KENDALL J. NEWMAN, Magistrate Judge.
Plaintiff is a state prisoner, in the custody of the California Department of Corrections and Rehabilitation ("CDCR"), who is incarcerated at the California Medical Facility ("CMF"). Plaintiff proceeds without counsel, and in forma pauperis, in this action filed pursuant to 42 U.S.C. § 1983. On February 22, 2011, the court found that plaintiff's complaint appeared to state potentially cognizable claims against defendant physicians Dr. Saukhla and Dr. Bick. Dr. Saukhla served as plaintiff's primary care physician at CMF; Dr. Bick is the Chief Medical Officer ("CMO") at CMF. On June 24, 2011, the court denied plaintiff's motion for leave to file an amended complaint,
A motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6), challenges the sufficiency of the pleadings set forth in the complaint.
In ruling on a motion to dismiss pursuant to Rule 12(b)(6), the court "may generally consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice."
Inadequate medical care does not constitute cruel and unusual punishment cognizable under § 1983, unless the mistreatment rose to the level of "deliberate indifference to serious medical needs."
To establish deliberate indifference, a plaintiff must show that defendants knew of, and disregarded, an excessive risk to his health or safety.
A showing of merely inadvertent or even negligent medical care is not enough to establish a constitutional violation.
The complaint alleges broadly that plaintiff "complained about pain" in his neck, back, and right shoulder since approximately December 2008, but that his primary care physician, Dr. Saukhla, "neglected" plaintiff's medical needs. However, the complaint further provides that plaintiff has been satisfied with his health care since Dr. Wills, rather than Dr. Saukhla, became plaintiff's primary care physician, in mid-2010; Dr. Wills' treatment included obtaining surgery for an injury to plaintiff's left shoulder. The narrative of the complaint states in full:
(Dkt. No. 1 at 4 (sic).) Plaintiff seeks "adequate medical treatment," and compensatory and punitive damages totaling one million dollars. (
Documents attached to the complaint, and submitted in support of plaintiff's opposition to the pending motion, reveal that plaintiff initiated several pertinent administrative appeals, but exhausted only one. In his unexhausted appeals, plaintiff sought, in April, May and June 2009, treatment for alleged pain in his back, left leg, right shoulder, and neck; for alleged cramping in his right shoulder; and for alleged numbness in his legs and right hand; in addition, plaintiff requested that he be assigned a primary care physician other than Dr. Saukhla.
Pursuant to his only fully exhausted appeal (Log No. 10-10637, submitted March 22, 2010, exhausted on September 9, 2010), plaintiff alleged that "CDCR, CMF, and Dr. Saukhla are neglecting my right to Health Care." (Dkt. No. 1 at 7.) Plaintiff explained:
(
In requesting Second Level Review, on June 11, 2010, plaintiff explained (
The appeal was denied at the Director's Level Review, pursuant to a review by licensed clinical staff of plaintiff's appeal file and health records, and a finding that plaintiff had received all medical treatment deemed medically necessary to date,
Medical records attached to these several appeals include MRI reports of plaintiff's cervical and lumbrosacral spine (conducted in June and August 2009); MRI reports of plaintiff's right and left shoulders (conducted in May and July 2010, respectively); an EMG conducted in May 2009; and consultation with a spine surgeon (Dr. Burch) in August 2009. Plaintiff's newly submitted medical records indicate that plaintiff had a course of physical therapy commencing in July 2011; a neurosurgical examination in May 2011; and MRIs of his right shoulder and neck in September 2011.
Defendants move to dismiss plaintiff's complaint, on the ground that it fails to state a cognizable claim against either defendant.
In opposition to defendants' pending motion, plaintiff contends that he had an argument with Dr. Saukhla on June 11, 2009, and "after that defendant did as little as possible for petitioner (sic)." Dkt. No. 28 at 2. Plaintiff asserts that Dr. Saukhla "never ordered physical therapy for [plaintiff's] neck," despite a June 2009 MRI that showed "stenosis (Bone Spur)" in plaintiff's cervical spine; and failed to obtain a timely MRI of plaintiff's shoulders after Dr. Burch made the recommendation in August 2009. (Dkt. No. 28 at 1-2.) These assertions are not supported by the available record. The Director's Level Response to plaintiff's exhausted appeal indicates that plaintiff obtained physical therapy in February, April and June 2010; plaintiff's newly submitted medical records indicate that plaintiff had another course of physical therapy in July 2011. While it is not clear whether these courses of physical therapy included treatment for plaintiff's neck, plaintiff certainly had the opportunity to discuss his neck symptoms with a physical therapist. Similarly, plaintiff received several MRIs, including of both shoulders. The Director's Level Response to plaintiff's exhausted appeal indicates that plaintiff had MRIs in June 2009 (neck), April 2010 (right shoulder), and June 2010 (left shoulder), while plaintiff's newly submitted records indicate that he obtained MRIs of his right shoulder and neck in September 2011.
Thus, despite a liberal construction of plaintiff's allegations against Dr. Saukhla, based on plaintiff's complaint and all supporting documents, as well as the allegations of plaintiff's opposition, the court finds that plaintiff has failed to state a cognizable Eighth Amendment claim against Dr. Saukhla for deliberate indifference to plaintiff's serious medical needs. Plaintiff has not sufficiently alleged or demonstrated that his medical needs were so significant at the time he was treated by Dr. Saukhla that the physician's alleged failure to provide plaintiff the treatment he requested resulted in the "unnecessary and wanton infliction of pain," or "further significant injury" to plaintiff. See Jett, supra, 439 F.3d at 1096. Even if existing facts were so construed, plaintiff has failed to allege facts from which to reasonably infer that Dr. Saukhla purposefully denied plaintiff care which was clearly indicated. Plaintiff's general allegations of significant harm are further undermined by his assertion that "things changed" for the better when Dr. Wills became his primary care physician.
Therefore, the court recommends that defendants' motion to dismiss plaintiff's complaint, as to defendant Saukhla, be granted.
Defendants correctly note that the complaint contains no factual allegations against Dr. Bick. In opposition to defendants' motion to dismiss, plaintiff states only that he is suing Dr. Bick because he "is in charge of making sure that the doctors he supervises are doing their contracted duties. Dr. Saukhla is one of the those doctors that Dr. Bick supervises." (Dkt. No. 28 at 3.) In addition, review of plaintiff's supporting documents indicates that Dr. Bick reviewed two of plaintiff's administrative appeals at the Second Level, in his capacity as CMF's Chief Deputy of Clinical Services.
Supervisory personnel cannot be held liable under Section 1983, for the actions of their subordinates, under a theory of respondeat superior. When a named defendant holds a supervisory position, the causal link between him and the claimed constitutional violation must be specifically alleged, based on facts other than the supervisory relationship.
Plaintiff's claim against Dr. Bick, based on a theory of respondeat superior, fails due to the absence of any alleged any causal link between Dr. Bick and the alleged constitutional violations committed by Dr. Saukhla.
To the extent that Dr. Bick was directly involved in decisions concerning plaintiff's care, based on his Second Level reviews of two of plaintiff's administrative grievances, the court also finds no cognizable claim. In general, a defendant's participation in the administrative review or denial of a plaintiff's inmate appeal does not give rise to a cause of action, particularly one premised on due process.
Therefore, the court recommends that defendants' motion to dismiss plaintiff's complaint, as to defendant Bick, also be granted.
Review of the complaint and supporting documents, as well as plaintiff's opposition to the pending motion, demonstrate that the deficiencies of the complaint cannot be cured by amendment. Therefore, defendants' motion to dismiss should be granted, and this action should be dismissed with prejudice.
Accordingly, IT IS HEREBY ORDERED that:
2. The Clerk of Court is directed to randomly assign a district judge to this action.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 21 days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be filed and served within 14 days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order.
This summary does not include initial appeals that were returned without consideration on the merits because deemed incomplete at the outset.
On June 29, 2010, Dr. Bick "partially granted" plaintiff's exhausted grievance (Log No. 10-10637), pursuant to the Second Level Response, on the ground that Dr. Wills had already submitted a Physician Request for Service for orthopedic consultation regarding both of plaintiff's shoulders. (Dkt. No. 1 at 11.) In addition, Dr. Bick "granted" plaintiff's request for a thorough review of his medical treatment, tailored to plaintiff's specific inquiry concerning treatment for his shoulders, made pursuant to his request for Second Level Review. Dr. Bick summarized plaintiff's care to date, and noted that plaintiff had received a "stepwise workup for your right shoulder," and an emergency x-ray of his left shoulder, for which plaintiff was seen by Dr. Wills three times within the preceding month. (