United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
M. KELLISON UNITED STATES MAGISTRATE JUDGE
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).
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.
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.
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.
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.
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
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.
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. . . .”
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.”
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.
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.”
STANDARDS FOR MOTION TO DISMISS
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).
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).
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).
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).
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.
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).
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
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).
Defendants Galang and Wolfson
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).
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.
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 ...