1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SERGIO URIOSTEGUI, Case No. 21-01634 EJD (PR) 11 Plaintiff, ORDER OF PARTIAL DISMISSAL 12 AND OF SERVICE; DIRECTING v. DEFENDANTS TO FILE 13 DISPOSITIVE MOTION OR NOTICE REGARDING SUCH 14 S. GATES, et al., MOTION; INSTRUCTIONS TO CLERK 15 Defendants. 16 17 18 Plaintiff, a state prisoner, filed the instant pro se civil rights action pursuant to 42

against medical personnel at Pelican Bay State Prison (“PBSP”), and others. 20 The Court dismissed the original complaint with leave to amend because Plaintiff failed to 21 allege sufficient facts to state a cognizable claim. Dkt. No. 10. On October 4, 2021, 22 Plaintiff filed a first amended complaint, Dkt. No. 13, which is before the Court for an 23 initial review. 24 25 DISCUSSION 26 A. Standard of Review 27 A federal court must conduct a preliminary screening in any case in which a 1 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 2 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 3 upon which relief may be granted or seek monetary relief from a defendant who is immune 4 from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be liberally 5 construed. See Balistreri v. Pacifica Police Dep’t,

(9th Cir. 1988). 6 To state a claim under

, a plaintiff must allege two essential 7 elements: (1) that a right secured by the Constitution or laws of the United States was 8 violated, and (2) that the alleged violation was committed by a person acting under the 9 color of state law. See West v. Atkins,

(1988). 10 B. Plaintiff’s Claims 11 In the original complaint, Plaintiff alleged that various medical personnel at 12 different locations acted negligently with respect to his medical needs. Dkt. No. 1. 13 Because negligence was not sufficient to state a claim under § 1983, the Court dismissed 14 the complaint with leave to amend, granting Plaintiff one opportunity to attempt to allege 15 sufficient facts to state an Eighth Amendment claim for deliberate indifference to serious 16 medical needs. Dkt. No. 10 at 4. However, Plaintiff’s amended complaint fails to allege 17 sufficient facts to establish a violation of his constitutional rights against each of the named 18 Defendants except for two of them. 19 Plaintiff names the following Defendants from PBSP: Dr. Nancy Adams, Nurse T. 20 Geiger, Nurse McDaniels, Nurse Ramirez, Chief Health Care Correspondent S. Gates, and 21 Chief Executive Officer B. Woods. Dkt. No. 13 at 1. Plaintiff also names “unnamed 22 defendants does thru 8 defendants,” one of whom is an unidentified doctor who treated 23 him at Eureka, California. Id. at 6. Lastly, Plaintiff names Dr. Grivy, a specialist in 24 colorectal surgery, who treated him in Grant Pass, Oregon. Id. at 8. Plaintiff claims that 25 his rights under the Fourth, Eighth, and Fourteenth Amendments were violated, and that 26 defendants’ actions constituted gross negligence under the California Tort Liability Act. 1 under the Eighth Amendment for deliberate indifference to serious medical needs, and that 2 he raises the Fourth and Fourteenth Amendments to establish a § 1983 claim against 3 Defendants as state actors, which is unnecessary. See, e.g., Dkt. No. 13 at 5, 10, 13. 4 Accordingly, this action shall proceed solely on the basis of his Eighth Amendment claim. 5 Plaintiff claims that upon his arrival at PBSP in May 2019, he experienced extreme 6 pain and saw blood in his stool. Dkt. No. 13 at 4. He complained of these symptoms to 7 medical personnel and was seen by Defendant Nurse McDaniels on June 6, 2019. Id. He 8 claims that although he had a number of symptoms, Nurse McDaniels “did not know what 9 to do.” Id. Plaintiff claims that Nurse McDaniels was aware of that he was suffering from 10 “intense and relentless pain” but that her actions, or failure to act, amounted to 11 “intentionally denying or delaying access to medical care.” Id. at 5. Plaintiff claims Nurse 12 McDaniels was present during the examination with the doctor and that he appeared before 13 her several times. Id. He claims her actions amount to “gross negligence under California 14 Tort Liability Act, a violation of plaintiff’s Eighth and Fourteenth Amendment rights.” Id. 15 at 4. 16 Six months later, on January 27, 2020, Plaintiff was transported for a medical 17 evaluation “with an unnamed doctor in Eureka, California”; this doctor performed a 18 colonoscopy and a biopsy. Id. at 6. Plaintiff claims that this doctor misdiagnosed his 19 injury when he stated that he “did not find anything wrong.” Id. Plaintiff claims this 20 doctor’s actions are grounds for a “civil medical malpractice claim for gross negligence 21 sufficient under the… Eighth Amendment.” Id. 22 Plaintiff alleges that also on January 27, 2020, he was transported to Grant Pass, 23 Oregon, for a medical evaluation with Dr. Grivy, a specialist in colorectal surgery. Id. at 8. 24 After an examination, Dr. Grivy determined “nothing in his opinion was wrong” and that 25 Plaintiff “was just fine.” Id. Dr. Grivy suggested Plaintiff “do exercise and he would feel 26 better.” Id. Plaintiff claims Dr. Grivy’s care amounts to gross negligence. Id. Plaintiff 1 eventually discharged him with his existing injuries. Id. at 9. Plaintiff claims that 2 although Dr. Grivy is not an employee of the state, he was still acting under the color of 3 state law for being under a contractual agreement with the state. Id. at 7, 8. 4 Plaintiff claims Defendant Bill Woods is an executive officer at PBSP and 5 responsible for grievance appeals filed by prisoners. Id. at 10. Plaintiff claims Defendant 6 Woods was notified around December 2019, through grievances that he suffered from “life 7 threatening injury” and that he sought immediate medical treatment, but Defendant failed 8 to act in a reasonable manner, “ignoring an imminent danger” to Plaintiff’s health and 9 welfare, violating his Eighth and Fourteenth Amendment rights. Id. at 11. Plaintiff claims 10 Defendant Woods denied his healthcare 602 medical appeal on February 5, 2020. Id. at 11 12. Plaintiff also claims Defendant S. Gates, a “chief health care correspondent” was also 12 aware of the facts from which the inference could be drawn that a substantial risk of harm 13 exists. Id. at 18. 14 Plaintiff claims that on January 14, 2020, he was interviewed by Defendant T. 15 Geiger, a PBSP health care administrator nurse, with regard to a grievance he filed. Id. at 16 19. Defendant Geiger reviewed the following during the interview: Plaintiff had a 17 colonoscopy and a biopsy which were negative for collagenous/lymphocytic colitis and 18 active inflammation; Plaintiff’s current medications included acetaminophen, calcium 19 polycarbophil, loperamide HCL, and ibuprofen; Plaintiff’s last examination on January 3, 20 2020, showed normal vital signs, and recent lab work within normal limits; a letter from 21 Plaintiff’s PCP dated January 14, 2020, stating that his test results were essentially within 22 normal limits or unchanged; and that his January 24, 2020 examination by his PCP 23 indicated he had a “mild colicky abdomen sharp rectal pain from intermittent reducible 24 prolapse, and rectal bleeding, you were not anemic, hemodynamically stable and… 25 bleeding was not significant.” Id. at 19-20. Plaintiff claims that Defendant Geiger 26 “essentially denied” his healthcare appeal, and her failure to order immediate surgery 1 Defendant S. Gates subsequently denied Plaintiff’s appeal, for which Plaintiff claims 2 Defendant Gates is liable for violating his Eighth Amendment rights. Id. at 21-22. 3 Plaintiff claims that on January 29, 2020, he was diagnosed by Dr. Nancy Adams as 4 “needing treatment.” Id. at 12. Plaintiff claims Dr. Adams was “in shock that the 5 colonoscopy surgeon failed to recognize plaintiff’s ‘recto prolapsed,’” and that during the 6 examination she discussed a “lump the size of a baseball” located around his rectum area. 7 Id. Plaintiff claims “it became obvious” that he needed immediate surgery, but that Dr. 8 Adams failed in her obligation to order the surgery. Id. at 12-13. Plaintiff claims she 9 “discharged” him with his existing injuries. Id. 10 Plaintiff claims that on February 5, 2020, he was seen by PBSP clinic nurse 11 Ramirez. Id. at 14. Plaintiff claims Nurse Ramirez “verified [his] needing immediate 12 surgery” and “acknowledge[d] patient experiencing a lot of pain.” Id. Plaintiff claims 13 Nurse Ramirez stated, “I don’t know what to do,” although he “believed treatment was 14 necessary.” Plaintiff claims he saw Nurse Ramirez multiple times, and that she failed to 15 suggest the proper approach to resolve his ailments. Id. Plaintiff claims he logged thirty 16 or more visits with PBSP medical staff, each time making the same complaints: he could 17 not “hold food, blood in stool, need medical care, lingering severe pain and there was an 18 obvious weight loss of 30 pounds.” Id. Plaintiff claims these ailments establish a 19 cognizable claim of deliberate indifference in violation of the Eighth Amendment. Id. 20 Deliberate indifference to a prisoner’s serious medical needs violates the Eighth 21 Amendment’s proscription against cruel and unusual punishment. See Estelle v. Gamble, 22

(1976); McGuckin v. Smith,

(9th Cir. 1992), 23 overruled in part on other grounds by WMX Technologies, Inc. v. Miller,

, 24 1136 (9th Cir. 1997) (en banc); Jones v. Johnson,

(9th Cir. 1986). A 25 determination of “deliberate indifference” involves an examination of two elements: the 26 seriousness of the prisoner’s medical need and the nature of the defendant’s response to 1 A “serious” medical need exists if the failure to treat a prisoner's condition could 2 result in further significant injury or the “unnecessary and wanton infliction of pain.” 3 McGuckin,

(citing Estelle,

). A prison official is 4 deliberately indifferent if he knows that a prisoner faces a substantial risk of serious harm 5 and disregards that risk by failing to take reasonable steps to abate it. Farmer v. Brennan, 6

(1994). The prison official must not only “be aware of facts from which 7 the inference could be drawn that a substantial risk of serious harm exists,” but he “must 8 also draw the inference.”

If a prison official should have been aware of the risk, but 9 was not, then the official has not violated the Eighth Amendment, no matter how severe 10 the risk. Gibson, 290 F.3d at 1188. 11 A claim of medical malpractice or negligence is insufficient to make out a violation 12 of the Eighth Amendment. See Toguchi v. Chung,

(9th Cir. 2004); 13 Hallett v. Morgan,

(9th Cir. 2002); Franklin v. Oregon,

, 14 1344 (9th Cir. 1981); see, e.g., Frost v. Agnos,

(9th Cir. 1998) 15 (finding no merit in claims stemming from alleged delays in administering pain 16 medication, treating broken nose and providing replacement crutch, because claims did not 17 amount to more than negligence); McGuckin,

(mere negligence in 18 diagnosing or treating a medical condition, without more, does not violate a prisoner’s 8th 19 Amendment rights); O'Loughlin v. Doe,

(9th Cir. 1990) (repeatedly 20 failing to satisfy requests for aspirins and antacids to alleviate headaches, nausea and pains 21 is not constitutional violation; isolated occurrences of neglect may constitute grounds for 22 medical malpractice but do not rise to level of unnecessary and wanton infliction of pain). 23 The allegations in the amended complaint are insufficient to state an Eighth 24 Amendment claim against each named defendant, except for Defendant Adams and 25 Ramirez. The amended complaint is peppered with the words “negligence,” “gross 26 negligence,” and “malpractice.” See, e.g., Dkt. No. 13 at 4, 6, 8, 12, 14, 17, 20. Even 1 need, he fails to satisfy the second prong, i.e., that defendant acted with deliberate 2 indifference because he knew that Plaintiff faced a substantial risk of serious harm and 3 disregarded that risk by failing to take reasonable steps to abate it. See Farmer,

837. Rather, the allegations show that Plaintiff was examined and received medical care 5 when he requested it, and even received referrals to specialists. However, he disagreed 6 with their diagnosis and planned course of treatment. 7 Firstly, with respect to Nurse McDaniels, Plaintiff alleges that her actions amount to 8 “gross negligence” and that alone is sufficient to establish that his Eighth Amendment 9 rights were violated. See supra at 3. However, Plaintiff is mistaken. As he was already 10 advised, negligence and malpractice are not sufficient to establish an Eighth Amendment 11 violation. See Toguchi,

. The fact that Nurse McDaniels “did not know 12 what to do” indicates malpractice at most. Nowhere does Plaintiff suggest that she was 13 aware that a failure to act would result in further harm to Plaintiff. Furthermore, it appears 14 from Plaintiff’s allegations that she did refer him to the doctor for further treatment as she 15 was present during one of those exams. See supra at 3. Accordingly, Plaintiff’s 16 allegations are insufficient to state an Eighth Amendment claim against Defendant 17 McDaniels. There being no other cognizable claims against her, Defendant McDaniels 18 must be dismissed from this action. 19 Secondly, with respect to the “unnamed doctor” in Eureka who performed a 20 colonoscopy, even assuming his doctor is a state actor, there is no indication that this 21 unidentified doctor acted with deliberate indifference. According to Plaintiff’s allegations, 22 the doctor “did not find anything wrong.” Id. The fact that Plaintiff disagrees with this 23 doctor’s diagnosis does not establish an Eighth Amendment violation. “A difference of 24 opinion between a prisoner-patient and prison medical authorities regarding treatment does 25 not give rise to a § 1983 claim.” Franklin v. Oregon,

(9th Cir. 1981). 26 Similarly, a showing of nothing more than a difference of medical opinion as to the need to 1 deliberate indifference. Toguchi,

; Sanchez v. Vild,

, 242 2 (9th Cir. 1989). The same is true of Plaintiff’s allegations against Dr. Grivy, with whose 3 diagnosis he disagrees. See supra at 3. Plaintiff asserts that contrary to Dr. Grivy’s 4 finding that “nothing” was wrong with him and that exercise would be beneficial, Plaintiff 5 believed that he needed surgery. However, this disagreement over the course of treatment 6 does not give rise to a § 1983 claim. Franklin,

. Accordingly, Plaintiff’s 7 allegations are insufficient to state an Eighth Amendment claim against the unnamed 8 doctor in Eureka and Dr. Grivy. 9 Plaintiff’s allegations against Defendants Geiger, Woods and Gates are also 10 insufficient to state a claim. Plaintiff’s claim against these Defendants are based on their 11 involvement in his administrative grievance for the treatment he received through 12 December 2019. See supra at 4-5. However, as Defendant Geiger’s review disclosed, 13 there was nothing emergent revealed by the colonoscopy and biopsy, nor did any of 14 Plaintiff’s most recent lab work and examinations reveal anything abnormal. Id. at 4. 15 Based on the information before them, it cannot be said that Defendants Geiger, Woods, 16 and Gates were aware of any of facts from which they drew the inference that a substantial 17 risk of serious harm to Plaintiff existed. Farmer,

. The fact that Plaintiff 18 disagrees with their decision to deny his appeal does not establish deliberate indifference 19 on their part. Accordingly, Plaintiff’s allegations are insufficient to state an Eighth 20 Amendment claim against Defendants Geiger, Woods, and Gates. 21 On the other hand, Plaintiff’s allegations are sufficient to state an Eighth 22 Amendment claim against Dr. Adams and Nurse Ramirez whom he alleges knew of his 23 need for treatment and yet failed to act. See supra at 5. Accordingly, this action shall 24 proceed against these two Defendants. All other claims and Defendants shall be dismissed 25 for failure to state a cognizable claim for relief against them. 26 /// 1 CONCLUSION 2 For the reasons state above, the Court orders as follows: 3 1. This action shall proceed on the cognizable Eighth Amendment claim against 4 Defendants Adams and Ramirez as described above. All other claims and Defendants are 5 DISMISSED with prejudice from this action for failure to state a claim. 6 The Clerk shall terminate the following Defendants from this action: S. Gates, Dr. 7 Grivy, Nurse T. Geiger, Nurse McDaniels, and Officer B. Woods. 8 2. The following defendants shall be served at Pelican Bay State Prison: 9 a. Dr. Nancy Adams 10 b. Nurse Ramirez 11 Service on the listed defendant(s) shall proceed under the California Department of 12 Corrections and Rehabilitation’s (CDCR) e-service program for civil rights cases from 13 prisoners in CDCR custody. In accordance with the program, the clerk is directed to serve 14 on CDCR via email the following documents: the first amended complaint, and any 15 attachments thereto, Dkt. No.13, a copy of this order of service, a CDCR Report of E- 16 Service Waiver form and a summons. The clerk also shall serve a copy of this order on the 17 plaintiff. 18 No later than 40 days after service of this order via email on CDCR, CDCR shall 19 provide the court a completed CDCR Report of E-Service Waiver advising the court which 20 defendant(s) listed in this order will be waiving service of process without the need for 21 service by the United States Marshal Service (USMS) and which defendant(s) decline to 22 waive service or could not be reached. CDCR also shall provide a copy of the CDCR 23 Report of E-Service Waiver to the California Attorney General’s Office which, within 21 24 days, shall file with the court a waiver of service of process for the defendant(s) who are 25 waiving service. 26 Upon receipt of the CDCR Report of E-Service Waiver, the clerk shall prepare for 1 Waiver a USM-205 Form. The clerk shall provide to the USMS the completed USM-205 2 forms and copies of this order, the summons and the operative complaint for service upon 3 each defendant who has not waived service. The clerk also shall provide to the USMS a 4 copy of the CDCR Report of E-Service Waiver. 5 3. No later than ninety-one (91) days from the date this order is filed, 6 Defendants shall file a motion for summary judgment or other dispositive motion with 7 respect to the claims in the complaint found to be cognizable above. 8 a. Any motion for summary judgment shall be supported by adequate 9 factual documentation and shall conform in all respects to Rule 56 of the Federal Rules of 10 Civil Procedure. Defendants are advised that summary judgment cannot be granted, nor 11 qualified immunity found, if material facts are in dispute. If any Defendant is of the 12 opinion that this case cannot be resolved by summary judgment, he shall so inform the 13 Court prior to the date the summary judgment motion is due. 14 b. In the event Defendants file a motion for summary judgment, the 15 Ninth Circuit has held that Plaintiff must be concurrently provided the appropriate 16 warnings under Rand v. Rowland,

(9th Cir. 1998) (en banc). See 17 Woods v. Carey,

(9th Cir. 2012). 18 4. Plaintiff’s opposition to the dispositive motion shall be filed with the Court 19 and served on Defendants no later than twenty-eight (28) days from the date Defendants’ 20 motion is filed. 21 Plaintiff is also advised to read Rule 56 of the Federal Rules of Civil Procedure and 22 Celotex Corp. v. Catrett,

(1986) (holding party opposing summary judgment 23 must come forward with evidence showing triable issues of material fact on every essential 24 element of his claim). Plaintiff is cautioned that failure to file an opposition to 25 Defendants’ motion for summary judgment may be deemed to be a consent by Plaintiff to 26 the granting of the motion, and granting of judgment against Plaintiff without a trial. See 1 || F.3d 651,653 (9th Cir. 1994). 2 5. Defendants shall file a reply brief no later than fourteen (14) days after 3 || Plaintiffs opposition is filed. 4 6. The motion shall be deemed submitted as of the date the reply brief is due. 5 No hearing will be held on the motion unless the Court so orders at a later date. 6 7. All communications by the Plaintiff with the Court must be served on 7 || Defendants, or Defendants’ counsel once counsel has been designated, by mailing a true 8 || copy of the document to Defendants or Defendants’ counsel. 9 8. Discovery may be taken in accordance with the Federal Rules of Civil 10 || Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local 11 || Rule 16-1 is required before the parties may conduct discovery. 9. It is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the 13 || court informed of any change of address and must comply with the court’s orders ina 14 timely fashion. Failure to do so may result in the dismissal of this action for failure to z 15 prosecute pursuant to Federal Rule of Civil Procedure 41(b). Q 16 10. | Extensions of time must be filed no later than the deadline sought to be i 17 || extended and must be accompanied by a showing of good cause. 18 IT IS SO ORDERED. 19 || Dated: _Febmary 4.2022 sD. 50 EDWARD J. DAVILA United States District Judge 21 22 23 24 25 26 27