Smith v. Allison et al

Filing 132

FINDINGS and RECOMMENDATIONS to Grant Defendants' Motion to Dismiss 109 , signed by Magistrate Judge Jennifer L. Thurston on 3/18/15: 30-Day Objections Deadline. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LAWRENCE CHRISTOPHER SMITH,

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Plaintiff,

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v.

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D. GOSS, et al.,

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Defendants.

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Case No.: 1:10-cv-01814-LJO-JLT (PC)
FINDINGS AND RECOMMENDATIONS
TO GRANT DEFENDANTS' MOTION TO
DISMISS
(Doc. 109)
30-DAY OBJECTION DEADLINE

I. Procedural History

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Plaintiff Lawrence Christopher Smith is proceeding on the following cognizable claims in the

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Third Amended Complaint ("3rdAC"): under the First Amendment for retaliation against Defendants

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Lt. Goss and Officer Langler; under the Eighth Amendment for deliberate indifference to his serious

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medical condition against Defendant PA Byers; and for his claim of a violation of his right to due

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process against Lt. Goss. (Docs. 31, 42, 47, 114, 126.)

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On October 24, 2014, Defendants Byers and Langler filed a motion to dismiss on the grounds

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that Plaintiff fails to state a cognizable claim against them under the Eighth Amendment and asserting

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qualified immunity. (Doc. 109.) Plaintiff filed an opposition to which Defendants replied. (Docs.

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117, 120.) The motion is deemed submitted. L.R. 230(l).

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II.

Motion to Dismiss1

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A.

Standard

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A motion to dismiss brought pursuant to Rule 12(b)(6) tests the legal sufficiency of a claim and

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dismissal is proper if there is a lack of a cognizable legal theory or the absence of sufficient facts

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alleged under a cognizable legal theory. Conservation Force v. Salazar, 646 F.3d 1240, 1241-42 (9th

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Cir. 2011). "[A] complaint may survive a motion to dismiss only if, taking all well-pleaded factual

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allegations as true, it contains enough facts to 'state a claim to relief that is plausible on its face.'"

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Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010) quoting Ashcroft v. Iqbal, 556 U.S. 662, 129

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S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955

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(2007)); see also, Conservation Force, 646 F.3d at 1242; Moss v. U.S. Secret Service, 572 F.3d 962,

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969 (9th Cir. 2009).
The pleading of an inmate proceeding pro se "must be held to less stringent standards than

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formal pleadings drafted by lawyers." Hebbe, 627 F.3d at 342, ref. Twombly; Erickson v. Pardus, 551

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U.S. 89, 94, 127 S.Ct. 2197 (2007) (per curiam). The Court must accept the well-pleaded factual

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allegations as true and draw all reasonable inferences in favor of the non-moving party. Daniels-Hall

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v. National Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010); Sanders v. Brown, 504 F.3d 903, 910 (9th

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Cir. 2007); Huynh v. Chase Manhattan Bank, 465 F.3d 992, 996-97 (9th Cir. 2006); Morales v. City of

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Los Angeles, 214 F.3d 1151, 1153 (9th Cir. 2000). However, while prisoners proceeding pro se in

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civil rights actions are entitled to have their pleadings liberally construed and to have any doubt

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resolved in their favor, Hebbe, 627 F.3d at 342, courts are not required to indulge unwarranted

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inferences, Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009), and need not accept

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legal conclusions Acast in the form of factual allegations,@ Western Mining Council v. Watt, 643 F.2d

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618, 624 (9th Cir. 1981). A pro se litigant is entitled to notice of the deficiencies in the complaint and

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an opportunity to amend, unless the complaint's deficiencies cannot be cured by amendment. Noll v.

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Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).

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In arriving at this findings and recommendations, this Court carefully reviewed and considered all arguments, supporting
documents, responses thereto, objections, and other papers filed by the parties regarding Defendants= motion to dismiss.
Omission of reference to an argument, document, paper, or objection is not be construed as though it was not considered.

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B.

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In resolving a 12(b)(6) motion, a court's review is generally limited to the operative pleading.

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Daniels-Hall, 629 F.3d at 998; Sanders, 504 F.3d at 910; Schneider v. California Dept. of Corr., 151

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F.3d 1194, 1197 n.1 (9th Cir. 1998).

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Materials Properly Considered by the Court on a 12(b)(6) Motion

1. Judicial Notice
AA judicially noticed fact must be one not subject to reasonable dispute in that it is either (1)

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generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready

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determination by resort to sources whose accuracy cannot reasonably be questioned.@ Fed. R. Evid.

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201(b). AA court shall take judicial notice if requested by a party and supplied with the necessary

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information.@ Fed. R. Evid. 201(c)(2).

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In support of their motion, Defendants' request that judicial notice be taken of various

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documents that were attached as exhibits to Plaintiff's original Complaint and attach copies of those

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exhibits to their request. (Doc. 109-2.)

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While Plaintiff acknowledges that exhibits to a complaint may be judicially noticed, he objects

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that “defense counsel is trying to improperly discredit the Plaintiff's complaint with the inference of an

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[sic] perjured complaint.” (Doc. 117, Opp., 3:1-8.) There is nothing about Defendants' request for

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judicial notice which is improper or untoward. While there are discrepancies between exhibits to

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Plaintiff's original Complaint and the 3rdAC, the Court does not intend to determine whether they

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were intentionally or innocently made.

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Plaintiff also argues that upon drafting the 3rdAC, he was "continuously deprived of his legal

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documents needed to sufficiently recount the facts as needed to be an accurate portrayal of past events.

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To have one expected to remember to the exact minute detail actions that occurred over three years

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past [presumably meaning from the date he filed this action on October 1, 2010 to the date the 3rdAC

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was filed on August 27, 2013] is absolutely ridiculous." (Id., at 3:9-13.) Though Plaintiff thinks is it

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"ridiculous" that he be expected to recall details of actions that occurred three years prior to his filing

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of the 3rdAC, recollection of events three, five, or even ten years in the past is not uncommon, and

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indeed is required, in protracted litigation such as this.

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Finally, Plaintiff argues that Defendants' request for judicial notice forms a "sort of legal diary"
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that he never submitted to the Court or defense counsel. (Id., at 3:14-20.) To the contrary, Plaintiff

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submitted all of the documents that Defendants request to have judicially noticed with his original

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Complaint in this matter. That the Court declined to cull through all one-hundred seventy-one pages

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of Plaintiff's original Complaint, they are all part of the record in this action and may be judicially

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noticed since submitted with and as supporting documents to Plaintiff's original Complaint.

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The Court may properly consider matters subject to judicial notice and documents

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incorporated by reference in the pleading without converting a motion to dismiss to one for summary

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judgment. U.S. v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003), see also, Durning v. First Boston Corp.,

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815 F.2d 1265, 1267 (9th Cir. 1987) (court may consider facts established by exhibits attached to the

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complaint), Mullis v. United States Bankruptcy Ct., 828 F.2d 1385, 1388 (9th Cir. 1987) (facts which

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may be judicially noticed), Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986)

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(matters of public record, including pleadings, orders, and other papers filed with the court). Under

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the doctrine of incorporation by reference, a court may consider a document provided by a defendant

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that was not attached to the pleading if the plaintiff refers to the document extensively or if it forms

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the basis of the plaintiff's claim. Ritchie, 342 F.3d at 908; Daniels-Hall, 629 F.3d at 998.

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Thus, Defendants' request for judicial notice of the exhibits to Plaintiff's original Complaint
that they attached to their motion (Doc. 109-2) is GRANTED.

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C.

Defendants' Motion

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Defendants argue that Plaintiff fails to state a cognizable claim under the Eighth Amendment

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against them and assert that they are entitled to qualified immunity on Plaintiff's claims under the

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Eighth Amendment.

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1. Eighth Amendment Claims
The Screening F&R (Doc. 42) stated that the Eighth Amendment “embodies ‘broad and

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idealistic concepts of dignity, civilized standards, humanity, and decency.’” Estelle v. Gamble, 429

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U.S. 97, 102 (1976) (quoting Jackson v. Bishop, 404 F.2d 571, 579 (8th Cir. 1976)). The prohibition

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of cruel and unusual punishment requires that prison officials provide medical care to prisoners. Id., at

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104-05. To state a claim arising in the context of inadequate medical care, a plaintiff must point to

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“acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.”
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Id., at 106. Thus, a cognizable claim has two elements: “the seriousness of the prisoner’s medical

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need and the nature of defendant’s response to that need.” McGuckin v. Smith, 974 F.2d 1050, 1059

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(9th Cir. 1991), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th

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Cir. 1997).

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In screening the complaint, the Court found Plaintiff had set forth adequate facts that he

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suffered from a serious medical condition in that he claimed that: he suffers from a congenital defect

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of his feet in which he has no arch in either foot (Doc. 31, at 8); walking without medically prescribed

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orthotics is very painful (id.); that non-prescription orthotics, such as “Dr. Scholl’s” insoles provide

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him no relief (id., at 9); and that after his arch supports and orthopedic shoes were confiscated, he

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developed foot ulcers, callouses, and bunions (id., at 8). With regard to Plaintiff's interactions with

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Defendant Byers, Plaintiff alleged that: in 2010, Defendant Byers refused to examine his feet and

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refused to prescribe orthopedic shoes or supports (id., at 8-9); Plaintiff “attempted to reasonably talk to

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PA Byers concerning the need for orthotics to no avail and [Defendant Byers] again refused to

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examine the Plaintiff’s feet" and indicated that the state budget did not allow for orthopedic shoes (id,

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at 9); and that it was not until Plaintiff was transferred to a different facility that he was examined by a

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podiatrist who prescribed a pair of orthopedic shoes (id.). The Court found that Defendant Byers’

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cursory response and apparent twice refusal to examine Plaintiff's feet stated a cognizable Eighth

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Amendment claim of failure to provide adequate medical care. (Doc. 42.)

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a. Defendant Byers
Defendants argue that Plaintiff's claim under the Eighth Amendment for deliberate indifference

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to his serious medical needs should be dismissed. Defendants argue that (1) Plaintiff did not allege

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that Defendant Byers acted with deliberate indifference or caused him any further harm (Doc. 109,

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MTD, 7:10-9:2); and (2) Plaintiff's allegations that Defendant Byers faced budgetary restrictions does

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not demonstrate deliberate indifference (id., at 9:3-10:2).

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(1) Deliberate Indifference
Contrary to Plaintiff’s allegations, Defendants argue that Plaintiff attached exhibits to his

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original complaint which show: Defendant Byers was assigned to evaluate Plaintiff's inmate appeal at

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the first formal level of review to determine whether Plaintiff should be referred to a specialist for new
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orthotics (Doc. 109, MTD, 8:1-4, citing Doc. 109-2, Req. J.N. (Ex. A at 137) p. 13); Defendant Byers

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evaluated whether Plaintiff should be referred to a specialist for new orthotics through the prison

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grievance system and determined that Plaintiff's orthotics had been placed in evidence for an

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altercation and had not been discarded by custody staff, as Plaintiff claimed in his initial description of

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the problem (id., citing Doc. 109-2, Req. Jud. Not. (Ex. A at 130, 134, 137) pp. 6, 10, 13); Defendant

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Byers found that off-the-shelf orthotics were not a workable interim solution for Plaintiff's foot

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condition, because they had to be custom-made (id. at 137); and shoe insoles were dispensed to

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Plaintiff on June 1, 2010 (id.). These exhibits also show that Plaintiff's orthopedic inserts/arch

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supports were returned to him on August 4, 2010. (Doc. 109-2, p. 18.)

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In his opposition, Plaintiff acknowledges that Defendant Byers' only interaction with him

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pertained to his inmate appeal for his orthotics and that Defendant Byers is a Physician's Assistant, not

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a medical doctor, a podiatrist, or even a registered nurse. (Doc. 117, Opp., pp. 6-9.) Despite this,

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Plaintiff argues that Defendant Byers should have examined his feet during the interview. (Id.)

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Plaintiff also states that five days before the interview, Defendant Byers's immediate supervisor had

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ordered for Plaintiff to be seen by a medical doctor and that Defendant Byers acknowledged as much

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in his report. (Id., at 6:23-7:5.)

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Both sides point to Defendant Byers' findings from his interview of Plaintiff and agree that

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Defendant Byers noted that Plaintiff had not been evaluated for orthotics since September of 2008;

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that he had been referred to a medical doctor for evaluation and possible orthotics; that insoles were

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given to him as there was no interim accommodation for his orthotics since they were custom made

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and were merely placed in evidence -- not discarded. (Doc. 117, Opp., p. 25; Doc. 109-2, Req. JN, p.

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13; Doc. 1, Orig. Comp., p. 137.) Both sides agree that insoles were approved by S. Oder, RN. (Id.)

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It is also apparent from this document that Defendant Byers merely conducted the interview, as

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required by Section 3084.7(e) of Title 15 of the California Administrative Code, and documented his

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findings, but that S. Oder, RN actually made the decision and was responsible for the disposition of

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Plaintiff's inmate appeal at that level. (Id.) Both sides also agree that the only interaction Plaintiff had

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with Defendant Byers was during the interview for the first level of his inmate appeal in which

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Plaintiff sought to obtain orthotics. (Doc. 109, MTD, 8:2-11; Doc. 117, Opp., pp. 6-9.)
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Plaintiff's claim against Defendant Byers was found cognizable based on Plaintiff's allegations

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that Defendant Byers refused, seemingly twice, to examine Plaintiff on allegations which did not

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appear limited to an interview of an inmate appeal. (Doc. 42, Screen F&R, 14:7-15.) This Court, with

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its burgeoning caseload, did not have the luxury of ferreting through the voluminous exhibits that

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Plaintiff submitted with his prior pleadings for clarification when the 3rdAC was screened.

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It has now been brought to light that the contact with Defendant Byers of which Plaintiff

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complains, occurred solely during an interview at the first level on Plaintiff's inmate appeal attempting

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to obtain orthotics for his podiatric condition. Given this clarification, Plaintiff's claim against

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Defendant Byers for violation of his rights, for actions during an interview on an inmate

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appeal/grievance under the Eighth Amendment is not cognizable. This Court has found that other

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appellate circuits have effectively held that non-physician defendants cannot Abe considered

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deliberately indifferent simply because they failed to respond directly to the medical complaints of a

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prisoner who was already being treated by the prison doctor@ and if Aa prisoner is under the care of

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medical experts . . . a non-medical prison official will generally be justified in believing that the

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prisoner is in capable hands.@ Spruill v. Gillis, 372 F.3d 218, 236 (3rd Cir. 2004); see also Greeno v.

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Daley, 414 F.3d 645, 656 (7th Cir. 2005) (holding that A[o]nce a [non-medical] prison grievance

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examiner becomes aware of potential mistreatment, the Eight Amendment does not require him or her

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to do more than >review [the prisoner=s] complaints and verif[y] with the medical officials that [the

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prisoner] was receiving treatment.@ This Court concurs with the analysis in Greeno and Spruill.

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Defendant Byers's duties and abilities to address Plaintiff's need for his orthotics were limited

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in as much as: (1) Defendant Byers is merely a physician's assistant and is not a medical doctor, or

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even a registered nurse; (2) Defendant Byers only had contact with Plaintiff during an interview about

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his inmate appeal regarding his orthotics; (3) as part of his findings from that interview, Defendant

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Byers verified that an appointment for Plaintiff with a medical doctor had already been ordered by

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qualified medical personnel, an RN; (4) Defendant Byers also discovered that Plaintiff's custom

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orthotics had not been discarded, but were being held in evidence; (5) Defendant Byers verified that

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Plaintiff was to receive shoe insoles until his orthotics were released; and (6) Defendant Byers was

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merely performing the duty of interviewing Plaintiff regarding his inmate appeal while the actual
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decision/disposition was made by a registered nurse. (See Doc. 117, Opp., p. 25; Doc. 109-2, Req. JN,

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p. 13; Doc. 1, Orig. Comp., p. 137.) While Defendant Byers saw Plaintiff in the context of Plaintiff's

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inmate appeal for medical appliances, Defendant Byers was not a decision-maker as to the appeal -- all

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decisions were made by persons with medical degrees. Thus, the analysis in Greeno and Spruill

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reasonably extends to this situation to exonerate Defendant Byers from Plaintiff's claim of deliberate

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indifference stemming merely from his interview of Plaintiff regarding his inmate appeal.

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Further, a claim under the Eighth Amendment against individual defendants must be addressed

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via Aa very individualized approach which accounts for the duties, discretion, and means of each

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defendant.@ Leer v. Murphy, 844 F.2d 628, 633-34 (9th Cir. 1988) citing with approval Williams v.

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Bennett, 689 F.2d 1370, 1384 (11th Cir. 1982) (AThere can be no duty, the breach of which is

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actionable, to do that which is beyond the power, authority, or means of the charged party. One may

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be callously indifferent to the fate of prisoners and yet not be liable for their injuries. Those whose

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callous indifference results in liability are those under a duty -- possessed of authority and means -- to

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prevent the injury.@) Since Defendant Byers was only a physician's assistant conducting the interview

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of Plaintiff on his inmate appeal, the authority and/or means to ameliorate Plaintiff's podiatric

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condition were beyond the scope of his duties and there is no deliberate indifference given that

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Defendant Byers investigated Plaintiff's complaints and referred them to the medical provider(s) who

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could be expected to address Plaintiff's concerns.

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If the level of Defendant Byers' involvement in merely conducting the interview with Plaintiff

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on his inmate appeal had been apparent at the time the 3rdAC was screened, Plaintiff's deliberate

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indifference claim against Defendant Byers would not have been found cognizable. Thus, Plaintiff's

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claim against Defendant Byers for deliberate indifference to Plaintiff's serious medical needs in

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violation of the Eighth Amendment should be dismissed.

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(1) Budgetary Restraints

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Defendants argue that Plaintiff's allegations regarding budgetary restrictions demonstrate that

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no violation occurred. (See Doc. 109, MTD, 9:3-10:2.) Plaintiff argues that those allegations show

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that Defendant Byers used budgetary restrictions as a pretext to excuse illegal behavior. (See Doc.

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117, Opp., 10:7-11:6.) While Plaintiff's allegations regarding the state budget was cursorily alluded to
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in the Screening F&R (Doc. 42, Screen F&R, 14:11-12), it was neither required, nor considered as

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Plaintiff's claim against Defendant Byers was found cognizable based on the inference that Defendant

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Byers twice refused to examine Plaintiff in a medical setting.

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In any event, an individual defendant is not liable beyond their Aduties, discretion and

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[available] means," Leer v. Murphy, 844 F.2d 628, 633-34 (9th Cir. 1988) and availability of

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resources define the spectrum of choices an official has at his or her disposal, Peralta v. Dillard, 744

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F.3d 1076, 1083 (9th Cir. 2013) (overruling Jones v. Johnson, 781 F.2d 769 (9th Cir. 1986) and Snow

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v. McDaniel, 681 F.3d 978 (9th Cir. 2012) to the extent they held differently). A defendant cannot be

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held to be deliberately indifferent for failing to prescribe that which is unavailable due to budgetary

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restraints. It is true that Plaintiff has alleged that Defendant Byers mentioned budgetary constraints on

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the orthotics Plaintiff desired, (see, Doc. 31, 3rdAC, p. 9 alleging that Defendant Byers “stated that the

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state’s budget was not allowing for many prisoners to receive orthopedic shoes anymore” and Doc.

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109-2, Req. J.N.. at p. 21, Doc. 24, 2ndAC, at p. 9 alleging that Defendant Byers explained that the

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state’s budget no longer allowed medical staff to “indiscriminately” issue orthopedic shoes to

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inmates). However, this Court never considered it even remotely possible that Defendant Byers, a PA,

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would have any input as to budgetary decisions as to what medical devices would or would not be

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provided to inmates and this was not a basis upon which Plaintiff's allegations against Defendant

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Byers under the Eighth Amendment were found cognizable. Any such allegations do not resuscitate

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Plaintiff's claim against Defendant Byers in light of the lack of deliberate indifference discussed

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above.

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b. Defendant Langler
Defendants seek clarification whether Plaintiff was found to have stated a cognizable claim

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against Defendant Langler in the 3rdAC. (Doc. 109, 3:16-18, 6:22-7:8.) If the response is in the

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affirmative, they seek dismissal since Plaintiff did not state any factual allegations regarding his

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medical condition against Defendant Langler in the 3rdAC.

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This inquiry was understandably generated by a clerical error contained in the Findings and

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Recommendation that screened ("Screening F&R") the 3rdAC and provided the basis upon which this

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action is proceeding, which was adopted by the District Judge. (See Docs. 42, 47.) The introductory
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"Background" section of the Screening F&R, errantly stated that Plaintiff had stated a cognizable

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claim under the Eighth Amendment against "Defendants PA Byers and Officer Langler." (Doc. 42,

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2:1-6.) This is the only such errant reference in the Screening F&R. The Screening F&R did not

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discuss any allegations under the Eighth Amendment against Defendant Langler as the 3rdAC

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contained none; the final "Findings and Recommendations" section of the Screening F&R itemized the

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cognizable claims found in the 3rd AC and did not state that any had been found under the Eighth

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Amendment against Defendant Langler (Doc. 42, 17:3-11); and the Order Adopting the Screening

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F&R accurately reflected the claims found to be cognizable (Doc. 47, 1:28-2:6) -- which did not

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include a claim under the Eighth Amendment against Defendant Langler. Further, Plaintiff admits that

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he did not allege a violation of his rights under the Eighth Amendment against Defendant Langler.

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(Doc. 117, Opp., 5:5-14.)
Thus, there is no claim in this action against Defendant Langler for violation of Plaintiff's

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rights under the Eighth Amendment to be dismissed.
c. Qualified Immunity

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While Defendants argued that both Defendants Byers and Langler are entitled to qualified

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immunity, since it has been clarified that there is no claim under the Eight Amendment against

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Defendant Langler and the claim against Defendant Byers is being dismissed, their argument for

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qualified immunity need not be considered.

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D.

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Although leave to amend should be freely granted, a district court may dismiss for failure to

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state a claim without leave to amend where amendment would fail to cure the pleading deficiencies

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and amendment would be futile. Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034 (9th Cir.

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2011).

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Leave to Amend

In this action, leave to amend would be futile because Plaintiff cannot change the level of

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Defendant Byers' involvement regarding his podiatric condition by amendment, nor can he change the

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exhibits to his original Complaint which clarify Defendant Byers' limited involvement regarding

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Plaintiff's orthotic inserts. Thus, Plaintiff's claim against Defendant Byers for deliberate indifference

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to Plaintiff's serious medical needs in violation of the Eighth Amendment should be dismissed without
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leave to amend.

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III. Recommendations

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Based on the foregoing, the Court HEREBY RECOMMENDS that the motion to dismiss filed
by Defendants Byers and Langler, filed on October 24, 2014 (Doc. 109), be GRANTED as follows:
1.

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Defendants’ motion to dismiss Plaintiff’s deliberate indifference claim against

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Defendant Byers be GRANTED without leave to amend and Defendant Byers

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be dismissed from this action; and
2.

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the Screening F&R (Doc. 42) is clarified to the extent that no claim for

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deliberate indifference was found cognizable against Defendant Langler such

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that Defendants’ motion to dismiss any deliberate indifference claim against

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Defendant Langler should be DISREGARDED as moot.

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These Findings and Recommendations will be submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 30 days after

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being served with these Findings and Recommendations, the parties may file written objections with

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the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendations.” The parties are advised that failure to file objections within the specified time

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may result in the waiver of rights on appeal. Wilkerson v. Wheeler, __ F.3d __, __, No. 11-17911,

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2014 WL 6435497, at *3 (9th Cir. Nov. 18, 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th

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Cir. 1991)).

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IT IS SO ORDERED.
Dated:

March 18, 2015

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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