Burgess v. Shakiba

• Court: District Court, S.D. California
• Decided: May 16, 2023
• Docket: 3:22-cv-00750
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 GARY BURGESS, Case No.: 3:22-cv-00750-JO-JLB CDCR #E-83728, 12 ORDER DISMISSING ACTION FOR Plaintiff, 13 FAILURE TO STATE A CLAIM vs. UNDER 28 U.S.C. § 1915A 14

15 SHAKIBA, Doctor; S. GATES, HCS 16 Service; R. BARENCHI, Chief Medical 17 Officer, HCS; R. ROBERTS, Chairman Executive Officer, HCS; KATHLEEN 18 ALLISON, Director; DOE 1, Chief 19 Medical Officer; MARTIN CONSERVA, Physical Therapist; CLAYTON, Doctor; 20 DOES 1–20, MADDEN, Warden, 21 Defendants. 22 23 Pro Se Plaintiff Gary Burgess (“Plaintiff” or “Burgess”), a state prisoner 24 incarcerated at R.J. Donovan State Prison (“RJD”), filed a civil rights complaint pursuant 25 to 42 U.S.C. § 1983. ECF No. 1. Plaintiff alleges Defendants violated his Eighth 26 Amendment and equal protection rights by failing to provide him with adequate medical 27 care. Id. For the reasons set forth below, the Court dismisses Plaintiff’s Complaint with 28 leave to amend. 1 I. Screening Pursuant to 28 U.S.C. §1915A 2 A. Screening Standards 3 Because Plaintiff is a prisoner and seeks “redress from a governmental entity or 4 officer or employee of a governmental entity,” the Court must screen the Complaint 5 pursuant to 28 U.S.C. § 1915A and sua sponte dismiss it to the extent it is frivolous, 6 malicious, fails to state a claim, or seeks damages from defendants who are immune. Olivas 7 v. Nevada ex rel. Dept. of Corr., 856 F.3d 1281, 1283 (9th Cir. 2017) (quoting 28 U.S.C. 8 § 1915A(b)). In performing a § 1915A screening, courts turn to the Federal Rule of Civil 9 Procedure 12(b)(6) standard for determining whether a plaintiff has failed to state a claim. 10 Thus, a complaint must “contain sufficient factual matter . . . to state a claim to relief that 11 is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation 12 marks omitted). Detailed factual allegations are not required, but “[t]hreadbare recitals of 13 the elements of a cause of action, supported by mere conclusory statements, do not suffice.” 14 Iqbal, 556 U.S. at 678. The “mere possibility of misconduct” or “unadorned, the defendant- 15 unlawfully-harmed me accusation[s]” fall short of meeting this plausibility standard. Id. at 16 679; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 17 B. Standards for § 1983 Actions 18 Title 42 U.S.C. § 1983 “creates a private right of action against individuals who, 19 acting under color of state law, violate federal constitutional or statutory rights.” Devereaux 20 v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of 21 substantive rights, but merely provides a method for vindicating federal rights elsewhere 22 conferred.” Graham v. Connor, 490 U.S. 386, 393–94 (1989) (internal quotation marks 23 omitted). “To establish § 1983 liability, a plaintiff must show both (1) deprivation of a right 24 secured by the Constitution and laws of the United States, and (2) that the deprivation was 25 committed by a person acting under color of state law.” Tsao v. Desert Palace, Inc., 698 26 F.3d 1128, 1138 (9th Cir. 2012) (internal quotation marks omitted). 27 / / / 28 / / / 1 C. Allegations in the Complaint 2 In the Complaint that Plaintiff filed on May 23, 2022, he alleges the following. 3 Plaintiff first informed medical staff at RJD about the pain in his foot in July of 2020. 4 Compl., ECF No. 1 at 10. Despite the fact that an X-ray revealed he had bone spurs and 5 other injuries to his right foot and ankle, a year passed before he received any treatment or 6 pain medication for the injuries. Id. In August of 2021, he filed another request for medical 7 treatment. Id. A second X-ray showed the injuries had worsened. Id. According to Plaintiff, 8 medical staff ordered physical therapy, but it did not help. Id. He claims the delay in care 9 caused his foot injuries to worsen and he now cannot walk properly, is unable to participate 10 in physical therapy, and suffers from emotional trauma. Id. at 11–13. 11 The medical records that he attached to the Complaint tell a different story. 12 According to those records, Burgess’s primary care provider initially examined him on 13 September 16, 2019 after he first complained of pain in his feet. ECF No. 1-5 at 16–17, 19. 14 The primary care provider referred him to orthotics for evaluation, but Burgess refused the 15 December 4, 2019 appointment. Id. at 19. He also refused a December 17, 2019 follow-up 16 appointment with his primary care provider. Id. On July 11, 2020, Burgess again raised the 17 issue of his foot pain. Id. Burgess’s primary care provider evaluated him on July 22, 2020, 18 ordered x-rays of his foot, and prescribed diclofenac gel for the pain. Id. The x-ray showed 19 “no acute fracture or dislocation” and a “plantar calcaneal spur,” a bony outgrowth on the 20 heel bone. ECF No. 1-3 at 2; ECF No. 1-5 at 23. A doctor examined Burgess again on July 21 23, 2020 and referred him to physical therapy. ECF No. 1-5 at 19. Burgess refused physical 22 therapy on March 11, 2021. ECF No. 1-3 at 2. 23 Plaintiff re-initiated his complaints of heel pain in July of 2021. Id. A nurse 24 examined Burgess for heel pain on July 9 and July 30 of 2021, prescribed ibuprofen, and 25 re-ordered physical therapy. Id. at 3. In August of 2021, Burgess requested an MRI and his 26 care providers informed him that he needed to first participate in physical therapy if he 27 wanted an MRI. Id. Medical staff ordered a second x-ray of Burgess’s foot, which was 28 performed on August 31, 2021; it showed no bone abnormality. Id. Physical therapy staff 1 evaluated Burgess in early September of 2021 and recommended a course of twice weekly 2 sessions for a three-week period. Id. Burgess attended physical therapy during September 3 and October of 2021 but physical therapy staff discharged him after three sessions because 4 he could not tolerate the pain and swelling. Id. Because Burgess had participated in 5 physical therapy without improvement, Burgess’s primary care provider ordered an MRI 6 in October of 2021 and referred him to an outside podiatrist. Id. Medical staff performed 7 the MRI on December 8, 2021, which showed an “small osteochondral lesion of the talus,” 8 and “some tendonitis and inflammation around his posterior tibial tendon.” ECF No. 1-5 9 at 5. A podiatrist examined Burgess on December 17, 2021 and prescribed anti- 10 inflammatory pain medication, physical therapy, and an orthotic consultation. Id. at 5, 8. 11 On March 23, 2022, physical therapy staff evaluated Burgess and determined that physical 12 therapy should be deferred until Burgess’s pain had improved and he had received 13 orthotics. Id. at 6. 14 D. Analysis 15 Plaintiff asserts four claims for relief in his § 1983 Complaint. In his first cause of 16 action, Plaintiff alleges that various members of the medical staff at RJD violated his 17 Eighth Amendment rights by failing to provide adequate medical treatment for his foot. 18 Comp., ECF No. 1 at 14. His second claim alleges a violation of equal protection; Plaintiff 19 asserts that he was denied proper medical care because he is African American. Id. at 14– 20 15. Plaintiff brings a third, respondeat superior claim against the senior medical staff at 21 RJD based on their supervisees’ failure to provide proper medical care. Id. at 15–16. 22 Finally, Plaintiff alleges the defendants are liable for negligence and malpractice under 23 state law based on the same facts. Id. at 16–17. The Court will examine each of Plaintiff’s 24 claims in turn to determine whether they have been adequately pled. 25 1. § 1983 Claim for Failure to Provide Adequate Medical Treatment 26 Plaintiff has not stated a § 1983 claim for a failure to provide adequate medical 27 treatment because he has not plausibly alleged that any named defendant acted with the 28 deliberate indifference required to show an Eighth Amendment violation. “In order to 1 prevail on an Eighth Amendment claim for inadequate medical care, a plaintiff must show 2 ‘deliberate indifference’ to his ‘serious medical needs.’” Colwell v. Bannister, 763 F.3d 3 1060, 1066 (9th Cir. 2014) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). A prison 4 official violates the Eighth Amendment only when two requirements are met. “First, the 5 deprivation alleged must be, objectively ‘sufficiently serious.’” Farmer v. Brennan, 511 6 U.S. 825, 834 (1994) (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)). Second, 7 Plaintiff must allege the prison official he seeks to hold liable had a “sufficiently culpable 8 state of mind,” that is “one of ‘deliberate indifference’ to inmate health or safety.” Id. 9 (quoting Wilson, 501 U.S. at 302–03). A prison official can be held liable only if he “knows 10 of and disregards an excessive risk to inmate health or safety; the official must both be 11 aware of facts from which the inference could be drawn that a substantial risk of serious 12 harm exists, and he must also draw the inference.” Id. at 837. 13 Deliberate indifference requires “a purposeful act or failure to respond to a prisoner’s 14 pain or possible medical need, Jett v. Palmer, 439 F.3d 1091, 1096 (9th Cir. 2006), and 15 “‘may appear when prison officials deny, delay, or intentionally interfere with medical 16 care.’” Id. (quoting Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988)). 17 “[D]ifferences of opinion over what medical treatment or course of care is proper, are . . . 18 insufficient to constitute an Eighth Amendment violation.” Norvell v. Roberts, No. 20-cv- 19 0512 JLS (NLS), 2020 WL 4464454, at *4 (S.D. Cal. Aug. 4, 2020) (citing Estelle, 429 20 U.S. at 105–07; Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990). 21 Burgess has not plausibly alleged that any individual doctor or physical therapist 22 acted with deliberate indifference in their treatment of him. While Plaintiff alleges that 23 prison staff delayed treatment of his foot, the medical records Burgess attached to his 24 Complaint show the defendants have not failed to respond to his pain or medical needs. 25 Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007) (courts may generally consider 26 allegations contained in pleadings, as well as exhibits attached to the complaint); Sprewell 27 v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001) (holding that a court is not 28 required to accept a plaintiff’s allegations as true when they are contradicted by documents 1 attached to the complaint), amended, 275 F.3d 1187 (9th Cir. 2001). Plaintiff alleges that 2 he first informed Defendants about his foot pain in July of 2020 but they ignored his 3 medical needs and delayed his treatment for a year after that. Compl., ECF No. 1 at 10. To 4 the contrary, the medical records reveal that following Plaintiff’s primary care provider 5 visit in July of 2020, defendants responded promptly to Burgess’s complaints and followed 6 up with diagnostic procedures and treatment prescriptions. A doctor prescribed topical pain 7 medication after Burgess’s July 22, 2020 medical appointment, a nurse prescribed 8 ibuprofen in July of 2021, and a podiatrist prescribed an anti-inflammatory pain medication 9 in December of 2021. ECF No. 1-5 at 8, 19; ECF No. 1-3 at 3. His primary care provider 10 ordered an x-ray of his foot, which was performed on July 23, 2020, the day after his July 11 22, 2020 appointment. ECF No. 1-5 at 23. Medical staff ordered a second x-ray which was 12 performed on August 31, 2021. ECF 1-3 at 3. Care providers referred Burgess to physical 13 therapy three times: in July of 2020, March of 2021, and again in August of 2021. ECF No. 14 1-3 at 2–3; ECF No. 1-5 at 19. Medical staff performed an MRI on Burgess in October of 15 2021 and referred him to a podiatrist, who prescribed anti-inflammatory medication, 16 orthotics, and physical therapy. ECF No. 1-5 at 5–6, 8. By March 23, 2022, two months 17 before the filing of this Complaint, medical records showed physical therapy would be 18 deferred until Burgess completed a trial period with his orthotics, which he had not yet 19 received. ECF No. 1-5 at 6. 20 Aside from the allegations of delayed treatment, which are belied by the medical 21 records incorporated in his Complaint, Burgess simply makes broad claims that he has not 22 been properly cared for and that HCS has “failed to provide treatment.” Compl., ECF No. 23 1 at 10–11, 15. Such conclusory allegations are not sufficient to state a § 1983 claim for 24 deliberate indifference. Iqbal, 556 U.S. at 678. It appears Burgess simply disagrees with 25 the course of medical treatment he has received for his foot, which is not sufficient to show 26 deliberate indifference. Norvell, 2020 WL 4464454, at *4. 27 Further, Burgess’s Complaint is deficient because has not made specific allegations 28 as to what any individual defendant did or did not do to violate his constitutional rights. To 1 state a § 1983 claim, Plaintiff must allege how “each Government-official defendant, 2 through the official’s own individual actions” violated his constitutional rights. See Iqbal, 3 556 U.S. at 676–77. Allegations “must be individualized and focus on the duties and 4 responsibilities of each individual defendant whose acts or omissions are alleged to have 5 caused a constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) 6 (citing Rizzo v. Goode, 423 U.S. 362, 370-71 (1976)). The pleadings must show each 7 defendant “[performed] an affirmative act, participate[d] in another’s affirmative acts, or 8 omit[ted] to perform an act which he is legally required to do that causes the deprivation 9 of which [the plaintiff complains].” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 10 Burgess’s Complaint contends only that “the Defendants,” and “Medical Staff known as 11 HCS” failed to provide adequate medical care for his foot. See Compl., ECF No. 1 at 14– 12 16. These are broad and conclusory allegations that HCS Medical Staff as a group failed 13 to adequately address his medical needs. They do not explain how any individual doctor or 14 other medical care provider ignored his complaints or failed to treat him in violation of his 15 Eighth Amendment rights. Therefore, his Complaint fails to state any plausible claim for 16 relief under section 1983. Iqbal, 556 U.S. at 678. 17 2. Plaintiff Fails to Allege that Defendants Discriminated Against Him in 18 Violation of His Equal Protection Rights 19 Plaintiff’s equal protection claim fails because he has not pleaded sufficient 20 plausible factual allegations showing Defendants intentionally discriminated against him. 21 An equal protection claim may be established by showing that defendants intentionally 22 discriminated against a plaintiff based on his membership in a protected class, Comm. 23 Concerning Cmty. Improvement v. City of Modesto, 583 F.3d 690, 702–03 (9th Cir. 2009); 24 Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003), or that similarly situated 25 individuals were intentionally treated differently without a rational relationship to a 26 legitimate state purpose, Engquist v. Oregon Department of Agr., 553 U.S. 591, 601–02 27 (2008); Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 592 (9th Cir. 2008). See also 28 Hartmann v. Calif. Dep’t of Corrs. and Rehab, 707 F.3d 1114, 1123 (9th Cir. 2013) (stating 1 that “[t]o prevail on an Equal Protection claim brought under § 1983, Plaintiffs must allege 2 facts plausibly showing that ‘the defendants acted with an intent or purpose to discriminate 3 against [them] based upon membership in a protected class.”) (quoting Lee v. City of Los 4 Angeles, 250 F.3d 668, 686 (9th Cir. 2001) (internal quotation marks and citations 5 omitted)). 6 In order to state an equal protection claim, Burgess must do more that make 7 conclusory statements that he was denied proper medical care because he is African 8 American. Iqbal, 556 U.S. at 678; Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 9 266, 268 (9th Cir. 1982) (“Vague and conclusory allegations of official participation in 10 civil rights violations are not sufficient to withstand a motion to dismiss.”). He must allege 11 facts that show how each individual doctor or physical therapist treated him differently or 12 failed to treat him because he is African American. See Kaur v. Alameida, No. 1:05-cv- 13 00276 OWW, 2005 WL 8176356 (E.D. Cal. Oct. 5, 2005) (finding plaintiff stated a 14 plausible equal protection claim where he alleged specific defendants failed to conduct 15 mental health assessments, create mental health treatment plans, summon medical care 16 after he had not eaten or showered for thirty days, or examine plaintiff when he would not 17 leave his cell, because of his religion and ethnicity). Because Burgess has not made 18 sufficient, specific, and individualized allegations of violations of his Fourteenth 19 Amendment rights, he has failed to state a plausible § 1983 claim. Iqbal, 556 U.S. at 678. 20 3. Plaintiff’s Respondeat Superior Claims Against Prison Officials Fail as a 21 Matter of Law 22 Plaintiff’s claims against “Senior Staff” – i.e., Defendants Allison, Madden, 23 Barenchi, Roberts, and Gates – fail because supervisory liability is not an independent 24 cause of action under § 1983. Supervisory officials “may not be held liable for the 25 unconstitutional conduct of their subordinates under a theory of respondeat superior.” 26 Iqbal, 556 U.S. at 676. A supervisory defendant can only be held liable “‘if there exists 27 either (1) his or her personal involvement in the constitutional deprivation, or (2) a 28 sufficient causal connection between the supervisor’s wrongful conduct and the 1 constitutional violation.’” Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (quoting 2 Hansen v. Black, 855 F.2d 642, 646 (9th Cir. 1989)). Burgess seeks to hold Madden, 3 Allison, Shakiba, Roberts, Barenchi, and Does 1-20 liable “through respondeat superior,” 4 Compl., ECF No. 1 at 15, but such claims are not legally permissible. Iqbal, 565 U.S. at 5 676; Starr, 652 F.3d at 1207. Moreover, while he generally alleges that these senior staff 6 failed to develop or implement medical care policies for inmates, he fails to allege any facts 7 to show how, when, or why any such failures caused him injury. See Starr, 652 F.3d at 8 1207; Leer, 844 F.2d at 633. Therefore, his Complaint also fails to state a plausible claim 9 for relief against the senior staff under section 1983. 10 4. Plaintiff’s Negligence and Malpractice Claims 11 In his fourth claim, Burgess alleges the Defendants “are responsible through 12 negligence and malpractice” for his alleged injuries. Compl., ECF No. 1 at 16–17. With 13 respect to these state law claims, the Court may “decline to exercise supplemental 14 jurisdiction” over any supplemental state law claim if it “has dismissed all claims over 15 which it has original jurisdiction.” 28 U.S.C. § 1367(c); Sanford v. Member Works, Inc., 16 625 F.3d 550, 561 (9th Cir. 2010) (“[I]n the usual case in which all federal-law claims are 17 eliminated before trial, the balance of factors to be considered under the pendent 18 jurisdiction doctrine . . . will point toward declining to exercise jurisdiction over the 19 remaining state-law claims.”) (internal quotation marks and citations omitted). Because the 20 Court has dismissed all of Plaintiff’s federal claims, the Court declines to exercise 21 supplemental jurisdiction over any state law claims at this time. 22 E. Leave to Amend 23 Based on the foregoing, the Court finds Burgess’s complaint fails to state any § 1983 24 claim upon which relief can be granted, and that it must be dismissed sua sponte and in its 25 entirety pursuant to 28 U.S.C. § 1915A. See Olivas, 856 F.3d at 1283. Because Burgess is 26 proceeding pro se, the Court will grant him leave to amend. Now that the Court has 27 provided Plaintiff “notice of the deficiencies in his complaint,” it will give him an 28 opportunity to fix them if he can. See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012). 1 II. Conclusion and Order 2 For the reasons explained above, the Court: 3 1. DISMISSES this civil action sua sponte based on Plaintiff's failure to state a 4 ||clatm upon which relief may be granted pursuant to 28 U.S.C. § 1915A. 5 2. GRANTS Plaintiff forty-five (45) days leave from the date of this Order in 6 || which to file an Amended Complaint which cures the deficiencies of pleading noted above. 7 || The Amended Complaint must be complete by itself without reference to his original 8 || pleading. Defendants not named and any claim not re-alleged in his Amended Complaint 9 || will be considered waived. See S.D. Cal. Civ. LR 15.1; Hal Roach Studios v. Richard 10 || Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes 11 |/the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that 12 ||claims dismissed with leave to amend which are not re-alleged in an amended pleading 13 ||may be “considered waived if not repled.’’). 14 If Plaintiff fails to file an Amended Complaint within the time provided, the Court 15 will enter a final Order dismissing this civil action based both on Plaintiffs failure to state 16 claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 17 || 1915A(b), and his failure to prosecute in compliance with a court order requiring 18 |}amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does 19 || not take advantage of the opportunity to fix his complaint, a district court may convert the 20 || dismissal of the complaint into dismissal of the entire action.’’). 21 IT IS SO ORDERED. 22 Dated: May 16, 2023 23 24 Ho orgbfe Tinsook Ohta 25 United States District Judge 26 27 28 10