1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 FREDDY MCCARDIE, Case No.: 1:20-cv-01623-BAM (PC) 12 Plaintiff, ORDER DIRECTING CLERK OF COURT TO

RANDOMLY ASSIGN DISTRICT JUDGE TO

13 v. ACTION 14 CALIFORNIA STATE PRISON, FINDINGS AND RECOMMENDATION

CORCORAN, REGARDING DISMISSAL OF ACTION,

15 WITH PREJUDICE, FOR FAILURE TO Defendant. STATE A CLAIM 16 (ECF No. 19) 17

FOURTEEN (14) DAY DEADLINE

18

19 Plaintiff Freddy McCardie (“Plaintiff”) is a state prisoner proceeding pro se and in forma 20 pauperis in this civil action pursuant to 42 U.S.C. § 1983. The Court screened Plaintiff’s 21 complaint and granted Plaintiff leave to amend. Plaintiff’s first amended complaint, filed on April 22 16, 2021, is currently before the Court for screening. (Doc. 19.) 23

I. Screening Requirement and Standard

24 The Court is required to screen complaints brought by prisoners seeking relief against a 25 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. 26 § 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous 27 or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary 28 1 relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b). 2 A complaint must contain “a short and plain statement of the claim showing that the 3 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 4 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 5 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 6 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken as 7 true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 8 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 9 To survive screening, Plaintiff’s claims must be facially plausible, which requires 10 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable 11 for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret 12 Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully 13 is not sufficient, and mere consistency with liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969. 14

II. Plaintiff’s Allegations

15 Plaintiff is currently housed at California State Prison in Corcoran (“Corcoran”).where the 16 events in the complaint are alleged to have occurred. Plaintiff names the following defendants: 17 (1) Dr. Pearce, Corcoran, and (2) C. McCabe, surgeon at Reasonable Accommodation Panel, 18 California State Prison, Corcoran. 19 Plaintiff alleges that his ADA was taken away. They took his cane, vest and lower/lower 20 chrono. Plaintiff alleges as follows: 21 “He said that he seen me play handball because it was a black man with 22 dreads. I said how do you know that it was me. It cloud of been anybody on the yard that black with dreads. And he didn’t say anything at that. So he said for my to turn 23 my vest and cane. And they made me not A.D.A. anymore. Then the building officer 24 took my cane and vest. Then the next shift give it back which is third watch. Then the next day they took it again. And my lower lower which is suppose to be permite. 25 Then I just started putting in 1824 because at the time I was A.D.A. And I had the guy from San Quaniten prison of law office name, Pattirick Booth. And I talked to 26 him on the phone twice a week. He was trying to get me a cane and a walker. And that’s when I was targeted and they took away my cane and my vest. And they never 27 give me my cain and vest.” (Doc. 19, p. 3-4 (unedited text).) 28 1 Plaintiff does not indicate what he seeks as remedies. 2 The allegations in the complaint are unclear so the Court has referred to documents 3 Plaintiff attached to the amended complaint. At various times between October 25, 2017 to 4 October 25, 2018, Plaintiff was given disability status. On March 28, 2019, Plaintiff was given 5 disability accommodation of canes, mobility impaired disability vest, eyeglass frames and knee 6 braces. (Doc. 19, p. 9.) As of December 20, 2019, Plaintiff had special cuffing, transport vehicle 7 with lift, bottom bunk and ground floor. (Doc. 19, p. 12.) As of that same date, his medical 8 equipment included eyeglass frames, foot orthoses, knee braces, therapeutic shoes, and wrist 9 support. In an undated document entitled “basis for headquarters’ level disposition,” it was 10 reported that Plaintiff’s primary care physician observed Plaintiff ambulating without any 11 difficulty and without any signs of discomfort or gait issues. (Doc. 1, p.13.) This unknown 12 health care provider conducted an assessment of Plaintiff and noted that the knee had full range of 13 motion without any significant restrictions and did not indicate that a cane, mobility impaired vest, or bottom bunk/ground floor accommodated was reasonably necessary. On May 28, 2020, 14 the Reasonable Accommodation Panel (RAP) responded to Plaintiff’s request for pain medication 15 for back and knee pain/walker after meeting and referred Plaintiff for chronic pain care. (Doc. 1, 16 p. 14.) 17

III. Discussion

18 Plaintiff’s complaint fails to comply with Federal Rule of Civil Procedure 8 and fails to 19 state a cognizable claim under 42 U.S.C. § 1983. Despite being provided relevant legal and 20 pleading standards, Plaintiff has been unable to cure the deficiencies. 21 A. Federal Rule of Civil Procedure 8 22 Pursuant to Federal Rule of Civil Procedure 8, a complaint must contain “a short and plain 23 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). Detailed 24 factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action, 25 supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citation 26 omitted). Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim to 27 relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570, 28 1 127 S.Ct. at 1974). While factual allegations are accepted as true, legal conclusions are not. Id.; 2 see also Twombly, 550 U.S. at 556–557. 3 Although Plaintiff's complaint is short, it is not a plain statement of his claims. As a basic 4 matter, the complaint does not clearly state what happened, when it happened or who was 5 involved. Plaintiff’s allegations in the amended complaint are less clear than in the original 6 complaint. Plaintiff’s allegations must be based on facts as to what happened and not 7 conclusions. Despite being informed of what must be alleged, Plaintiff does not allege why the 8 DME were removed and what Dr. Pearce told Plaintiff why the DME were removed. He does not 9 identify what Defendant C. McCabe did or did not do, even though the Court has reviewed the 10 documents attached to the complaint. Plaintiff has been unable to cure the deficiency. 11 B. Deliberate Indifference to Serious Medical Needs 12 While the Eighth Amendment of the United States Constitution entitles Plaintiff to 13 medical care, the Eighth Amendment is violated only when a prison official acts with deliberate indifference to an inmate’s serious medical needs. Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 14 2012), overruled in part on other grounds, Peralta v. Dillard, 744 F.3d 1076, 1082-83 (9th Cir. 15 2014); Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012); Jett v. Penner, 439 F.3d 1091, 16 1096 (9th Cir. 2006). Plaintiff “must show (1) a serious medical need by demonstrating that 17 failure to treat [his] condition could result in further significant injury or the unnecessary and 18 wanton infliction of pain,” and (2) that “the defendant’s response to the need was deliberately 19 indifferent.” Wilhelm, 680 F.3d at 1122 (citing Jett, 439 F.3d at 1096). Deliberate indifference is 20 shown by “(a) a purposeful act or failure to respond to a prisoner’s pain or possible medical need, 21 and (b) harm caused by the indifference.” Wilhelm, 680 F.3d at 1122 (citing Jett, 439 F.3d at 22 1096). The requisite state of mind is one of subjective recklessness, which entails more than 23 ordinary lack of due care. Snow, 681 F.3d at 985 (citation and quotation marks omitted); Wilhelm, 24 680 F.3d at 1122. 25 A serious medical need exists if the failure to treat the condition could result in further 26 significant injury or the unnecessary and wanton infliction of pain. Jett v. Penner, 439 F.3d 1091, 27 1096 (9th Cir. 2006). To act with deliberate indifference, a prison official must both be aware of 28 1 facts from which the inference could be drawn that a substantial risk of serious harm exists, and 2 he must also draw the inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). Thus, a defendant 3 is liable if he knows that plaintiff faces “a substantial risk of serious harm and disregards that risk 4 by failing to take reasonable measures to abate it.” Id. at 847. “It is enough that the official acted 5 or failed to act despite his knowledge of a substantial risk of harm.” Id. at 842. 6 In applying this standard, the Ninth Circuit has held that before it can be said that a 7 prisoner’s civil rights have been abridged, “the indifference to his medical needs must be 8 substantial. Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this cause 9 of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle v 10 Gamble, 429 U.S. 97, 105–06 (1976)). “[A] complaint that a physician has been negligent in 11 diagnosing or treating a medical condition does not state a valid claim of medical mistreatment 12 under the Eighth Amendment. Medical malpractice does not become a constitutional violation 13 merely because the victim is a prisoner.” Estelle, 429 U.S. at 106; see also Anderson v. County of Kern, 45 F.3d 1310, 1316 (9th Cir. 1995). Even gross negligence is insufficient to establish 14 deliberate indifference to serious medical needs. See Wood v. Housewright, 900 F.2d 1332, 1334 15 (9th Cir. 1990). Additionally, a prisoner’s mere disagreement with diagnosis or treatment does 16 not support a claim of deliberate indifference. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). 17 A difference of opinion between an inmate and prison medical personnel—or between 18 medical professionals—regarding appropriate medical diagnosis and treatment is not enough to 19 establish a deliberate indifference claim. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); 20 Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir 2004). Additionally, “a complaint that a 21 physician has been negligent in diagnosing or treating a medical condition does not state a valid 22 claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not 23 become a constitutional violation merely because the victim is a prisoner.” Estelle, 429 U.S. at 24 106. 25 The allegations do not allege deliberate indifference. As alleged, the removal of the DME 26 shows a difference of opinion between an inmate and medical personnel. The documents attached 27 to the complaint show that Plaintiff’s primary care physician examined Plaintiff after the 28 1 physician observed Plaintiff ambulating without any difficulty and without signs of discomfort or 2 gait issues. The physician conducted physical assessment noted that that the knee had full range 3 of motions without any significant restricting. At most, Plaintiff alleges a difference of opinion 4 with the primary care physician and mere disagreement with diagnosis or treatment. Plaintiff has 5 been unable to cure this deficiency. 6 IV. Conclusion and Order 7 Plaintiff’s amended complaint fails to state a cognizable federal claim for relief. Despite 8 being provided with relevant pleading and legal standards, Plaintiff has been unable to cure the 9 deficiencies in his complaint by amendment, and thus further leave to amend is not warranted. 10 Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). 11 Accordingly, the Court HEREBY DIRECTS the Clerk of the Court to randomly assign a 12 district judge to this action. 13 Furthermore, IT IS HEREBY RECOMMENDED that this action be dismissed, with prejudice, for failure to state a cognizable claim upon which relief may be granted. 14 These Findings and Recommendation will be submitted to the United States District Judge 15 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 16 (14) days after being served with these Findings and Recommendation, Plaintiff may file written 17 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 18 Findings and Recommendation.” Plaintiff is advised that failure to file objections within the 19 specified time may result in the waiver of the “right to challenge the magistrate’s factual 20 findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 21 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 22

23

IT IS SO ORDERED.

24 25 Dated: April 23, 2021 /s/ Barbara A. McAuliffe _

UNITED STATES MAGISTRATE JUDGE

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