Calloway v. Adams et al

Filing 18

ORDER Regarding Motion at Docket 14 , signed by Chief Judge Ralph R. Beistline on 3/14/14. (Verduzco, M)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
JAMISI JERMAINE CALLOWAY,
Case No. 1:11-cv-01281-RRB
Plaintiff,
ORDER REGARDING
MOTION AT DOCKET 14

vs.
D. G. ADAMS, Warden, Corcoran State
Prison, et al,
Defendants.

I.

PENDING MOTION
At Docket 14 Jamisi Jermain Calloway, a California state prisoner appearing pro

se, filed a document entitled “Objection to Dismissal” directed to the Dismissal Order
entered by the Court on February 15, 2014 at Docket 13. Reading the Objection liberally,
as it must,1 because it was filed within 28 days of the date the challenged Order was
entered, the Court treats the Objection to Dismissal as the functional equivalent of a motion
for reconsideration under Federal Rule of Civil Procedure 59(e).2

1

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Akhtar v. Mesa, 698
F.3d 1202, 1212 (9th Cir. 2012).
2

American Ironworks & Erectors, Inc. v. North Am. Const. Corp., 298 F.3d 892,
898–99 (9th Cir. 2001).
ORDER REGARDING MOTION AT DOCKET 14
Calloway v. Adams, 1:11-cv-01281-RRB – 1

The Court also notes that two days after filing the motion under consideration
Calloway filed a Notice of Appeal.3 Normally, the filing of a notice of appeal divests this
Court over all matters encompassed by the appeal.4 In this case, however, because the
Notice of Appeal was filed after the Objection under consideration, the notice of appeal
does not become effective until the court has disposed of the pending motion.5
II.

ISSUES
In his motion Calloway contends that the Court deliberately erred in determining

that: (1) Loma Linda University Medical Center made the determination that Calloway was
not a suitable candidate for a renal transplant and (2) and he was not forced to undergo
forced medical treatment.
Calloway also contends that the Court determined he had not exhausted his
administrative remedies with respect to his claim of inadequate diet and denial of ice chips
and medically necessary sundries. Calloway is mistaken. The Court granted him leave to
file an amended complaint with respect to those claims and provided him with specific
directions on the elements that he must plead. The Court did not address the question of
whether or not Calloway had exhausted his administrative remedies. The Court did,
however, note that Calloway should attach to his amended complaint all documentation
evidencing exhaustion of his administrative remedies.6
3

Docket 15.

4

Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982).

5

Fed. R. App. P. 4(a)(4)(B)(I); Miller v. Marriott Int’l, Inc., 300 F.3d 1061,
1053–64 (9th Cir. 2002).
6

In support of the motion, Calloway attached 250 pages of exhibits ostensibly
(continued...)

ORDER REGARDING MOTION AT DOCKET 14
Calloway v. Adams, 1:11-cv-01281-RRB – 2

III.

STANDARD
This Court may grant relief under Rule 59(e) under limited circumstances: (1) an

intervening change of controlling authority; (2) new evidence has surfaced; or (3) the
previous disposition was clearly erroneous and, if uncorrected, would work a manifest
injustice.7 Calloway’s motion is based solely on the third basis: the prior disposition was
clearly erroneous.
IV.

DISCUSSION
Initially, the Court notes that Calloway raised both his denial of a transplant and his

forced, involuntary medication claims in Calloway V.8 In screening his Complaint in that

6

(...continued)
for the purpose of establishing exhaustion. These included ten (10) Director’s Level
Decisions with accompanying documentation. The page references are to the pages of
the Director’s Level Decision. The pages between the Director’s Level Decision and the
next following Director’s Level Decision appear to be associated with the immediately
preceding decision. For example, pages 18 through 39 appear to be associated with the
January 27, 2010, decision.
January 27, 2010, Local Log. No. COR-09-02162 [Docket 14, pp. 16–17].
February 1, 2010, Institution Log. No. COR-09-09-17324 [Docket 14, pp. 40–42]
February 23, 2010, Institution Log No. COR-09-09-10080 [Docket 14, pp. 97–99].
February 26, 2010 Institution Log No. COR-09-09-10777 [Docket 14, pp. 108–110].
February 26, 2010 Institution Log No. COR-09-09-10913 [Docket 14, pp 119–121].
February 26, 2010 Institution Log No. SATF-33-09-11586 [Docket 14, pp. 130–132].
April 9, 2010 Institution Log No. SATF-33-09-14987 [Docket 14, pp. 167–169].
April 20, 2010 Institution Log No. SATF-33-M-09-02952 [Docket 14, pp. 176–278]
July 19, 2010 Institution Log No. COR-09-09-14230 [Docket 14, pp. 188–190]
August 23, 2010 Institution Log No. COR-09-10-10956 [Docket 14, pp. 249–251].
7

See Circuit City Stores v. Mantor, 417 F.3d 1060, 1064 (9th Cir. 2005); 389
Orange Street Partners v. Arnold, 179 F.3d 656, 665 (9th Cir.1999); see generally 11
Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Fed. Prac. & Proc. Civ. § 2810.1
(2d ed.).
8

Calloway v. Kelly, et al., 1:11-cv-01090-LJO-SAB, Docket 10 entitled “1st
Amended Complaint.” This Court takes judicial notice of the pleadings in that case. Fed.
(continued...)
ORDER REGARDING MOTION AT DOCKET 14
Calloway v. Adams, 1:11-cv-01281-RRB – 3

case the Court found that he had not established a cognizable civil rights claim under
§ 1983 based upon his involuntary medication or his right to a transplant allegations.
Noting, with respect to his transplant claim, that the decision that he was not a candidate
for a transplant was made by Loma Linda University Medical Center, who was not a
defendant in that case. The Court also ruled that Calloway had properly pled a cognizable
First Amendment claim against certain defendants and gave Calloway the option of filing
an amended Complaint or proceeding on the retaliation claim alone.9 Calloway elected not
to amend and to proceed on the cognizable claims, but also requested reconsideration and
the appointment of counsel.10 The Court denied reconsideration and declined to appoint
counsel.10
Calloway sought to appeal from the decision denying him reconsideration and
appointment of counsel.11 The Court of Appeals dismissed the appeal from the
interlocutory decision for lack of jurisdiction.12 That case remains pending.
A. Transplant
Calloway contends that the Court wrongfully implied that he was not a candidate for
a transplant based upon the decision of the Loma Linda University Medical Center

8

(...continued)
R. Evid. 201.
9

Id, Docket 13.

10

Id., Docket 15.

10

Id., Docket 16.

11

Id., Docket 19.

12

Id., Docket 24 (Order); 27 (mandate).

ORDER REGARDING MOTION AT DOCKET 14
Calloway v. Adams, 1:11-cv-01281-RRB – 4

(“LLUMC”). Calloway argues that he can prove through summary judgment that LLUMC
did in fact approve him for a transplant. This Court disagrees.
In Calloway V, Calloway attached as an exhibit to his First Amended Complaint a
copy of a letter from the LLUMC dated September 10, 2010, in which it was stated: “Your
transplant evaluation was reviewed by the Transplant Candidacy Review Committee on
September 2, 2010. Regretfully, the Committee has determined that you are not a
candidate for the transplant wait list at this time.”13
In his motion in this case Calloway contends that he can establish that LLUMC did
in fact approve him for a transplant until Calloway was allegedly wrongfully retaliated
against through retaliatory reprisals and racial discrimination after he was force medicated
on pyschotropic drugs. Calloway does not allege any factual basis for his conclusory
statement. This is particularly troublesome in this case inasmuch as it was Calloway who
attached the LLUMC letter to a complaint that he acknowledged he was attesting to as true
under penalty of perjury. Nor do any facts appear in the record in either this case (including
the 250 pages of exhibits attached to the objection) or Calloway V that even remotely
support Calloway’s contention that LLUMC approved Calloway as a candidate for a
transplant. Nor, for that matter, does it appear that he raised this particular issue at any
point in the voluminous documents attached to this motion, which he contends establishes
exhaustion of administrative remedies.14
13

Id., Docket 10-1, p. 94.

14

The Court notes that Calloway did raise the issue of a renal transplant in the
administrative proceeding culminating in the Director’s Level Decision on July 19, 2010
[Docket 14, pp. 188–190]. However, that proceeding involved a request for a “follow-up
(continued...)
ORDER REGARDING MOTION AT DOCKET 14
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B. Forced Medical Treatment
Calloway now contends that the reason he refused dialysis treatment at the CSP
#2 Davita Hemodialysis Unit was because it was “unhuman, unsafe, unclean,” and he
(Calloway) “was subjected . . . cruel and unusual punishment when he was force [sic] to
receive hemodialysis in a unclean isolation hepititis [sic] room which plaintiff was subjected
to (Hep C) and deliberately illegally chained to his hemodialysis chair by his hand and by
his leg in order just to receive his life sustaining treatment.”15 Calloway did not include
these allegations in his complaint. Calloway did, however, raise concerns about his dialysis
treatments in his administrative proceedings, specifically in connection with the Director’s
Level Decision dated August 23, 2010.15 In that proceeding, as summarized at the
Director’s Level, Calloway contended:
Your CDC 602 indicated that you are concerned that your life is in imminent
danger due to continued retaliatory reprisal against you by your assigned
Nephrologist, Social Worker, Registered Nurses and Dietician: you state that
you believe there is a conspiracy by those Medical Staff personnel to under
mind [sic] your serious medical needs; you claim that you are being forced
against your will to keep going to the California Substance Abuse Treatment
Facility (SATF) for hemodialysis; you claim you are being denied equal
treatment of dialysis care; you claim you are deliberately being denied your
long term medical goals and transplant by your Nephrologist; you claim you

14

(...continued)
with the Arrowhead Regional Center, Renal Transplant for my next step.” In denying the
appeal at the Director’s level, the Chief of the California Health Care Services held “there
is no compelling evidence that warrants intervention at the Director’s Level of Review as
your medical treatment has been evaluated by licensed clinical staff and you are receiving
treatment deemed medically necessary.” Calloway does not challenge the Director’s
decision
15

Docket 14, p. 5 (underlining in the original).

15

Docket 14, pp. 249–51.

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are being denied the same renal diet; and finally you claim that you are being
denied daily hygiene.
You requested that you not go to SATF for your hemodialysis, you state you
want your assigned Nephrologist removed.16
The Court has reviewed the CDCR 602-HC that the Director’s Level Decision
addressed,17 and notes that the Director’s Level summation is accurate and complete.
Nowhere in the file associated with that decision does it appear that Calloway contended
that the facility was unclean, unsafe, unhygienic, or otherwise described the facts that
constituted a threat to his health or safety. Consequently, Calloway has clearly failed to
exhaust his administrative remedies in that regard.
In denying Calloway relief at the Director’s Level the Chief, California Health Care
Services, held as relevant to this issue:
CDCR only provides medical services based on medical necessity and
supported by outcome data as effective medical care. In the absence of
available outcome data for a specific case, treatment will be based on the
judgment of the physician that the treatment is considered effective for the
purpose and is supported by diagnostic information and consultations with
appropriate specialists.
* * * *
You are reminded that only facility-employed health care staff and
consultants shall diagnose illness or prescribe medication or treatment for
inmates. No other person may do so. You will continue to receive medically
indicated medications and other clinical services.
While you may refuse medical treatment, you are not authorized to select
your clinician or clinic assignments. All clinician assignments are determined
by health care management based on facility needs. You are encouraged
to cooperate with your clinicians in order to receive proper care and
management of your condition. You will be evaluated and treatment will be
provided based on your clinicians evaluation, diagnosis, and recommended
treatment plan, according to applicable policies.

16

Id., p. 249.

17

Id., pp. 253–55.

ORDER REGARDING MOTION AT DOCKET 14
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At the DLR, your appeal file was reviewed and it was determined the
institution’s response was comprehensive and adequate to address your
concerns. As a result, there is no compelling evidence that warrants
intervention at the Director’s Level of review as you are receiving treatment
deemed medically necessary, including medications, surgical intervention
and specialty services. You are encouraged to cooperate with your clinicians
in order to receive the proper treatment for your condition.18
At most, Calloway has shown that there is a mere difference of opinion regarding the
appropriate course of medical treatment, which is “insufficient as a matter of law, to
establish deliberate indifference.”19
Calloway also includes contentions that were not raised in his Complaint. E.g., that
Dr. McCauley and Davita deliberately failed to respond to his serious medical needs;
specifically an undefined significant injury to his heart, ignoring chest pains and low blood
pressure over the years. This Court’s review of the administrative proceedings attached
to the complaint did not uncover any administrative proceeding in which Calloway raised
these issues. Consequently, as to that factual allegation Calloway has failed to exhaust
his administrative remedies.
C. Effect of Calloway V
As noted above, Calloway raised essentially the same claims in Calloway V. Those
claims were dismissed during screening and Calloway elected to proceed on the remaining
claim. Calloway also appealed to the Ninth Circuit, which dismissed his appeal as
premature.
18

Id., pp. 250–51.

19

Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996); see Franklin v. State
of Oregon, State Welfare Div., 662 F.2d 1337, 1344 (9th Cir. 1981) (noting, also, that a
disagreement between a prisoner and a medical professional over the most appropriate
course of treatment cannot give rise to a viable claim of deliberate indifference).
ORDER REGARDING MOTION AT DOCKET 14
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It is axiomatic that “a litigant has no right to maintain two separate actions involving
the same subject matter at the same time in the same court and against the same
defendant.”20 In Calloway V this Court rejected both the argument that he was wrongfully
denied a transplant and the argument that he was forced to undergo medical treatment
against his wishes. Although those claims were dismissed, that action is still pending.
Calloway’s appropriate avenue of relief is to appeal the decision in Calloway V upon the
entry of final judgment, not recasting those claims in a new, independent action.
V.

CONCLUSION and ORDER
Calloway has fallen far short of establishing that this Court erred at all, let alone

deliberately, in dismissing his claims under § 1983 that (1) the defendants incorrectly
determined that he was not a suitable candidate for a renal transplant and (2) and he was
forced to undergo forced medical treatment. Accordingly,
The Objection to Dismissal at Docket 14, treated as the functional equivalent of
motion for reconsideration under Rule 59(e), is DENIED.
IT IS SO ORDERED this 14th day of March, 2014.
S/ RALPH R. BEISTLINE
UNITED STATES DISTRICT JUDGE

20

MHC Financing Ltd. P’ship v. City of San Rafael, 714 F.3d 1118, 1133 (9th
Cir. 2013); see Triparti v. First Nat’l Bank & Trust, 831 F.2d 1368, 1370 (9th Cir. 1987)
(dismissing an action as frivolous under 28 U.S.C. § 1915, because the plaintiff had
“another action pending before the district court involving the same parties and the same
transactions.”).
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