Opinion
5:22-cv-01917-MCS-BFM
09-27-2023
Daniel Pineda Zelaya v. Dr. Michael Mank, et al.
PRESENT: THE HONORABLE BRIANNA FULLER MIRCHEFF, UNITED STATES MAGISTRATE JUDGE
CIVIL MINUTES - GENERAL
Proceedings: (In Chambers) Order Dismissing First Amended Complaint with Leave to Amend
On October 28, 2022, Plaintiff Daniel Pineda Zelaya filed a pro se civil rights Complaint concerning the medical treatment he received after he fell while in federal custody. He was subsequently granted leave to proceed in forma pauperis. (ECF No. 13.) After screening the Complaint, the Magistrate Judge previously assigned to this case dismissed Plaintiff's Complaint with leave to amend. (ECF No. 23.)
On August 31, 2023, Plaintiff filed a First Amended Complaint (ECF No. 31 (“FAC”).) In his FAC, Plaintiff names Dr. Michael Mank, a doctor at the United States Penitentiary at Victorville, as a defendant in his individual capacity. (FAC at 3.) Plaintiff alleges that Dr. Mank provided inadequate treatment for injuries Plaintiff sustained after falling off a top bunk at USP-Victorville. (FAC at 3.) He requests monetary damages. (FAC at 6.)
I. Standard of Review
The Court is required to screen pro se complaints brought by prisoners, and to dismiss claims that are frivolous, malicious, or fail to state a claim upon which relief can be granted. 28 U.S.C. § 1915A(a)-(b)(1). In determining whether Plaintiff has stated a claim, the Court accepts as true the factual claims contained in the First Amended Complaint and views all inferences in a light most favorable to him. Hamilton v. Brown, 630 F.3d 889, 892-93 (9th Cir. 2011). The Court does not, however, “accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). Because Plaintiff is proceeding pro se, the Court construes the Complaint liberally. Barrett v. Belleque, 544 F.3d 1060, 1061-62 (9th Cir. 2008) (per curiam).
After careful review, the Court finds that the FAC is still deficient and subject to dismissal. The Court will thus again dismiss Plaintiff's complaint and grant him leave to amend.
II. Plaintiff's Allegations
Plaintiff alleges the following facts, taken as true for purposes of this order: At the time of the relevant events, Plaintiff was incarcerated at USP-Victorville. While in his cell, he fell out of the top bunk face first. (FAC at 3.) Dr. Michael Mank, a doctor at USP-Victorville, saw him fall and radioed for another officer to open the cell door. (FAC at 3.) Once the door was opened, Dr. Mank had the officer put Plaintiff in handcuffs. (FAC at 5.) Dr. Mank and the other officer then forced Plaintiff to stand and move to the stretcher, even though Plaintiff told Dr. Mank that his back and neck were hurting. (FAC at 3, 5.)
When Plaintiff was released from the hospital, Dr. Mank failed to prescribe any pain medicine, even though the hospital told Dr. Mank that Plaintiff had fractured bones in his face. (FAC at 5.) Dr. Mank also failed to “arrange” surgery even though the hospital reported that he needed surgery. (FAC at 5.)
Dr. Mank did not include information about the initial incident in his report. (FAC at 5.)
The Court notes that Plaintiff's initial Complaint contained more factual detail about the events between Plaintiff's fall and Dr. Mank's decision to send him out to the hospital. Plaintiff is allowed to add and omit facts as he chooses, but the Court will remind Plaintiff that any complaint he files has to be one complete document in itself; the Court cannot consider facts only alleged in a prior complaint when deciding whether he has stated a claim. C.D. Cal. R. 15-2.
Plaintiff brings his claim under Bivens v. Six Unknown Agents, 403 U.S. 388 (1971). Plaintiff does not clearly state the constitutional basis for his claims against Dr. Mank, but it appears, based on his allegations, that he is asserting a claim for inadequate medical care under the Eighth Amendment.
III. Deliberate Indifference to Serious Medical Needs
The Supreme Court, in Bivens v. Six Unknown Agents 403 U.S. 388 (1971), recognized an “implied right of action for damages against federal officers alleged to have violated a citizen's constitutional rights.” Vega v. United States, 881 F.3d 1146, 1152 (9th Cir. 2018). A Bivens remedy is available when a prisoner proves an Eighth Amendment violation for failure to provide adequate medical treatment. Ziglar v. Abbasi, 582 U.S. 120 (2017) (citing Carlson v. Green, 446 U.S. 14 (1980)). A prisoner's claim of inadequate medical care violates the Eighth Amendment if the mistreatment rises to the level of “deliberate indifference to serious medical needs.” Russell v. Lumitap, 31 F.4th 729, 738 (9th Cir. 2022) (quoting Estelle v. Gamble, 429 U.S. 97, 103 (1976)).
Proof of an Eighth Amendment violation based on inadequate medical care requires a plaintiff to satisfy “both an objective standard-that the deprivation was serious enough to constitute cruel and unusual punishment- and a subjective standard-deliberate indifference.” Balla v. Idaho, 29 F.4th 1019, 1025 (9th Cir. 2022) (citation and internal quotation marks omitted).
To meet the objective element of such an Eighth Amendment claim, a prisoner “must demonstrate the existence of a serious medical need.” Colwell, 763 F.3d at 1066. A medical need is serious “if failure to treat it will result in significant injury or the unnecessary and wanton infliction of pain.” Peralta v. Dillard, 744 F.3d 1076, 1081 (9th Cir. 2014) (en banc) (internal quotation marks omitted).
To meet the subjective element of such an Eighth Amendment claim, “a prisoner must demonstrate that the prison official acted with deliberate indifference.” See Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (internal quotation marks omitted). Deliberate indifference includes the intentional choice to deny, delay, or interfere with a prisoner's medical care. See Gamble, 429 U.S. at 104-05. For an official's actions to be “deliberate,” the official “must not only be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, but that person must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994); see also Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014) (a “prison official is deliberately indifferent . . . only if the official knows of and disregards an excessive risk to inmate health and safety” (internal quotation marks omitted)).
Under that standard, neither mistake nor negligence is sufficient to state a claim. Balla, 29 F.4th at 1025-26; Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). And a mere difference of opinion over proper medical treatment does not constitute an Eighth Amendment violation, so long as the defendant's course of treatment was medically acceptable under the circumstances. Porretti v. Dzurenda, 11 F.4th 1037, 1047 (9th Cir. 2021).
In short, to prove the subjective element of an Eighth Amendment violation, a plaintiff must show both that “that the course of treatment the [defendant] chose was medically unacceptable under the circumstances and that the [defendant] chose this course in conscious disregard of an excessive risk to the [plaintiff's] health.” Id. (citation omitted).
Plaintiff alleges that the medical care he received at USP-Victorville was constitutionally inadequate in three respects: (1) Dr. Mank saw Plaintiff fall and forced him to walk to the stretcher when Plaintiff was in pain; (2) Dr. Mank failed to prescribe Plaintiff pain medication after he was released from the hospital with broken bones in his face; and (3) Dr. Mank failed to arrange for a facial surgery that the hospital recommended. As currently pleaded, Plaintiff has failed to allege sufficient facts to support a claim that Dr. Mank's actions violated the Eighth Amendment.
A. Walking to the Stretcher
The first allegation is that Dr. Mank was deliberately indifferent to a serious medical need when he made Plaintiff walk to the stretcher rather than bringing the stretcher into his cell.
Plaintiff alleges that he felt “very severe pain” after falling from the top bunk to the floor. (ECF No. 31 at 5.) He has thus sufficiently alleged a serious medical need. A serious medical need includes an injury that a reasonable doctor would consider worthy of treatment. Here, Dr. Mank did consider Plaintiff's pain worthy of treatment; he got a stretcher and ultimately sent Plaintiff to the hospital. At this stage, then, the Court is willing to accept that Plaintiff's allegation of a serious medical need is sufficient. See Scalia v. Cnty. of Kern, 308 F.Supp.3d 1064, 1076 (E.D. Cal. 2018).
But Plaintiff has not alleged sufficient facts that would give rise to an inference that Dr. Mank was deliberately indifferent to Plaintiff's medical needs. To state a claim of deliberate indifference, Plaintiff would have to allege that Dr. Mank's choice was medically unacceptable under the circumstances, and that Dr. Mank made that choice in conscious disregard of the excessive risk to Plaintiff's health. Here, Dr. Mank is alleged to have forced Plaintiff to walk from his bed to the cell door, where he was put on a stretcher. It is not clear what about Plaintiff's fall made it medically unacceptable to walk a distance no more than a couple feet-let alone that Dr. Mank knew enough about the fall in that moment to make his instructions to Plaintiff an unacceptable medical choice that reflected his deliberate indifference to Plaintiff's pain.
The Court concludes that Plaintiff has failed to state an Eighth Amendment claim based on this aspect of his medical care.
B. Failure to Prescribe Pain Medication
Plaintiff did not plead sufficient facts to establish an Eighth Amendment claim based on Dr. Mank's failure to provide pain medication either.
Plaintiff's allegation that he had broken bones is sufficient to show a serious medical need at this stage. Broken bones in one's face is a condition “that a reasonable doctor or patient would find important and worthy of comment or treatment,” and that “significantly affects an individual's daily activities.” Russell, 31 F.4th at 739. See Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (fractured thumb is a serious medical condition).
But Plaintiff must also allege facts that would make plausible that Dr. Mank's failure to prescribe pain medication was medically unacceptable under the circumstances. Porretti, 11 F.4th at 1047. At this point, Plaintiff has not done so. Plaintiff does not describe his condition upon his release from the hospital, whether he was on pain medication when he was released from the hospital, and whether he was released with discharge orders concerning medication. Without additional facts, the Court cannot say that failing to provide pain medication was a medically unacceptable choice. See, e.g., Prewitt v. Roos, 160 Fed.Appx. 609, 610 (9th Cir. 2005) (reversing summary judgment on an Eighth Amendment deliberate indifference claim when corrections officers failed to provide pain medication despite numerous doctors' prescriptions); Looman v. Wick, 329 Fed.Appx. 729, 730 (9th Cir. 2009) (holding that the severe pain the plaintiff experienced after being deprived of pain medication for up to eight hours the day after he had hernia surgery satisfied the deliberate indifference standard). But see Schultz v. Leighton, 325 F.Supp.3d 1069, 1077-78 (N.D. Cal. 2017) (holding that the plaintiff did not establish deliberate indifference when he wanted a stronger pain medication than the defendants gave him because this difference of opinion was insufficient to establish a constitutional violation).
Even if Plaintiff could show that it was medically unacceptable for the facility not to provide him pain medication, he must also show that Dr. Mank was aware of the issue and consciously disregarded the risk to Plaintiff's health. Plaintiff does not allege that Dr. Mank knew about Plaintiff's condition upon his return from the hospital, that Plaintiff told Dr. Mank that he needed pain medication, that Dr. Mank knew of and ignored any discharge orders from the hospital, or that Dr. Mank was even responsible for his care when he returned. Without such allegations, Plaintiff cannot establish an Eighth Amendment violation. See Robinson v. Catlett, 725 F.Supp.2d 1203 (S.D. Cal. 2010) (finding that the defendant nurse did not violate the plaintiff's Eighth Amendment rights when the defendant had not been involved in recommending, approving, or ordering the pain medication and was not aware of the plaintiff's prescription for pain medication). But see Lavender v. Lampert, 242 F.Supp.2d 821 (D. Or. 2002) (denying summary judgment when the plaintiff complained of pain and requested more pain medication, the doctor renewed plaintiff's prescription for pain medication, and the defendant committee, despite knowing these facts, decided to discontinue the plaintiff's pain medication).
C. Failure to Arrange Facial Surgery
For similar reasons, Plaintiff did not plead sufficient facts to establish that Dr. Mank's failure to “arrange” for facial surgery violated the Eighth Amendment.
Again, by alleging that he had broken bones in his face, Plaintiff has alleged a serious medical need.
But Plaintiff has not pled sufficient facts to give rise to a plausible inference that Dr. Mank was deliberately indifferent to that need-or that surgery was the only medically acceptable choice under the circumstances. Even if someone at the hospital said Plaintiff needed surgery (FAC at 5), a difference of opinion between medical professionals concerning the appropriate course of treatment alone does not amount to deliberate indifference. See Toguchi, 391 F.3d at 1059-60. To establish deliberate indifference, the prisoner must show that the treatment the doctor chose was medically unacceptable under the circumstances. See Jackson, 90 F.3d at 332.
Here, Plaintiff does not identify what surgery was recommended and who recommended it. He does not allege whether the surgery was necessary to alleviate pain or to prevent some other harm, nor does he explain why it was medically unacceptable for Plaintiff not to receive the facial surgery. Without additional allegations describing the surgery, who thought it was necessary, and why they thought it was necessary, Plaintiff's factual allegations do not nudge his claims across the line from conceivable to plausible. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
And as before, even if it was medically unacceptable not to provide Plaintiff the recommended surgery, Plaintiff did not sufficiently allege that Dr. Mank was responsible for depriving him of a necessary surgery. There were no allegations that (or how) Dr. Mank knew about the hospital's recommendation, whether he ignored the recommendation (as opposed to requesting approval for the surgery and being turned down), or whether he was in a position within the facility to arrange for him to have surgery. Without such information, Plaintiff's pleading does not state an Eighth Amendment claim.
D. Conclusion
The Court is sympathetic to Plaintiff's complaint that he was injured from falling from a bunk, and that he did not receive the treatment he believes necessary for this injury. Plaintiff's description of his pain seems sincere. But deliberate indifference is not an easy standard to meet. It is meant to capture those who purposefully ignore the medical needs of incarcerated individuals under their care. Here, Plaintiff has not alleged sufficient facts to show that Defendant Mank purposefully ignored or failed to respond to his medical needs.
Accordingly, Plaintiff has failed to state a federal claim for deliberate indifference to serious medical needs.
* * * * *
For the foregoing reasons, the First Amended Complaint is dismissed with leave to amend because it violates Rule 8 and because it fails to state a federal claim against the Defendant. Although the Court has some doubts as to Plaintiff's ability to cure the deficiencies in his claims against the Defendant, the Court nevertheless grants Plaintiff one more opportunity to try to do so. See Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam) (citations omitted).
If Plaintiff wants to continue with this suit, he must file a Second Amended Complaint no later than October 27, 2023. The Second Amended Complaint:
• Must bear the case number assigned in this case;
• Must be labeled “Second Amended Complaint”;
• Must be complete in and of itself, meaning no incorporation by reference of the original Complaint, the First Amended Complaint, or any other pleading, attachment, or document; and
• Must be signed and dated.
If Plaintiff no longer wishes to pursue this action, he may request a voluntary dismissal of the action pursuant to Federal Rule of Civil Procedure 41(a).
The Court Clerk is directed to provide Plaintiff with a blank Central District civil rights complaint form, and a blank notice of dismissal form.
Plaintiff is warned that, if he does not do either of these things within the deadline set by the Court (or seek an extension of that deadline, if he has a good reason to do so), the Court will recommend to the assigned District Judge that the action be dismissed without further leave to amend and with prejudice.
IT IS SO ORDERED.