1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CURTIS LE’BARRON GRAY, Case No. 1:19-cv-0183-JLT (PC)

12 Plaintiff, ORDER REQUIRING PLAINTIFF TO FILE A

RESPONSE

13 v. (Doc. 13) 14 DR. N. ODELUGA, et al., 15 Defendants. THIRTY-DAY DEADLINE

16 Plaintiff has filed a first amended complaint asserting constitutional claims against 17 governmental employees. (Doc. 13.) Generally, the Court is required to screen complaints brought 18 by inmates seeking relief against a governmental entity or an officer or employee of a governmental 19 entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner 20 has raised claims that are legally “frivolous or malicious,” that fail to state a claim upon which 21 relief may be granted, or that seek monetary relief from a defendant who is immune from such 22 relief. 28 U.S.C. § 1915A(b)(1), (2). “Notwithstanding any filing fee, or any portion thereof, that 23 may have been paid, the court shall dismiss the case at any time if the court determines that . . . the 24 action or appeal . . . fails to state a claim upon which relief may be granted.” 28 U.S.C. § 25 1915(e)(2)(B)(ii). 26 //// 27 //// 28 1 I. Pleading Standard 2 A complaint must contain “a short and plain statement of the claim showing that the pleader 3 is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 4 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 5 statements, do not suffice,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. 6 v. Twombly, 550 U.S. 544, 555 (2007)), and courts “are not required to indulge unwarranted 7 inferences,” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation 8 marks and citation omitted). While factual allegations are accepted as true, legal conclusions are 9 not. Iqbal, 556 U.S. at 678. 10 Prisoners may bring § 1983 claims against individuals acting “under color of state law.” See 11 42 U.S.C. § 1983, 28 U.S.C. § 1915(e) (2)(B)(ii). Under § 1983, Plaintiff must demonstrate that 12 each defendant personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 13 930, 934 (9th Cir. 2002). This requires the presentation of factual allegations sufficient to state a 14 plausible claim for relief. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 15 969 (9th Cir. 2009). Prisoners proceeding pro se in civil rights actions are entitled to have their 16 pleadings liberally construed and to have any doubt resolved in their favor, Hebbe v. Pliler, 627 17 F.3d 338, 342 (9th Cir. 2010) (citations omitted), but nevertheless, the mere possibility of 18 misconduct falls short of meeting the plausibility standard, Iqbal, 556 U.S. at 678; Moss, 572 F.3d 19 at 969. 20 II. Plaintiff’s Allegations 21 At all times relevant to this action, Plaintiff was a state inmate housed at North Kern State 22 Prison (“NKSP”) in Delano, California. Plaintiff brings this action against Dr. N. Odeluga, the 23 NKSP Chief Medical Executive; Dr. A. Shittu, the NKSP Chief Physician and Surgeon; and Dr. 24 Steven M. Yaplee, an ophthalmologist and glaucoma specialist in private practice. Plaintiff seeks 25 several million dollars in damages and injunctive relief in the form of a transfer to California 26 Correctional Medical Facility in Vacaville, California. 27 //// 28 //// 1 Plaintiff’s allegations may be fairly summarized as follows: 2 A. Allegations Against Dr. Yaplee 3 On February 8, 2016, Dr. Yaplee, a NKSP-contracted medical provider, performed a 4 cataract surgery on Plaintiff’s left eye even though Plaintiff had only agreed to have a procedure to 5 reduce the pressure in that eye. Between June 2016 and October 2016, Plaintiff continually told Dr. 6 Yaplee that his vision was worse. In November 2016, Dr. Yaplee referred Plaintiff to Dr. Tawansy, 7 another NKSP-contracted medical provider. 8 B. Allegations Against Dr. Odeluga 9 Prior to February 2016, Dr. Odeluga was aware that Dr. Yaplee seriously injured inmates 10 through surgery. Dr. Odeluga, however, did not share this information with Plaintiff and instead 11 permitted Dr. Yaplee to perform the February 2016 surgery on Plaintiff’s left eye. 12 Dr. Odeluga referred Plaintiff to a Dr. Tawansy who performed two eye surgeries on Plaintiff 13 between January 2017 and June 2018, one to correct the surgery performed by Dr. Yaplee and one 14 to correct a eye surgery performed by a Dr. Lauritzen from June 2012. 15 Later, Dr. Odeluga canceled NKSP’s contract with Dr. Tawansy without informing Plaintiff 16 and thereby excluding him from being involved in decisions regarding his own medical treatment. 17 After canceling Dr. Tawansy’s contract, Dr. Odeluga scheduled Plaintiff with Dr. Lauritzen, even 18 after Plaintiff filed a grievance concerning the botched June 2012 eye surgery performed by that 19 doctor. 20 C. Allegations Against Dr. Shittu 21 Dr. Shittu played a role in denying the aforementioned grievance Plaintiff filed 22 concerning treatment by Dr. Lauritzen. While Dr. Shittu had access to Plaintiff’s medical files 23 and could have verified Plaintiff’s allegations, Plaintiff was merely informed (presumably, 24 though not entirely clear, by Dr. Shittu) that he did not have a right to choose his own doctor. Dr. 25 Shittu then insisted on Plaintiff being seen by Dr. Lauritzen. While Plaintiff alleges that he 26 refused to be treated by Dr. Lauritzen, he also accuses Dr. Shittu of directing medical staff to 27 falsify a refusal document on or around August 22, 2018. 28 In January 2019, Plaintiff learned that another inmate was referred to Dr. Tawansy, the 1 medical provider who Plaintiff wanted to see. Plaintiff submitted a request to be referred to Dr. 2 Tawansy, but this request was denied on April 25, 2019. Instead, Plaintiff was sent to Dr. Yaplee, 3 who then referred Plaintiff to Dr. Tawansy. 4 On May 2, 2019, Dr. Shittu conducted a face-to-face interview with Plaintiff regarding the 5 Dr. Lauritzen-related grievance. During this interview, Dr. Shittu said that Plaintiff could only 6 see Dr. Tawansy for emergency reasons, and his condition did not constitute an emergency. 7 Also, on May 2, 2019, Plaintiff was given a vision impairment test at NKSP, and he was 8 then transferred to an outside medical provider on May 6, 2019, to confirm the results of the test. 9 This medical provider concluded that Plaintiff’s eye condition was beyond repair and that he was 10 permanently vision impaired. 11 III. Discussion 12 Where a prisoner’s Eighth Amendment claims arise in the context of medical care, the 13 prisoner must allege and prove “acts or omissions sufficiently harmful to evidence deliberate 14 indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). An Eighth 15 Amendment medical claim has two elements: “the seriousness of the prisoner’s medical need and 16 the nature of the defendant’s response to that need.” McGuckin v. Smith, 974 F.2d 1050, 1059 17 (9th Cir. 1991), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th 18 Cir. 1997) (en banc). 19 A serious medical need exists if the failure to treat the condition could result in further 20 significant injury or the unnecessary and wanton infliction of pain. Jett v. Penner, 439 F.3d 1091, 21 1096 (9th Cir. 2006). To act with deliberate indifference, a prison official must both be aware of 22 facts from which the inference could be drawn that a substantial risk of serious harm exists, and 23 he must also draw the inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). Thus, a defendant 24 is liable if he knows that plaintiff faces “a substantial risk of serious harm and disregards that risk 25 by failing to take reasonable measures to abate it.” Id. at 847. “It is enough that the official acted 26 or failed to act despite his knowledge of a substantial risk of harm.” Id. at 842. 27 In applying this standard, the Ninth Circuit has held that before it can be said that a 28 prisoner’s civil rights have been abridged, “the indifference to his medical needs must be 1 substantial. Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this cause 2 of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 3 429 U.S. at 105–06). “[A] complaint that a physician has been negligent in diagnosing or treating 4 a medical condition does not state a valid claim of medical mistreatment under the Eighth 5 Amendment. Medical malpractice does not become a constitutional violation merely because the 6 victim is a prisoner.” Estelle, 429 U.S. at 106; see also Anderson v. County of Kern, 45 F.3d 7 1310, 1316 (9th Cir. 1995). Even gross negligence is insufficient to establish deliberate 8 indifference to serious medical needs. See Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 9 1990). Additionally, a prisoner’s mere disagreement with diagnosis or treatment does not support 10 a claim of deliberate indifference. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). 11 Delays in providing medical care may manifest deliberate indifference. Estelle, 429 U.S. 12 at 104-05. To establish a claim of deliberate indifference arising from a delay in providing care, a 13 plaintiff must show that the delay was harmful. See Berry v. Bunnell, 39 F.3d 1056, 1057 (9th 14 Cir. 1994); McGuckin, 974 F.2d at 1059; Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir. 15 1990); Shapley v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). In 16 this regard, “[a] prisoner need not show his harm was substantial; however, such would provide 17 additional support for the inmate’s claim that the defendant was deliberately indifferent to his 18 needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); see also McGuckin, 974 F.2d at 19 1060. In addition, a physician need not fail to treat an inmate altogether in to violate that inmate’s 20 Eighth Amendment rights. Ortiz v. City of Imperial, 884 F.2d 1312, 1314 (9th Cir. 1989) (per 21 curiam). A failure to competently treat a serious medical condition, even if some treatment is 22 prescribed, may constitute deliberate indifference in a particular case. Id. 23 Plaintiff’s allegations against Dr. Yaplee fail because they sound in negligence/medical 24 malpractice. That Dr. Yaplee did not perform a surgery properly does not, standing alone, suggest 25 deliberate indifference. Furthermore, while Plaintiff alleges that Dr. Yaplee ignored his 26 complaints about his vision after the February 2016 surgery, Plaintiff also alleges that Dr. Yaplee 27 referred Plaintiff to Dr. Tawansy for further care. There is no deliberate indifference on these 28 allegations. 1 Plaintiff’s allegations again fail to state a claim against Dr. Odeluga. Though Plaintiff 2 alleges this Defendant knew of problems with Dr. Yaplee’s provision of medical care but 3 nonetheless continued to refer inmates to him, Plaintiff still fails to specify how Dr. Odeluga 4 knew this information or what sorts of problems were caused by Dr. Yaplee. Plaintiff further 5 alleges that Dr. Odeluga did not confer with Plaintiff regarding the cancelation of Dr. Tawansy’s 6 contract with NKSP, which Plaintiff contends resulted in his exclusion from decisions about his 7 medical care, but these allegations do not state a claim. It is also unclear what personal role this 8 Defendant had in Plaintiff’s treatment. Although Plaintiff claims that Dr. Odeluga directed 9 Plaintiff to be seen by Dr. Lauritzen even after Plaintiff filed an inmate grievance concerning the 10 latter’s care, there are no allegations that Dr. Odeluga was personally aware of this grievance. 11 Plaintiff’s remaining allegations as to this Defendant, including what role, if any, he played in the 12 processing of Plaintiff’s grievance, are too vague and conclusory to state a claim. 13 Lastly, Plaintiff asserts a deliberate indifference claim against Dr. Shittu. While generally 14 an inmate does not state a claim against a prison official involved in the processing of a 15 grievance, see Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003), Plaintiff’s allegations 16 suggest that Dr. Shittue was in a position to refer Plaintiff to a medical provider who could treat 17 Plaintiff’s eye condition. Despite the ability to do so on or around August 2018 and despite 18 knowledge of the seriousness of Plaintiff’s eye condition, Dr. Shittu refused the referral. Dr. 19 Shittu’s failure to provide a timely referral resulted in delayed care and complete vision loss for 20 Plaintiff. Liberally construing the pleading, the Court finds that Plaintiff has stated a cognizable 21 claim against Dr. Shittu. 22 IV. Conclusion 23 Plaintiff’s complaint states a cognizable Eighth Amendment claim against Dr. Shittu. All 24 other claims are not cognizable as pleaded. The Court will grant Plaintiff an opportunity to file a 25 second amended complaint. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). If Plaintiff 26 does not wish to amend, he may instead file a notice of voluntary dismissal, and the action then 27 will be terminated by operation of law. Fed. R. Civ. P. 41(a)(1)(A)(i). Alternatively, Plaintiff may 28 forego amendment and notify the Court that he wishes to stand on his first amended complaint. See 1 Edwards v. Marin Park, Inc., 356 F.3d 1058, 1064-65 (9th Cir. 2004) (plaintiff may elect to forego 2 amendment). If the last option is chosen, the Court will issue findings and recommendations to 3 dismiss the complaint without leave to amend, Plaintiff will have an opportunity to object, and the 4 matter will be decided by a District Judge. 5 If Plaintiff opts to amend, he must demonstrate that the alleged acts resulted in a deprivation 6 of his constitutional rights. Iqbal, 556 U.S. at 677-78. Plaintiff must set forth “sufficient factual 7 matter . . . to ‘state a claim that is plausible on its face.’” Id. at 678 (quoting Twombly, 550 U.S. at 8 555 (2007)). Plaintiff should note that although he has been granted the opportunity to amend his 9 complaint, it is not for the purposes of adding new and unrelated claims. George v. Smith, 507 F.3d 10 605, 607 (7th Cir. 2007). Plaintiff should carefully review this screening order and focus his efforts 11 on curing the deficiencies set forth above. 12 Finally, Plaintiff is advised that Local Rule 220 requires that an amended complaint be 13 complete in itself without reference to any prior pleading. As a general rule, an amended complaint 14 supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once an 15 amended complaint is filed, the original complaint no longer serves a function in the case. Id. 16 Therefore, in an amended complaint, as in an original complaint, each claim and the involvement 17 of each defendant must be sufficiently alleged. The amended complaint should be clearly titled, in 18 bold font, “Second Amended Complaint,” reference the appropriate case number, and be an 19 original signed under penalty of perjury. Plaintiff’s amended complaint should be brief. Fed. R. 20 Civ. P. 8(a). Although accepted as true, the “[f]actual allegations must be [sufficient] to raise a 21 right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555 (citations omitted). 22 Accordingly, the Court ORDERS that: 23 1. Within 30 days from the date of service of this order, Plaintiff must file either a 24 second amended complaint curing the deficiencies identified by the Court in this 25 order, a notice of voluntary dismissal, or a notice of election to stand on the first 26 amended complaint; and 27 28 1 2. If plaintiff fails to file a second amended complaint or notice of voluntary dismissal, 2 the Court will recommend the action be dismissed, with prejudice, for failure to obey 3 a court order and failure to state a claim.

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IT IS SO ORDERED.

6 Dated: October 26, 2019 /s/ Jennifer L. Thurston 7 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28