# (PC) Hernandez v. Marcelo

> District Court, E.D. California · March 2, 2020

URL: https://www.frixlaw.com/law-library/cases/10017386

## Case

- **Court:** District Court, E.D. California
- **Decided:** March 2, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
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11 MARINO HERNANDEZ ANTONIO, Case No. 1:19-cv-01219-JLT (PC)

12 Plaintiff, ORDER DIRECTING PLAINTIFF TO
FILE A FIRST AMENDED COMPLAINT
13 v. OR NOTIFY THE COURT OF HIS
DESIRE TO PROCEED ONLY ON
14 J. MARCELO, et al., CLAIMS FOUND COGNIZABLE

15 Defendants. (Doc. 1)

16 21-DAY DEADLINE

17 Plaintiff alleges the defendants subjected him to cruel and unusual punishment, retaliation,
18 and violations of the Americans with Disabilities Act and the Rehabilitation Act. (Doc. 1.) The
19 Court finds that Plaintiff states cognizable claims against J. Marcelo and N. Akabike, but not
20 against C. Cryer, C. Mbadugha, and D. Oberst. Accordingly, the Court orders Plaintiff to file a
21 first amended complaint curing the deficiencies identified in this order or notify the Court that he
22 wishes to proceed only on his claims against Marcelo and Akabike and to dismiss Cryer,
23 Mbadugha, and Oberst as defendants.
24 I. SCREENING REQUIREMENT
25 The Court is required to screen complaints brought by prisoners seeking relief against a
26 governmental entity or an employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court
27 must dismiss a complaint or portion thereof if the prisoner has raised claims that are frivolous or
1 defendant immune from such relief. 28 U.S.C. § 1915A(b). The Court should dismiss a complaint
2 if it lacks a cognizable legal theory or fails to allege sufficient facts to support a cognizable legal
3 theory. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).
4 II. PLEADING REQUIREMENTS
5 A. Federal Rule of Civil Procedure 8(a)
6 “Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited
7 exceptions.” Swierkiewicz v. Sorema N. A., 534 U.S. 506, 513 (2002). A complaint must contain
8 “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R.
9 Civ. Pro. 8(a)(2). “Such a statement must simply give the defendant fair notice of what the
10 plaintiff's claim is and the grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512 (internal
11 quotation marks and citation omitted).
12 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a
13 cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556
14 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must
15 set forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.’”
16 Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). Factual allegations are accepted as
17 true, but legal conclusions are not. Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555).
18 The Court construes pleadings of pro se prisoners liberally and affords them the benefit of
19 any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citation omitted). However, “the
20 liberal pleading standard … applies only to a plaintiff’s factual allegations,” not his legal theories.
21 Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989). Furthermore, “a liberal interpretation of a civil
22 rights complaint may not supply essential elements of the claim that were not initially pled,”
23 Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (internal quotation
24 marks and citation omitted), and courts “are not required to indulge unwarranted inferences.” Doe
25 I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and
26 citation omitted). The “sheer possibility that a defendant has acted unlawfully” is not sufficient to
27 state a cognizable claim, and “facts that are merely consistent with a defendant’s liability” fall
1 B. Linkage and Causation
2 Section 1983 provides a cause of action for the violation of constitutional or other federal
3 rights by persons acting under color of state law. See 42 U.S.C. § 1983. To state a claim under
4 section 1983, a plaintiff must show a causal connection or link between the actions of the
5 defendants and the deprivation alleged to have been suffered by the plaintiff. See Rizzo v. Goode,
6 423 U.S. 362, 373-75 (1976). The Ninth Circuit has held that “[a] person ‘subjects’ another to the
7 deprivation of a constitutional right, within the meaning of section 1983, if he does an affirmative
8 act, participates in another’s affirmative acts, or omits to perform an act which he is legally
9 required to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588
10 F.2d 740, 743 (9th Cir. 1978) (citation omitted).
11 III. DISCUSSION
12 A. Plaintiff’s Allegations
13 Plaintiff alleges that he has a “permanent disability due to severe ankle joint arthritis,
14 degenerative hips condition and osteoarthritis in his lumbar spine.” (Doc. 1 at 5.) Plaintiff’s
15 claims stem from his medical treatment and accommodations at the Substance Abuse Treatment
16 Facility and State Prison, Corcoran (SATF). (See id. at 1, 5.)
17 Plaintiff alleges Dr. Marcelo “deprived” him of a wheelchair, back brace, and “[m]obility
18 [i]mpaired vest” on July 12, 2018, despite Plaintiff’s protests that he was unable to walk due to
19 pain in his ankle, back, and hips. (See id. at 5.) Plaintiff states that Marcelo also deprived him of
20 “safer transportation, bottom bunk/bottom tier accommodations excluding him from his daily
21 activities, services, and programs.” (Id. at 9.) Dr. Marcelo noted that Plaintiff had no disability
22 and “no evidence of mobility impairment.” (Id. at 5.) Plaintiff alleges that Marcelo “ignored with
23 clear indifference” Plaintiff’s medical chrono from July 2017, which states that he has a disability
24 and a “severe orthopedic condition of hips, knees, ankles, and feet.” (Id.)
25 Plaintiff has been forced to walk in severe pain and with a limp, and he “sometimes jumps
26 on one leg” due to the pain in his left ankle. (Id. at 6.) Plaintiff states that, because of this, other
27 inmates call him “flamingo.” (See id.) Plaintiff is unable to participate in daily activities and
1 Plaintiff alleges C. Cryer, chief executive officer for health care at SATF, “deliberately
2 approved” of Dr. Marcelo’s actions by denying his administrative appeals. (Id. at 5-6.) He states
3 that Cryer knew or should have known that Plaintiff had a disability because of his appeals. (Id. at
4 6.) Plaintiff alleges that Cryer failed to provide him reasonable accommodations. (Id. at 9.)
5 On April 18, 2018, Plaintiff’s teacher, C. Flores, referred Plaintiff to Dr. Akabike,
6 Plaintiff’s primary care physician, because she feared he might “cause an accident” due to his
7 “manner of walk.” (Id. at 6.) During his visit, Plaintiff requested a wheelchair “because he was
8 suffering severe pain every time he … walk[ed].” (Id.) According to Plaintiff, Dr. Akabike
9 responded, “If I give you the wheelchair, I will … lose my license.” (Id. at 6-7.) Plaintiff alleges
10 that Dr. Akabike wrote falsely in her notes that Plaintiff said “he did not need the wheelchair
11 because he can walk” and “that he walks several laps at a time.” (Id. at 7.) Plaintiff affirms that he
12 never said this to Akabike. (Id.)
13 On June 12, 2019, Plaintiff requested a wheelchair from D. Oberst, a physician assistant.
14 (Id. at 4, 7.) According to Plaintiff, Oberst replied that since Plaintiff can walk, he does not need a
15 wheelchair, and “if he is limping, that is ok with him.” (Id. at 7.)
16 On July 24, 2019, Plaintiff requested a wheelchair from C. Mbadugha, a physician
17 assistant. (Id. at 3, 7.) According to Plaintiff, Mbadugha replied that Plaintiff does not require a
18 wheelchair because he told his primary care physician “that he walks several laps around the
19 yard.” (Id. at 7.) Plaintiff attempted to explain that this was a mistake, and that he is not able to
20 walk well due to severe pain, but Mbadugha told him to “be quiet.” (Id.)
21 On August 27, 2019, Plaintiff again visited Dr. Akabike. He repeated his request for a
22 wheelchair and told her about the pain in his hips, back, and ankle. According to Plaintiff, Dr.
23 Akabike told him “that his pain is no medical indication for a wheelchair.” (Id.) When Plaintiff
24 attempted to say more, Akabike replied, “I’m done.” (Id.)
25 Plaintiff alleges that Marcelo and Cryer are retaliating against him because of a previous
26 lawsuit he filed against Cryer, Nurse Stronach, and Dr. Kokor, a coworker of Marcelo. (Id. at 8.)
27 Plaintiff states that, in the prior lawsuit, the Court granted summary judgment in favor of the
1 B. Claims for Relief
2 1. Deliberate Indifference to Serious Medical Needs
3 “Prison officials violate the Eighth Amendment if they are ‘deliberate[ly] indifferen[t] to
4 [a prisoner’s] serious medical needs.’” Peralta v. Dillard, 744 F.3d 1076, 1081 (9th Cir. 2014)
5 (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). “This is true whether the indifference is
6 manifested by prison doctors in their response to the prisoner’s needs or by prison guards in
7 intentionally denying or delaying access to medical care….” Estelle, 429 U.S. at 104-05. “A
8 medical need is serious if failure to treat it will result in significant injury or the unnecessary and
9 wanton infliction of pain.” Peralta, 744 F.3d at 1081 (internal quotation marks and citations
10 omitted). “A prison official is deliberately indifferent to that need if he ‘knows of and disregards
11 an excessive risk to inmate health.’” Id. at 1082 (quoting Farmer v. Brennan, 511 U.S. 825, 837
12 (1994)).
13 The test for deliberate indifference to medical need is two-pronged and has objective and
14 subjective components. See Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012). To establish
15 such a claim, a prisoner must first “show a serious medical need by demonstrating that failure to
16 treat [the] prisoner’s condition could result in further significant injury or the unnecessary and
17 wanton infliction of pain. Second, the plaintiff must show the defendants’ response to the need
18 was deliberately indifferent.” Id. (internal quotation marks and citation omitted).
19 As to the first, objective prong, “[i]ndications that a plaintiff has a serious medical need
20 include ‘[t]he existence of an injury that a reasonable doctor or patient would find important and
21 worthy of comment or treatment; the presence of a medical condition that significantly affects an
22 individual's daily activities; or the existence of chronic and substantial pain.’” Colwell v.
23 Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014) (citation omitted).
24 As to the second, subjective prong, deliberate indifference “describes a state of mind more
25 blameworthy than negligence” and “requires more than ordinary lack of due care for the
26 prisoner’s interests or safety.” Farmer v. Brennan, 511 U.S. 825, 835 (1994) (internal quotation
27 marks and citation omitted). Deliberate indifference exists where a prison official “knows that
1 reasonable measures to abate it.” Id. at 847. In medical cases, this requires showing, “(a) a
2 purposeful act or failure to respond to a prisoner’s pain or possible medical need and (b) harm
3 caused by the indifference.” Wilhelm, 680 F.3d at 1122 (citation omitted). “A prisoner need not
4 show his harm was substantial; however, such would provide additional support for the inmate’s
5 claim that the defendant was deliberately indifferent to his needs.” Jett v. Penner, 439 F.3d 1091,
6 1096 (9th Cir. 2006) (citation omitted).
7 “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 1060
8 (9th Cir. 2004). “Under this standard, the prison official must not only ‘be aware of facts from
9 which the inference could be drawn that a substantial risk of serious harm exists,’ but [he] ‘must
10 also draw the inference.’” Id. at 1057 (quoting Farmer, 511 U.S. at 837). “If a [prison official]
11 should have been aware of the risk, but was not, then the [official] has not violated the Eighth
12 Amendment, no matter how severe the risk.’” Id. (internal quotation marks and citation omitted).
13 Plaintiff’s allegations, if true, show that he has serious medical needs. Plaintiff alleges he
14 suffers from a “severe orthopedic condition,” which causes him significant and chronic pain.
15 (Doc. 1 at 5.) Plaintiff’s allegations thus satisfy the first, objective prong. See Colwell, 763 F.3d at
16 1066.
17 Plaintiff’s allegations satisfy the second, subjective prong with respect to Dr. Marcelo and
18 Dr. Akabike. Plaintiff alleges Dr. Marcelo ignored his medical chrono from 2017, which provides
19 that Plaintiff has a disability and “severe orthopedic condition.” (Doc. 1 at 5.) Generally, mere
20 differences in medical opinion are insufficient to establish deliberate indifference. Jackson v.
21 McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (citations omitted). However, leniently construed,
22 Plaintiff’s allegations show that Marcelo disregarded Plaintiff’s severe pain by refusing to
23 provide any type of accommodations to address it. See Wilhelm, 680 F.3d at 1122.
24 Plaintiff alleges the same with respect to Dr. Akabike. Plaintiff’s allegations, leniently
25 construed, show that Dr. Akabike’s decisions to deny Plaintiff medical accommodations were not
26 based on medical judgment. For example, he alleges that Akabike expressed concerns about her
27 license and falsified medical records by writing that Plaintiff “said that he walks several laps at a
1 Plaintiff does not state a cognizable claim against CEO Cryer. Plaintiff bases his claims on
2 Cryer’s denials of his administrative appeals. (See Doc. 1 at 6.) As an initial matter, Plaintiff does
3 not have a “constitutional entitlement to a specific prison grievance procedure.” Fairley v.
4 Shelton, 664 F. App’x 616, 617 (9th Cir. 2016) (citation and internal quotation marks omitted).
5 To the extent that Plaintiff tries to establish supervisory liability, the Court notes that the
6 complaint’s facts are insufficient to show that Cryer’s actions or failures to act meet the high legal
7 standard of deliberate indifference. See Toguchi, 391 F.3d at 1060. Plaintiff’s allegations do not
8 show that Cryer was on notice of a pattern or practice of constitutional violations, such that his
9 denials of Plaintiff’s appeals constituted approval or acquiescence to such practice. See Hunter v.
10 Cty. of Sacramento, 652 F.3d 1225, 1233 (9th Cir. 2011); Henry v. Cty. of Shasta, 132 F.3d 512,
11 519 (9th Cir. 1997), as amended by 137 F.3d 1372 (9th Cir. 1998).
12 Plaintiff also does not state cognizable claims against Physician Assistants Mbadugha and
13 Oberst. Plaintiff’s allegations, at most, show that Mbadugha and Oberst relied on the diagnoses of
14 doctors in denying Plaintiff’s request for a wheelchair. (See Doc. 1 at 7.) Such reliance does not
15 demonstrate deliberate indifference. See Maciel v. Rowland, 145 F.3d 1339 (9th Cir. 1998)
16 (prison guards not deliberately indifferent when they relied on doctors’ recommendations). The
17 allegations do not show that Mbadugha and Oberst were aware of facts from which the inference
18 could be drawn that Plaintiff suffered from the unnecessary and wanton infliction of pain and
19 drew the inference. See Wilhelm, 680 F.3d at 1122; Toguchi, 391 F.3d at 1057.
20 2. Retaliation
21 A claim for retaliation has five elements. Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir.
22 2012). First, a plaintiff must allege that he engaged in protected activity. Id. For example, filing
23 an inmate grievance is protected, Rhodes v. Robinson, 408 F.3d 559, 568 (9th Cir. 2005), as is the
24 right to access the courts. Bounds v. Smith, 430 U.S. 817, 821 (1977); see also Rizzo v. Dawson,
25 778 F.2d 527, 531-32 (9th Cir. 1985). Second, the plaintiff must show that the defendant took
26 adverse action against him. Watison, 668 F.3d at 1114 (citation omitted). “Third, the plaintiff
27 must allege a causal connection between the adverse action and the protected conduct.” Id. In
1 his engagement in protected activity. Rhodes, 408 F.3d at 567. “Fourth, the plaintiff must allege
2 that the official’s acts would chill or silence a person of ordinary firmness from future [protected]
3 activities.” Watison, 668 F.3d at 1114 (internal quotation marks and citation omitted). “Fifth, the
4 plaintiff must allege ‘that the prison authorities’ retaliatory action did not advance legitimate
5 goals of the correctional institution….’” Id. (quoting Rizzo, 778 F.2d at 532).
6 Plaintiff does not state a cognizable retaliation claim. Though he alleges he engaged in
7 protected conduct, i.e., filing a lawsuit against Cryer (Doc. 1 at 8), and that he suffered an adverse
8 action, i.e., being denied a wheelchair and “transferred from one yard to another" (id.), he does
9 not show a causal connection between the two. See Watison, 668 F.3d at 1114. For one, he does
10 not allege that Cryer denied his request for a wheelchair or ordered the transfers. He only alleges
11 that Cryer rejected his appeal of Dr. Marcelo’s denial of the wheelchair. (Doc. 1 at 6.)
12 Plaintiff attempts to show a connection between the above-mentioned lawsuit and Dr.
13 Marcelo’s actions by alleging that one of the defendants in the lawsuit is a “co-worker with
14 Defendant Marcelo.” (Id. at 8.) However, this allegation is insufficient to show a causal
15 connection between the lawsuit and Marcelo’s denial of the wheelchair that is plausible on its
16 face. See Iqbal, 556 U.S. at 678. “[F]acts that are merely consistent with a defendant’s liability”
17 are inadequate. Id. (citation and internal quotation marks omitted).
18 3. Americans with Disabilities Act and Rehabilitation Act
19 In addition to his deliberate indifference and retaliation claims, Plaintiff brings claims
20 under the Americans with Disabilities Act and the Rehabilitation Act. (Doc. 1 at 9.) The ADA
21 provides, “no qualified individual with a disability shall, by reason of such disability, be excluded
22 from participation in or be denied the benefits of the services, programs, or activities of a public
23 entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Section 504 of
24 the Rehabilitation Act provides, “[n]o otherwise qualified individual with a disability in the
25 United States … shall, solely by reason of her or his disability, be excluded from the participation
26 in, be denied the benefits of, or be subjected to discrimination under any program or activity
27 receiving Federal financial assistance.” 29 U.S.C. § 794(a).
1 Plaintiff states cognizable claims against Dr. Marcelo under the ADA and Rehabilitation
2 Act. He alleges that Marcelo denied him a wheelchair and other accommodations for his
3 disability and that, as a result, he has been excluded from prison activities and services. (See Doc.
4 1 at 5, 9.) For the reasons stated in section III.B.1, supra, Plaintiff does not state a cognizable
5 claim against CEO Cryer.
6 IV. CONCLUSION AND ORDER
7 For the reasons set forth above, the Court orders Plaintiff, within 21 days, to file a first
8 amended complaint curing the deficiencies identified herein or, alternatively, to notify the Court
9 that he wishes to proceed only on his claims against Marcelo and Akabike and to dismiss Cryer,
10 Mbadugha, and Oberst. If Plaintiff no longer wishes to pursue this action, he may file a notice of
11 voluntary dismissal. If Plaintiff needs an extension of time to comply with this order, he shall file
12 a motion seeking an extension no later than 21 days from the date of service of this order.
13 Plaintiff is informed that an amended complaint supersedes the original complaint, Lacey
14 v. Maricopa Cty., 693 F.3d 896, 927 (9th Cir. 2012), and must be “complete in itself without
15 reference to the prior or superseded pleading.” Local Rule 220. The Court provides Plaintiff with
16 an opportunity to amend his complaint to cure the deficiencies identified in this order. However,
17 Plaintiff may not change the nature of this suit by adding unrelated claims in an amended
18 complaint. Accordingly, the Court ORDERS:
19 1. Plaintiff is GRANTED leave to file a first amended complaint;
20 2. The Clerk’s Office shall send Plaintiff a civil rights complaint form; and,
21 3. Within 21 days from the date of service of this order, Plaintiff must file one of
22 the following three items:
23 a. a first amended complaint curing the deficiencies identified in this order, or
24 b. a notice that he does not wish to file a first amended complaint and instead
25 wishes to proceed only on his claims against Marcelo and Akabike and to
26 dismiss Cryer, Mbadugha, and Oberst, or
27 c. a notice of voluntary dismissal of this entire case.
1 proceed only on the claims found cognizable herein and that all other claims and defendants
2 be dismissed with prejudice.
3
IT IS SO ORDERED.
4

5 Dated: March 2, 2020 /s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10017386. Public record. Not legal advice.