Hollis v. Director of Corrections
| Decision Date | 02 June 2008 |
| Docket Number | No. CV 07-4117-SVW(RC).,CV 07-4117-SVW(RC). |
| Court | U.S. District Court — Central District of California |
| Parties | Dennis HOLLIS, Plaintiff, v. DIRECTOR OF CORRECTIONS (C.D.C.), John Marshall (Warden) Hansen (M.D.) Ellen Greenman, M.D. (C.M.O.) Hepatitis-C (Committee), Defendants. |
Dennis Hollis, San Luis Obispo, CA, pro se.
Paul F Arentz, CAAG — California Attorney General, Los Angeles, CA, for Defendants.
ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES
Pursuant to 28 U.S.C. Section 636, the Court has reviewed the Complaint and other papers along with the attached Report and Recommendation of United States Magistrate Judge Rosalyn M. Chapman, and has made a de novo determination.
IT IS ORDERED that (1) the Report and Recommendation is approved and adopted; and (2) defendants' motion to dismiss the complaint and action under Rule 12(b)(6) for failure to state a claim upon which relief can be granted is granted, and Judgment shall be entered accordingly.
IT IS FURTHER ORDERED that the Clerk shall serve copies of this Order and the Magistrate Judge's Report and Recommendation by the United States mail on the parties.
IT IS ADJUDGED that Judgment be entered dismissing the complaint and action for failing to state a claim upon which relief can be granted.
This Report and Recommendation is submitted to the Honorable Steven V. Wilson, United States District Judge, by Magistrate Judge Rosalyn M. Chapman, pursuant to the provisions of 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.
On June 27, 2007, plaintiff Dennis Hollis, a state inmate proceeding pro se and in forma pauperis, filed a civil rights complaint under 42 U.S.C. § 1983 against defendants James E. Tilton, Secretary of the California Department of Corrections and Rehabilitation ("CDCR") (erroneously sued as the "Director of Corrections"), John Marshall, warden of the California Men's Colony-East ("CMC-East"), Dr. ENU Hansen 1 and Dr. Ellen Greenman, physicians at CMC-East, and the hepatitis C committee at CMC-East, in their individual capacities,2 claiming defendants have been deliberately indifferent to his serious medical needs by not providing appropriate medical treatment for his hepatitis C. Complaint at 3-17. More specifically, plaintiff alleges that on October 26, 2005, Dr. Hansen ordered tests for hepatitis on plaintiff, and those tests showed plaintiff had an elevated alanine amino-transferase ("ALT") level, indicative of hepatitis C. Complaint at 10, Exh. A at 5-6.3 On March 22, 2006, Dr. Hansen diagnosed plaintiff with hepatitis C, genotype 1b, with a low ALT level. Complaint, Exh. A at 8. Dr. Hansen gave plaintiff a hepatitis C packet and discussed the disease with him. Id, On April 11, 2006, Dr. Hansen rechecked plaintiffs ALT levels, which were normal, noted plaintiffs hepatitis C was stable and under good control, and ordered plaintiff receive a hepatitis B vaccination and have his ALT levels checked twice a year. Complaint, Exh. A at 7. Subsequently, in November 2006, laboratory results provided to Dr. Rees showed plaintiff was positive for chronic hepatitis C; however, plaintiff alleges Dr. Rees denied him treatment, stating plaintiff did not meet the criteria for treatment and it was too expensive to provide treatment to every inmate who requested it. Complaint at 10-11, Exh. A at 22. On January 11, 2007, Dr. Rees noted plaintiffs request for hepatitis C treatment was denied because he was less than 45 years old and his ALT was less than 2 units per liter. Complaint, Exh. A at 22. As such, plaintiff alleges he has not had the medical treatment he needs, including a liver biopsy and pegylated interferon and ribavirin treatment. Complaint at 11.
Plaintiff alleges he filed a grievance about his medical care, which was denied by defendant Dr. Greenman, who stated:
Treatment of Hepatitis-C is never urgent, the therapy has significant morbidity; therapy is not universally effective, the long-term prognosis of patients with Hepatitis-C is unpredictable but the majority of patients do well without therapy. If repeated blood tests show the liver is functioning differently than normal, a liver biopsy may be performed. It was determined by your [physician] your disease has not progressed to meet treatment criteria, you do not qualify for treatment of Hepatitis-C in the CDCR. Your [physician] will continue to monitor your disease through laboratory tests and will keep you apprised of your status. Your request for Hepatitis-C treatment is denied.
Complaint, Exh. A at 3. The plaintiff appealed this decision, and on May 14, 2007, his appeal was denied. Complaint, Exh. A at 1, 2-2a.
The plaintiff also alleges defendants Tilton, Marshall, Dr. Greenman, and the hepatitis C committee are responsible for promulgating the policies regarding the medical care of hepatitis C inmates, Complaint at 6-8, 14, 16-17, and defendants Dr. Greenman and the hepatitis C committee hired unqualified physicians to provide medical care and failed to adequately train staff. Complaint at 14, 16. The plaintiff seeks "injunctive relief in the form of proper medical diagnostic testing and treatment," damages, and other just and proper relief. Complaint at 18.
On September 21, 2007, defendants filed a motion to dismiss plaintiffs complaint under Rule 12(b)(6) for failure to state a claim upon which relief can be granted, and on November 29, 2007, plaintiff filed an opposition. Defendants filed a reply on December 10, 2007.
A complaint should be dismissed only if plaintiff fails to proffer "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, ___ U.S. ___, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). In considering dismissal, the Court must accept the factual allegations of the complaint as true. Erickson v. Pardus, ___ U.S. ___, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007) (per curiam); Albright v. Oliver, 510 U.S. 266, 267, 114 S.Ct. 807, 810, 127 L.Ed.2d 114 (1994). The Court must also construe the pleading in the light most favorable to the party opposing the motion and resolve all doubts in the pleader's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 1849, 23 L.Ed.2d 404 (1969); Berg v. Popham, 412 F.3d 1122, 1125 (9th Cir. 2005). Moreover, pro se pleadings are "to be liberally construed" and are held to a less stringent standard than those drafted by a lawyer. Erickson, 127 S.Ct. at 2200; Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972) (per curiam).
Prison officials and physicians violate the Eighth Amendment's proscription against cruel and unusual punishment when they act with deliberate indifference to an inmate's serious medical needs. Wilson v. Setter, 501 U.S. 294, 302, 111 S.Ct. 2321, 2326, 115 L.Ed.2d 271 (1991); Carlson v. Green, 446 U.S. 14, 19, 100 S.Ct. 1468, 1472, 64 L.Ed.2d 15 (1980); Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976). Deliberate indifference exists when a prison official knows an inmate faces a substantial risk of serious harm to his health and fails to take reasonable measures to abate the risk. Farmer v. Brennan, 511 U.S. 825, 847, 114 S.Ct. 1970, 1984, 128 L.Ed.2d 811 (1994); Toguchi v. Soon Hwang Chung, 391 F.3d 1051, 1058 (9th Cir.2004). "Under this standard, the prison official must not only `be aware of facts from which the inference could be drawn that a substantial risk of harm exists,' but that person `must also draw the inference.'" Toguchi, 391 F.3d at 1057 (quoting Farmer, 511 U.S. at 837, 114 S.Ct. at 1979). "`If a [prison official] should have been aware of the risk, but was not, then the [official] has not violated the Eighth Amendment, no matter how severe the risk.'" Toguchi 391 F.3d at 1057 (quoting Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002), cert. denied, 537 U.S. 1106, 123 S.Ct. 872, 154 L.Ed.2d 775 (2003)).
Deliberate indifference to an inmate's serious medical needs may be manifested in two ways: either when prison officials deny, delay or intentionally interfere with medical treatment or by the manner in which prison physicians provide medical care. Gamble, 429 U.S. at 104-05, 97 S.Ct. at 291; Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir.2002); Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir.2000) (en banc). In either case, the indifference to the inmate's medical needs must be substantial; inadequate treatment due to negligence, inadvertence, or differences in judgment between an inmate and medical personnel does not rise to the level of a constitutional violation. Gamble, 429 U.S. at 105-06, 97 S.Ct. at 292; Toguchi 391 F.3d at 1057; Lopez, 203 F.3d at 1131. Similarly, mere delay in providing an inmate with medical treatment, without more, does not amount to a constitutional violation. McGuckin v. Smith, 974 F.2d 1050, 1060 (9th Cir.1992), overruled on other grounds by, WMX Tech., Inc. v. Miller, 104 F.3d 1133 (9th Cir.1997) (en banc); Shapley v. Nevada Board of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985) (per curiam).
"A determination of `deliberate indifference' involves an examination of two elements: the seriousness of the prisoner's medical need and the nature of the defendant's response to that need." McGuckin, 974 F.2d at 1059; Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir.2006). "A `serious' medical need exists if the failure to treat a prisoner's condition could result in further significant injury or the `unnecessary and wanton infliction of pain.'" Doty v. County of Lassen, 37 F.3d...
To continue reading
Request your trial
-
Anderson v. Cnty. of Fresno
...... Fresno County Sheriff-Coroner Margaret Mims. (“Mims”), and Fresno Director of Public Health. David Pomaville (“Pomaville”). ( Id. ) On. October 4, 2021, ... dismiss.” (citing Wilhelm , 680 F.3d at 1123;. Hollis v. Dir. of Corr., 560 F.Supp.2d 920, 926. (C.D. Cal. 2008))); Wilhelm, 680 F.3d at 1123. ......
-
Kakowski v. Allison
...the familiar standard applied in the context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).”); Hollis, 560 F.Supp.2d at 926-27 (allegations that prison medical staff denied treatment for Hepatitis-C because of CCHCS criteria amounted to a difference of medical o......
-
Postawko v. Mo. Dep't of Corr.
...and the outside medical doctors and submitted medical literature all agreed that medication was not necessary); Hollis v. Dep't of Corrs., 560 F. Supp. 2d 920 (C.D. Cal. 2008) (holding in individual case where no symptoms were present that pro se HCV-positive inmate was not entitled to inte......
-
Reed v. Wash. State Dep't of Corrs.
... CHARLES V. REED, Plaintiff, v. WASHINGTON STATE DEPARTMENT OF CORRECTIONS et al., Defendants. No. 3:16-CV-05993-BHS-DWC United States District Court, W.D. Washington, ... Defendant (Smith) Kariko, the members of the CRC, the. Director of Health Services, and the DOC arguing he should. receive treatment for HCV. Dkt. 163, Reed ... not the basis for a constitutional claim”); Hollis. v. Dir. of Corr., 560 F.Supp.2d 920, 926-27 (C.D. Cal. 2008) (physicians failure to ......