Elsewhere in the complaint, however, plaintiff references a follow up which took place on January 30, 2015, at which time he was told that a third surgery was required. This third surgery apparently took place in April 2015 and was successful.

         Plaintiff was returned to prison on February 5, 2015. Plaintiff alleges that another referral for an outside follow up was placed on February 13, 2015, but was cancelled on February 27, 2015, when plaintiff was once again transferred to the hospital for psychiatric concerns. Plaintiff alleges that defendant Wolfson failed to adequately supervise defendant Galang who, according to plaintiff, performed two failed surgeries. He also claims that the pain medication prescribed by defendant Galang was ineffective and that defendant Galang “was aware that Plaintiff required different treatment or increase dose of current medication and did not provide adequate treatment. . . .”

         Next, plaintiff states that he was seen again at San Joaquin General Hospital by defendant Galang on March 10, 2015. X-rays were obtained and plaintiff was informed that he would need a third surgery. According to plaintiff, defendant Galang “admitted to me he did not know how to do this kind of surgery and he referring my case to surgeon Dowbak, M.D.” Plaintiff claims that defendant Galang “delayed medical care by scheduling my third surgery 4-14-2015 approximately 30 days later the wait cause me increase pain and no range of motion.”

         Next, plaintiff states that he was seen by defendant Horowitz in June 2015 following his return to prison from a psychological hospitalization. According to plaintiff, his ongoing pain “drove me to get emotionally and psychologically.” Defendant Horowitz examined plaintiff's shoulder, obtained new x-rays, and switched plaintiff's pain medication. Plaintiff claims that this “course of treatment was not reasonable” and that defendant Horowitz subjected him to additional pain by changing his pain medications. Plaintiff adds: “Defendant Horowitz was deliberate indifference to my serious medial need by retaliating against plaintiff for appealing this issue on a 602 which was partially granted to keep my morphine 30 mg twice a day by defendant Smiley.” Plaintiff alleges that defendant Horowitz interfered with his previously prescribed course of treatment for the purpose of causing him pain.

         Plaintiff next alleges that he submitted a medical request form on June 20, 2015, complaining of pain and withdrawal symptoms following discontinuation of morphine by defendant Horowitz. According to plaintiff, he was not weaned off the morphine, which was abruptly discontinued by defendant Horowitz on June 19, 2015. Having received no response to his medical request form, plaintiff submitted another medical request form on June 22, 2015. Plaintiff states that he it was not until June 24, 2015, when he was seen by a nurse, defendant Dator. Plaintiff states that, when he asked defendant Dator about the first medical request form, “Defendant M. Dator became angry.” According to plaintiff, he requested to be sent to an outside emergency room for evaluation, but defendant Dator refused. Plaintiff alleges that defendant Dator “delayed plaintiff adequate medical care by making me wait three weeks to see a doctor all while my symptoms got worser and I was in severe pain that the current medication was not effective.”

         II. STANDARDS FOR MOTION TO DISMISS

         In considering a motion to dismiss, the court must accept all allegations of material fact in the complaint as true. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). The court must also construe the alleged facts in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see also Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam). All ambiguities or doubts must also be resolved in the plaintiff's favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). However, legally conclusory statements, not supported by actual factual allegations, need not be accepted. See Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-50 (2009). In addition, pro se pleadings are held to a less stringent standard than those drafted by lawyers. See Haines v. Kerner, 404 U.S. 519, 520 (1972).

         Rule 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) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, in order to survive dismissal for failure to state a claim under Rule 12(b)(6), 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. at 555-56. The complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Id. 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.” Iqbal, 129 S.Ct. at 1949. “The plausibility standard is not akin to a ‘probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). “Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility for entitlement to relief.” Id. (quoting Twombly, 550 U.S. at 557).

         In deciding a Rule 12(b)(6) motion, the court generally may not consider materials outside the complaint and pleadings. See Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998); Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). The court may, however, consider: (1) documents whose contents are alleged in or attached to the complaint and whose authenticity no party questions, see Branch, 14 F.3d at 454; (2) documents whose authenticity is not in question, and upon which the complaint necessarily relies, but which are not attached to the complaint, see Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001); and (3) documents and materials of which the court may take judicial notice, see Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994).

         Finally, leave to amend must be granted “[u]nless it is absolutely clear that no amendment can cure the defects.” Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam); see also Lopez v. Smith, 203 F.3d 1122, 1126 (9th Cir. 2000) (en banc).

         III. DISCUSSION

         Defendants' argue that the complaint fails to plead facts sufficient to state a claim against any of them for deliberate indifference to a serious medical need. The treatment a prisoner receives in prison and the conditions under which the prisoner is confined are subject to scrutiny under the Eighth Amendment, which prohibits cruel and unusual punishment. See Helling v. McKinney, 509 U.S. 25, 31 (1993); Farmer v. Brennan, 511 U.S. 825, 832 (1994). The Eighth Amendment “. . . embodies broad and idealistic concepts of dignity, civilized standards, humanity, and decency.” Estelle v. Gamble, 429 U.S. 97, 102 (1976). Conditions of confinement may, however, be harsh and restrictive. See Rhodes v. Chapman, 452 U.S. 337, 347 (1981). Nonetheless, prison officials must provide prisoners with “food, clothing, shelter, sanitation, medical care, and personal safety.” Toussaint v. McCarthy, 801 F.2d 1080, 1107 (9th Cir. 1986). A prison official violates the Eighth Amendment only when two requirements are met: (1) objectively, the official's act or omission must be so serious such that it results in the denial of the minimal civilized measure of life's necessities; and (2) subjectively, the prison official must have acted unnecessarily and wantonly for the purpose of inflicting harm. See Farmer, 511 U.S. at 834. Thus, to violate the Eighth Amendment, a prison official must have a “sufficiently culpable mind.” See id.

         Deliberate indifference to a prisoner's serious illness or injury, or risks of serious injury or illness, gives rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at 105; see also Farmer, 511 U.S. at 837. This applies to physical as well as dental and mental health needs. See Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982). An injury or illness is sufficiently serious if the failure to treat a prisoner's condition could result in further significant injury or the “. . . unnecessary and wanton infliction of pain.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992); see also Doty v. County of Lassen, 37 F.3d 540, 546 (9th Cir. 1994). Factors indicating seriousness are: (1) whether a reasonable doctor would think that the condition is worthy of comment; (2) whether the condition significantly impacts the prisoner's daily activities; and (3) whether the condition is chronic and accompanied by substantial pain. See Lopez v. Smith, 203 F.3d 1122, 1131-32 (9th Cir. 2000) (en banc).

         The requirement of deliberate indifference is less stringent in medical needs cases than in other Eighth Amendment contexts because the responsibility to provide inmates with medical care does not generally conflict with competing penological concerns. See McGuckin, 974 F.2d at 1060. Thus, deference need not be given to the judgment of prison officials as to decisions concerning medical needs. See Hunt v. Dental Dep't, 865 F.2d 198, 200 (9th Cir. 1989). The complete denial of medical attention may constitute deliberate indifference. See Toussaint v. McCarthy, 801 F.2d 1080, 1111 (9th Cir. 1986). Delay in providing medical treatment, or interference with medical treatment, may also constitute deliberate indifference. See Lopez, 203 F.3d at 1131. Where delay is alleged, however, the prisoner must also demonstrate that the delay led to further injury. See McGuckin, 974 F.2d at 1060.

         Negligence in diagnosing or treating a medical condition does not, however, give rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at 106. Moreover, a difference of opinion between the prisoner and medical providers concerning the appropriate course of treatment does not give rise to an Eighth Amendment claim. See Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996).

         A. Defendants Galang and Wolfson

         Defendants Galang and Wolfson, whom plaintiff alleges are doctors at San Joaquin General Hospital, argue that plaintiff has failed to allege facts establishing that they are state actors subject to liability under § 1983. The court does not agree. Plaintiff alleges that he was referred to San Joaquin General Hospital by prison officials following his September 2014 shoulder injury. It is reasonable to infer that the referral was made pursuant to some kind of agreement between the prison and the hospital. Such an agreement would render defendants Galang and Wolfson state actors for purposes of their treatment of plaintiff. See West v. Atkins, 487 U.S. 42 (1988); Lopez v. Dep't of Health Servs., 939 F.2d 881 (9th Cir. 1991) (per curiam).

         Defendants Galang and Wolfson also argue that, even if they are state actors, the complaint fails to state a cognizable Eighth Amendment claim of deliberate indifference. As to defendant Galang, plaintiff alleges:

10) On 9-26-14 I spoke with Defendant C. Galang surgeon approximately 6 days after my injury.[1]
14) Plaintiff was re-schedule on 2-4-15 to follow-up with Defendant C. Galang, MD, to schedule another surgery. . . .
20) Plaintiff suffered a injury to his right shoulder in a football game. Plaintiff was referred to San Joaquin General Hospital for a urgent orthopedic consultation. Plaintiff meant [sic] with Defendant ...

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