referring to Fed. R. Civ. P. 8(e)(1)
How later courts described this case
- referring to Fed. R. Civ. P. 8(e)(1)
Written by the judges who cited it.
The opinion
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8 IN THE UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11 ROGELIO MAY RUIZ, No. 2:19-CV-0146-TLN-DMC-P
12 Plaintiff,
13 v. FINDINGS AND RECOMMENDATIONS
14 VIJAY BODUKAM, et al.,
15 Defendants.
16
17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to
18 42 U.S.C. § 1983. Pending before the Court is plaintiff’s first amended complaint, see ECF No.
19 20.
20 The Court is required to screen complaints brought by prisoners seeking relief
21 against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C.
22 § 1915A(a). The Court must dismiss a complaint or portion thereof if it: (1) is frivolous or
23 malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief
24 from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover,
25 the Federal Rules of Civil Procedure require that complaints contain a “. . . short and plain
26 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This
27 means that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d
28 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the
1 complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon which it
2 rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff must allege
3 with at least some degree of particularity overt acts by specific defendants which support the
4 claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is
5 impossible for the Court to conduct the screening required by law when the allegations are vague
6 and conclusory.
7
8 I. PROCEDURAL HISTORY
9 Plaintiff initiated this action with a complaint naming the following as defendants:
10 (1) Vijay Bodukam, (2) Bright, (3) S. Gates, and (4) J. Lewis. See ECF No. 1. Defendants were
11 served and moved to dismiss. See ECF No. 15. Plaintiff did not oppose defendants’ motion to
12 dismiss the original complaint. On October 16, 2019, the Court issued findings and
13 recommendations that defendants’ motion to dismiss be granted and that plaintiff’s original
14 complaint be dismissed with leave to amend. See ECF No. 16.
15 In the October 16, 2019, findings and recommendations, the Court summarized
16 plaintiff’s allegations as follows:
17 The. . . complaint contains multiple exhibits written in
Spanish, as well as various sentences which are difficult to understand in
18 English. Below are plaintiff’s factual allegations as best understood by this
Court.
19 Request for Orthopedic Shoes and Pain Relief
Plaintiff submitted multiple requests to defendant Dr. Vijay
20 Bodukam for orthopedic shoes. See ECF No. 1, pg. 3. Plaintiff alleges that
in 2014, Dr. Robert Scharffenberg, a non-party, had ordered a permanent
21 “chrono” for plaintiff to have orthopedic shoes. Id. Plaintiff requires these
shoes because of pain related to his ankles, hips, and the uneven length of
22 his legs. Id. He claims to not be able to stand on his feet for more than two
hours a day without them. Id. After an X-ray was conducted, Bodukam
23 allegedly denied plaintiff’s requests for orthopedic shoes because he
believed they were not medically necessary. Id. A non-party radiologist
24 named Mr. Jojo told plaintiff, “Ruiz you have a piece of bone…”,
apparently meaning to say that plaintiff had medical issues which needed
25 addressing. Id. Bodukam showed plaintiff a copy of the results and told
him that he was “good.” Id. Plaintiff disagrees with Bodukam and calls
26 him a “liar”, but it is unclear from the complaint what plaintiff alleges
Bodukam lied about. Id.
27
28 / / /
1 Plaintiff was given Tylenol or ibuprofen, but the
medication apparently did not alleviate his pain and instead caused him
2 nausea. See ECF No. 1, pg. 4. On March 3, 2017, plaintiff submitted a
health care appeal for orthopedic shoes. Id. On May 17, 2017, a
3 Reasonable Accommodation Request Panel, including defendant Bright,
denied plaintiff’s request for orthopedic shoes and a renewal of his
4 morphine treatment for pain. Id. at 20. The Panel denied the request
because, at the time, plaintiff was transferred to Corcoran State Prison. Id.
5 On December 5, 2017, defendant’s request for orthopedic shoes was
denied by defendant Deputy Director J. Lewis. See ECF No. 1, pg. 14. In
6 his denial, Lewis cited, what appears to be, Bright’s evaluation and finding
that there was “no medical indication for orthotics at this time.” Id; See
7 also ECF No. 1, pg. 4. Plaintiff also submitted a request for an MRI scan,
but that too was denied. Id. at 4.
8 Request for MRI Scan
On July 3, 2018 plaintiff submitted another request for an
9 MRI scan. See ECF No. 1, pg. 5. Plaintiff’s allegation here is difficult to
understand, but it appears he requested this scan to assess the damage of a
10 previous “at[t]ack” that he endured on February 19, 2016. Id. This attack
resulted in plaintiff suffering from a broken nose, and damage to his
11 shoulders, hands, and fingers. Id. This request was denied by doctors R.
Dhillon and S. Gates and they instead ordered X-ray scans (footnote
12 omitted) for plaintiff. Id. However, plaintiff claims that they refuse to
grant him the X-ray “film photos.” Id.
13
ECF No. 16, pgs. 1-3.
14
15 The Court concluded the original complaint failed to state a cognizable Eighth
16 Amendment claim against any defendant. See ECF No. 16. After citing the relevant legal
17 standards, the Court analyzed each of plaintiff’s claims against each defendant as follows:
18 A. Request for Orthopedic Shoes and Pain Relief
1. Defendant Vijay Bodukam
19 Here, plaintiff has failed to state a valid 8th amendment
claim against defendant Bodukam.
20 Plaintiff claims that Bodukam deprived him of his
constitutional rights by refusing to grant him an accommodation in the
21 form of orthopedic shoes. See ECF No. 1, pg. 3. However, it appears that
this denial ultimately stems from a difference of opinion between plaintiff
22 and Bodukam, which does not give rise to an 8th Amendment claim. See
Jackson, 90 F.3d at 332. Plaintiff states in his complaint that Bodukam
23 denied his request because the X-ray scan did “…not [show] damage…”
and that, in regard to his knee, he was “good.” See ECF No.1, pg. 3. This
24 clearly demonstrates that Bodukam believed that plaintiff did not require
an accommodation. Whether it was reasonable for Bodukam to reach this
25 conclusion is not relevant for a claim of deliberate indifference, since
negligence in diagnosing a prisoner’s medical condition does not give rise
26 to an 8th Amendment claim. See Estelle, 429 U.S. at 106. Nor is it
dispositive that Dr. Scharffenberg had previously granted plaintiff the
27 reasonable accommodation he now seeks. If a doctor decides on a course
of treatment for a prisoner different from that of a previous doctor, that, by
28 itself, is merely a difference of opinion. See Victory v. Barber, No. 1:05-
1 CV-01578-LJO-DLB-PC, 2011 WL 13142595, at *7 (E.D. Cal. Feb. 23,
2011) (dismissing inmate-plaintiff’s claim for an eggcrate mattress,
2 finding that “[e]ven if other doctors had provided plaintiff with an
eggcrate mattress, that would, at most, amount to difference in medical
3 opinion.”), see also Merritt v. Cate, No. 1:11-CV-00887-GBC PC, 2012
WL 1413882 (E.D. Cal. Apr. 23, 2012). Under a theory of deliberate
4 indifference, “…the official must both be aware of facts from which the
inference could be drawn that a substantial risk of serious harm exists, and
5 he must also draw the inference.” Farmer, 511 U.S. at 837. Here, plaintiff
has not alleged facts which plausibly establish that Bodukam drew such an
6 inference. Therefore, plaintiff has failed to state a valid claim against
Vijay Bodukam.
7 Lastly, it should be noted that plaintiff claims that
Bodukam “lied” in regard to his treatment of plaintiff. See ECF No.1, pg.
8 3. The court must accept all allegations of material fact in the complaint as
true. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). However, it is
9 not clear as to what Bodukam “lied” about, or what plaintiff is referring to.
Therefore, plaintiff should be granted leave to amend his complaint, and
10 any discernable factual allegation that claims Bodukam fabricated facts
will be regarded as true.
11 2. Defendant Bright
Here, plaintiff has failed to state a valid 8th Amendment
12 claim against defendant Bright.
Plaintiff’s 8th Amendment claim against Bright stems from
13 Bright’s denial of plaintiff’s request for orthopedic shoes and the renewal
of his morphine treatment. See ECF No. 1, pgs. 4, 15, 20. From the
14 complaint, it appears that Bright refused the shoe accommodation request
because (1) no preexisting shoe accommodation was found on record and
15 (2) plaintiff already had an upcoming appointment with his primary care
provider to discuss his “feet pain….” Id. at 15. As for the denial of
16 morphine for plaintiff’s pain, Bright allegedly refused the renewal
because, at that time, plaintiff was transferred to Corcoran State Prison. Id.
17 at 20. It appears that plaintiff eventually returned to CSP in Represa, but
no subsequent request for morphine was made. Beyond these denials,
18 plaintiff makes no other factual allegations against Bright regarding his
claims. Therefore, what plaintiff has pled is insufficient to establish a
19 claim for deliberate indifference. As discussed above, deliberate
indifference requires that, subjectively, a prison official must have acted
20 unnecessarily and wantonly for the purpose of inflicting harm. See
Farmer, 511 U.S. at 834. In a practical sense this requires a plaintiff to set
21 forth facts which allege that the defendant, subjectively, knew of a
substantial risk of harm to plaintiff and then failed act. Id. at 837. Here,
22 plaintiff has not alleged that Bright was aware of a substantial risk of
serious harm to plaintiff. There is no mention of Bright’s conduct beyond
23 the fact that he denied plaintiff’s administrative appeals for the reasons
stated above. Mere administrative review is not a valid basis for deliberate
24 indifference. See Grigsby v. Pfeiffer, No. 1:17-cv-01384-DAD-JLT (PC),
2019 U.S. Dist. LEXIS 70188, at *7-8 (E.D. Cal. Apr. 24, 2019).
25 Therefore, plaintiff has failed to state a valid claim of deliberate
indifference against Bright.
26
27 / / /
28 / / /
1 3. Defendant S. Gates
Here, plaintiff has failed to state a valid 8th Amendment
2 claim against defendant S. Gates.
To state a claim under 42 U.S.C. § 1983, the plaintiff must
3 allege an actual connection or link between the actions of the named
defendants and the alleged deprivations. See Monell v. Dep’t of Social
4 Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). “A
person ‘subjects’ another to the deprivation of a constitutional right,
5 within the meaning of § 1983, if he does an affirmative act, participates in
another's affirmative acts, or omits to perform an act which he is legally
6 required to do that causes the deprivation of which complaint is made.”
Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Vague and
7 conclusory allegations concerning the involvement of official personnel in
civil rights violations are not sufficient. See Ivey v. Board of Regents, 673
8 F.2d 266, 268 (9th Cir. 1982). Rather, the plaintiff must set forth specific
facts as to each individual defendant’s causal role in the alleged
9 constitutional deprivation. See Leer v. Murphy, 844 F.2d 628, 634 (9th
Cir. 1988).
10 Here, plaintiff has set forth no facts which connect Gates’
alleged misconduct to the loss of plaintiff’s constitutional rights. The only
11 factual allegation made against Gates personally is that he denied
plaintiff’s request for an MRI scan and instead ordered X-ray scans. See
12 ECF No. 1, pg. 5. Plaintiff does not describe how Gates’s actions are
associated with the denial of his requests for orthopedic shoes. Therefore,
13 here, plaintiff has failed to establish a claim for deliberate indifference
against Gates.
14 4. Defendant J. Lewis
Here, plaintiff has failed to state a valid 8th Amendment
15 claim against defendant J. Lewis.
Like plaintiff’s claim against defendant Bright, plaintiff’s
16 claim of deliberate indifference against Lewis rests entirely on defendant’s
denial of plaintiff’s administrative appeal. On December 5, 2017, Lewis
17 denied plaintiff’s appeal at the highest administrative level because: (1)
plaintiff had already received evaluation and treatment, “including but not
18 limited to: primary care provider evaluation, nursing assessment,
accommodations, and medications;” and (2) Bright had decided that there
19 was no medical “indication” for orthotics at this time. See ECF No. 1. Pg.
13. As discussed above, mere administrative review is not a valid basis for
20 deliberate indifference. See Grigsby, 2019 U.S. Dist. LEXIS 70188, at *7-
8. Plaintiff has not alleged any facts which plausibly establish that Lewis
21 acted unnecessarily and wantonly for the purpose of inflicting harm.
Therefore, plaintiff has failed to establish a claim for deliberate
22 indifference against Lewis.
B. Request for MRI and Pain Relief
23 1. Defendants Bodukam, Lewis, and Bright
As to plaintiff’s allegations regarding the denial of an MRI
24 scan or medical treatment to alleviate his pain, plaintiff has failed to state a
valid 8th Amendment claim against the named defendants: Bodukam,
25 Lewis, and Bright.
To state a valid claim under 42 U.S.C. § 1983, plaintiff
26 must set forth specific facts as to each individual defendant’s causal role in
the alleged constitutional deprivation. See Leer, 844 F.2d at 634.
27 However, plaintiff’s complaint is devoid of any factual allegations against
the named defendants as concerns his denied requests for an MRI scan and
28 rejected pain relief treatment. See ECF No. 1, pg. 5. The only party who
1 plaintiff identifies as associated with this particular claim is defendant
Gates. Therefore, plaintiff has failed to make a causal connection between
2 the three named defendants and his alleged constitutional deprivation and
has not established an 8th Amendment claim against them.
3 2. Defendant S. Gates
As to plaintiff’s allegations regarding the denial of an MRI
4 scan or medical treatment to alleviate his pain, plaintiff has also failed to
state a valid 8th Amendment claim against defendant S. Gates.
5 Plaintiff has established that he suffers from a serious
medical condition. At this stage of litigation, all alleged facts must be
6 construed in a light most favorable to the plaintiff. See Scheuer, 416 U.S.
at 236. Additionally, pro se pleadings are held to a less stringent standard
7 than those drafted by lawyers. See Haines, 404 U.S. at 520. Plaintiff states
that he suffered from an attack two years prior to his MRI scan request.
8 See ECF No. 1, pg. 5. This attack resulted in a broken nose and damage to
his shoulders, hands, and fingers. Id. He further claims that these injuries
9 continued to cause him pain and that Gates ultimately decided that they
warranted X-ray scans. Id. From these allegations, it can reasonably be
10 inferred that plaintiff suffered from chronic pain and that it warranted
medical action by his care takers. Such conditions may serve as the basis
11 for an 8th Amendment claim. See Lopez, 203 F.3d at 1131-32. Therefore,
plaintiff has set forth facts which plausibly establish that he suffered from
12 a serious medical condition.
However, plaintiff has failed to establish that Gates acted
13 with deliberate indifference. As discussed above, a difference of opinion
between a prisoner and medical providers concerning the appropriate
14 course of treatment does not give rise to an Eighth Amendment claim. See
Jackson, 90 F.3d at 332. Here, plaintiff’s claim stems from the fact that R.
15 Dhillon, a non-party doctor, and Gates refused to order an MRI scan and
instead ordered X-ray scans. See ECF No. 1, pg. 5. However, Gates is
16 neither alleged to have fully denied or delayed medical treatment.
Plaintiff’s complaint does not allege that Gates acted unnecessarily and
17 wantonly for the purpose of inflicting harm. Nor does plaintiff allege that
Gates, in selecting X-ray scans instead of an MRI scan consciously
18 disregarded a known substantial risk of serious harm. From plaintiff’s
complaint, this appears to mere be a difference of opinion as to the
19 appropriate course of treatment. Therefore, plaintiff has failed to state a
valid 8th Amendment claim.
20
ECF No. 16, pgs. 6-10.
21
22 On January 7, 2020, the assigned District Judge adopted the October 16, 2019,
23 findings and recommendations in full. See ECF No. 19. Plaintiff was directed to file a first
24 amended complaint within 30 days of the date of the District Judge’s order. See id. Plaintiff filed
25 his first amended complaint on January 23, 2020. See ECF No. 20. On February 6, 2020,
26 defendants requested that the Court screen plaintiff’s first amended complaint and that the time to
27 respond thereto be extended to 30 days from the date of any order determining service of the first
28 amended complaint is appropriate. See ECF No. 22. The Court granted defendants’ request. See
1 ECF No. 23.
2
3 II. PLAINTIFF’S ALLEGATIONS
4 As with the original complaint, plaintiff names the following as defendants in the
5 first amended complaint: (1) Vijay Bodukam, (2) Bright, (3) S. Gates, and (4) J. Lewis. See ECF
6 No. 20.
7 Plaintiff alleges that defendant Bodukam, a prison doctor, denied his request for
8 orthopedic shoes. See id. at 3. Plaintiff states he was told by defendant Bodukam that his “knee
9 is good because [plaintiff] can walk.” Id. While plaintiff acknowledges that x-ray scans were
10 obtained, plaintiff alleged he was denied an MRI scan. See id. According to plaintiff, he had a
11 “chrono” from a doctor at a different prison authorizing orthopedic shoes which defendant
12 Bodukam ignored. See id. Plaintiff states that he cannot walk or work for more than two hours
13 due to swelling in his feet and knees. See id.
14 Next, plaintiff alleged that defendant Bright, also a prison doctor, denied his
15 request for an “accommodation” for orthopedic shoes. See id. at 4. Plaintiff again alleges that
16 this decision was rendered despite defendant’s knowledge of a “chrono” from a doctor at a
17 different prison authorizing orthopedic shoes.
18 Plaintiff also alleges that defendant Gates, another prison doctor, denied him
19 orthopedic shoes in September 2018. See id. at 5. According to plaintiff, defendant Gates
20 performed an examination, checked both feet and knees, and reviewed plaintiff’s medical records.
21 See id. Plaintiff states he informed defendant Gates that he was in pain and had a “chrono” for
22 orthopedic shoes. See id. Plaintiff also claims defendant Gates “denied to granted [sic] my
23 request appeal 602 H.C. [health care].” Id.
24 While plaintiff alleges severe pain, he does not, as in the original complaint,
25 appear to allege the denial of pain medication as supporting an independent Eighth Amendment
26 claim. Rather, his current allegations focus on the denial of orthopedic shoes despite defendants’
27 knowledge of a “chrono” authorizing orthopedic shoes previously issued by a doctor at a different
28 prison.
1 III. DISCUSSION
2 Plaintiff’s first amended complaint alleges violations of his Eighth Amendment
3 right to adequate health care. The treatment a prisoner receives in prison and the conditions under
4 which the prisoner is confined are subject to scrutiny under the Eighth Amendment, which
5 prohibits cruel and unusual punishment. See Helling v. McKinney, 509 U.S. 25, 31 (1993);
6 Farmer v. Brennan, 511 U.S. 825, 832 (1994). The Eighth Amendment “. . . embodies broad and
7 idealistic concepts of dignity, civilized standards, humanity, and decency.” Estelle v. Gamble,
8 429 U.S. 97, 102 (1976). Conditions of confinement may, however, be harsh and restrictive. See
9 Rhodes v. Chapman, 452 U.S. 337, 347 (1981). Nonetheless, prison officials must provide
10 prisoners with “food, clothing, shelter, sanitation, medical care, and personal safety.” Toussaint
11 v. McCarthy, 801 F.2d 1080, 1107 (9th Cir. 1986). A prison official violates the Eighth
12 Amendment only when two requirements are met: (1) objectively, the official’s act or omission
13 must be so serious such that it results in the denial of the minimal civilized measure of life’s
14 necessities; and (2) subjectively, the prison official must have acted unnecessarily and wantonly
15 for the purpose of inflicting harm. See Farmer, 511 U.S. at 834. Thus, to violate the Eighth
16 Amendment, a prison official must have a “sufficiently culpable mind.” See id.
17 Deliberate indifference to a prisoner’s serious illness or injury, or risks of serious
18 injury or illness, gives rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at 105;
19 see also Farmer, 511 U.S. at 837. This applies to physical as well as dental and mental health
20 needs. See Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982). An injury or illness is
21 sufficiently serious if the failure to treat a prisoner’s condition could result in further significant
22 injury or the “. . . unnecessary and wanton infliction of pain.” McGuckin v. Smith, 974 F.2d
23 1050, 1059 (9th Cir. 1992); see also Doty v. County of Lassen, 37 F.3d 540, 546 (9th Cir. 1994).
24 Factors indicating seriousness are: (1) whether a reasonable doctor would think that the condition
25 is worthy of comment; (2) whether the condition significantly impacts the prisoner’s daily
26 activities; and (3) whether the condition is chronic and accompanied by substantial pain. See
27 Lopez v. Smith, 203 F.3d 1122, 1131-32 (9th Cir. 2000) (en banc).
28 / / /
1 The requirement of deliberate indifference is less stringent in medical needs cases
2 than in other Eighth Amendment contexts because the responsibility to provide inmates with
3 medical care does not generally conflict with competing penological concerns. See McGuckin,
4 974 F.2d at 1060. Thus, deference need not be given to the judgment of prison officials as to
5 decisions concerning medical needs. See Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir.
6 1989). The complete denial of medical attention may constitute deliberate indifference. See
7 Toussaint v. McCarthy, 801 F.2d 1080, 1111 (9th Cir. 1986). Delay in providing medical
8 treatment, or interference with medical treatment, may also constitute deliberate indifference. See
9 Lopez, 203 F.3d at 1131. Where delay is alleged, however, the prisoner must also demonstrate
10 that the delay led to further injury. See McGuckin, 974 F.2d at 1060.
11 Negligence in diagnosing or treating a medical condition does not, however, give
12 rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at 106. Moreover, a
13 difference of opinion between the prisoner and medical providers concerning the appropriate
14 course of treatment does not give rise to an Eighth Amendment claim. See Jackson v. McIntosh,
15 90 F.3d 330, 332 (9th Cir. 1996).
16 Having considered the allegations in the first amended complaint in light of these
17 standards, as well as the Court’s prior order granting defendants’ motion to dismiss the original
18 complaint, the Court makes the following findings and recommendations.
19 A. Defendant Lewis
20 In the original complaint, plaintiff alleged defendant Lewis is liable for denying
21 his inmate health care grievance (602) related to orthopedic shoes, pain medication, and an MRI
22 scan. In the first amended complaint, plaintiff has set forth no allegations specific to defendant
23 Lewis, whom the Court now finds should be dismissed with prejudice
24 B. Defendant Gates
25 As outlined above, plaintiff alleges that defendant Gates denied him orthopedic
26 shoes in September 2018. Plaintiff, however, acknowledges that this denial followed an
27 examination during which defendant Gates checked both feet and knees and reviewed plaintiff’s
28 medical records. See id. Because plaintiff alleges defendant Gates performed an examination, it
1 cannot be said that defendant Gates was deliberately indifferent. Further, defendant Gates’
2 decision not to accept plaintiff’s desired course of treatment does not sustain a cognizable Eighth
3 Amendment claim. These defects, which were present in the original complaint and formed the
4 basis of dismissal, persist in the first amended complaint. The Court now recommends defendant
5 Gates be dismissed with prejudice.
6 C. Defendant Bright
7 In the first amended complaint, plaintiff alleges somewhat vaguely that defendant
8 Bright denied him an “accommodation” for orthopedic shows. As with the original complaint,
9 however, this allegation appears to rest solely on defendant Bright’s review of plaintiff’s health
10 care grievance submitted following the denial of orthopedic shoes by defendant Bodukam. In
11 particular, plaintiff attaches defendant Bright’s “Director’s Level Decision.” In this decision,
12 defendant Bright noted:
13 Records indicate you are enrolled in the Chronic Care Program, where
your medical conditions and medication needs are closely monitored.
14 Documentation supports that you have received evaluation and treatment
including but not limited to: primary care provider evaluation, nursing
15 assessment, accommodations, and medications. On August 29, 2017, you
were seen and evaluated by the primary care provider who informed you
16 there was no medical indication for orthotics at this time. An approved
CDCR 7410, Comprehensive Accommodation Chrono, dated February 14,
17 2017, shows permanent bottom bunk. On October 9, 2017, you were
evaluated by nursing staff for your complaint of bilateral feet, lower back,
18 and left knee pain. You were advised of an appointment with the primary
care provider, which is pending scheduling, where you can discuss pain
19 management.
20 ECF No. 20, pg. 11.
21 As has been previously explained to plaintiff, mere administrative review is not a
22 valid basis for an Eighth Amendment deliberate indifference claim. See Grigsby v. Pfeiffer, No.
23 1:17-cv-01384-DAD-JLT (PC), 2019 U.S. Dist. LEXIS 70188, at *7-8 (E.D. Cal. Apr. 24, 2019).
24 Beyond defendant Bright’s involvement in plaintiff’s grievance, plaintiff has not alleged any facts
25 to show that defendant Bright was deliberately indifferent to a serious medical need. The Court
26 finds defendant Bright should be dismissed with prejudice.
27 / / /
28 / / /
1 D. Defendant Bodukam
2 The gravamen of plaintiff’s claim against defendant Bodukam is that he was
3 deliberately indifferent when he denied orthopedic shoes despite his knowledge that a doctor at a
4 different prison had previously prescribed orthopedic shoes. As the Court previously explained,
5 if a doctor decides on a course of treatment for a prisoner different from that of a previous doctor,
6 that, by itself, is merely a difference of opinion. See Victory v. Barber, No. 1:05-CV-01578-LJO-
7 DLB-PC, 2011 WL 13142595, at *7 (E.D. Cal. Feb. 23, 2011) (dismissing inmate-plaintiff’s
8 claim for an eggcrate mattress, finding that “[e]ven if other doctors had provided plaintiff with an
9 eggcrate mattress, that would, at most, amount to difference in medical opinion.”), see also
10 Merritt v. Cate, No. 1:11-CV-00887-GBC PC, 2012 WL 1413882 (E.D. Cal. Apr. 23, 2012).
11 Moreover, plaintiff’s current allegations indicate that defendant Bodukam’s assessment was based
12 on an evaluation of, at a minimum, available diagnostic data. As such, defendant Bodukam was
13 not deliberately indifferent. Defendant Bodukam should also be dismissed with prejudice.
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wOASe 2 ADV EIT PINION PT Ay 46 VI Le
1 IV. CONCLUSION
2 Because it does not appear possible that the deficiencies identified herein can be
3 | cured by further amending the complaint, plaintiff is not entitled to leave to amend prior to
4 | dismissal of the entire action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en
5 | banc).
6 Based on the foregoing, the undersigned recommends that this action be dismissed
7 | in its entirety without further leave to amend and with prejudice.
8 These findings and recommendations are submitted to the United States District
9 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within 14 days
10 | after being served with these findings and recommendations, any party may file written
11 | objections with the court. Responses to objections shall be filed within 14 days after service of
12 | objections. Failure to file objections within the specified time may waive the right to appeal. See
13 | Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
14
15 | Dated: August 17, 2020 Ssvcqo_
16 DENNIS M. COTA
17 UNITED STATES MAGISTRATE JUDGE
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