Sepulveda v. Galindo

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 AURELIO MARTIN SEPULVEDA, Case No.: 20-CV-2079 JLS (MDD)

CDCR #J-76828,

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ORDER DISMISSING FIRST

Plaintiff,

13 AMENDED COMPLAINT FOR

14 FAILURE TO STATE A CLAIM

PURSUANT TO 28 U.S.C.

15 v. §§ 1915(e)(2)(B) AND 1915A(b)

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17 E. GALINDO, Correctional Officer;

JOHN DOE #2, Correctional Sergeant;

18 JOHN CHAU, M.D.; and PEYMAN

19 SHAKIBA, M.D.,

Defendants.

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23 Plaintiff Aurelio Martin Sepulveda (“Plaintiff” or “Sepulveda”), incarcerated at

24 Richard J. Donovan Correctional Facility (“RJD”) in San Diego, California, is proceeding

25 pro se and in forma pauperis (“IFP”) in this civil rights action pursuant to 42 U.S.C. § 1983.

26 PROCEDURAL HISTORY

27 Sepulveda filed his original complaint on October 19, 2020. See ECF No. 1

28 (“Compl.”). In it, Sepulveda claimed RJD Correctional Officer E. Galindo, Correctional

1 Officer John Doe #1, and Correctional Sergeant John Doe #2 violated the Eighth

2 Amendment and the Americans with Disabilities Act of 1990 (“ADA”) when they deprived

3 him of safe and appropriate housing after he underwent two surgeries. Id. at 22–23.

4 Plaintiff further claimed these defendants were negligent under California tort law. Id. at

5 23–24.

6 On March 2, 2021, the Court granted Sepulveda leave to proceed IFP and

7 simultaneously screened and dismissed his Complaint sua sponte for failing to state a claim

8 upon which § 1983 relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and

9 1915A(b)(1). See ECF No. 10. Specifically, the Court dismissed Sepulveda’s Eighth

10 Amendment claims because he had not alleged the type of “extreme deprivation” of the

11 “minimal civilized measures of life’s necessities” required to state a claim against for

12 assigning him to a non-wheelchair accessible cell. See Hudson v. McMillian, 503 U.S. 1,

13 9 (1992). The Court found that Plaintiff failed to allege a “risk so grave that it violates

14 contemporary standards of decency to expose anyone unwillingly to such a risk.” Helling

15 v. McKinney, 509 U.S. 25, 36 (1993). In addition, Plaintiff failed to state an ADA claim

16 because he named only individual defendants and failed to allege facts to show those

17 defendants intentionally discriminated against him based on his disability. Mark H. v.

18 Lemahieu, 513 F.3d 922, 938 (9th Cir. 2008). Finally, in the absence of any viable federal

19 claim, the Court exercised its discretion and dismissed Plaintiff’s supplemental state law

20 claim pursuant to 28 U.S.C. § 1367(c)(3). See United Mine Workers of Am. v. Gibbs, 383

21 U.S. 715, 726 (1966). The Court gave Plaintiff 45 days to file an amended complaint that

22 cured the deficiencies outlined in the order. See ECF No. 10.

23 After receiving an extension of time, Sepulveda has now filed a First Amended

24 Complaint (“FAC,” ECF No. 13), which renames Defendants E. Galindo and John Doe #2,

25 omits Defendant John Doe #1, and adds Defendants John Chau, M.D., and Peyman

26 Shakiba, M.D. See FAC at 1–2.

27 In the FAC, Sepulveda claims Defendants Chau and Shakiba violated his Eighth

28 Amendment rights when they acted with deliberate indifference to his serious medical

1 needs. Id. at 38–39. He further contends Defendants Galindo and Doe # 2 violated his

2 Eight Amendment rights when, after Plaintiff had surgery, they placed him in a cell

3 “intentionally . . . [and] with knowledge of the dangerous conditions of confinement

4 created by the broken window and glass spilt all over the floor of the cell.” Id. at 40.

5 Finally, he alleges Defendants Galindo and Doe # 2 were negligent under California state

6 tort law. Id. at 41. He seeks both compensatory and punitive damages. Id.

7 SCREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b)

8 As Sepulveda now knows, the Prison Litigation Reform Act (“PLRA”) requires the

9 Court to review complaints filed by all persons proceeding IFP and by those, like him, who

10 are “incarcerated or detained in any facility [and] accused of, sentenced for, or adjudicated

11 delinquent for, violations of criminal law or the terms or conditions of parole, probation,

12 pretrial release, or diversionary program,” “as soon as practicable after docketing.” See 28

13 U.S.C. §§ 1915(e)(2) and 1915A(b).

14 I. Standard of Review

15 Under 28 U.S.C. §§ 1915(e)(2) and 1915A(b), the Court must dismiss sua sponte a

16 prisoner’s IFP complaint, or any portion of it, that is frivolous, malicious, fails to state a

17 claim, or seeks damages from defendants who are immune. See Lopez v. Smith, 203 F.3d

18 1122, 1126–27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v.

19 Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The

20 purpose of [screening] is ‘to ensure that the targets of frivolous or malicious suits need not

21 bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir.

22 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir.

23 2012)).

24 “The standard for determining whether a plaintiff has failed to state a claim upon

25 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of

26 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d

27 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir.

28 2012) (noting that screening pursuant to section 1915A “incorporates the familiar standard

1 applied in the context of failure to state a claim under Federal Rule of Civil Procedure

2 12(b)(6)”). Rule 12(b)(6) requires a complaint to “contain sufficient factual matter,

3 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,

4 556 U.S. 662, 678 (2009) (internal quotation marks omitted).

5 Detailed factual allegations are not required, but “[t]hreadbare recitals of the

6 elements of a cause of action, supported by mere conclusory statements, do not suffice.”

7 Id. “Determining whether a complaint states a plausible claim for relief [is] . . . a context-

8 specific task that requires the reviewing court to draw on its judicial experience and

9 common sense.” Id. The “mere possibility of misconduct” or “unadorned, the defendant-

10 unlawfully-harmed me accusation[s]” fall short of meeting this plausibility standard. Id.;

11 see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

12 Finally, in deciding whether Plaintiff has stated a plausible claim for relief, the Court

13 may consider exhibits attached to his Complaint. See Fed. R. Civ. R. 10(c) (“A copy of a

14 written instrument that is an exhibit to a pleading is a part of the pleading for all

15 purposes.”); Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1555

16 n.19 (9th Cir. 1990) (citing Amfac Mortg. Corp. v. Ariz. Mall of Tempe, Inc., 583 F.2d 426

17 (9th Cir. 1978) (“[M]aterial which is properly submitted as part of the complaint may be

18 considered” in ruling on a Rule 12(b)(6) motion to dismiss.)).

19 II. Plaintiff’s Allegations

20 In his FAC, Sepulveda alleges that, while incarcerated at RJD in October 2019, he

21 was admitted to Tri-City Medical Center (“TCMC”) for two in-patient surgeries. FAC at

22 14–15. On October 23, 2019, a cardiologist performed a “Percutaneous Transluminal

23 Coronary Angioplasty of [Plaintiff’s] proximal left circumflex artery” and “left heart

24 catheterizations and [a] selective coronary angiogram,” among other things.1 Id. at 17.

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1 “Percutaneous transluminal coronary angioplasty” is a cardiovascular procedure performed to

27 “widen the lumen of a partially or fully occluded blood vessel (as the femoral or coronary artery)”

that has been narrowed or blocked by “passing a balloon catheter through the skin and into a blood

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1 The next day, October 24, 2019, Sepulveda underwent a procedure to amputate the fourth

2 and fifth toes of his left foot, which had become gangrenous due to complications from

3 diabetes. Id.

4 Plaintiff was released from the hospital on the evening of October 28, 2019. Id. at

5 18. Upon discharge, Sepulveda was given a post-operative plan that included an order to

6 “remain non-weightbearing” until the wound on his left foot was fully healed in “2–6

7 weeks.” Id. at 15, see also id. Ex. I at 133. The discharge recommendations stated that

8 Sepulveda was released with a wheelchair and noted that also he had a four-wheel walker.

9 See id. Ex. I at 133. The physical therapist “recommend[ed] [wheelchair] for use when

10 patient returns to correctional facility to be used for longer distances.” Id. The order noted

11 that Sepulveda was “able to perform bed mobility and transfers with use of a [four-wheel

12 walker] while maintaining non-weight bearing lower-left extremity.” Id.

13 Plaintiff was transported back to RJD by Defendant Galindo and another

14 correctional officer. Id. at 18. After arriving, Sepulveda was taken to the prison’s

15 Treatment Triage Area (“TTA”) for assessment and clearance to be re-housed in a cell. Dr.

16 Chau reviewed Plaintiff’s medical file and post-operative reports from the TCMC doctors.

17 Dr. Chau assigned Plaintiff temporary wheelchair status, also known as “DPO status.”2 Id.

18 at 20. Plaintiff states that Dr. Chau “ignored the recommendation made by both [TCMC]

19 surgeons” and instead assigned Sepulveda a wheelchair for only two weeks, “without

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22 is inflated to clear the plaque causing the blockage. See Merriam–Webster Medical Dictionary,

https://www.merriam-webster.com/medical/percutaneous%20transluminal%20angioplasty

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(visited Feb. 16, 2021).

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2 DPO status is for “Intermittent Wheelchair Users.” See FAC at 25; see also Polley v. Davis, 17-

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cv-03793-JST, 2018 WL 4352958, at *5 (N.D. Cal. Sept. 11, 2018). DPO status is for inmates

26 “who do not require a wheelchair full time but are medically prescribed a wheelchair for use

outside of the assigned cell.” See Miller v. Adonis, 1:12-cv-00353-DAD-EPG-PC, 2019 WL

27 4076441, at *9 (E.D. Cal. Aug. 29, 2019). Conversely, DPW status is assigned to inmates who

require a permanent wheelchair and accessible cell. See ECF No. 13 at Polley, 2018 WL 4352958,

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1 requiring a wheelchair accessible cell for housing.” Id. Sepulveda contends Dr. Chau

2 “substituted his own opinion as to the significance of Plaintiff’s conditions and ignored

3 both surgeons’ recommendations while downgrading the length of expected recovery time

4 clearly indicated in both . . . post-operative plans.” Id. at 21.

5 John Doe #2, a correctional sergeant, was on duty at the RJD TTA on the evening

6 that Plaintiff returned from TCMC. Id. at 28. Doe #2 was stationed at a podium at the

7 entrance of the TTA. Id. at 29. He could see the nurse’s station and was also “in

8 communication with medical staff to coordinate inmate movement, including determining

9 inmate housing assignments in accordance with CDCR policy.” Id. Doe #2 was also the

10 supervisor of correctional officers assigned to the TTA. While Plaintiff was “waiting to be

11 cleared” by the medical staff, Doe #2 looked “into the tank and saw Plaintiff sitting in a

12 wheelchair with a cast on his leg.” Id. Sepulveda states Doe #2 then spoke to both the

13 nurse and Dr. Chau. Id. Doe #2 asked Dr. Chau to order a temporary wheelchair for

14 Plaintiff “in order to house him in D-Facility.” Id. According to Sepulveda, Dr. Chau

15 agreed with Doe #2 because he believed Sepulveda’s condition was not serious enough to

16 warrant more than a temporary wheelchair. Id. Doe #2 then assigned Plaintiff to a cell in

17 D-Facility, which was unoccupied due to a broken window that had been slated for repair.

18 Id. at 30. Sepulveda states that Doe #2 “spoke to D-Facility’s Program office and spoke to

19 the attending sergeant and was made aware the cell was available.” Id. at 31. But Doe #2

20 never confirmed that the window had been repaired. Id.

21 While Sepulveda was waiting in the TTA holding tank, Correctional Officer Galindo

22 handed him “dirty, stinky clothing and told Plaintiff to change into [it].” Id. at 35. Plaintiff

23 asked for clean clothes, but Galindo replied there was nowhere else for him to get clothes

24 at that time, as it was late in the evening. Id. At about 11:00 p.m., Galindo and another

25 correctional officer escorted Sepulveda in his wheelchair to his newly assigned cell, #111.

26 Id.at 35. Upon arriving at the cell, Galindo looked inside. Plaintiff told Galindo the

27 window was broken, and the cell had no mattress, bed roll, or toilet paper. Id. at 35.

28 Galindo responded that “there was no one to ask for a mattress, bedding or toilet paper

1 because it was late.” Id. Despite Plaintiff’s protests about the broken window and glass,

2 Galindo “ordered him to get up and go into the cell.” Sepulveda stood up and “hopped into

3 the cell.” Id. at 36. Sepulveda complained to Galindo again about the condition of the cell;

4 Galindo said nothing, and he and his partner closed the cell door and left. Id. As a result,

5 Plaintiff states he was “forced to lay on the cold metal bunk without a mattress, blankets,

6 sheets aggravating his pain running up his left leg.” Id. at 38. He states during the night

7 he was forced to hop and “hobble” to use the toilet and further that he had to do so without

8 having the proper hygiene items. Id. The broken window was replaced the next day, on

9 October 29, 2019. Id. at 17; see also id. Ex. C at 65.

10 Plaintiff saw Dr. Shakiba for a follow-up appointment the next morning, October

11 29, 2019. Id. at 23. Sepulveda states that Dr. Shakiba knew Dr. Chau “had failed to issue”

12 a “permanent” wheelchair for Plaintiff, despite the recommendation of the Dr. Calafi, the

13 TCMC surgeon. Id. at 24. Dr. Shakiba also knew that Dr. Chau had not entered a referral

14 for Plaintiff to be seen in 20 days by Dr. Calafi. Id. Instead, Dr. Shakiba “elected to rely

15 on his own non-specialized opinion and determined that Plaintiff did not require a

16 permanent wheelchair.” Id. Dr. Shakiba ordered Sepulveda’s status be designated “DPO-

17 Intermittent,” which would give Plaintiff access to a wheelchair outside his cell. Id. at 25.

18 On October 30, 2019, Plaintiff was moved to a cell in A-Facility that was not accessible

19 for permanent wheelchair use. Id. at 25. Plaintiff was moved to a wheelchair accessible

20 cell, and his status changed to “DPO” for permanent use of a wheelchair, on November 13,

21 2019. Id. at 26.

22 Plaintiff asserts three claims in his FAC. He contends that Defendants violated the

23 Eighth Amendment by (1) depriving him of adequate medical care and (2) depriving him

24 of safe and appropriate housing. Id. at 38–41. Plaintiff further claims Defendants Galindo

25 and Doe #2 were negligent under California tort law. Id. at 41. Plaintiff seeks both

26 compensatory and punitive damages. Id.

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28 / / /

1 III. Analysis

2 A. Eighth Amendment Claims

3 Section 1983 is a “vehicle by which plaintiffs can bring federal constitutional and

4 statutory challenges to actions by state and local officials.” Anderson v. Warner, 451 F.3d

5 1063, 1067 (9th Cir. 2006). To state a claim under section 1983, Plaintiff must allege two

6 essential elements: (1) that a right secured by the Constitution or laws of the United States

7 was violated, and (2) that the alleged violation was committed by a person acting under the

8 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frey, 789 F.3d

9 1030, 1035‒36 (9th Cir. 2015).

10 The Eighth Amendment prohibits cruel and unusual punishment of a person

11 convicted of a crime. U.S. Const. amend. VIII. “After incarceration, only the unnecessary

12 and wanton infliction of pain . . . constitutes cruel and unusual punishment forbidden by

13 the Eighth Amendment.” Whitley v. Albers, 475 U.S. 312, 319 (1986) (ellipsis in original)

14 (internal quotation and citation omitted).

15 Plaintiff alleges Defendants violated his Eighth Amendment rights in two ways.

16 First, he contends Drs. Chau and Shakiba were deliberately indifferent to his serious

17 medical needs. FAC at 38–39. Second, he argues Defendants Doe #2 and Galindo were

18 deliberately indifferent when they “failed to protect his health and safety from dangerous

19 and inhumane conditions” by assigning him to a cell that was unsafe and lacked basic

20 necessities the night of his return from the hospital. Id. at 39–40. The Court will address

21 each of these claims in turn.

22 1. Medical Care

23 To state a claim against Drs. Chau and Shakiba under the Eighth Amendment,

24 Sepulveda must plead facts to plausibly suggest that they: (1) exposed him to a substantial

25 risk of serious harm; and (2) did so with deliberate indifference. See Farmer v. Brennan,

26 511 U.S. 825, 837, 842 (1994); Iqbal, 556 U.S. at 678. Specifically, in a medical care case

27 such as this, Plaintiff must first allege he suffered from or faced an objectively “serious

28 medical need.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); Mendiola-Martinez v.

1 Arpaio, 836 F.3d 1239, 1248 (9th Cir. 2016). “A medical need is serious when the failure

2 to treat it could result in significant injury or the unnecessary and wanton infliction of

3 pain.” Jett, 439 F.3d at 1096; see also McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir.

4 1992) (overruled on other grounds by WMX Technologies, Inc. v. Miller, 104 F.3d 1133

5 (9th Cir. 1997)).

6 In addition, Sepulveda must allege facts sufficient to demonstrate Drs. Chau and

7 Shakiba acted with “deliberate indifference” to his serious medical needs. See Erickson v.

8 Pardus, 551 U.S. 89, 90 (2007) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)

9 (“[D]eliberate indifference to serious medical needs of prisoners constitutes the

10 unnecessary and wanton infliction of pain . . . proscribed by the Eighth Amendment,” and

11 this includes “indifference. . . manifested by prison doctors in their response to the

12 prisoner’s needs.”)). “Deliberate indifference is a high legal standard.” Hamby v.

13 Hammond, 821 F.3d 1085, 1092 (9th Cir. 2016) (citing Toguchi v. Chung, 391 F.3d 1051,

14 1060 (9th Cir. 2004)). Inadvertent failures to provide adequate medical care, mere

15 negligence or medical malpractice, delays in providing care (without more), and

16 differences of opinion over what medical treatment or course of care is proper are all

17 insufficient to constitute an Eighth Amendment violation. Estelle, 429 U.S. at 105–07;

18 Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); Shapley v. Nev. Bd. of State Prison

19 Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985).

20 a. Dr. Chau

21 Sepulveda alleges that Dr. Chau was deliberately indifferent to his serious medical

22 needs when he failed to assign Sepulveda a permanent wheelchair and failed to follow the

23 recommendations of the surgeons and doctors who treated him at TCMC. FAC at 20–22.

24 Specifically, Sepulveda alleges that when he returned to RJD from TCMC on the evening

25 of October 28, 2019, Dr. Chau evaluated him and “determined that Plaintiff did not require

26 a permanent wheelchair” despite being “aware of the recommendations made by both Dr.

27 Rajamanickam, MD and Dr. Calafi, MD after their respective surgeries.” Id. at 20.

28 Sepulveda alleges that, after reviewing Sepulveda’s medical reports from TCMC, Dr. Chau

1 “substituted his own opinion. . . and ignored both surgeons’ recommendations.” Id. at 21.

2 Sepulveda admits, however, that when he arrived back at RJD from TCMC, Dr. Chau

3 assigned him a temporary wheelchair, to be used for 14 days. Id. 20. Sepulveda also

4 concedes that TCMC doctors recommended only that he “remain non-weight bearing until

5 the wound is fully healed” and estimated it could take “2–6 weeks.” Id. at 15, 20; see also

6 id. Ex. I at 128.

7 There is nothing in the FAC suggesting that Dr. Chau’s assignment of the temporary

8 wheelchair on October 28, 2019 was insufficient to meet Sepulveda’s needs at that time.

9 Even assuming TCMC doctors recommended Plaintiff use a wheelchair for a more

10 extended period of time, that Dr. Chau had a “difference of opinion” over the

11 appropriateness of assigning Plaintiff a permanent wheelchair does not amount to a

12 constitutional claim for deliberate indifference. See Franklin v. Oregon, 662 F.2d 1337,

13 1344 (9th Cir. 1981) (“A difference of opinion between a prisoner-patient and prison

14 medical authorities regarding treatment does not give rise to a § 1983 claim.”); see also

15 Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989) (difference of medical opinion as to the

16 need to pursue one course of treatment over another is insufficient, as a matter of law, to

17 establish deliberate indifference).

18 Sepulveda also contends that Dr. Chau was deliberately indifferent because, despite

19 assigning him a wheelchair for 14 days, Dr. Chau did not specifically order that Plaintiff’s

20 cell be fully wheelchair accessible. FAC at 20. This, Sepulveda alleges, caused him to be

21 placed in a cell that required him to transfer out of the wheelchair to enter and to get to the

22 bed. But, based on Plaintiff’s medical records, Sepulveda was able to perform transfers

23 from a wheelchair to a bed. On October 26, 2020, two days before his discharge form

24 TCMC, Sepulveda was seen by a TCMC physical therapist who noted that Sepulveda had

25 been able to “perform bed mobility and transfers . . . with [the] use of a [four wheeled

26 walker] and maintain non weight bearing.” Id. Ex. I at 133. The TCMC physical therapist

27 also noted that a wheelchair was recommended “for longer distances.” Id. This suggests

28 that even TCMC medical professionals were aware that Plaintiff did not need the

1 wheelchair when transferring and moving short distances. Thus, Plaintiff’s assignment to

2 a cell that was not completely wheelchair accessible does not rise to the level of deliberate

3 indifference on Dr. Chau’s part. Given the information in Sepulveda’s records, which

4 Plaintiff acknowledges Dr. Chau reviewed, Dr. Chau knew that Plaintiff was able to

5 transfer from a wheelchair to bed successfully before being released from TCMC. Even

6 assuming Dr. Chau had ordered a permanent wheelchair and accessible cell, Sepulveda

7 would still have had to transfer from the chair to the bed. Thus, the allegations contained

8 in the FAC lack the “further factual enhancement” required to plausibly show Dr. Chau

9 “purposeful[ly] act[ed] or fail[ed] to respond to [Plaintiff’s] . . . medical need,” or that any

10 “harm [was] caused by [this] indifference.” See Iqbal, 556 U.S. at 678 (citing Bell Atl.

11 Corp. v. Twombly, 550 U.S. 544, 555 (2007)); Wilhelm, 680 F.3d at 1122. Therefore,

12 Plaintiff has failed to state a claim against Dr. Chau. See Estelle, 429 U.S. at 106; Toguchi,

13 391 F.3d at 1060.

14 b. Dr. Shakiba

15 Plaintiff also claims that Dr. Shakiba was deliberately indifferent to his serious

16 medical needs. On October 29, 2019, the morning after he arrived back at RJD from the

17 hospital, Sepulveda returned to the D-Facility medical clinic. FAC at 22. Plaintiff was

18 originally seen by a nurse, who told Sepulveda that she would speak to Dr. Shakiba about

19 changing his wheelchair status from temporary to permanent. Id. at 23. Sepulveda alleges

20 Dr. Shakiba ignored the nurse’s suggestion and instead “elected to rely on his own non-

21 specialized opinion and determined that Plaintiff did not require a permanent wheelchair

22 status that would require he be housed in a wheelchair accessible cell.” Id. at 24–25. He

23 also claims Dr. Shakiba failed to “enter a referral” for Sepulveda to have a follow-up

24 appointment with Dr. Calafi at TCMC, despite Dr. Calafi’s recommendation that he see

25 Plaintiff 10 days after surgery. Id.

26 First, Plaintiff has failed to state a claim for deliberate indifference with regard to

27 his wheelchair assignment. As discussed above, a difference of opinion between medical

28 professionals concerning the appropriate course of inmate treatment or care is not enough,

1 by itself, to support a claim of deliberate indifference. Sanchez, 891 F.2d at 242. Nor does

2 a difference of opinion between the prisoner and his doctors constitute deliberate

3 indifference. Jackson, 90 F.3d at 332. Here, Sepulveda’s allegations amount to nothing

4 more than a difference of opinion regarding the length of time he would require a

5 wheelchair. As discussed above, a physical therapist saw Sepulveda on October 26, 2019

6 at TCMC and noted that he was “able to perform bed mobility and transfers” without

7 needing to put weight on his leg foot. FAC Ex. I at 133. When Dr. Shakiba examined

8 Sepulveda on October 29, 2019, he noted that “[Plaintiff] is able to stand and pivot into or

9 out of a regular transportation vehicle” and therefore a wheelchair accessible cell was “not

10 required.” Id. Ex. M at 150. Furthermore, it is clear from notations left by the physical

11 therapist that the wheelchair was recommended “for longer distances.” Id. Thus, even the

12 medical professionals at TCMC did not appear to think Sepulveda was wholly unable to

13 move without wheelchair assistance. Moreover, Sepulveda himself describes Dr. Shakiba

14 as “elect[ing] to rely on his own non-specialized opinion that Plaintiff did not require a

15 permanent wheelchair.” Id. at 24 (emphasis added). This is not enough to state a claim for

16 deliberate indifference. Franklin, 662 F.2d at 1344 (“A difference of opinion between a

17 prisoner-patient and prison medical authorities regarding treatment does not give rise to a

18 § 1983 claim.”); see also Sanchez, 891 F.2d at 242.

19 In addition, Plaintiff has failed to allege sufficient facts to show he suffered

20 “substantial harm” as a result of being assigned a temporary wheelchair for 14 days before

21 having the status changed to permanent. Wood, 900 F.2d at 1335 (stating that, in order to

22 constitute an Eight Amendment violation, a delay in treatment “must have caused

23 substantial harm”). Plaintiff admits that on November 11, 2019 he was seen by Dr. Goyal,

24 who changed his wheelchair status from temporary to permanent. FAC at 26. Plaintiff

25 also was moved to a wheelchair accessible cell on November 13, 2019. Id. The two-week

26 delay in getting a fully wheelchair accessible cell, when Plaintiff was able to stand and

27 transfer from his wheelchair, did not amount to substantial harm required to satisfy the

28 Eight Amendment. See Wood, 900 F.2d at 1335; see also Mayfield v. Craven, 433 F.2d

1 873, 874 (9th Cir. 1970) (per curiam) (finding an 11–day delay in treating inmate’s “serious

2 facial bone fractures” did not violate Eighth Amendment).

3 Second, Plaintiff has not alleged sufficient facts to show Dr. Shakiba was

4 deliberately indifferent when he “refused to enter a referral for [Plaintiff] to be seen by Dr.

5 Caliafi, MD by November 7, 2019” for a follow-up appointment at TCMC. FAC at 24.

6 Again, Plaintiff’s allegations fail to state a claim for deliberate indifference. As noted

7 above, “deliberate indifference” requires allegations of “(a) a purposeful act or failure to

8 respond to a prisoner’s pain or possible medical need and (b) harm caused by the

9 indifference.” Jett, 439 F.3d at 1096. Here, Sepulveda has failed to allege facts sufficient

10 to satisfy either element. First, nothing in the FAC indicates that Dr. Shakiba purposely

11 denied him a medically necessary follow-up appointment. To the extent Dr. Shakiba

12 determined in was unnecessary to send Plaintiff off-site to TCMC for a follow-up, that

13 decision amounts to nothing more than a difference of opinion. See Sanchez, 891 F.2d at

14 242; Jackson, 90 F.3d at 332.

15 Sepulveda also has failed to allege facts to show he suffered “substantial harm” due

16 to Dr. Shakiba’s failure to schedule a follow-up appointment with Dr. Calafi. See Wood,

17 900 F.2d at 1335 (9th Cir. 1990) (stating that, in order to constitute an Eight Amendment

18 violation, a delay in treatment “must have caused substantial harm”). Plaintiff had a

19 follow-up appointment with a physician, Dr. Goyal, on November 13, 2019, during which

20 the surgical area was examined. See FAC at 26; see also id. Ex. N at 154. There is nothing

21 in the FAC suggesting that Plaintiff suffered harm, much less “substantial harm,” because

22 Plaintiff’s follow-up examination was performed by an RJD doctor instead of his TCMC

23 surgeon.

24 In addition, Sepulveda has not shown that “the course of treatment that [Dr. Shakiba]

25 chose was medically unacceptable under the circumstances,” or that Dr. Shakiba “chose

26 this course in conscious disregard of an excessive risk to [Sepulveda].” See Jackson, 90

27 F.3d at 332 (citations omitted). Plaintiff was not denied follow-up, post-operative care. He

28 simply received that care at RJD as opposed to being transferred to TCMC for the exam.

1 Therefore, the Court finds the allegations raised in the FAC fail to state a claim that Dr.

2 Shakiba acted with the requisite culpable state of mind when failing to order a permanent

3 wheelchair and declining to schedule a follow-up appointment with Dr. Calafi.

4 In sum, Plaintiff has failed to state a claim that Drs. Chau and Shakiba were

5 deliberately indifferent to his serious medical needs in violation of his Eighth Amendment.

6 Therefore, the Court DISMISSES Plaintiff’s first claim. See 28 U.S.C.

7 §§ 1915(e)(2)(B)(ii) & 1915A(b)(1); Watison, 668 F.3d at 1112; Wilhelm, 680 F.3d at

8 1121.

9 2. Cell Assignment and Conditions

10 In his second claim, Sepulveda argues his Eighth Amendment rights were violated

11 when Defendants Galindo and Doe #2 assigned him to a cell that was unsafe and lacking

12 adequate toiletries and bedding. FAC at 39–40. While the Eighth Amendment does not

13 mandate that prisons be comfortable, they cannot be inhumane. Rhodes v. Chapman, 452

14 U.S. 337, 347 (1981); Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). To that

15 end, “prison officials must ensure that inmates receive adequate food, clothing, shelter, and

16 medical care, and must take reasonable measures to guarantee the safety of the inmates.”

17 Farmer v. Brennan, 511 U.S. 825, 832 (1994) (internal quotations and citations omitted).

18 To state an Eighth Amendment claim with regard to prison conditions, a prisoner

19 must satisfy both an objective prong and a subjective one. Id. at 834. First, the plaintiff

20 must make an objective showing that the deprivation was “sufficiently serious” and

21 resulted in the denial of the “minimal civilized measure of life’s necessities.” Wilson v.

22 Seiter, 501 U.S. 294, 298 (1991) (quoting Rhodes, 452 U.S. at 347). Second, the plaintiff

23 must adequately allege the prison official subjectively had a “sufficiently culpable

24 statement of mind” by showing he or she was “deliberately indifferent” to the inmate’s

25 health or safety in allowing the deprivation to take place. Farmer, 511 U.S. at 834;

26 Mendiola-Martinez v. Arpaio, 836 F.3d 1239, 1248 (9th Cir. 2016). Finally, plaintiffs

27 alleging deliberate indifference must also “demonstrate that the defendants’ actions were

28 / / /

1 both an actual and proximate cause of their injuries.” Lemire v. Cal. Dep’t Corr. & Rehab.,

2 726 F.3d 1062, 1082 (9th Cir. 2013).

3 a. Doe #2

4 Plaintiff alleges Doe #2 was deliberately indifferent when he assigned Plaintiff to a

5 cell in D-Facility on October 28, 2019, that was (1) not adequately wheelchair accessible

6 and (2) unsafe because of a broken window. FAC at 28–34. When Sepulveda returned to

7 RJD from TCMC on October 28, 2019, Doe #2 was on duty at the RJD TTA. Id. at 28.

8 Doe #2 saw Plaintiff in the TTA that night, “in the tank . . . sitting in a wheelchair and with

9 a cast on his left leg.” Id. at 29. Sepulveda states that Doe #2 spoke to Dr. Chau about

10 Plaintiff’s housing and asked Dr. Chau to issue an order for a temporary wheelchair in

11 order to “house [Plaintiff] in in D-Facility.” Id. Sepulveda further alleges Doe #2 assigned

12 him to a cell that was unsafe because it was inappropriate for his needs and had a broken

13 window. Id. at 31–32.

14 First, Plaintiff has not sufficiently alleged that Doe #2 objectively deprived him of

15 something “sufficiently serious” when Doe #2 assigned Plaintiff to the cell in D-Facility.

16 See Foster v. Runnels, 554 F.3d 807, 812 (9th Cir. 2009). When considering whether a

17 deprivation is sufficiently serious, courts look to the totality of the conditions of

18 confinement, including “circumstances, nature, and duration of [the] deprivation.”

19 Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000). For instance, a deprivation of a basic

20 necessity that lasts only a few days may rise to the level of an Eighth Amendment violation,

21 while more “modest deprivations can also form the objective basis of a violation, but only

22 if such deprivations are lengthy or ongoing.” Id. at 731–32 (citing Keenan v. Hall, 83 F.3d

23 1083, 1090–91 (9th Cir. 1996)).

24 Here, Plaintiff admits he was only in the cell assigned to him by Doe #2 for 7.5

25 hours, from 11:00 p.m. to 6:30 a.m., when most inmates would be sleeping. FAC at 17,

26 20; see also id. Ex. A at 47. While doctors had advised Plaintiff to avoid putting weight

27 on his left foot after having his fourth and fifth toes amputated, Plaintiff was not unable to

28 move without the wheelchair. Sepulveda had been evaluated by a physical therapist at

1 TCMC, who noted that Plaintiff could perform transfers from his wheelchair to a bed. Id.

2 Ex. I at 133. And Plaintiff admits he was able to transfer from the wheelchair to the cell

3 bunk that night. Id. at 19. The only deprivation Plaintiff points to as a result of being

4 placed in the cell is that he was forced to hop from the wheelchair into the cell, “despite

5 being in extreme pain,” and had to put weight on his left foot at one point in order to use

6 the toilet.3 Id. at 20.

7 Such brief deprivations do not amount to a denial of the “minimal civilized measure

8 of life’s necessities.” Wilson, 501 U.S. at 298; see also, e.g., Marlin v. Raper, No. 2:06-

9 cv-0004-SWW/BD, 2007 WL 779710, at *5 (E.D. Ark. Mar. 13, 2007) (stating “lack of

10 special facilities for temporarily wheelchair-bound inmates do not objectively constitute

11 serious deprivation”); Serrano v. Doe, No. 3:17-CV-01606 (CSH), 2018 WL 3315580, at

12 *6 (D. Conn. July 5, 2018) (concluding there was no “serious deprivation” when an inmate

13 who injured his ankle was denied a wheelchair and forced to “hop[] to the medical

14 department on his uninjured leg”). While it may well have been more comfortable for

15 Plaintiff to be housed in cell that was fully wheelchair accessible, the Eighth Amendment

16 does not require prison officials to provide comfortable prisons. Farmer, 511 U.S. at 832.

17 In sum, Plaintiff has not alleged the type of “extreme deprivation” of the “minimal civilized

18 measures of life’s necessities” required to state a claim against Doe #2 for assigning

19 Plaintiff to a cell in D Facility. See Hudson, 503 U.S. at 9.

20 Even assuming Plaintiff alleged a sufficiently serious deprivation, Plaintiff fails to

21 allege sufficient facts that Doe #2 was subjectively deliberately indifferent when he made

22 the cell assignment without first confirming that a previously broken window in the cell

23 had been repaired. As discussed above, the subjective component of deliberate

24 indifference is met when a prison official “knows of and disregards an excessive risk to

25

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27 3 It is not clear how Plaintiff’s having a wheelchair would have eliminated any risk of him having

to put weight on his left foot since, presumably, Plaintiff would have still had to stand in order to

28

1 inmate health or safety.” Id. As such, a defendant must be both “aware of the facts from

2 which the inference could be drawn that a substantial risk of serious harm exists, and he

3 must also draw that inference.” Id. at 837, 842. Plaintiff contends Doe #2 was “on notice”

4 that the cell had been “deactivated due to a broken window. . . and elected to house Plaintiff

5 in the cell anyways.” FAC at 21. But even assuming Doe #2 knew the window had been

6 broken, there is nothing in the FAC to suggest Doe #2 drew from that an inference that

7 assigning Sepulveda to the cell for less than 8 hours, during which time Plaintiff would

8 presumably be sleeping, presented a “substantial risk of serious harm” to Sepulveda. Thus,

9 Plaintiff fails to state an Eighth Amendment claim of deliberate indifference against Doe

10 #2. See Toguchi, 391 F.3d at 1057.

11 b. Galindo

12 Plaintiff contends Galindo violated Plaintiff’s Eighth Amendment rights when

13 escorting him to, and placing him in, a cell with a broken window that was also without a

14 mattress, bedding, clean clothing, and toilet paper for 7.5 hours from approximately 11:00

15 p.m. to 6:30 a.m. FAC at 22, 35. However, Plaintiff’s allegations do not amount to “serious

16 deprivations” resulting in the denial of the “minimal civilized measure of life’s

17 necessities.” See Wilson, 501 U.S. at 298. When considering conditions of confinement,

18 courts must consider the amount of time the prisoner was subjected to the condition. See

19 Hearns v. Terhune, 413 F.3d 1036, 1042 (9th Cir. 2005). Plaintiff acknowledges he was

20 only subjected to the alleged conditions for a single night. FAC at 22, 25. The Ninth

21 Circuit has held claims of sleeping without a mattress for one night “insufficient to state an

22 Eighth Amendment violation and no amendment can alter that insufficiency.” Hernandez

23 v. Denton, 861 F.2d 1421, 1424 (9th Cir. 1988) (vacated on other grounds by Denton v.

24 Hernandez, 493 U.S. 801 (1989)).

25 Additionally, California district courts have held that an inmate’s deprivation of

26 toilet paper for a short time is not sufficiently serious to rise to the level of an Eighth

27 Amendment violation. See Mitchell v. Cate, No. 2:11-cv-1240-JAM-AC, 2015 WL

28 5255339, at *6 (E.D. Cal. Sept. 9, 2015) (finding no Eighth Amendment violation when

1 the plaintiff alleged he was denied soap, toilet paper, toothpaste, and a toothbrush for five

2 days); see also Murillo v. Bueno, No. 1:12-cv-00095-LJO-DLB (PC), 2013 WL 1731393,

3 at *1–2 (E.D. Cal. Apr. 20, 2013, adopted in full May 17, 2013) (concluding a prisoner not

4 provided with toothbrush, toothpaste, soap, toilet paper, or deodorant for approximately

5 five days while housed in holding cell failed to state a claim). Likewise, having to wear

6 unclean clothes for 7.5 hours does not amount to a serious deprivation. See Bejarano v.

7 Allison, 1:11-cv-0589-LJO-GBC (PC), 2012 WL 5451810, at *2 (Nov. 7, 2012, E.D. Cal.)

8 (“[B]eing deprived of clean clothes for three days does not amount to an objectively serious

9 deprivation within the meaning of the Eighth Amendment.”). Finally, to the extent Plaintiff

10 alleges the broken window in the cell made it unsafe and uncomfortably cold, these types

11 of short-term discomforts do not amount to Eighth Amendment violations. See Johnson,

12 217 F.3d at 729–32 (finding no serious deprivation when inmates were kept outside

13 overnight in December in 22-degree weather); Keenan, 83 F.3d at 1091 (concluding

14 allegation that temperatures were “well above” or “well below” room temperature was not

15 sufficient to support Eighth Amendment claim).

16 Even when considering the allegations as a whole, Plaintiff fails to allege a serious

17 deprivation. See Hebert v. Moreno, 2016 WL 1729185, at *4 (C.D. Cal. Mar. 29, 2016),

18 report and recommendation adopted, 2016 WL 1733425 (C.D. Cal. Apr. 29, 2016) (“The

19 Ninth Circuit and other federal courts have also found that instances of a prisoner being

20 deprived a bed, mattress, and/or conditions conducive to sleeping for 24 hours or more do

21 not satisfy the objective prong of an Eighth Amendment violation.”); see also Williams v.

22 Delo, 49 F.3d 442, 444–45 (8th Cir. 1995) (concluding placement in strip cell without

23 water, mattress, a toothbrush, toothpaste, deodorant, soap, sheets, blankets, pillow cases,

24 pillows, legal mail, and/or clothing for four days did not violate Eighth Amendment).

25 Further, there is no indication Galindo knew that placing Sepulveda in the cell for 7.5 hours

26 would present an “excessive risk” to Plaintiff’s safety but disregarded said risk. See

27 Farmer, 511 U.S. at 837.

28 / / /

1 Sepulveda alleges that he complained to Galindo about the cell and demanded to be

2 taken back to his previous cell in E-Facility. FAC at 33. Galindo told Plaintiff he would

3 speak to the sergeant and walked away. Id. When Galindo returned, he told Sepulveda

4 that his previous bunk in E-Facility was not available and, because it was so late, Plaintiff

5 would have to be housed in the cell in D-Facility for the night. Id.

6 Sepulveda has failed to adequately allege Galindo subjectively had a “sufficiently

7 culpable statement of mind.” To do so, Galindo’s “conduct must have been ‘wanton,’

8 which turns not upon its effect on the prisoner, but rather, upon the constraints facing the

9 official.’” Frost, 152 F.3d at 1128 (quoting Wilson v. Seiter, 501 U.S. 294, 302–03 (1991)).

10 Here, the facts as alleged do not support the allegation that Galindo’s conduct was

11 “wanton.” As Plaintiff concedes, it was late at night, his previous cell was unavailable,

12 and he was only assigned to the cell in question for 7.5 hours. The facts alleged do not

13 amount to subjective deliberate indifference on Galindo’s part.

14 Finally, even assuming arguendo that placing Plaintiff in a cell with a broken

15 window, no mattress, and no bedding amounted to deliberate indifference, Plaintiff has

16 failed to allege facts to show that the purported indifference was both an actual and

17 proximate cause of Plaintiff’s injuries. See Lemire, 726 F.3d at 1074. Sepulveda claims

18 he was uncomfortable during the night and suffered “anxiety attacks, dizzy spells, bouts of

19 anguish, stress, hypertension, severe diarrhea symptoms, lack of sleep and lack of spirit.”

20 ECF No. 38. Sepulveda fails, however, to allege that his general discomfort and stress was

21 “directly and proximately caused” by being placed in a cell with a broken window and not

22 due to the fact that he was recovering from two surgeries. See Lemire, 726 F.3d at 1074.

23 Based on the above, Plaintiff has failed to allege a “risk so grave that it violates

24 contemporary standards of decency to expose anyone unwillingly to such a risk.” Helling

25 v. McKinney, 509 U.S. 25, 36 (1993); see also Estelle, 429 U.S. at 102. Thus, the Court

26 finds Sepulveda has failed to state an Eighth Amendment claim against Galindo upon

27 which relief could be granted. Accordingly, the Court DISMISSES Plaintiff’s claim

28 / / /

1 against Doe #2 and Galindo. See 28 U.S.C. §§ 1915(e)(2)(B)(ii) & 1915A(b)(1); Watison,

2 668 F.3d at 1112; Wilhelm, 680 F.3d at 1121.

3 B. State Law Negligence Claim

4 Finally, in his third claim, Plaintiff alleges Defendants Galindo and Doe #2 were

5 negligent under California state law when they failed to provide him with safe and secure

6 living conditions of confinement and “failed to use reasonable care to avoid foreseeable

7 risk of injury” when assigning him to the cell in D-Facility on October 28, 2019. FAC at

8 41. “In any civil action of which the district courts have original jurisdiction, the district

9 courts shall have supplemental jurisdiction over all other claims that are so related to claims

10 in the action within such original jurisdiction that they form part of the same case or

11 controversy under Article III of the United States Constitution.” 28 U.S.C. § 1367(a).

12 However, “once judicial power exists under § 1367(a), retention of supplemental

13 jurisdiction over state law claims under 1367(c) is discretionary.” Acri v. Varian Assoc.,

14 Inc., 114 F.3d 999, 1000 (9th Cir. 1997).

15 “The district courts may decline to exercise supplemental jurisdiction over a claim

16 under subsection (a) if . . . the district court has dismissed all claims over which it has

17 original jurisdiction.” 28 U.S.C. § 1367(c)(3). The Supreme Court has cautioned that, “if

18 the federal claims are dismissed before trial, . . . the state claims should be dismissed as

19 well.” United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966). As discussed

20 above, the Court has found Plaintiff’s FAC fails to state any plausible federal claim for

21 relief. Therefore, in the absence of any viable federal claim upon which relief may be

22 granted, the Court exercises its discretion and DISMISSES Plaintiff’s supplemental state

23 law claim without prejudice pursuant to 28 U.S.C. § 1367(c)(3). Id.

24 CONCLUSION AND ORDER

25 For the reasons discussed above, the Court DISMISSES the FAC in its entirety

26 pursuant to 28 U.S.C. § 1915A(b) based on Plaintiff’s failure to state a claim upon which

27 relief may be granted. Because it is clear Plaintiff cannot cure the pleading defects with

28 respect to the claims and Defendants in the FAC, the dismissal is WITH PREJUDICE

1 |}and WITHOUT LEAVE TO AMEND. See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th

2 || Cir. 2015) (“A district court should not dismiss a pro se complaint without leave to amend

3 unless ‘it is absolutely clear that the deficiencies of the complaint could not be cured by

4 ||amendment.’”) (quoting Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012)). The Court

5 || DIRECTS the Clerk of the Court to enter a final judgment of dismissal and to close the

6 || file.

7 IT IS SO ORDERED.

8 Dated: February 7, 2022 . tt f te

9 on. Janis L. Sammartino

10 United States District Judge

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