1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10
11 JAMES HENRY ANDERSON, ) Case No. 1:21-cv-01451-SAB (PC) ) 12 Plaintiff, ) ) ORDER DIRECTING CLERK OF COURT TO 13 v. ) RANDOMLY ASSIGN A DISTRICT JUDGE TO THIS ACTION 14 DR. OLGA BEREGOVSKAYA, ) ) FINDINGS AND RECOMMENDATION 15 Defendant. ) RECOMMENDING DISMISSAL OF THE ) ACTION 16 ) ) (ECF No. 11) 17 )
18 Plaintiff James Henry Anderson is proceeding pro se and in forma pauperis in this civil rights 19 action pursuant to 42 U.S.C. § 1983. 20 Plaintiff filed the instant action on September 29, 2021. 21 On December 3, 2021, the Court screening Plaintiff’s complaint, found no cognizable claims 22 were stated, and granted Plaintiff thirty days to file an amended complaint. (ECF No. 11.) Plaintiff 23 has failed to file an amended complaint or otherwise respond to the Court’s order and the time to do so 24 has passed. 25 I. 26 SCREENING REQUIREMENT 27 The Court is required to screen complaints brought by prisoners seeking relief against a 28 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court 1 must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally “frivolous 2 or malicious,” that “fail[] to state a claim on which relief may be granted,” or that “seek[] monetary 3 relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); see also 28 4 U.S.C. § 1915A(b). 5 A complaint must contain “a short and plain statement of the claim showing that the pleader is 6 entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 7 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do 8 not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 9 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate that each defendant personally participated 10 in the deprivation of Plaintiff’s rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). 11 Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally 12 construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 13 Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be facially plausible, which 14 requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is 15 liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 16 969 (9th Cir. 2009). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, and 17 “facts that are ‘merely consistent with’ a defendant’s liability” falls short of satisfying the plausibility 18 standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969. 19 II. 20 SUMMARY OF ALLEGATIONS 21 After discovery that the incision from Plaintiff’s knee surgery had reopened to a hole that was 22 measured at 3 to 4 centimeters, Dr. Beregovskaya decided to wait and see if the wound would close on 23 its own. The reopening of the incision is the result of the medical knee brace that was incorrectly put 24 on after his knee surgery. After thirteen days, Dr. Beregovskaya decided to contact the surgeon who 25 performed the knee surgery, Dr. Hushemi. By that time, the wound had become badly infected. The 26 poison from the infection began to spread throughout Plaintiff’s body. 27 /// 28 /// 1 III. 2 DISCUSSION 3 A. Deliberate Indifference to Serious Medical Need 4 A prisoner’s claim of inadequate medical care does not constitute cruel and unusual punishment 5 in violation of the Eighth Amendment unless the mistreatment rises to the level of “deliberate 6 indifference to serious medical needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting 7 Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two-part test for deliberate indifference requires 8 Plaintiff to show (1) “a ‘serious medical need’ by demonstrating that failure to treat a prisoner’s 9 condition could result in further significant injury or the ‘unnecessary and wanton infliction of pain,’” 10 and (2) “the defendant’s response to the need was deliberately indifferent.” Jett, 439 F.3d at 1096. A 11 defendant does not act in a deliberately indifferent manner unless the defendant “knows of and 12 disregards an excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). 13 “Deliberate indifference is a high legal standard,” Simmons v. Navajo County, Ariz, 609 F.3d 1011, 14 1019 (9th Cir. 2010); Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004), and is shown where there 15 was “a purposeful act or failure to respond to a prisoner’s pain or possible medical need” and the 16 indifference caused harm. Jett, 439 F.3d at 1096. 17 Negligence or medical malpractice do not rise to the level of deliberate indifference. Broughton 18 v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 105-106). “[A] 19 complaint that a physician has been negligent in diagnosing or treating a medical condition does not 20 state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does 21 not become a constitutional violation merely because the victim is a prisoner.” Estelle, 429 U.S. at 106; 22 see also Anderson v. County of Kern, 45 F.3d 1310, 1316 (9th Cir. 1995). Even gross negligence is 23 insufficient to establish deliberate indifference to serious medical needs. See Wood v. Housewright, 24 900 F.2d 1332, 1334 (9th Cir. 1990). Additionally, a prisoner’s mere disagreement with diagnosis or 25 treatment does not support a claim of deliberate indifference. Sanchez v. Vild, 891 F.2d 240, 242 (9th 26 Cir. 1989). 27 Further, a “difference of opinion between a physician and the prisoner—or between medical 28 professionals—concerning what medical care is appropriate does not amount to deliberate indifference.” 1 Snow v. McDaniel, 681 F.3d 978, 987 (9th Cir. 2012) (citing Sanchez v. Vild, 891 F.2d at 242, overruled 2 in part on other grounds, Peralta v. Dillard, 744 F.3d 1076, 1082–83 (9th Cir. 2014); Wilhelm v. Rotman, 3 680 F.3d 1113, 1122–23 (9th Cir. 2012) (citing Jackson v.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10
11 JAMES HENRY ANDERSON, ) Case No. 1:21-cv-01451-SAB (PC) ) 12 Plaintiff, ) ) ORDER DIRECTING CLERK OF COURT TO 13 v. ) RANDOMLY ASSIGN A DISTRICT JUDGE TO THIS ACTION 14 DR. OLGA BEREGOVSKAYA, ) ) FINDINGS AND RECOMMENDATION 15 Defendant. ) RECOMMENDING DISMISSAL OF THE ) ACTION 16 ) ) (ECF No. 11) 17 )
18 Plaintiff James Henry Anderson is proceeding pro se and in forma pauperis in this civil rights 19 action pursuant to 42 U.S.C. § 1983. 20 Plaintiff filed the instant action on September 29, 2021. 21 On December 3, 2021, the Court screening Plaintiff’s complaint, found no cognizable claims 22 were stated, and granted Plaintiff thirty days to file an amended complaint. (ECF No. 11.) Plaintiff 23 has failed to file an amended complaint or otherwise respond to the Court’s order and the time to do so 24 has passed. 25 I. 26 SCREENING REQUIREMENT 27 The Court is required to screen complaints brought by prisoners seeking relief against a 28 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court 1 must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally “frivolous 2 or malicious,” that “fail[] to state a claim on which relief may be granted,” or that “seek[] monetary 3 relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); see also 28 4 U.S.C. § 1915A(b). 5 A complaint must contain “a short and plain statement of the claim showing that the pleader is 6 entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 7 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do 8 not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 9 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate that each defendant personally participated 10 in the deprivation of Plaintiff’s rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). 11 Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally 12 construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 13 Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be facially plausible, which 14 requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is 15 liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 16 969 (9th Cir. 2009). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, and 17 “facts that are ‘merely consistent with’ a defendant’s liability” falls short of satisfying the plausibility 18 standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969. 19 II. 20 SUMMARY OF ALLEGATIONS 21 After discovery that the incision from Plaintiff’s knee surgery had reopened to a hole that was 22 measured at 3 to 4 centimeters, Dr. Beregovskaya decided to wait and see if the wound would close on 23 its own. The reopening of the incision is the result of the medical knee brace that was incorrectly put 24 on after his knee surgery. After thirteen days, Dr. Beregovskaya decided to contact the surgeon who 25 performed the knee surgery, Dr. Hushemi. By that time, the wound had become badly infected. The 26 poison from the infection began to spread throughout Plaintiff’s body. 27 /// 28 /// 1 III. 2 DISCUSSION 3 A. Deliberate Indifference to Serious Medical Need 4 A prisoner’s claim of inadequate medical care does not constitute cruel and unusual punishment 5 in violation of the Eighth Amendment unless the mistreatment rises to the level of “deliberate 6 indifference to serious medical needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting 7 Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two-part test for deliberate indifference requires 8 Plaintiff to show (1) “a ‘serious medical need’ by demonstrating that failure to treat a prisoner’s 9 condition could result in further significant injury or the ‘unnecessary and wanton infliction of pain,’” 10 and (2) “the defendant’s response to the need was deliberately indifferent.” Jett, 439 F.3d at 1096. A 11 defendant does not act in a deliberately indifferent manner unless the defendant “knows of and 12 disregards an excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). 13 “Deliberate indifference is a high legal standard,” Simmons v. Navajo County, Ariz, 609 F.3d 1011, 14 1019 (9th Cir. 2010); Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004), and is shown where there 15 was “a purposeful act or failure to respond to a prisoner’s pain or possible medical need” and the 16 indifference caused harm. Jett, 439 F.3d at 1096. 17 Negligence or medical malpractice do not rise to the level of deliberate indifference. Broughton 18 v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 105-106). “[A] 19 complaint that a physician has been negligent in diagnosing or treating a medical condition does not 20 state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does 21 not become a constitutional violation merely because the victim is a prisoner.” Estelle, 429 U.S. at 106; 22 see also Anderson v. County of Kern, 45 F.3d 1310, 1316 (9th Cir. 1995). Even gross negligence is 23 insufficient to establish deliberate indifference to serious medical needs. See Wood v. Housewright, 24 900 F.2d 1332, 1334 (9th Cir. 1990). Additionally, a prisoner’s mere disagreement with diagnosis or 25 treatment does not support a claim of deliberate indifference. Sanchez v. Vild, 891 F.2d 240, 242 (9th 26 Cir. 1989). 27 Further, a “difference of opinion between a physician and the prisoner—or between medical 28 professionals—concerning what medical care is appropriate does not amount to deliberate indifference.” 1 Snow v. McDaniel, 681 F.3d 978, 987 (9th Cir. 2012) (citing Sanchez v. Vild, 891 F.2d at 242, overruled 2 in part on other grounds, Peralta v. Dillard, 744 F.3d 1076, 1082–83 (9th Cir. 2014); Wilhelm v. Rotman, 3 680 F.3d 1113, 1122–23 (9th Cir. 2012) (citing Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1986)). 4 Rather, Plaintiff “must show that the course of treatment the doctors chose was medically unacceptable 5 under the circumstances and that the defendants chose this course in conscious disregard of an excessive 6 risk to [his] health.” Snow, 681 F.3d at 988 (citing Jackson, 90 F.3d at 332) (internal quotation marks 7 omitted). 8 Assuming, without deciding, that Plaintiff’s knee surgery and subsequent infection was a 9 serious medical need, Plaintiff fails to demonstrate that Dr. Beregovskaya decided to “wait and see” if 10 the incision would close on its own out of deliberate indifference to his condition. While Plaintiff 11 contends Dr. Beregovskaya “deliberately” waited to see if the wound would close on its own, there are 12 no factual allegations to support such conclusory contention. Even if Dr. Beregovskaya failed to 13 perceive that Plaintiff had an infection, this amounts to medical negligence, which is insufficient as a 14 matter of law to constitute deliberate indifference. See Sanchez v. Vild, 891 F.2d at 242; see also 15 Farmer v. Brennan, 511 U.S. at 835 (even gross negligence is not enough to establish liability under 16 the Eighth Amendment.) Simply because an infection later developed does not demonstrate that Dr. 17 Beregovskaya was deliberately indifferent. In addition, Plaintiff’s disagreement with Dr. 18 Beregovskaya’s medical decision is insufficient to support a deliberate indifference claim. 19 Accordingly, Plaintiff fails to state a cognizable deliberate indifference claim. 20 IV. 21 FAILURE TO OBEY COURT ORDER AND FAILURE TO PROSECUTE 22 Here, the Court screened Plaintiff’s complaint, and on December 3, 2021, an order issued 23 providing Plaintiff with the legal standards that applied to his claims, advising him of the deficiencies 24 that needed to be corrected, and granting him leave to file an amended complaint within thirty days. 25 (ECF No. 10.) Plaintiff did not file an amended complaint or otherwise respond to the Court’s December 26 3, 2021 order. Therefore, on January 12, 2022, the Court ordered Plaintiff to show cause within fourteen 27 (14) days why the action should not be dismissed. (ECF No. 11.) Plaintiff failed to respond to the 28 January 12, 2022 order and the time to do so has passed. 1 Local Rule 110 provides that “[f]ailure of counsel or of a party to comply with these Rules or 2 with any order of the Court may be grounds for imposition by the Court of any and all sanctions . . . 3 within the inherent power of the Court.” The Court has the inherent power to control its docket and 4 may, in the exercise of that power, impose sanctions where appropriate, including dismissal of the 5 action. Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000). 6 A court may dismiss an action based on a party’s failure to prosecute an action, failure to obey 7 a court order, or failure to comply with local rules. See, e.g. Ghazali v. Moran, 46 F.3d 52, 53-54 (9th 8 Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 9 (9th Cir. 1992) (dismissal for failure to comply with an order to file an amended complaint); Carey v. 10 King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to comply with local rule requiring 11 pro se plaintiffs to keep court apprised of address); Malone v. United States Postal Serv., 833 F.2d 128, 12 130 (9th Cir. 1987) (dismissal for failure to comply with court order); Henderson v. Duncan, 779 F.2d 13 1421, 1424 (9th Cir. 1986) (dismissal for lack of prosecution and failure to comply with local rules). 14 “In determining whether to dismiss an action for lack of prosecution, the district court is required 15 to consider several factors: ‘(1) the public’s interest in expeditious resolution of litigation; (2) the court’s 16 need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring 17 disposition of cases on their merits; and (5) the availability of less drastic sanctions.’ ” Carey, 856 F.2d 18 at 1440 (quoting Henderson, 779 F.2d at 1423). These factors guide a court in deciding what to do, and 19 are not conditions that must be met in order for a court to take action. In re Phenylpropanolamine (PPA) 20 Products Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006) (citation omitted). 21 In this instance, the public’s interest in expeditious resolution of the litigation and the Court’s 22 need to manage its docket weigh in favor of dismissal. In re Phenylpropanolamine (PPA) Products 23 Liability Litigation, 460 F.3d at 1226. Plaintiff was ordered to file an amended complaint within thirty 24 days of December 3, 20211 and has not done so. Accordingly, the operative pleading is the September 25 29, 2021 complaint which has been found not to state a cognizable claim. Plaintiff’s failure to comply 26 with the order of the Court by filing an amended complaint hinders the Court’s ability to move this 27 action towards disposition. This action can proceed no further without Plaintiff’s compliance with the 28 order and his failure to comply indicates that Plaintiff does not intend to diligently litigate this action. 1 Since it appears that Plaintiff does not intend to litigate this action diligently there arises a 2 rebuttable presumption of prejudice to the defendants in this action. In re Eisen, 31 F.3d 1447, 1452-53 3 (9th Cir. 1994). The risk of prejudice to the defendants also weighs in favor of dismissal. 4 The public policy in favor of deciding cases on their merits is greatly outweighed by the factors 5 in favor of dismissal. It is Plaintiff’s responsibility to move this action forward. In order for this action 6 to proceed, Plaintiff is required to file an amended complaint curing the deficiencies in the operative 7 pleading. Despite being ordered to do so, Plaintiff did not file an amended complaint or respond to the 8 order to show cause and this action cannot simply remain idle on the Court’s docket, unprosecuted. In 9 this instance, the fourth factor does not outweigh Plaintiff’s failure to comply with the Court’s orders. 10 Finally, a court’s warning to a party that their failure to obey the court’s order will result in dismissal 11 satisfies the “consideration of alternatives” requirement. Ferdik, 963 F.2d at 1262; Malone, 833 F.2d 12 at 132-33; Henderson, 779 F.2d at 1424. The Court’s December 3, 2021 screening order expressly 13 stated: “If Plaintiff fails to file an amended complaint in compliance with this order, the Court will 14 recommend to a district judge that this action be dismissed consistent with the reasons stated in this 15 order.” (ECF No. 10.) In addition, the Court’s January 12, 2022 order to show cause expressly stated: 16 Plaintiff’s failure to comply with this order will result a recommendation to dismiss the action for 17 failure to comply with a court order, failure to prosecute, and failure to state a cognizable claim for 18 relief.” (ECF No. 11.) Thus, Plaintiff had adequate warning that dismissal would result from his 19 noncompliance with the Court’s order. 20 V. 21 ORDER AND RECOMMENDATION 22 The Court has screened Plaintiff’s complaint and found that it fails to state a cognizable claim. 23 Plaintiff has failed to comply with the Court’s order to file a first amended complaint or respond to the 24 Court’s order to show why the action should not be dismissed. In considering the factors to determine 25 if this action should be dismissed, the Court finds that this action should be dismissed for Plaintiff’s 26 failure to state a cognizable claim, failure to obey the December 3, 2021 and January 12, 2022 orders, 27 and failure to prosecute this action. 28 /// 1 Accordingly, IT IS HEREBY ORDERED that the Clerk of Court shall randomly assign a Distri 2 || Judge to this action 3 Further, it is HEREBY RECOMMENDED that this action be DISMISSED for Plaintiff's failu 4 || to state a claim, failure to comply with a court order, and failure to prosecute. 5 This Findings and Recommendation is submitted to the district judge assigned to this actio 6 || pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within fourteen (14) days | 7 ||service of this Recommendation, Plaintiff may file written objections to this findings at 8 recommendation with the Court. Such a document should be captioned “Objections to Magistra 9 || Judge’s Findings and Recommendation.” The district judge will review the magistrate judge’s Findin; 10 || and Recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that failure to fi 11 || objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheele 12 || 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 13 14 15 IS SO ORDERED. A (Se _ 16 |! ated: _ February 7, 2022 OF 17 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28