Opinion
Case No. 2:08-cv-02873-MSB.
April 22, 2011
ORDER
Plaintiff Kyle Avery, who is confined in the California State Prison, Sacramento, has filed a First Amended Complaint. (Dkt. #12). Avery filed his original complaint on November 26, 2008. (Dkt. #1). In its April 9, 2010 order, the Court screened Avery's complaint pursuant to 28 U.S.C. § 1915A and determined that the allegations in his complaint were sufficient for screening purposes to state a claim against Defendants Adams, Menon and Nangalama for violating his rights under the Eighth Amendment. (Dkt. #9 at 6-9). The Court ordered Defendants to answer Count 2 of the complaint and dismissed Avery's remaining claims without prejudice.
Avery's First Amended Complaint adds three additional Defendants and one additional claim. After screening Avery's First Amended Complaint pursuant to 28 U.S.C. 1915A, and as explained below, the Court orders Defendants Goldfield and Penner to answer Count 1 of the First Amended Complaint, and Defendants Adams, Menon, and Nangalama to answer Count 2 of the First Amended Complaint. The Court will order the Chief Medical Officer to answer Count 1 of the First Amended Complaint only if Avery identifies that individual by name in a subsequent amended complaint.
I. Statutory Screening of Prisoner's Complaints
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised claims that are legally frivolous or malicious, that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).
II. Amended Complaint
III. Claims for Which an Answer Is Required
Eighth AmendmentEighth Amendment Eighth Amendment id. 42 U.S.C. § 1983See Buckley v. City of Redding66 F.3d 188190Demery v. Kupperman735 F.2d 11391146
A. Pleading Standard
Pro se pleadings are to be liberally construed. Hains v. Kerner, 404 U.S. 519, 520-21 (1972). Nonetheless, a pro se plaintiff must satisfy the pleading standard set forth in the Federal Rules of Civil Procedure, which requires a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). In addition,"[e]ach allegation must be simple, concise, and direct." Fed.R.Civ.P. 8(d)(1). While Rule 8 does not demand detailed factual allegations, "it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. If the Court determines that a pleading could be cured by the allegation of other facts, a litigant is entitled to an opportunity to amend his complaint. See, e.g., Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc).
B. Eighth Amendment
i. Claims Against Goldfield, Penner and the Chief Medical Officer of the California Department of Corrections (CMO)
Avery alleges that Goldfield, Penner and CMO violated his rights under the Eighth Amendment. The Eighth Amendment prohibits the imposition of cruel and unusual punishments and "embodies broad and idealistic concepts of dignity, civilized standards, humanity and decency." Estelle v. Gamble, 429 U.S. 97, 102 (1976) (internal quotation marks and citation omitted).
There are two requirements for stating a claim against a prison official under the Eighth Amendment: (1) an objective requirement that "the deprivation alleged . . . be sufficiently serious," Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal quotation marks and citation omitted), and (2) a subjective requirement that the "prison official [] have a sufficiently culpable state of mind." Id. The objective requirement is met where the "prison official's act or omission [] result[s] in the denial of the minimal civilized measure of life's necessities." Id. (internal quotation marks and citation omitted). The subjective requirement is met where the prison official acts with "deliberate indifference to inmate health or safety." Id. (internal quotation marks and citation omitted). A prison official acts with deliberate indifference when he "knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Id. at 837. Deliberate indifference is a higher standard than negligence or lack of ordinary due care. Id. at 835.
To satisfy the test's objective prong in the medical context, the prisoner must show that his medical needs are serious. "A 'serious' medical need exists if the failure to treat a prisoner's condition could result in further significant injury or the 'unnecessary and wanton infliction of pain.'" McGuckin, 974 F.2d at 1059 (quoting Estelle, 429 U.S. at 104). Examples of serious medical needs include "[t]he existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain." Id. at 1059-60.
Avery alleges his medical needs are serious. He states that he suffers from chronic Hepatitis C virus ("HCV"). (Dkt. #12 at 26). He claims that he "is now suffering [] low energy, sleepiness, constant nausea, stress [and] soreness," and that he has stopped taking psychiatric medication for bipolar disorder because of fear of further harm to his liver, exacerbating his mental distress and suffering. ( Id. at 30). The facts alleged by Avery are sufficient to establish a serious medical need: Hepatitis C can be a serious condition; a reasonable doctor or patient would find the symptoms Avery describes to be worthy of comment; and the symptoms described could significantly affect an individual's daily activities. See McGuckin, 974 F.2d at 1059-60.
To satisfy the subjective prong in the medical context, a plaintiff may show deliberate indifference by alleging (a) "a purposeful act or failure to respond to a prisoner's pain or possible medical need" and (b) and harm caused by the indifference. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). Delay of, or interference with, medical treatment can also amount to deliberate indifference. See id. Where the prisoner is alleging that delay of medical treatment evinces deliberate indifference, however, the prisoner must show that the delay led to further injury. See Hallett v. Morgan, 296 F.3d 732, 745-46 (9th Cir. 2002); McGuckin, 974 F.2d at 1060; Shapley v. Nev. Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985) (per curiam).
Avery's allegations with regard to Goldfield and Penner satisfy the subjective prong. Avery alleges that in September 2004, Goldfield diagnosed Avery with Hepatitis C virus ("HCV") after conducting a blood test. He alleges that when he inquired of Dr. Goldfield whether he could receive treatment for HCV, Goldfield told him that he "was not sick enough or old enough to qualify for HCV treatment," citing certain treatment "criteria" as the foundation of this decision. (Dkt. #12 at 25). Goldfield told Avery that "blood tests would be taken from time to time and that other than observation of the virus nothing could be done at the time and no cure exist[ed] for HCV." ( Id.) About a year later, after another blood test, Defendant Penner "basically told Plaintiff the same thing." ( Id. at 26). Avery alleges, however, that Defendants Goldfield and Penner could not have made a determination regarding the seriousness of his illness, and hence whether treatment was warranted, without taking a biopsy, which they did not do. ( Id). He alleges that "They" — apparently Goldfield, Penner and the CMO — "lie to us! They claimed I was not sick enough knowing thats [sic] impossible to know without first doing a biopsy I should have received over 4 years ago!" ( Id. at 27). He further alleges that some time between his initial diagnosis in 2004 and a biopsy taken in 2010, the HCV became "chronic," "and the window is now closed to a point that Genotype A1 or 1A would likely not react well to the available treatments." ( Id. at 26).
The Chief Medical Officer is discussed separately below.
Viewed in the light most favorable to Avery, the Amended Complaint adequately alleges Goldfield's and Penner's deliberate indifference: namely, that (a) Goldfield and Penner purposely failed to respond to his possible medical need by making a determination that his condition was not advanced enough to warrant treatment without taking the biopsy necessary to make such a determination; and (b) the denial of the biopsy may have led to significant further injury, in the form of preventable chronic HCV, if such denial kept Avery from receiving care at an appropriately early stage of his illness. These allegations are sufficient for screening purposes to state a claim for relief against Goldfield and Penner under the Eighth Amendment. See Hallett, 296 F.3d at 745-46; McGuckin, 974 F.2d at 1060
With regard to the Chief Medical Officer, Avery claims that, because Goldfield and Penner cited "criteria" for failing to provide him adequate treatment, CMO must have "authorized" such criteria, and thus must be held liable for the failure to treat. (Dkt. # 12 at 8). He claims that Penner and Goldfield "mislead [sic] plaintiff into the false belief no treatment was available when all it really was is expensive for the state. The said criteria was so much so that CDCR only treated those in desperate need." ( Id. at 29). Avery's allegation that the CMO promulgated or enforced treatment criteria instructing prison doctors to delay HCV treatment in order to reduce costs to such an extent that such failure to treat would result in further significant injury or the "unnecessary and wanton infliction of pain," see Estelle, 429 U.S. at 104, viewed in the light most favorable to Avery, is sufficient for screening purposes to support a claim that the CMO intentionally denied medical care in violation of the Eighth Amendment. See id. at 105; Jett, 439 F.3d at 1069 ("Indifference 'may appear when prison officials deny, delay or intentionally interfere with medical treatment, or it may be shown by the way in which prison physicians provide medical care.'" (quoting Hutchinson v. United States, 838 F.2d 390, 392 (9th Cir. 1988))).
Avery does not, however, provide the CMO's name; nor is it clear that a position with this title actually exists within the California Department of Corrections and Rehabilitation (CDCR). Under the law of this Circuit, where the identity of the defendant is unknown prior to the filing of the complaint, "the plaintiff should be given an opportunity through discovery to identify the unknown defendants, unless it is clear that discovery would not uncover the identities, or that the complaint would be dismissed on other grounds." Wilson v. Alamieda, 2009 WL 1034972, at *4 (E.D. Cal., Apr. 15, 2009) (citing Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999)). "Plaintiff may use the discovery processes to obtain the names of the persons whom he believes violated his constitutional rights. If Plaintiff discovers the identities of these fictitious defendants through the discovery process, or otherwise, he may seek leave of the Court to amend to name these individuals." Id. While, in all probability, there is a person within the CDCR who is responsible for the creation of treatment criteria, the Court cannot order service of the First Amended Complaint on the CMO because it is not clear who he or she is. The Court cannot likewise order the CMO to answer the First Amended Complaint without knowing who the CMO is. The Court will therefore treat the CMO as a "fictitious defendant." Avery should seek the name and proper title of the person he alleges promulgated deficient treatment criteria with deliberate indifference. He may consider propounding an interrogatory on one of the other Defendants to ascertain the CMO's identity. Then Avery may seek leave of the Court to amend his complaint to identify the CMO as defendant. Avery should attempt to do so before the applicable statute of limitations runs, if it has not already done so.
ii. Claims Against Nangalama, Menon and Adams
Avery's Eighth Amendment claim against Defendants Nangalama, Menon and Adams is identical to the claim already screened and held sufficient in the Court's order of April 12, 2010. (Dkt. #9). Thus, Count 2 of the Amended Complaint, which reproduces Count 2 of the original complaint, is sufficient to state a claim for relief under the Eighth Amendment against Defendants Nangalama, Menon and Adams.
IV. Warnings
A. Address Changes
Avery must file and serve a notice of a change of address in accordance with Rule 83-182(f) and 83-183(b) of the Local Rules of Civil Procedure. Avery must not include a motion for other relief with a notice of change of address. Failure to comply may result in dismissal of this action.
B. Copies
Avery must submit an additional copy of every filing for use by the Court. See LRCiv 5-133(d)(2). Failure to comply may result in the filing being stricken without further notice to Plaintiff.
C. Possible Dismissal
If Avery fails to timely comply with every provision of this order, including these warnings, the Court may dismiss this action without further notice. See Ferdik, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure to comply with any order of the Court).
Accordingly,
IT IS HEREBY ORDERED THAT:
(1) Defendants Goldfield and Penner shall answer Count 1 of the Amended Complaint.
(2) Defendants Adams, Menon, and Nangalama shall answer Count 2 of the Amended Complaint.
(3) The Clerk of the Court shall send Plaintiff a Prisoner Complaint form along with this order.
(4) The Clerk of the Court shall send Plaintiff a service packet including the First Amended Complaint (Dkt. #12), this order, a copy of the prior screening order (Dkt. # 9), a Notice of Submission of Documents form, an instruction sheet, and copies of summons and USM-285 forms for Defendants Nangalama, Menon, Adams, Goldfield and Penner.
(5) Within 30 days of the date of filing of this order, Plaintiff must complete and return to the Clerk of the Court the Notice of Submission of Documents. Plaintiff shall submit with the Notice of Submission of Documents a copy of the following for each Defendant: a copy of the First Amended Complaint, a copy of this order, a copy of the prior screening order (Dkt. # 9), completed summons, and completed USM-285 forms.
(6) Plaintiff shall not attempt service on Defendants and must not request waiver of service from the Defendants. Once the Clerk of the Court has received the Notice of Submission of Documents and the required documents from Plaintiff, the Court will direct the United States Marshal to seek waiver of service from each Defendant or serve each Defendant.
(7) If Plaintiff fails to return the Notice of Submission of Documents and the required documents within 30 days of the date of filing of this order, the Clerk of Court shall, without further notice, enter a judgment of dismissal of this action without prejudice. See Fed.R.Civ.P. 41(b).
DATED this 21st day of April, 2011.
NOTICE OF SUBMISSION OF DOCUMENTS
Plaintiff hereby submits the following documents in compliance with the court's order filed _________________:
____ completed summons form ____ completed USM-285 forms ____ copies of the ______________ Complaint/Amended Complaint DATED: _________________________ Plaintiff