FINDINGS AND RECOMMENDATIONS FOR PLAINTIFF TO PROCEED ON COGNIZABLE EIGHTH AMENDMENT CLAIM FOR DAMAGES AND TO DISMISS ALL OTHER CLAIMS
(ECF No. 111)
FOURTEEN (14) DAY OBJECTION DEADLINE
MICHAEL J. SENG, Magistrate Judge.
Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On October 5, 2015, the Court screened Plaintiff's second amended complaint and determined that it stated cognizable Eighth Amendment claims for inadequate medical care against Defendants Sundaram and Kokor. (ECF No. 55.) Plaintiff was given the option to proceed only on these claims or to file an amended complaint. Plaintiff chose to proceed. (ECF No. 57.) His non-cognizable claims were dismissed. (ECF No. 61.)
Defendant Kokor answered the second amended complaint. (ECF No. 70.) Defendant Sundaram filed a motion to dismiss. (ECF No. 71.) As to the motion to dismiss, the Court concluded that the claims as pled were cognizable, but surmised that Plaintiff could nonetheless allege additional facts in support of his claims. (
Plaintiff filed a third amended complaint. (ECF No. 106.) The Court dismissed the third amended complaint because it was not complete in itself. (ECF No. 110.)
Plaintiff's fourth amended complaint (ECF No. 111) is before the Court for screening.
I. Screening Requirement
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous, malicious," or 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). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).
II. Pleading Standard
Section 1983 "provides a cause of action for the deprivation of any rights, privileges, or immunities secured by the Constitution and laws of the United States."
To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated and (2) that the alleged violation was committed by a person acting under the color of state law.
A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice."
III. Plaintiff's Allegations
Plaintiff is incarcerated at the California Substance Abuse Treatment Facility, but complains of acts that occurred at Corcoran State Prison ("CSP"). He names Winfred Kokor, M.D., and Jawahar Sundaram, M.D., as defendants. Briefly stated, he alleges that Defendants refused to provide him with adequate pain management (morphine and gabapentin), despite knowing that other medications were ineffective.
His allegations may be summarized essentially as follows:
Plaintiff's medical history involves a gunshot wound to his chest and right hand, two ineffective surgeries, right elbow surgery with nerve damage, and right leg nerve damage that causes mobility issues and has strained his lower back "for years." He also is a diabetic and needs to exercise, but is unable to do so without proper medication. Plaintiff received adequate pain management, including morphine and gabapentin, at other prisons. Plaintiff also received adequate medication when he was seen by specialists or in the E.R.
However, Dr. Kokor cancelled a medication order from Plaintiff's prior physician. Kokor stated that he didn't treat old injuries and that his decision was based on "cutbacks." Plaintiff saw Dr. Kokor several times, but he refused to prescribe opioids and only prescribed nonsteroidal anti-inflammatory drugs. Both Dr. Kokor and Dr. Sunduram knew that Plaintiff continued to be in pain but nonetheless refused to follow guidelines for the treatment of chronic pain. Plaintiff describes these guidelines as the WHO and CPHCS
Plaintiff filed two complaints. As a result, Kokor briefly changed Plaintiff's medications. At one point, Kokor gave Plaintiff morphine for one day; at another point, he gave Plaintiff morphine for one week.
On one occasion, Plaintiff experienced problems with his hand and saw Dr. Sunduram. Sunduram stated that, "if the orthopedic recommends pain medication then we will talk." The orthopedic specialist did recommend pain medication and Sunduram prescribed Tylenol with codeine. This medication gave Plaintiff stomach problems.
Both Defendants failed to follow "higher reports," stated that they don't follow other reports, refused to send Plaintiff to specialists, and stated that they didn't care.
Plaintiff seeks monetary relief and the reinstatement of his previously prescribed pain medication. He also seeks a declaration that his rights were violated.
A. Eighth Amendment Medical Indifference
The Eighth Amendment's Cruel and Unusual Punishments Clause prohibits deliberate indifference to the serious medical needs of prisoners.
"Deliberate indifference is a high legal standard."
An allegation that prison officials deliberately ignored a prisoner's complaint about the ineffective nature of prescribed pain medication and the pain being suffered as a result can, in some circumstances, give rise to a constitutional claim.
Plaintiff's allegation that Drs. Kokor and Sunduram continued to provide ineffective pain medication, despite Plaintiff's complaints of side effects and continued pain, previously was found to state an Eighth Amendment claim. (
B. Other Statutory Claims
Plaintiff claims that Defendants' conducted violated a number of other statutes: "1997e(E); 18 U.S.C. 831(F)(5) 1365(g)(4) 1515(A)(5) and 1864(d)(2)." The majority of these provisions are wholly inapplicable in this action and, in any event, do not provide a basis for a separate cause of action on the facts presented here.
These claims should be dismissed without further leave to amend.
C. Declaratory Relief
In addition to damages, Plaintiff seeks declaratory relief, but because his claims for damages necessarily entail a determination whether his rights were violated, his separate request for declaratory relief is subsumed by those claims.
D. Injunctive Relief
Plaintiff seeks reinstatement of his medications which is, in effect, a request for injunctive relief.
Plaintiff has been transferred to another institution and apparently is no longer under Defendants' care. Absent facts to suggest that Plaintiff will be transferred back to the custody of Defendants, any requests for injunctive relief appear to be moot.
The Court cannot order officials at Plaintiff's new institution, who are not parties to this matter, to take action.
V. Conclusion and Recommendation
Plaintiff's fourth amended complaint states a cognizable Eighth Amendment claim for damages against Defendants Kokor and Sunduram. It states no other cognizable claims. Further leave to amend appears futile and should be denied.
Accordingly, it is HEREBY RECOMMENDED that:
The findings and recommendations will be submitted to the United States District
Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen (14) days after being served with the findings and recommendations, the parties may file written objections with the Court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." A party may respond to another party's objections by filing a response within fourteen (14) days after being served with a copy of that party's objections. The parties are advised that failure to file objections within the specified time may result in the waiver of rights on appeal.