David W. Faunce v. Bick, et al.

Opinion

1 2 3 4 5

6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8

9 DAVID W. FAUNCE, Case No. 1:25-cv-00006-KES-EPG (PC) 10 Plaintiff, FINDINGS AND RECOMMENDATIONS, 11 RECOMMENDING THAT THIS CASE BE v. 12 DISMISSED, WITHOUT FURTHER LEAVE BICK, et al., TO AMEND, FOR FAILURE TO STATE A 13 CLAIM Defendants.

14 (ECF No. 25) 15 OBJECTIONS, IF ANY, DUE WITHIN 16 THIRTY DAYS

17 ORDER DIRECTING CLERK OF COURT TO ADD DEFENDANT SHOWALTER TO 18 THE DOCKET 19 (ECF No. 25, p. 3) 20 21 Plaintiff David Faunce proceeds pro se and in forma pauperis in this civil rights action 22 filed pursuant to 42 U.S.C. § 1983. (ECF Nos. 1, 4, 25). Plaintiff filed his initial complaint on 23 January 3, 2025. (ECF No. 1). On April 4, 2025, the Court issued a screening order, 24 concluding that Plaintiff’s complaint failed to state any cognizable claims. (ECF No. 9). The 25 Court provided Plaintiff with applicable legal standards, explained why he failed to state a 26 claim, and gave him leave to file a first amended complaint. 27 After multiple extensions, Plaintiff filed a first amended complaint on November 6, 28 2025. (ECF Nos. 24, 25). Plaintiff alleges that the Chief Director Health Care Services of 1 Corrections and Rehabilitation (CDCR), the Chief Medical Executive Officer of Valley State 2 Prison Chowchilla (VSP), the Chief Medical Executive of VSP, and the Chief 3 Physician/Surgeon of VSP, as well as two of his primary care physicians, were deliberately 4 indifferent to his serious medical needs by implementing a cost-cutting scheme in response to 5 a budget shortfall. 6 Upon review of the amended complaint, the Court will recommend that this case be 7 dismissed for failure to state a claim and without granting further leave to amend. 8 I. SCREENING REQUIREMENT 9 The Court is required to screen complaints brought by prisoners seeking relief against a 10 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 11 The Court must dismiss a complaint, or a portion of it, if the prisoner has raised claims that are 12 frivolous or malicious, that fail to state a claim upon which relief may be granted, or that seek 13 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), 14 (2). Additionally, as Plaintiff is proceeding in forma pauperis (ECF No. 4), the Court may 15 screen the complaint on these same bases under 28 U.S.C. § 1915(e)(2)(B)(i)-(iii). 16 II. SUMMARY OF PLAINTIFF’S FIRST AMENDED COMPLAINT 17 Plaintiff’s first amended complaint names the following defendants: (1) Joseph Bick, 18 MD, Director of the California Department of Corrections and Rehabilitation (CDCR) Health 19 Care Services; (2) Raul Recary, Chief Medical Executive Officer at Valley State Prison (VSP); 20 (3) Harminder Longia, Chief Medical Executive at VSP; (4) Jason Mevi, MD, Chief 21 Physician/Surgeon at VSP, (5) James Chau, MD, a primary care physician at VSP; and (6) 22 Showalter, MD, a primary care physician at VSP.1 (ECF No. 25, p. 3). 23 Plaintiff alleges that from January 23, 2023 until the present, Defendant Bick enacted a 24 “state-wide CDCR Health Care Services cost-cutting scheme in response to a state budget 25 shortfall, to be enforced at every prison and institution within CDCR.” (ECF No. 25). Plaintiff 26 alleges that the entire cost-cutting scheme “its policy, protocols, and enforcement practices, is 27

28 1 The Court will direct the Clerk of Court to add Defendant Showalter to the docket. 1 inofitself so deficient that it repudiates Plaintiff’s Eighth and Fourteenth Amendment rights.” 2 (ECF No. 25, at p. 4). As part of that scheme, Plaintiff alleges that Defendants “arbitrar[ily] re- 3 classified efficacious drugs and medicines from ‘formulary’ to ‘non-formulary’ based 4 exclusively on cost with no provision for providing less costly efficacious substitutes for each 5 drug re-classified.” (ECF No. 25, at p. 4). Plaintiff alleges that this resulted in cancellation of 6 prescriptions without medical evidence, ignoring inmates’ requests to renew cancelled 7 prescriptions, and refusing to order diagnostic tests to determine injury “using the mantra ‘what 8 is not diagnosed cannot be treated, ergo saving money.’” (ECF No. 25, at p. 4). Defendants 9 also adopted cost-saving measures designed for for-profit hospitals, HMO’s clinics and 10 insurance companies. Plaintiff also alleges that “Defendants’ collective hierarchical chain of 11 command precludes the need for training by the Attorney General’s office regarding the legal 12 boundaries circumscribing enforcement . . . .” (ECF No. 25, at p. 5). 13 Plaintiff alleges that as a result of this policy, Plaintiff suffers from “(a) permanent lung 14 damage from withholding, delaying breathing medications for non-medical reasons without 15 providing medically efficacious substitutes; (b) lifetime of daily hip, back, leg pain and a 16 lifetime limp amounting to a wanton infliction of unnecessary pain and agony daily precluding 17 otherwise normal daily life activities.” (ECF No. 25, at p. 5). 18 Plaintiff specifically alleges that a “fill-in” doctor, Defendant Showalter, told Plaintiff 19 he could not receive orthotics due to a protocol called “’Interqual’ HMO cost benefit study for 20 hospitals, HMOs and health insurance companies.” (ECF No. 25, at p. 6). Instead of providing 21 Plaintiff with orthopedic exam or inserts, Defendant Showalter referred Plaintiff back to his 22 regular primary care physician for further review. (ECF No. 25, at p. 6). Plaintiff argues that 23 the “Interqual” protocol “utilizes vague, ambiguous terms, i.e., ‘clinical necessity’ and ‘medical 24 need’ as undefined ‘yardsticks’ to justify denial of patient needs for orthotics by setting 25 protocols physically impossible to meet without catastrophic injury and major surgery.” (ECF 26 No. 25, at p. 6). Plaintiff alleges that, as a result, he endures “pain and suffering 24 hours/day.” 27 (ECF No. 25, at p. 7). 28 1 Plaintiff also alleges that he has acute COPD.2 Although he previously had standing 2 prescriptions for several medications, from January 10, 2024 until April 22, 2024, pursuant to 3 Defendants’ cost-saving policies, Defendant Chau failed to renew two of these medications, 4 Azelastine and Nasacort. (Elsewhere, Plaintiff states that on March 21, 2024, Defendant Chau 5 re-prescribed Azelastine.) In April 2024, Plaintiff was hospitalized for acute breathing 6 problems and was prescribed Singulair, Azelastine and Nasacort. Defendant Chau prescribed 7 Singulair and Azelastine, but not Nasacort because “Chau said to use a saline spray in the 8 prison canteen,” which Plaintiff claims was “an ineffective substitute against allergy driven 9 nasal discharges.” (ECF No. 25, at p. 9). When Plaintiff’s coughing episodes continued, on 10 July 24, 2024, Defendant Chau prescribed “Triamcinolone,” a generic for Nasacort, but 11 Plaintiff alleges there was no medical reason not to prescribe this medication earlier. 12 Plaintiff’s first amended complaint asserts claims for deliberate indifference to his 13 serious medical needs in violation of the Eighth Amendment and violation of his substantive 14 due process rights in connection with his medical claims. (Id. at 12–13). Lastly, Plaintiff lists 15 his requests for declaratory and injunctive relief as freestanding legals claims. (Id. at 13–14). 16 III. ANALYSIS OF PLAINTIFF’S FIRST AMENDED COMPLAINT 17 A. Supervisory Liability for Cost-Cutting Policy 18 Plaintiff’s first amended complaint claims that Supervisory Defendants, including the 19 Director of Health Care Services of CDCR, Chief Medical Executive Officer at VSP, Chief 20 Medical Executive at VSP, and Chief Physician Surgeon at VSP were deliberately indifferent 21 to his serious medical needs by implementing an “unconstitutional official policy” in response 22 to a budget shortfall that is “so deficient that it repudiates Plaintiff’s Eighth and Fourteenth 23 Amendment rights.” (ECF No. 25, at p. 3-4). 24 To state a claim under § 1983, a plaintiff must allege that (1) the defendant acted under 25 color of state law, and (2) the defendant deprived him of rights secured by the Constitution or 26 federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); see also

27 2 Although Plaintiff does not define this term, it likely refers to Chronic Obstructive Pulmonary 28 Disease. 1 Marsh v. County of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing “under color of 2 state law”). A person deprives another of a constitutional right, “within the meaning of § 1983, 3 ‘if he does an affirmative act, participates in another’s affirmative act, or omits to perform an 4 act which he is legally required to do that causes the deprivation of which complaint is 5 made.’” Preschooler II v. Clark County Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007) 6 (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite causal connection 7 may be established when an official sets in motion a ‘series of acts by others which the actor 8 knows or reasonably should know would cause others to inflict’ constitutional 9 harms.” Preschooler II, 479 F.3d at 1183 (quoting Johnson, 588 F.2d at 743). This standard of 10 causation “closely resembles the standard ‘foreseeability’ formulation of proximate cause.” 11 Arnold v. Int’l Bus. Mach. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981); see also Harper v. City 12 of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008). 13 A plaintiff must demonstrate that each named defendant personally participated in the 14 deprivation of his rights. Iqbal, 556 U.S. at 676-77. In other words, there must be an actual 15 connection or link between the actions of the defendants and the deprivation alleged to have 16 been suffered by the plaintiff. See Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 17 691, 695 (1978). 18 Supervisory personnel are not liable under section 1983 for the actions of their 19 employees under a theory of respondeat superior and, therefore, when a named defendant 20 holds a supervisory position, the causal link between him and the claimed constitutional 21 violation must be specifically alleged. Iqbal, 556 U.S. at 676–77; Fayle v. Stapley, 607 F.2d 22 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). To state a 23 claim for relief under section 1983 based on a theory of supervisory liability, Plaintiff must 24 allege some facts that would support a claim that the supervisory defendants either: personally 25 participated in the alleged deprivation of constitutional rights; knew of the violations and failed 26 to act to prevent them; or promulgated or “implement[ed] a policy so deficient that 27 the policy itself is a repudiation of constitutional rights and is the moving force of the 28 constitutional violation.” Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989) (citations and 1 internal quotation marks omitted); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). 2 Plaintiff's allegations against the Supervisory Defendants based on their implementation 3 of a cost-cutting policy fail to state a claim under these legal standards. 4 First, Plaintiff’s allegations against the supervisory defendants concern their role in 5 implementing general cost-cutting policies, rather than in directly denying Plaintiff medical 6 care. Plaintiff does not allege that Defendants Bick, Recary, Longia, or Mevi, as the Director 7 of CDCR Health Care Services, Chief Medical Executive Officer of VSP, Chief Medical 8 Executive of VSP, and Chief Physician Surgeon at VSP personally treated Plaintiff or decided 9 which medications to provide. Although Plaintiff states that these defendants ordered 10 Defendant Chau to discontinue certain medications (discussed further below), Plaintiff does not 11 allege any facts supporting this allegation, such as anything anyone said or wrote. Similary, 12 Plaintiff alleges that he sent various requests for review/help to the defendants, but this alone 13 does not indicate that these supervisory defendants in fact had any direct role in Plaintiff’s 14 medical care. 15 Second, Plaintiff’s allegations that the policy itself is a violation of his constitutional 16 rights fail to state a claim to the extent those allegations are not tied to Plaintiff’s own medical 17 care. For example, Plaintiff claims that the policy itself is constitutionally deficient because it 18 results in a lack of diagnostic testing and lack of adequate supervision and accountability. 19 However, Plaintiff fails to allege that these alleged deficiencies affected his medical care in any 20 way. 21 Thus, Plaintiff’s allegation that the Supervisory Defendants were deliberately 22 indifferent to his serious medical needs by implementing a cost-cutting policy scheme at CDCR 23 and VSP fails to state a claim. 24 B. Deliberate Indifference to Serious Medical Needs 25 Plaintiff also alleges that two physicians who treated him directly were deliberately 26 indifferent to his serious medical needs. Specifically, he alleges that Defendant Showalter, a 27 “fill-in” physician, failed to prescribe him orthotics and instead referred him back to his 28 primary care physician for review. He also alleges that Defendant Chau failed to prescribe 1 certain prescriptions for a limited amount of time. 2 “[T]o maintain an Eighth Amendment claim based on prison medical treatment, an 3 inmate must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 4 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). This requires 5 Plaintiff to show (1) “a ‘serious medical need’ by demonstrating that ‘failure to treat a 6 prisoner’s condition could result in further significant injury or the unnecessary and wanton 7 infliction of pain,’” and (2) that “the defendant’s response to the need was deliberately 8 indifferent.” Id. (quoting McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992)), 9 overruled on other grounds by WMX Technologies v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en 10 banc). 11 Deliberate indifference is established only where the defendant subjectively “knows of 12 and disregards an excessive risk to inmate health and safety.” Toguchi v. Chung, 391 F.3d 13 1051, 1057 (9th Cir. 2004) (citation omitted). Deliberate indifference can be established “by 14 showing (a) a purposeful act or failure to respond to a prisoner’s pain or possible medical need 15 and (b) harm caused by the indifference.” Jett, 439 F.3d at 1096 (citation omitted). Civil 16 recklessness (failure “to act in the face of an unjustifiably high risk of harm that is either known 17 or so obvious that it should be known”) is insufficient to establish an Eighth Amendment 18 violation. Farmer, 511 U.S. at 836–37 & n.5 (1994) (citations omitted). 19 A difference of opinion between an inmate and prison medical personnel—or between 20 medical professionals—regarding appropriate medical diagnosis and treatment is not enough to 21 establish a deliberate indifference claim. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). 22 Additionally, “a complaint that a physician has been negligent in diagnosing or treating a 23 medical condition does not state a valid claim of medical mistreatment under the Eighth 24 Amendment. Medical malpractice does not become a constitutional violation merely because 25 the victim is a prisoner.” Estelle, 429 U.S. at 106. “To show deliberate indifference, the 26 plaintiff must show that the course of treatment the [official] chose was medically unacceptable 27 under the circumstances and that the [official] chose this course in conscious disregard of an 28 excessive risk to the plaintiff’s health.” Edmo v. Corizon, Inc., 935 F.3d 757, 786 (9th Cir. 1 2019) (internal quotation marks and citation omitted). 2 Lastly, delays in providing medical care may manifest deliberate indifference. Estelle, 3 429 U.S. at 104–05. To establish a claim of deliberate indifference arising from a delay in 4 providing care, a plaintiff must show that the delay led to further harm and that Defendants 5 purposefully ignored his medicals needs knowing about the risk of harm from delay in 6 treatment. See McGuckin, 974 F.2d at 1060 (noting that delays in receiving medical care must 7 be harmful and that “[a] defendant must purposefully ignore or fail to respond to a prisoner's 8 pain or possible medical need in order for deliberate indifference to be established”); Hallett v. 9 Morgan, 296 F.3d 732, 746 (9th Cir. 2002) (noting that Defendants must be aware that a delay 10 in treatment would be harmful). 11 Regarding Defendant Showalter, Plaintiff alleges that on or about January 23, 2024, 12 Plaintiff “complained of sciatic and right leg and hip pain.” (Id. at 6). Defendant Showalter 13 “stated that she was only a ‘fill-in’ and not a regular primary care physician” but she visually 14 examined Plaintiff and estimated “by eyeball only” that his “right leg was 3/4 – 1 inch shorter 15 that his left leg.” (Id.). “Plaintiff asked Showalter to prescribe either an orthopedic exam or 16 orthotic inserts or shoes [because] he could not ambulate correctly without a limp, which was 17 painful and damaging his hip and back.” (Id.). However, she told him “that per CDCR 18 protocols orthotics would not be provided as the Plaintiff's right leg had to be 1-1/2 inches 19 shorter to qualify for orthotic shoes.” (Id.). “Showalter identified the protocol as the “Interqual” 20 HMO cost benefit study for hospitals, HMO’s and health insurance companies” and she 21 “referred [him] back to the regular PCP for further review.” (Id.). 22 These allegations fail to state a claim for deliberate indifference to serious medical 23 needs as to Defendant Showalter. First, Plaintiff fails to allege that he has a serious medical 24 need for orthotic shoes. Plaintiff only summarily asserts that he needs the shoes “to equalize 25 leg lengths and weight distribution caus[ing] recurring sciatic nerve damage” among other 26 injuries. (ECF No. 25, p. 7). However, Plaintiff does not allege any facts supporting this 27 allegation, such as any opinion of a medical professional that Plaintiff needed orthotics to treat 28 a serious medical condition. 1 Moreover, Plaintiff omits material information from his initial complaint—that he had 2 non-orthotic “therapeutic” footwear until his transfer to VSP in February 2023 and that Dr. 3 Chau gave him a pair of therapeutic shoes in March 2024. (ECF No. 1, pp. 5, 7); see Ramirez v. 4 Fortune, No. 1:19-CV-00746-NONE-BAM (PC), 2020 WL 4273921, at *4 (E.D. Cal. July 24, 5 2020), report and recommendation adopted, 2020 WL 6158143 (E.D. Cal. Oct. 21, 2020) 6 (“Plaintiff cannot simply omit allegations or exhibits in order to state a cognizable claim for 7 relief.”). Taking into account this allegation, Plaintiff has not sufficiently alleged that he had a 8 medical need for orthotics, rather than therapeutic shoes. 9 Moreover, Plaintiff does not allege that Defendant Showalter acted with deliberate 10 indifference to his serious medical needs. Plaintiff does not allege that Defendant Showalter 11 believed that Plaintiff required orthotics, yet refused to provide them. Moreover, although 12 Defendant Showalter did not prescribe him with orthotic shoes, she “referred me back to the 13 regular PCP for further review.” (ECF No. 25, at p. 6). Especially considering that Defendant 14 Showalter was only acting as fill-in physician, referring Plaintiff back to his PCP for further 15 review does not indicate deliberate indifference to his serious medical needs. 16 As for Defendant Chau, Plaintiff alleges that Plaintiff previously had standing 17 prescriptions for Azelastine, Nasacort nasal sprays, and Singulair “to stop mucous and for lung 18 performance.” (ECF No. 25, at p. 8). However, Defendant Chau discontinued Azelastine from 19 January 10, 2024 until April 22, 2024, and discontinued Azelastine from January 10, 2024 until 20 March 21, 2024. (ECF No. 25, at p. 9). Plaintiff alleges that Defendant Chau made this 21 decision because Azelastine and Nasacort were re-classified from formulary drugs to non- 22 formulary drugs. After Plaintiff was hospitalized for acute breathing problems from April 22, 23 2024 until April 25, 2024, Defendant Chau prescribed Singulair and Azelastine. However, 24 Defendant Chau did not prescribe Nasacort because “Chau said to use a saline spray in the 25 prison canteen,” which Plaintiff claims was an ineffective substitute. Defendant Chau then 26 prescribed a generic for Nasacort, Triamcinolone, on July 24, 2024. (ECF No. 25, at p. 9-10) 27 These allegations fail to state a claim for deliberate indifference to serious medical 28 needs as to Defendant Chau. Plaintiff fails to allege facts showing that Defendant Chau’s 1 relatively brief cancellation of Plaintiff’s prescriptions amounted to a purposeful failure to 2 respond to Plaintiff’s medical needs. Plaintiff does not allege that Defendant Chau believed 3 that Plaintiff required those prescriptions during that time, yet failed to provide them. Although 4 Plaintiff claims that Defendant Chau was forced to discontinue the prescriptions due to the 5 cost-cutting policy, he also alleges that Defendant Chau later reinstated two of the 6 prescriptions—for Aingulair and Azelastine—a few months later, and prescribed a generic 7 form of Nasacort a few months after that. These allegations demonstrate that Defendant Chau 8 was permitted to prescribe these medications notwithstanding any CDCR policies. 9 Moreover, Plaintiff again omits material allegations from his first complaint. In that 10 complaint, Plaintiff alleged that Dr. Chau stated that he discontinued Nasacort “the prison 11 pharmacist didn’t recommend using Azelastine with Nasacort.” (ECF No. 1, p. 9). 12 In short, Plaintiff has not alleged that Defendant Chau was deliberately indifferent to his 13 serious medical needs. 14 C. Due Process 15 In his third claim for relief, Plaintiff states that Defendants’ alleged deliberate 16 indifference to his serious medical needs also violated his “Fourteenth Amendment Substantive 17 Due Process right to be free from arbitrary, capricious, and irrational punishment by state 18 action.” (ECF No. 25, p. 12). However, Plaintiff does not provide any legal basis for his due 19 process claim, separate from his Eighth Amendment medical claims discussed above. See 20 Albright v. Oliver, 510 U.S. 266, 273 (1994) (“Where a particular Amendment provides an 21 explicit textual source of constitutional protection against a particular sort of government 22 behavior, that Amendment, not the more generalized notion of substantive due process, must be 23 the guide for analyzing these claims.”) (internal quotation marks and citation omitted). 24 D. Requests for Relief 25 Plaintiff fourth3 and final claim for relief requests certain declaratory and injunctive 26 relief. (ECF No. 25, pp. 13–14). However, these are remedies--not freestanding claims. See

27 3 Plaintiff mistakenly lists this as his third claim although he already listed a third claim related to 28 substantive due process discussed above. 1 || Lorona v. Arizona Summit L. Sch., LLC, 151 F. Supp. 3d 978, 997 (D. Ariz. 2015) (“The 2 Second Amended Complaint lists declaratory and injunctive relief as separate counts. These are 3 || remedies, not independent causes of action.”) (internal citation omitted). 4 IV. ORDER, CONCLUSION, AND RECOMMENDATIONS 5 The Court has screened Plaintiffs first amended complaint and concludes that it fails to © |! state any cognizable claims. Based on the reasons given above, the Court will recommend that 7 |I this case be dismissed without granting further leave to amend. Notably, in its order screening 8 || the initial complaint, the Court identified similar deficiencies that persist in Plaintiff's amended 9 complaint and gave him the opportunity to state a cognizable claim. The Court thus concludes 10 || that further leave to amend would be futile. Accordingly, IT IS ORDERED that the Clerk of Court shall revise the docket to add 12 || Showalter as a Defendant. 13 And IT IS RECOMMENDED as follows: 14 1. This action be dismissed without granting further leave to amend. Id 2. The Clerk of Court be directed to close this case. 16 These findings and recommendations are submitted to the United States district judge 17 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within thirty 18 (30) days after being served with these findings and recommendations, Plaintiff may file 19 |) written objections with the Court. Such a document should be captioned “Objections to 20 Magistrate Judge’s Findings and Recommendations.” 21 Plaintiff is advised that failure to file objections within the specified time may result in 22 || the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) 23 |! (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991). 24 IS SO ORDERED. | Dated: _ June 2, 2026 hey —— 26 UNITED STATES MAGISTRATE JUDGE 27 28 1]