(PC) Bonsall v. California Department of Corrections and Rehabilitation

Opinion

7 UNITED STATES DISTRICT COURT

8 EASTERN DISTRICT OF CALIFORNIA

10 ANTHONY BONSALL, Case No. 1:19-cv-00418-EPG (PC)

11 Plaintiff, SCREENING ORDER

12 v. ORDER FOR PLAINTIFF TO:

13 CALIFORNIA DEPARTMENT OF (1) FILE A FIRST AMENDED CORRECTIONS AND COMPLAINT; OR 14 REHABILITATION, et al., (2) NOTIFY THE COURT THAT HE WISHES 15 Defendants. TO STAND ON HIS COMPLAINT, SUBJECT TO THIS COURT ISSUING FINDINGS AND 16 RECOMMENDATIONS TO A DISTRICT JUDGE CONSISTENT WITH THIS ORDER 17 ORDER DENYING PLAINTIFF’S MOTION 18 FOR THE COURT TO ORDER THE UNITED STATES MARSHALS SERVICE TO SERVE 19 DEFENDANTS

20 (ECF NOS. 1 & 7)

21 THIRTY (30) DAY DEADLINE 22 Anthony Bonsall (“Plaintiff”) is a state prisoner proceeding pro se and in forma 23 pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the 24 complaint commencing this action on April 2, 2019. (ECF No. 1). 25 The Court has reviewed the complaint and finds that Plaintiff has failed to state any 26 cognizable claims. Plaintiff now has options as to how to move forward. Plaintiff may file an 27 amended complaint based on the legal standards in this order if he believes that additional facts 28 would state cognizable claim(s). If Plaintiff files an amended complaint, the Court will screen 1 that amended complaint in due course. Or, Plaintiff may file a statement with the Court that he 2 wishes to stand on this complaint and have it reviewed by a district judge, in which case the 3 Court will issue findings and recommendations to a district judge consistent with this order. 4 I. SCREENING REQUIREMENT 5 The Court is required to screen complaints brought by prisoners seeking relief against a 6 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 7 The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 8 legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or 9 that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 10 § 1915A(b)(1), (2). As Plaintiff is proceeding in forma pauperis (ECF No. 5), the Court may 11 also screen the complaint under 28 U.S.C. § 1915. “Notwithstanding any filing fee, or any 12 portion thereof, that may have been paid, the court shall dismiss the case at any time if the court 13 determines that the action or appeal fails to state a claim upon which relief may be granted.” 14 28 U.S.C. § 1915(e)(2)(B)(ii). 15 A complaint is required to contain “a short and plain statement of the claim showing 16 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are 17 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 18 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 19 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient 20 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. 21 (quoting Twombly, 550 U.S. at 570). The mere possibility of misconduct falls short of meeting 22 this plausibility standard. Id. at 679. While a plaintiff’s allegations are taken as true, courts 23 “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 24 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). Additionally, a 25 plaintiff’s legal conclusions are not accepted as true. Iqbal, 556 U.S. at 678. 26 Pleadings of pro se plaintiffs “must be held to less stringent standards than formal 27 pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding that 28 pro se complaints should continue to be liberally construed after Iqbal). 1 II. SUMMARY OF PLAINTIFF’S COMPLAINT 2 Plaintiff suffers from the Hepatitis C virus. He has had the virus since 2001. 3 In November 2017, he requested that Dr. Kongara provide care and treatment for his 4 Hepatitis C condition. Dr. Kongara refused to authorize care and treatment, saying “You are 5 not severe enough for care and treatment.” 6 About five months later, Plaintiff asked Dr. Kongara for care, treatment, and fibroscan 7 testing for his Heptatis C condition, and his request was again denied as not being “severe 8 enough.” 9 In one interview with Dr. Kongara, Plaintiff stated “Can you please put me in for the 10 medical treatment and test my liver for damage, because I have had Hepatitis C[] since 2001 11 and I think after 15-years the virus has had to cause harm to my liver. I have learned that a 12 treatment and liver damage testing exists. [I]nmates who have Hepatitis C[] around the same 13 time as me are getting the treatment. They say it is a good program. I am requesting this care, 14 treatment and fibroscan testing please.” Dr. Kongara stated “You look healthy enough. Your 15 condition is not severe enough for Hepatitis-C[] care and treatment. Your request for this 16 treatment and testing is denied.” Plaintiff had this same discussion with Dr. Kongara multiple 17 times. Plaintiff never saw Dr. Kongara write down notes or type in her computer. 18 Plaintiff then submitted a series of health care grievances asking for fibroscan for his 19 Hepatitis C. These requests were also denied. One registered nurse told Plaintiff “I see you 20 have Hepatitis-C and you are in our chronic care program, but you are not eligible for fibroscan 21 testing because Dr. Kongara has not ordered your Hepatitis C[] treatment.” 22 On November 28, 2018, Chief Physician and Surgeon Dr. U. Baniga responded to 23 Plaintiff’s grievance, denying the appeal and stating “you currently have a FiB4 score of 0.84, 24 which does not meet criteria for ordering of fibroscan per CCHCS Hepatitis C Care Guide. 25 You are currently being monitored appropriately. However, no fibroscan exam is indicated at 26 this time.” 27 Dr. Baniga’s assertion that Plaintiff is being monitored appropriately is false. 28 On February 20, 2019, Plaintiff’s grievance was denied at “headquarters” level, which 1 outlines the same reasons for denial as listed above. It also stated “You are enrolled in chronic 2 care program, where your medical conditions and medication needs are closely monitored. 3 Progress notes indicate there is a plan of care in place and the primary care provider has 4 discussed the plan of care with you.” Additionally, it stated “There is no recent documentation 5 that you have attempted to access health care services utilizing approved processes for concerns 6 related to receiving a fibroscan.” 7 Plaintiff claims that without treatment, his Hepatitis C could cause premature death, 8 pain, suffering, and liver damage. 9 Plaintiff names as defendants the California Department of Corrections and 10 Rehabilitation, Dr. Kongara, Dr. Baniga, and Does 1-10. 11 III. ANALYSIS OF PLAINTIFF’S CLAIMS 12 A. Section 1983 13 The Civil Rights Act under which this action was filed provides: 14 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or 15 causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or 16 immunities secured by the Constitution and laws, shall be liable to the party 17 injured in an action at law, suit in equity, or other proper proceeding for redress.... 18 42 U.S.C. § 1983. “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely 19 provides ‘a method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 20 490 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see 21 also Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los 22 Angeles, 697 F.3d 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 23 2012); Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). 24 To state a claim under section 1983, a plaintiff must allege that (1) the defendant acted 25 under color of state law, and (2) the defendant deprived him of rights secured by the 26 Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 27 2006); see also Marsh v. Cnty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing 28 1 “under color of state law”). A person deprives another of a constitutional right, “within the 2 meaning of § 1983, ‘if he does an affirmative act, participates in another's affirmative act, or 3 omits to perform an act which he is legally required to do that causes the deprivation of which 4 complaint is made.’” Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th 5 Cir. 2007) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite 6 causal connection may be established when an official sets in motion a ‘series of acts by others 7 which the actor knows or reasonably should know would cause others to inflict’ constitutional 8 harms.” Preschooler II, 479 F.3d at 1183 (quoting Johnson, 588 F.2d at 743). This standard of 9 causation “closely resembles the standard ‘foreseeability’ formulation of proximate cause.” 10 Arnold v. Int'l Bus. Mach. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981); see also Harper v. City 11 of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008). 12 Additionally, a plaintiff must demonstrate that each named defendant personally 13 participated in the deprivation of his rights. Iqbal, 556 U.S. at 676-77. In other words, there 14 must be an actual connection or link between the actions of the defendants and the deprivation 15 alleged to have been suffered by Plaintiff. See Monell v. Dep't of Soc. Servs. of City of N.Y., 16 436 U.S. 658, 691, 695 (1978). 17 B. Deliberate Indifference to Serious Medical Needs 18 “[T]o maintain an Eighth Amendment claim based on prison medical treatment, an 19 inmate must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 20 1091, 1096 (9th Cir. 2006), (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). This 21 requires Plaintiff to show (1) “a ‘serious medical need’ by demonstrating that ‘failure to treat a 22 prisoner’s condition could result in further significant injury or the unnecessary and wanton 23 infliction of pain,’” and (2) that “the defendant's response to the need was deliberately 24 indifferent.” Id. (quoting McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992) (citation 25 and internal quotations marks omitted), overruled on other grounds by WMX Technologies v. 26 Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc)). 27 Deliberate indifference is established only where the defendant subjectively “knows of 28 and disregards an excessive risk to inmate health and safety.” Toguchi v. Chung, 391 F.3d 1 1051, 1057 (9th Cir. 2004) (emphasis added) (citation and internal quotation marks omitted). 2 Deliberate indifference can be established “by showing (a) a purposeful act or failure to 3 respond to a prisoner's pain or possible medical need and (b) harm caused by the indifference.” 4 Jett, 439 F.3d at 1096 (citation omitted). Civil recklessness (failure “to act in the face of an 5 unjustifiably high risk of harm that is either known or so obvious that it should be known”) is 6 insufficient to establish an Eighth Amendment violation. Farmer v. Brennan, 511 U.S. 825, 7 836-37 & n.5 (1994) (citations omitted). 8 A difference of opinion between an inmate and prison medical personnel—or between 9 medical professionals—regarding appropriate medical diagnosis and treatment is not enough to 10 establish a deliberate indifference claim. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); 11 Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004). Additionally, “a complaint that a 12 physician has been negligent in diagnosing or treating a medical condition does not state a valid 13 claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not 14 become a constitutional violation merely because the victim is a prisoner.” Estelle, 429 U.S. at 15 106. To establish a difference of opinion rising to the level of deliberate indifference, a 16 “plaintiff must show that the course of treatment the doctors chose was medically unacceptable 17 under the circumstances.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996). 18 Plaintiff’s complaint fails to state a claim for a violation of the Eighth Amendment 19 under the legal standards described above. Plaintiff’s allegations demonstrate a difference of 20 opinion between him and his medical providers regarding the need for fibroscan and related 21 treatment for his Hepatitis C. Plaintiff’s doctors do not appear to believe that Plaintiff needs 22 this treatment, and Plaintiff disagrees. This alleged difference of opinion does not rise to the 23 level of a constitutional violation. Plaintiff does not allege that any medical provider believes 24 he needs this care yet is failing to provide it to him. Instead, the doctors and appeals personnel 25 all have told Plaintiff that they do not believe he needs this care. They have cited internal 26 regulations and test scores, as well as his placement in a care program, in support of their 27 decision. While Plaintiff disagrees, that does not give rise to a constitutional claim. 28 /// 1 C. Equal Protection 2 The equal protection clause requires that persons who are similarly situated be treated 3 alike. City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439(1985); Hartmann v. 4 California Dep't of Corr. & Rehab., 707 F.3d 1114, 1123 (9th Cir. 2013); Furnace v. Sullivan, 5 705 F.3d 1021, 1030 (9th Cir. 2013); Shakur v. Schriro, 514 F.3d 878, 891 (9th Cir. 2008). To 6 state a claim, Plaintiff must show that Defendants intentionally discriminated against him based 7 on his membership in a protected class, Hartmann, 707 F.3d at 1123 Furnace, 705 F.3d at 1030, 8 Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003), Thornton v. City of St. Helens, 425 9 F.3d 1158, 1166-67 (9th Cir. 2005), Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 10 2001), or that similarly situated individuals were intentionally treated differently without a 11 rational relationship to a legitimate state purpose, Engquist v. Oregon Department of Agr., 553 12 U.S. 591, 601-02 (2008), Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000), Lazy Y 13 Ranch Ltd. v. Behrens, 546 F.3d 580, 592 (9th Cir. 2008), North Pacifica LLC v. City of 14 Pacifica, 526 F.3d 478, 486 (9th Cir. 2008). 15 It appears that Plaintiff is attempting to assert an equal protection claim on the ground 16 that similarly situated prisoners are receiving Hepatitis C treatment. However, Plaintiff has 17 failed to allege that Defendants are intentionally treating Plaintiff differently without a 18 relational relationship to a legitimate state purpose. He has also not alleged he is being treated 19 differently due to being part of a protected class. While Plaintiff has alleged that other inmates 20 that contracted Hepatitis C at around the same time as Plaintiff received treatment, Plaintiff has 21 not sufficiently alleged that his health and symptoms is the same as theirs. Moreover, there is 22 no indication that the alleged difference in treatment is intentional to discriminate against 23 Plaintiff. 24 IV. CONCLUSION AND ORDER 25 The Court finds that Plaintiff’s complaint fails to state any cognizable claims. As no 26 claims are cognizable, the Court will deny Plaintiff’s motion for the Court to order the United 27 States Marshals Service to serve Defendants (ECF No. 7). 28 However, under Rule 15(a)(2) of the Federal Rules of Civil Procedure, “the court 1 should freely give leave [to amend] when justice so requires.” Accordingly, the Court will 2 provide Plaintiff with time to file an amended complaint curing the deficiencies identified 3 above. Lopez v. Smith, 203 F.3d 1122, 1126-30 (9th Cir. 2000). Plaintiff is granted leave to 4 file an amended complaint within thirty days. 5 If Plaintiff chooses to file an amended complaint, the amended complaint must allege 6 constitutional violations under the law as discussed above. Specifically, Plaintiff must state 7 what each named defendant did that led to the deprivation of Plaintiff’s constitutional or other 8 federal rights. Fed. R. Civ. P. 8(a); Iqbal, 556 U.S. at 678; Jones v. Williams, 297 F.3d 930, 9 934 (9th Cir. 2002). Plaintiff must also demonstrate that each defendant personally 10 participated in the deprivation of his rights. Jones, 297 F.3d at 934. 11 Plaintiff should note that although he has been given the opportunity to amend, it is not 12 for the purpose of changing the nature of this suit or adding unrelated claims. George v. Smith, 13 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” complaints). 14 Plaintiff is advised that an amended complaint supersedes the original complaint, Lacey 15 v. Maricopa County, 693 F.3d. 896, 907 n.1 (9th Cir. 2012) (en banc), and must be complete in 16 itself without reference to the prior or superseded pleading, Local Rule 220. Therefore, in an 17 amended complaint, as in an original complaint, each claim and the involvement of each 18 defendant must be sufficiently alleged. The amended complaint should be clearly and boldly 19 titled “First Amended Complaint,” refer to the appropriate case number, and be an original 20 signed under penalty of perjury. 21 Alternatively, Plaintiff may choose to stand on this complaint, in which case the Court 22 will issue findings and recommendations to a district judge recommending dismissal of the 23 action consistent with this order. 24 Based on the foregoing, it is HEREBY ORDERED that: 25 1. Plaintiff’s motion for the Court to order the United States Marshals Service to 26 serve Defendants is DENIED; 27 2. Within thirty (30) days from the date of service of this order, Plaintiff shall 28 either: 1 a. File a First Amended Complaint, which the Court will screen in due course; 2 or 3 b. Notify the Court in writing that he wants to stand on his complaint, in which 4 case the Court will issue findings and recommendations to a district judge 5 consistent with this order. 6 3. Should Plaintiff choose to amend his complaint, Plaintiff shall caption the 7 amended complaint “First Amended Complaint” and refer to the case number 8 1:19-cv-00418-EPG; and 9 4. Failure to comply with this order may result in the dismissal of this action. 10 ul IT IS SO ORDERED. 12 | Dated: _ October 16, 2019 [sf ey — 13 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28