1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DARYL HICKS, No. 2:22-cv-0903 KJN P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 PATRICK COVELLO, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding pro se. On October 16, 2023, the undersigned 18 found that plaintiff stated cognizable Eighth Amendment claims as to defendants Powell and Dr. 19 Pleshchuk and granted plaintiff the option of pursuing his Eighth Amendment claims against such 20 defendants or filing an amended complaint to attempt to correct the identified pleading 21 deficiencies. Thirty days passed and plaintiff did not file the election form or file a third amended 22 complaint. Therefore, the undersigned recommends that this action proceed solely as to 23 plaintiff’s Eighth Amendment claims against defendants Powell and Dr. Pleshchuk,1 and the 24 remaining claims against the remaining defendants be dismissed without prejudice.
25 1 Defendant Powell’s deliberate indifference is demonstrated by Powell’s statement to plaintiff that Powell “doesn’t work against his constituents.” (ECF No. 16 at 4.) Liberally construed, 26 plaintiff alleges both defendants Powell and Dr. Pleshchuk were determined to remove plaintiff 27 from EOP, despite his demonstrated need for such mental health care. In addition to his suicide attempt, plaintiff continues to have a nervous condition that causes him to shake uncontrollably 28 and now suffers urinary incontinence. (ECF No. 16 at 4.) 1 Claims Not Cognizable 2 Retaliation 3 In his first claim, plaintiff marked the box “retaliation.” 4 “Prisoners have a First Amendment right to file grievances against prison officials and to 5 be free from retaliation for doing so.” Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) 6 (citing Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009)). A viable retaliation claim in the 7 prison context has five elements: “(1) An assertion that a state actor took some adverse action 8 against an inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) 9 chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably 10 advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 11 2005). 12 Here, plaintiff does not allege that a particular defendant took an adverse action against 13 plaintiff based on plaintiff’s conduct protected under the First Amendment. Liberally construing 14 plaintiff’s allegations contained in his second amended complaint, plaintiff fails to allege facts 15 meeting all of the elements of a retaliation claim. Indeed, plaintiff fails to identify any conduct 16 protected under the First Amendment that might have triggered the alleged actions or omissions 17 and did not address the fourth or fifth elements of a putative retaliation claim. Plaintiff fails to 18 state a cognizable retaliation claim. 19 Eighth Amendment 20 In his second claim, plaintiff marked the box “threat to safety.” However, the undersigned 21 construes plaintiff’s claims as alleging that defendants Powell, Dr. Pleshchuk and Dr. Kim were 22 deliberately indifferent to plaintiff’s serious mental health needs. 23 To state a viable claim of deliberate indifference to a serious medical need, a plaintiff 24 must show that (1) a serious medical need exists, and (2) defendant’s response was deliberately 25 indifferent. Serious medical need can be shown by demonstrating that a failure to treat a prisoner 26 could result in significant injury or worsening pain. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 27 2006). A deliberately indifferent response can be shown by a purposeful act or failure to respond 28 to a prisoner’s pain or possible medical need coupled with harm caused by that indifference. Id. 1 Moreover, in order to state a § 1983 claim, a plaintiff must show each defendant “[performed] an 2 affirmative act, participate[d] in another’s affirmative acts, or omit[ted] to perform an act which 3 he is legally required to do that causes the deprivation of which [the plaintiff complains].” 4 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 5 Plaintiff’s allegations as to Dr. Kim fail to demonstrate Dr. Kim acted with a culpable 6 state of mind for the following reasons. 7 Plaintiff references a failed overdose attempt on his part. However, plaintiff attributes his 8 attempt to the actions and omissions of defendant Powell, and it is not clear whether plaintiff 9 attempted to overdose prior to Dr. Kim adjusting plaintiff’s medications, or after. 10 Further, plaintiff alleges that Dr. Kim claimed plaintiff had not taken his medication and 11 began to change the dose and type of medications. (ECF No. 16 at 5.) On at least two occasions, 12 Dr. Kim denied plaintiff his mental health medications causing withdrawals, seizures, PTSD and 13 panic attacks. Dr. Kim stopped plaintiff’s Ephexor prescription for two weeks, again causing 14 withdrawals. During plaintiff’s committee meeting, Dr. Kim claimed it was a mistake and would 15 resume the medication. (ECF No. 16 at 5.) 16 The Supreme Court established a very demanding standard for deliberate indifference; 17 and negligence is insufficient. Farmer v. Brennan, 511 U.S. 825, 835 (1994). It is not enough 18 that a reasonable person would have known of the risk or that a defendant should have known of 19 the risk. Id. at 842. Rather, deliberate indifference is established only where the defendant 20 subjectively “knows of and disregards an excessive risk to inmate health and safety.” Toguchi v. 21 Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (internal citation omitted). A difference of opinion 22 between an inmate and prison medical personnel, or between medical professionals, regarding 23 appropriate medical diagnosis and treatment is also not enough to establish a deliberate 24 indifference claim. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); Toguchi, 391 F.3d at 25 1058. Moreover, even medical malpractice or “gross negligence” does not by itself establish 26 deliberate indifference to serious medical needs. Wood v. Housewright, 900 F.2d 1332, 1334 27 (9th Cir. 1990). 28 //// 1 Thus, plaintiff’s allegation that Dr. Kim made a mistake in discontinuing the Ephexor 2 prescription is negligence, and, without more, does not rise to the level of deliberate indifference. 3 Further, a patient is not entitled to request a prescription for a specific medication, and a 4 doctor’s refusal to comply with such a request does not amount to an Eighth Amendment 5 violation. See Arellano v. Sedighi, 2020 WL 5877832, at *18 (S.D. Cal. Oct. 1, 2020), adopting 6 report and recommendation, 2021 WL 7711170 (S.D. Cal. May 7, 2021); Tucker v. Daszko, 2017 7 WL 4340090, at *3 (E.D. Cal. Sep. 29, 2017) (citing cases). The fact that Dr. Kim changed 8 plaintiff’s medications is insufficient, standing alone, to demonstrate Dr. Kim acted with a 9 culpable state of mind.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DARYL HICKS, No. 2:22-cv-0903 KJN P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 PATRICK COVELLO, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding pro se. On October 16, 2023, the undersigned 18 found that plaintiff stated cognizable Eighth Amendment claims as to defendants Powell and Dr. 19 Pleshchuk and granted plaintiff the option of pursuing his Eighth Amendment claims against such 20 defendants or filing an amended complaint to attempt to correct the identified pleading 21 deficiencies. Thirty days passed and plaintiff did not file the election form or file a third amended 22 complaint. Therefore, the undersigned recommends that this action proceed solely as to 23 plaintiff’s Eighth Amendment claims against defendants Powell and Dr. Pleshchuk,1 and the 24 remaining claims against the remaining defendants be dismissed without prejudice.
25 1 Defendant Powell’s deliberate indifference is demonstrated by Powell’s statement to plaintiff that Powell “doesn’t work against his constituents.” (ECF No. 16 at 4.) Liberally construed, 26 plaintiff alleges both defendants Powell and Dr. Pleshchuk were determined to remove plaintiff 27 from EOP, despite his demonstrated need for such mental health care. In addition to his suicide attempt, plaintiff continues to have a nervous condition that causes him to shake uncontrollably 28 and now suffers urinary incontinence. (ECF No. 16 at 4.) 1 Claims Not Cognizable 2 Retaliation 3 In his first claim, plaintiff marked the box “retaliation.” 4 “Prisoners have a First Amendment right to file grievances against prison officials and to 5 be free from retaliation for doing so.” Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) 6 (citing Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009)). A viable retaliation claim in the 7 prison context has five elements: “(1) An assertion that a state actor took some adverse action 8 against an inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) 9 chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably 10 advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 11 2005). 12 Here, plaintiff does not allege that a particular defendant took an adverse action against 13 plaintiff based on plaintiff’s conduct protected under the First Amendment. Liberally construing 14 plaintiff’s allegations contained in his second amended complaint, plaintiff fails to allege facts 15 meeting all of the elements of a retaliation claim. Indeed, plaintiff fails to identify any conduct 16 protected under the First Amendment that might have triggered the alleged actions or omissions 17 and did not address the fourth or fifth elements of a putative retaliation claim. Plaintiff fails to 18 state a cognizable retaliation claim. 19 Eighth Amendment 20 In his second claim, plaintiff marked the box “threat to safety.” However, the undersigned 21 construes plaintiff’s claims as alleging that defendants Powell, Dr. Pleshchuk and Dr. Kim were 22 deliberately indifferent to plaintiff’s serious mental health needs. 23 To state a viable claim of deliberate indifference to a serious medical need, a plaintiff 24 must show that (1) a serious medical need exists, and (2) defendant’s response was deliberately 25 indifferent. Serious medical need can be shown by demonstrating that a failure to treat a prisoner 26 could result in significant injury or worsening pain. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 27 2006). A deliberately indifferent response can be shown by a purposeful act or failure to respond 28 to a prisoner’s pain or possible medical need coupled with harm caused by that indifference. Id. 1 Moreover, in order to state a § 1983 claim, a plaintiff must show each defendant “[performed] an 2 affirmative act, participate[d] in another’s affirmative acts, or omit[ted] to perform an act which 3 he is legally required to do that causes the deprivation of which [the plaintiff complains].” 4 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 5 Plaintiff’s allegations as to Dr. Kim fail to demonstrate Dr. Kim acted with a culpable 6 state of mind for the following reasons. 7 Plaintiff references a failed overdose attempt on his part. However, plaintiff attributes his 8 attempt to the actions and omissions of defendant Powell, and it is not clear whether plaintiff 9 attempted to overdose prior to Dr. Kim adjusting plaintiff’s medications, or after. 10 Further, plaintiff alleges that Dr. Kim claimed plaintiff had not taken his medication and 11 began to change the dose and type of medications. (ECF No. 16 at 5.) On at least two occasions, 12 Dr. Kim denied plaintiff his mental health medications causing withdrawals, seizures, PTSD and 13 panic attacks. Dr. Kim stopped plaintiff’s Ephexor prescription for two weeks, again causing 14 withdrawals. During plaintiff’s committee meeting, Dr. Kim claimed it was a mistake and would 15 resume the medication. (ECF No. 16 at 5.) 16 The Supreme Court established a very demanding standard for deliberate indifference; 17 and negligence is insufficient. Farmer v. Brennan, 511 U.S. 825, 835 (1994). It is not enough 18 that a reasonable person would have known of the risk or that a defendant should have known of 19 the risk. Id. at 842. Rather, deliberate indifference is established only where the defendant 20 subjectively “knows of and disregards an excessive risk to inmate health and safety.” Toguchi v. 21 Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (internal citation omitted). A difference of opinion 22 between an inmate and prison medical personnel, or between medical professionals, regarding 23 appropriate medical diagnosis and treatment is also not enough to establish a deliberate 24 indifference claim. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); Toguchi, 391 F.3d at 25 1058. Moreover, even medical malpractice or “gross negligence” does not by itself establish 26 deliberate indifference to serious medical needs. Wood v. Housewright, 900 F.2d 1332, 1334 27 (9th Cir. 1990). 28 //// 1 Thus, plaintiff’s allegation that Dr. Kim made a mistake in discontinuing the Ephexor 2 prescription is negligence, and, without more, does not rise to the level of deliberate indifference. 3 Further, a patient is not entitled to request a prescription for a specific medication, and a 4 doctor’s refusal to comply with such a request does not amount to an Eighth Amendment 5 violation. See Arellano v. Sedighi, 2020 WL 5877832, at *18 (S.D. Cal. Oct. 1, 2020), adopting 6 report and recommendation, 2021 WL 7711170 (S.D. Cal. May 7, 2021); Tucker v. Daszko, 2017 7 WL 4340090, at *3 (E.D. Cal. Sep. 29, 2017) (citing cases). The fact that Dr. Kim changed 8 plaintiff’s medications is insufficient, standing alone, to demonstrate Dr. Kim acted with a 9 culpable state of mind. Simply showing that a course of treatment proves to be ineffective, 10 without demonstrating that the medical professional’s conduct was medically unacceptable under 11 the circumstances and chosen in conscious disregard to plaintiff’s health, also does not establish a 12 claim for deliberate indifference. Nicholson v. Finander, 2014 WL 1407828, at *9 (C.D. Cal. 13 2014) (citing Estelle v. Gamble, 429 U.S. 97, 105 (1976); Toguchi, 391 F.3d at 1058). 14 Absent facts not alleged, plaintiff fails to state a cognizable claim as to Dr. Kim. 15 Defendant Costa 16 Plaintiff’s allegations as to Correctional Counselor Costa are too vague and conclusory to 17 determine whether plaintiff can state a cognizable claim. In claim three, plaintiff marked medical 18 care and disciplinary proceedings, but plaintiff alleges no facts tying defendant Costa to 19 plaintiff’s medical care. Similarly, plaintiff cites to no specific disciplinary proceeding and does 20 not allege that defendant Costa was involved in any disciplinary proceeding against plaintiff. 21 Rather, in claim three, plaintiff alleges the following: 22 CCII Costa refused to transfer [plaintiff]. [Plaintiff] was endorsed for months before [he] was physically assaulted by inmates and then 23 by an officer. Because of her supervisory level, and having seen for years her subordinates misuse and mistreat [plaintiff], [Costa] could 24 have and should have allowed [plaintiff] to be transferred. So during the committee meeting, [plaintiff] was informed that [he] had been 25 endorsed to be transferred. But because [plaintiff] had expressed fear for [his] life on the B yard where [he] had been stalked and beaten, 26 CCII Costa demanded [plaintiff] wait on the Level IV A yard. So instead of transferring [plaintiff] from administrative segregation to 27 RJD, [plaintiff] was made to wait on the A yard . . . where one of the officers who had issued to [plaintiff] more than five rules violation 28 reports which each violated [plaintiff’s] due process rights. They 1 raised [plaintiff’s] security level which CCI Costa witnessed most and could or should have all. The officer Gosai [was] working in the 2 control booth had worked in the building [plaintiff] was transferred from, had sexually assaulted plaintiff, directed inmates physically to 3 assault plaintiff, and now [plaintiff] was being placed in a situation which could easily . . . cost plaintiff [his] life. 4 5 (ECF No. 16 at 5.)2 6 Inmates do not have a constitutional right to be housed at a particular facility or institution 7 or to be transferred, or not transferred, from one facility or institution to another. Olim v. 8 Wakinekona, 461 U.S. 238, 244-48 (1983); Meachum v. Fano, 427 U.S. 215, 224-25 (1976); 9 Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1991) (per curiam). An inmate does not have a 10 constitutional right to any particular classification. Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976) 11 (“[P]etitioner has no legitimate statutory or constitutional entitlement sufficient to invoke due 12 process.”); Hernandez v. Johnston, 833 F.2d 1316, 1318 (9th Cir. 1987) (citations omitted). Nor 13 do inmates have a right to be housed in a particular part of a prison. See Grayson v. Rison, 945 14 F.2d 1064, 1067 (9th Cir. 1991) (prisoner had “no ‘justifiable expectation’ of being anywhere but 15 in administrative detention,” and his “placement was left to the discretion of prison officials.”). 16 Plaintiff appears to contend Costa should have allowed plaintiff to be transferred before 17 plaintiff was beaten on Yard A. But such conclusory claim, without more, is insufficient. 18 Next, plaintiff’s claim that defendant Costa refused to transfer plaintiff directly from 19 administrative segregation to RJD also fails. As set forth above, plaintiff does not have a 20 constitutional right to be transferred to a particular prison. Olim, 461 U.S. at 244-48. Further, to 21 state a cognizable Eighth Amendment claim on a failure to protect theory, a prisoner must 22 reasonably allege that the named defendant knew of but disregarded an excessive risk to 23 plaintiff’s health or safety. Farmer, 511 U.S. at 837. Plaintiff must allege facts showing that a 24 defendant acted with a “sufficiently culpable state of mind.” Hearns v. Terhune, 413 F.3d 1036, 25
2 In a separate lawsuit, plaintiff challenges Officer Gosai’s actions, as well as fellow officer 26 Rammi. Hicks v. Gosai, case No. 2:20-cv-2303 DJC JDP P (E.D. Cal.). Although plaintiff 27 marked “disciplinary proceedings” in claim three and generally refers to rules violation reports in the second amended complaint, plaintiff does not challenge a particular rules violation report in 28 his amended pleading. (ECF No. 16, passim.) 1 1042 (9th Cir. 2005). “[T]he official must both be aware of facts from which the inference could 2 be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” 3 Farmer, 511 U.S. at 837. “[I]t is enough that the official acted or failed to act despite his 4 knowledge of a substantial risk of serious harm.” Id. at 842 (citations omitted). 5 Here, plaintiff alleges that defendant Costa demanded plaintiff must wait on Yard A 6 because plaintiff had expressed fear for his life if returned to B yard. Such allegation does not 7 demonstrate that defendant Costa acted with a culpable state of mind. Moreover, despite 8 plaintiff’s concern based on the Yard A work assignments of Officer Gosai and the unidentified 9 officer who previously cited plaintiff on multiple occasions, plaintiff sets forth no specific facts 10 demonstrating that the assignment to Yard A posed a substantial risk of harm to plaintiff. Indeed, 11 while plaintiff was required to remain housed on Yard A pending transfer, he was subsequently 12 transferred to California State Prison, Los Angeles County on or before October 26, 2022, and 13 despite twice amending his pleading thereafter, plaintiff alleges no further incidents on Yard A. 14 (ECF Nos. 11, 12.) 15 In his fourth claim, plaintiff appears to contend that defendant Costa did nothing after 16 plaintiff complained that other officers were prolonging plaintiff’s sentence. But plaintiff fails to 17 allege facts demonstrating what actions Costa could have taken given plaintiff’s disciplinary 18 findings. As such, plaintiff’s fourth claim is too vague and conclusory to state a cognizable 19 claim. Finally, to the extent plaintiff attempts to hold defendant Costa responsible for the actions 20 or omissions of Costa’s subordinates, such claim fails. Supervisory personnel are generally not 21 liable under § 1983 for the actions of their employees under a theory of respondeat superior and, 22 therefore, when a named defendant holds a supervisorial position, the causal link between such 23 defendant and the claimed constitutional violation must be specifically alleged. See Fayle v. 24 Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 25 1978), cert. denied, 442 U.S. 941 (1979). Vague and conclusory allegations concerning the 26 involvement of official personnel in civil rights violations are not sufficient. See Ivey v. Board of 27 Regents, 673 F.2d 266, 268 (9th Cir. 1982). 28 //// 1 Plaintiff’s second amended complaint fails to state a cognizable claim as to defendant 2 Costa. 3 Conclusion 4 In light of plaintiff’s failure to amend or otherwise respond to the order (ECF No. 18), the 5 undersigned recommends that this action proceed as to plaintiff’s Eighth Amendment claims 6 against defendants Powell and Dr. Pleshchuk, and the remaining claims and defendants be 7 dismissed without prejudice. 8 Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court is directed to assign 9 a district judge to this case; and 10 IT IS RECOMMENDED that: 11 1. This action proceed solely as to plaintiff’s Eighth Amendment claims against 12 defendants Powell and Dr. Pleshchuk;3 13 2. The remaining claims and defendants Dr. Kim and Costa be dismissed without 14 prejudice; and 15 3. This matter be referred back to the undersigned for further proceedings. 16 These findings and recommendations are submitted to the United States District Judge 17 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days 18 after being served with these findings and recommendations, plaintiff may file written objections 19 with the court and serve a copy on all parties. Such a document should be captioned 20 “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that 21 //// 22 //// 23 //// 24 ////
25 3 Defendant Powell’s deliberate indifference is demonstrated by Powell’s statement to plaintiff that Powell “doesn’t work against his constituents.” (ECF No. 16 at 4.) Liberally construed, 26 plaintiff alleges both defendants were determined to remove plaintiff from EOP, despite his 27 demonstrated need for such mental health care. In addition to his suicide attempt, plaintiff continues to have a nervous condition that causes him to shake uncontrollably and now suffers 28 urinary incontinence. (ECF No. 16 at 4.) 1 | failure to file objections within the specified time may waive the right to appeal the District 2 | Court’s order. Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). 3 | Dated: December 21, 2023 ' Foci) Aharon 5 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE ° fhick0903.56 7 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28