(PC) Sharpe v. Sherman

• Court: District Court, E.D. California
• Decided: November 7, 2019
• Docket: 1:19-cv-00711
• Status: Unknown

Opinion

7 UNITED STATES DISTRICT COURT

8 EASTERN DISTRICT OF CALIFORNIA

10 ADAM SHARPE, Case No. 1:19-cv-00711-EPG (PC)

11 Plaintiff, SCREENING ORDER 12 v. ORDER FOR PLAINTIFF TO: 13 S. SHERMAN et al, (1) NOTIFY THE COURT THAT HE IS 14 Defendant. WILLING TO PROCEED ONLY ON THE 15 CLAIMS FOUND COGNIZABLE BY THE COURT FOR DELIBERATE INDIFFERENCE 16 TO SERIOUS MEDICAL NEEDS IN VIOLATION OF THE EIGHTH 17 AMENDMENT AGAINST C. CRYER, J. 18 LEWIS, AND S. GATES, AS WELL AS FAILURE TO PROTECT IN VIOLATION OF 19 THE EIGHTH AMENDMENT AGAINST S. SMITH; 20

21 (2) FILE A FIRST AMENDED COMPLAINT; OR 22 (3) NOTIFY THE COURT THAT HE WISHES 23 TO STAND ON HIS COMPLAINT, SUBJECT 24 TO THIS COURT ISSUING FINDINGS AND RECOMMENDATIONS TO THE DISTRICT 25 JUDGE ASSIGNED TO THIS CASE

26 (ECF NO. 1)

27 THIRTY (30) DAY DEADLINE

28 1 Adam Sharpe (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in 2 this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the complaint 3 commencing this action on May 21, 2019. (ECF No. 1). 4 The Court has screened the Complaint and finds that Plaintiff states a cognizable claim 5 for deliberate indifferent to serious medical needs in violation of the Eighth Amendment 6 against C. Cryer, J. Lewis, and S. Gates, as well as a claim for failure to protect in violation of 7 the Eighth Amendment against S. Smith. The Court will provide Plaintiff with leave to file a 8 First Amended Complaint, if he believes that additional facts will establish other claims with 9 the assistance of the legal standards set forth below. Plaintiff may also choose to proceed only 10 on the claims found cognizable in this order, or to stand on this Complaint, subject to the 11 undersigned issuing findings and recommendations to the assigned district judge consistent 12 with this order. 13 I. SCREENING REQUIREMENT 14 The Court is required to screen complaints brought by prisoners seeking relief against a 15 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 16 The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 17 legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or 18 that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 19 § 1915A(b)(1), (2). As Plaintiff is proceeding in forma pauperis (ECF No. 7), the Court may 20 also screen the complaint under 28 U.S.C. § 1915. “Notwithstanding any filing fee, or any 21 portion thereof, that may have been paid, the court shall dismiss the case at any time if the court 22 determines that the action or appeal fails to state a claim upon which relief may be granted.” 23 28 U.S.C. § 1915(e)(2)(B)(ii). 24 A complaint is required to contain “a short and plain statement of the claim showing 25 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are 26 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 27 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 28 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient 1 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. 2 (quoting Twombly, 550 U.S. at 570). The mere possibility of misconduct falls short of meeting 3 this plausibility standard. Id. at 679. While a plaintiff’s allegations are taken as true, courts 4 “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 5 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). Additionally, a 6 plaintiff’s legal conclusions are not accepted as true. Iqbal, 556 U.S. at 678. 7 Pleadings of pro se plaintiffs “must be held to less stringent standards than formal 8 pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding that 9 pro se complaints should continue to be liberally construed after Iqbal). 10 II. SUMMARY OF PLAINTIFF’S COMPLAINT 11 Plaintiff’s complaint alleges as follows: 12 Plaintiff suffers from Keratoconus, an eye disease that deteriorates vision. For this, 13 Plaintiff has been prescribed SynergEyes Hybrid Contact Lenses. Without the contact lenses, 14 Plaintiff’s natural vision is 20/200 in the left eye and 20/400 in the right eye. The lenses are to 15 be replaced every 6 months. Plaintiff received lenses on October 4, 2016 at Kern Valley State 16 Prison. Plaintiff was then transferred to Substance Abuse Treatment Facility (“SATF”) in 17 December of 2016. Plaintiff let SATF medical know that Plaintiff’s lenses would need to be 18 replaced. 19 On April 27, 2017, Plaintiff was told he would be referred to see an ophthalmologist. 20 Plaintiff did not see this ophthalmologist. Plaintiff filed a healthcare appeal, which was 21 partially granted. Yet, by September of 2017, Plaintiff still had not received the replacement 22 lenses. 23 Plaintiff then submitted a CDCR 1824 reasonable accommodation request for single 24 cell status, stating that he felt vulnerable to a cell mate because his vision, without contact 25 lenses, was severely impaired. This request was denied. 26 Plaintiff finally saw an ophthalmologist on June 4, 2018, which recommended contact 27 lens replacement. However, by August 1, 2018, Plaintiff had yet to receive replacements. 28 1 Plaintiff submitted another appeal, which was answered. But Plaintiff still did not receive any 2 contact lenses. 3 On January 24, 2019, Plaintiff still had not received his contact lenses. He was then 4 assaulted by a cell mate. He received multiple injuries and was escorted off the prison grounds 5 in an emergency response vehicle. 6 On April 1, 2019, having still not received contact lenses, Plaintiff submitted another 7 reasonable accommodation request for single cell status. This was denied. 8 Plaintiff also attaches as exhibits multiple health care grievances and responses. Those 9 responses repeatedly state that Plaintiff has been approved for new contact lenses, but had not 10 yet received them. (ECF No. 1, at p. 7 (noting on October 20, 2017, “[t]he provider reviewed 11 your diagnosis of keratoconus and noted that you would be referred for new contact lenses”); 12 ECF No. 1, at p. 16 (stating that on December 3, 2018 “you completed a fitting consultation 13 with an ophthalmologist and that you were awaiting the delivery of your contact lenses”). 14 Plaintiff attaches a memo from Scott Kernan, Secretary Department of Corrections and 15 Rehabilitation, regarding “Inmate Housing Assignment Considerations During the Screening 16 and Housing Process.” It includes the statement “Examples of inmates who should be 17 considered for single-cell status, or other appropriate housing, on the basis of vulnerability are: 18 An inmate who is blind and states he is at risk of an attach because of his disability.” (ECF No. 19 1, at p. 27). 20 Plaintiff also attaches his request for single cell status on the basis that “I cannot see 21 well enough when in my cell to defend myself from attack.” (ECF No. 1, at p. 24). Plaintiff 22 also attaches the response denying him single cell status. That response denies his request for 23 reasons including on the basis that “you stated you did not have any safety or enemy concerns 24 and can safety program on Facility C,” and also that “You are issued special hard contact lenses 25 to help keep your vision in proper focus.” The denial is signed by S. Smith, ADA 26 Coordinator/Designee. 27 /// 28 /// 1 III. ANALYSIS OF PLAINTIFF’S CLAIMS 2 A. Section 1983 3 The Civil Rights Act under which this action was filed provides: 4 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 5 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 6 immunities secured by the Constitution and laws, shall be liable to the party 7 injured in an action at law, suit in equity, or other proper proceeding for redress.... 8 42 U.S.C. § 1983. “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely 9 provides ‘a method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 10 490 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see 11 also Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los 12 Angeles, 697 F.3d 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 13 2012); Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). 14 To state a claim under section 1983, a plaintiff must allege that (1) the defendant acted 15 under color of state law, and (2) the defendant deprived him of rights secured by the 16 Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 17 2006); see also Marsh v. Cnty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing 18 “under color of state law”). A person deprives another of a constitutional right, “within the 19 meaning of § 1983, ‘if he does an affirmative act, participates in another's affirmative act, or 20 omits to perform an act which he is legally required to do that causes the deprivation of which 21 complaint is made.’” Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th 22 Cir. 2007) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite 23 causal connection may be established when an official sets in motion a ‘series of acts by others 24 which the actor knows or reasonably should know would cause others to inflict’ constitutional 25 harms.” Preschooler II, 479 F.3d at 1183 (quoting Johnson, 588 F.2d at 743). This standard of 26 causation “closely resembles the standard ‘foreseeability’ formulation of proximate cause.” 27 28 1 Arnold v. Int'l Bus. Mach. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981); see also Harper v. City 2 of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008). 3 Additionally, a plaintiff must demonstrate that each named defendant personally 4 participated in the deprivation of his rights. Iqbal, 556 U.S. at 676-77. In other words, there 5 must be an actual connection or link between the actions of the defendants and the deprivation 6 alleged to have been suffered by Plaintiff. See Monell v. Dep't of Soc. Servs. of City of N.Y., 7 436 U.S. 658, 691, 695 (1978). 8 B. Deliberate Indifference to Serious Medical Needs in Violation of the Eighth 9 Amendment 10 “[T]o maintain an Eighth Amendment claim based on prison medical treatment, an 11 inmate must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 12 1091, 1096 (9th Cir. 2006), (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). This 13 requires Plaintiff to show (1) “a ‘serious medical need’ by demonstrating that ‘failure to treat a 14 prisoner’s condition could result in further significant injury or the unnecessary and wanton 15 infliction of pain,’” and (2) that “the defendant's response to the need was deliberately 16 indifferent.” Id. (quoting McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992) (citation 17 and internal quotations marks omitted), overruled on other grounds by WMX Technologies v. 18 Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc)). 19 Deliberate indifference is established only where the defendant subjectively “knows of 20 and disregards an excessive risk to inmate health and safety.” Toguchi v. Chung, 391 F.3d 21 1051, 1057 (9th Cir. 2004) (emphasis added) (citation and internal quotation marks omitted). 22 Deliberate indifference can be established “by showing (a) a purposeful act or failure to 23 respond to a prisoner's pain or possible medical need and (b) harm caused by the indifference.” 24 Jett, 439 F.3d at 1096 (citation omitted). Civil recklessness (failure “to act in the face of an 25 unjustifiably high risk of harm that is either known or so obvious that it should be known”) is 26 insufficient to establish an Eighth Amendment violation. Farmer v. Brennan, 511 U.S. 825, 27 836-37 & n.5 (1994) (citations omitted). 28 /// 1 A difference of opinion between an inmate and prison medical personnel—or between 2 medical professionals—regarding appropriate medical diagnosis and treatment is not enough to 3 establish a deliberate indifference claim. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); 4 Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004). Additionally, “a complaint that a 5 physician has been negligent in diagnosing or treating a medical condition does not state a valid 6 claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not 7 become a constitutional violation merely because the victim is a prisoner.” Estelle, 429 U.S. at 8 106. To establish a difference of opinion rising to the level of deliberate indifference, a 9 “plaintiff must show that the course of treatment the doctors chose was medically unacceptable 10 under the circumstances.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996). 11 Plaintiff’s complaint sufficiently alleges that he had a serious need for contact lenses 12 and did not receive them, despite prison officials being aware of that need. This sufficiently 13 alleged deliberate indifference to his serious medical needs to proceed past the screening stage. 14 The Court next looks to which defendants are sufficiently responsible for not providing 15 Plaintiff with his contact lenses for the case to proceed against them. Plaintiff names as 16 defendants Stu Sherman, Warden of SATF; C. Cryer, Chief Medical Officer; S. Smith, ADA 17 Coordinator; D. Sanchez, ADA Coordinator; C. Ramos, Custody Appeals Representation; G. 18 Ugwaeze, Doctor; D. Rhoads, Health Care Grievance Representative; A. Adney, Healthcare 19 Compliance Analyst; S. Gates, Healthcare Correspondence and Appeals Branch Chief; J. 20 Lewis, Deputy Director. However, his complaint does not further specify how each is 21 responsible. Additionally, Plaintiff’s Exhibits demonstrate that his healthcare appeals 22 regarding the contact lenses were denied or only partially granted by C. Cryer, Chief Executive 23 Officer at SATF; J. Lewis, Deputy Director Policy and Risk Management Services California 24 Correctional Health Care Services; and S. Gates, Chief Health Care Correspondence and 25 Appeals Branch Policy and Risk Management Services. 26 Based on the information in Plaintiff’s complaint and exhibits, the Court will permit 27 Plaintiff’s claim for deliberate indifference to serious medical needs to proceed against C. 28 Cryer, Chief Executive Officer at SATF; J. Lewis, Deputy Director Policy and Risk 1 Management Services California Correctional Health Care Services; and S. Gates, Chief Health 2 Care Correspondence and Appeals Branch Policy and Risk Management Services at this time. 3 Each of these individuals was involved in the response to Plaintiff’s health care appeal on this 4 issue. The Court does not find sufficient information to allow a claim against any other 5 defendant based on insufficient factual allegations regarding their responsibility for the issues 6 in the complaint. 7 If Plaintiff chooses to amend his complaint, he may further specify which persons were 8 involved in declining to provide him with contact lenses. Alternatively, he may proceed on the 9 claim against the individuals named above and may be able to amend his complaint if he 10 determines additional individuals were involved. 11 C. Failure to Protect 12 The Eighth Amendment requires that prison officials take reasonable measures to 13 guarantee the safety of prisoners. Farmer v. Brennan, 511 U.S. 825, 832 (1994). In particular, 14 prison officials have a duty to protect prisoners from violence at the hands of 15 other prisoners. Id. at 833. The failure of prison officials to protect inmates from attacks by 16 other inmates or from dangerous conditions at the prison violates the Eighth Amendment when 17 two requirements are met: (1) the deprivation alleged is, objectively, sufficiently serious; and 18 (2) the prison official is, subjectively, deliberately indifferent to inmate health or safety. Id. at 19 834. A prison official is deliberately indifferent if he knows of and disregards an excessive risk 20 to inmate health or safety by failing to take reasonable steps to abate it. Id. at 837. 21 Plaintiff has alleged that he was exposed to a serious risk by being in a cell without 22 contact lenses, rendering him unable to defend himself. The response to his single cell request 23 shows consideration to his issues, but includes the basis that “You are issued hard contact 24 lenses to help keep your vision in proper focus.” That denial is signed by S. Smith, the ADA 25 Coordinator/Designee. However, Plaintiff has also alleged that he was not in fact given new 26 hard contact lenses. 27 The Court will allow Plaintiff’s claim to proceed past the screening stage for a failure to 28 protect in violation of the Eighth Amendment as to S. Smith, the ADA Coordinator/Designee. 1 The Court is not making a determination that Plaintiff will be able to satisfy all the elements of 2 a failure to protect claim. But, given that S. Smith’s reasons for denying single cell status were 3 based in part on Plaintiff having hard contact lenses, and Plaintiff has pled that he was not in 4 fact given those hard contact lenses, the Court finds that Plaintiff’s claim contains sufficient 5 allegations against S. Smith to proceed past screening at this time. The Court does not find 6 sufficient facts to proceed for this claim against any other defendant because Plaintiff does not 7 plead sufficient facts that any other defendant was aware of the risk to his safety yet was 8 deliberately indifferent. 9 IV. CONCLUSION AND ORDER 10 The Court has screened Plaintiff’s Complaint and finds that it states a cognizable claim 11 for deliberate indifference to serious medical needs in violation of the Eighth Amendment 12 against C. Cryer, Chief Executive Officer at SATF; J. Lewis, Deputy Director Policy and 13 Risk Management Services California Correctional Health Care Services; and S. Gates, Chief 14 Health Care Correspondence and Appeals Branch Policy and Risk Management Services. 15 Additionally, Plaintiff’s Complaint states a cognizable claim for failure to protect in violation 16 of the Eighth Amendment against S. Smith, ADA Coordinator/Designee. The Court finds 17 that Plaintiff’s complaint fails to state any other cognizable claims. 18 Plaintiff may (1) proceed with the Complaint on the claims found cognizable by the 19 Court, (2) file a First Amended Complaint curing the deficiencies identified by this order, or 20 (3) notify the Court that he stands on the Complaint as written, in which case the undersigned 21 will issue findings and recommendation to the assigned district judge consistent with this 22 order. If Plaintiff chooses to file a First Amended Complaint, that complaint will supersede 23 the initial Complaint and the Court will screen the First Amended Complaint in full. 24 25 Should Plaintiff choose to amend the complaint, the amended complaint must allege 26 constitutional violations under the law as discussed above. The amended complaint should be 27 brief, Fed. R. Civ. P. 8(a), but must state what each named defendant did that led to the 28 deprivation of Plaintiff=s constitutional or other federal rights. Iqbal, 556 U.S. at 678; Jones v. 1 Williams, 297 F.3d 930, 934 (9th Cir. 2002). Plaintiff must set forth “sufficient factual matter 2 . . . to ‘state a claim that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 3 550 U.S. at 555). Plaintiff is reminded that Plaintiff must demonstrate that each defendant 4 personally participated in the deprivation of his rights. Jones, 297 F.3d at 934. Plaintiff is 5 advised that a short, concise statement of the allegations in chronological order will assist the 6 Court in identifying his claims. Plaintiff should name each defendant and explain what 7 happened, describing personal acts by the individual defendant that resulted in the violation 8 of Plaintiff’s rights. Plaintiff should also describe any harm he suffered as a result of the 9 violation. 10 Plaintiff should note that although he has been given the opportunity to amend, it is not 11 for the purpose of changing the nature of this suit or adding unrelated claims. George v. 12 Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” complaints). 13 If Plaintiff decides to file an amended complaint, he is advised that an amended 14 complaint supersedes the original complaint, Lacey v. Maricopa County, 693 F.3d 896, 907 15 16 n.1 (9th Cir. 2012) (en banc), and it must be complete in itself without reference to the prior 17 or superseded pleading. Local Rule 220. Once an amended complaint is filed, the original 18 complaint no longer serves any function in the case. Therefore, in an amended complaint, as 19 in an original complaint, each claim and the involvement of each defendant must be 20 sufficiently alleged. The amended complaint should be clearly and boldly titled “First 21 Amended Complaint,” refer to the appropriate case number, and be an original signed under 22 penalty of perjury. 23 Based on the foregoing, it is HEREBY ORDERED that: 24 1. The Clerk’s Office shall send Plaintiff a civil rights complaint form; 25 2. Within THIRTY (30) days from the date of service of this order, Plaintiff shall 26 either: 27 28 1 (a) Notify the Court in writing that he is willing to proceed only on the claim for 2 deliberate indifference to serious medical needs in violation of the Eighth Amendment 3 against C. Cryer, Chief Executive Officer at SATF; J. Lewis, Deputy Director Policy and 4 Risk Management Services California Correctional Health Care Services; and S. Gates, Chief 5 Health Care Correspondence and Appeals Branch Policy and Risk Management Services as 6 well as a cognizable claim for failure to protect in violation of the Eighth Amendment against 7 S. Smith, ADA Coordinator/Designee; or (b) File a First Amended Complaint; or ° (c) Notify the Court in writing that he wishes to stand by the Complaint as written, in which case the undersigned will issue findings and recommendation to the assigned district

0 judge consistent with this order; 13 3. Should Plaintiff choose to amend the complaint, Plaintiff shall caption the 14 amended complaint “First Amended Complaint” and refer to the case number 1:19-cv-00711- 15 EPG; and 16 4. If Plaintiff fails to comply with this order, the undersigned may recommend 17 dismissal of the case for failure to comply with a court order and failure to prosecute. 18 19 IT IS SO ORDERED.

20 || Dated: _ November 7, 2019 [Je ey — 21 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 11