McCoy v. Garikaparthi et al

Filing 47

FINDINGS and RECOMMENDATIONS Regarding Defendants' 39 Motion to Dismiss signed by District Judge Dale A. Drozd on 02/01/2017. Referred to Judge Drozd; Objections to F&R due by 2/21/2017.(Flores, E)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LAKEITH L. MCCOY, 12 13 14 Case No. 1:13-cv-01495-DAD-BAM (PC) Plaintiff, FINDINGS AND RECOMMENDATIONS REGARDING DEFENDANTS’ MOTION TO DISMISS v. M. GARIKAPARTHI, et al. 15 (ECF No. 39) Defendants. FOURTEEN (14) DAY DEADLINE 16 17 Findings and Recommendations 18 I. 19 Plaintiff LaKeith L. McCoy (“Plaintiff”) is a state prisoner proceeding pro se and in forma Introduction 20 pauperis in this civil rights action under 42 U.S.C. § 1983. On November 20, 2014, the Court 21 screened Plaintiff’s first amended complaint and dismissed it for failure to state a claim. (ECF 22 Nos. 11, 12.) Plaintiff appealed. 23 On July 2, 2015, the Court of Appeals for the Ninth Circuit reversed the Court’s judgment 24 and remanded the matter. The Court of Appeals determined that dismissal of Plaintiff’s Eighth 25 Amendment claims arising from the deprivation of adequate food was premature, and that 26 Plaintiff’s allegations were sufficient to warrant ordering the defendants to file an answer. (ECF 27 No. 18.) The Court of Appeals issued its mandate on July 27, 2015. (ECF No. 19.) 28 On July 30, 2015, the Court found service of the first amended complaint appropriate and 1 1 directed that service be initiated on Defendants Garikaparthi, Steiber, Keeler, and Chavez 2 (“Defendants”) for violation of Plaintiff’s Eighth Amendment rights arising from the alleged 3 deprivation of adequate food. (ECF No. 20). 4 Following service of the complaint, on February 18, 2016, Defendants filed a motion to 5 dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim, 6 and that Defendants are entitled to qualified immunity. (ECF No. 39.) On March 10, 2016, 7 Plaintiff opposed the motion. (ECF No. 40.) On March 17, 2016, Defendants replied. (ECF No. 8 41.) The motion is deemed submitted. Local Rule 230(l). For the reasons discussed below, the Court recommends that Defendants’ motion to 9 10 dismiss be denied. 11 II. 12 As an initial matter, the Court of Appeals for the Ninth Circuit found that Plaintiff stated Ninth Circuit Decision and Court Order 13 cognizable claims for deprivation of adequate food in violation of the Eighth Amendment against 14 the Defendants and that his allegations warranted an answer from them. (ECF No. 18, p. 2.) 15 Consistent with the Ninth Circuit’s ruling, on July 30, 2015, the Court found service of Plaintiff’s 16 first amended complaint appropriate and directed that it be served on the Defendants. (ECF No. 17 20.) Inasmuch as the legal standard for screening and for 12(b)(6) motions is the same, 28 U.S.C. 18 § 1915A; Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012), the Court generally views 19 subsequent Rule 12(b)(6) motions with disfavor, see Ingle v. Circuit City, 408 F.3d 592, 594 (9th 20 Cir. 2005); Thomas v. Hickman, No. CV F 06-0215 AWI SMS, 2008 WL 2233566, at *2-3 (E.D. 21 Cal. May 28, 2008), and the present motion is no exception. Nevertheless, the Court will address 22 Defendants’ arguments regarding the perceived deficiencies. In doing so, it limits its review to the 23 four corners of Plaintiff’s first amended complaint. Daniels-Hall v. National Educ. Ass’n, 629 24 F.3d 992, 998 (9th Cir. 2010); Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007); Schneider v. 25 California Dep’t of Corrs., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998). 26 /// 27 /// 28 /// 2 1 III. Motion to Dismiss 2 A. Summary of Relevant Allegations in the First Amended Complaint 3 Plaintiff, who has been incarcerated at CCI since November 21, 2012, alleges that he has a 4 severe allergy to eggs. Plaintiff was instructed by the prison’s medical department to avoid foods 5 that contain egg protein. Each week, Plaintiff is restricted from eating the majority of breakfasts 6 because they contain eggs or are prepared with eggs. 7 Plaintiff asserts that he is being denied an adequate and complete breakfast at least six 8 times per week and denied adequate portions for both lunch and dinner. Plaintiff goes to sleep 9 with stomach aches and hunger pains, and he suffers from malnourishment and weight loss. 10 11 12 13 14 15 16 On January 31, 2013, Defendant T. Chavez told Plaintiff that no special food substitutions would be provided. On March 11, 2013, Defendant J. Keeler explained to Plaintiff that if the prison had to provide him with any special diet, they would have to do it for everyone with an allergy. On April 24, 2013, Defendant A. Steiber told Plaintiff that the prison would not substitute or provide a special diet because they would have to do so for everyone else. Defendant Garikaparthi explained to Plaintiff that if his weight dropped to 144 pounds, 17 then he would be forced to provide Plaintiff with a food supplement. When Plaintiff’s weight 18 dropped to 144 pounds, Defendant Garikaparthi refused to give Plaintiff any type of food 19 supplement. Plaintiff alleges that he weighed less than 144 pounds because he was weighed with 20 waist chains, handcuffs, a heavy prison jumpsuit, underclothes and prison shoes. Plaintiff is 29 21 years old and is 5’10” tall. 22 Plaintiff asserts that Defendants are depriving him of adequate food in violation of his 23 right to be free from cruel and unusual punishment as guaranteed by the Eighth Amendment to 24 the United States Constitution. 25 B. Legal Standard 26 A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of a claim, and 27 dismissal is proper if there is a lack of a cognizable legal theory or the absence of sufficient facts 28 alleged under a cognizable legal theory. Conservation Force v. Salazar, 646 F.3d 1240, 1241-42 3 1 (9th Cir. 2011) (quotation marks and citations omitted). To survive a motion to dismiss, a 2 complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible 3 on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 4 550 U.S. 544, 555 (2007)) (quotation marks omitted); Conservation Force, 646 F.3d at 1242; 5 Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The Court must accept the well- 6 pleaded factual allegations as true and draw all reasonable inferences in favor of the non-moving 7 party. Daniels-Hall, 629 F.3d at 998; Sanders, 504 F.3d at 910; Huynh, 465 F.3d at 996-97; 8 Morales v. City of Los Angeles, 214 F.3d 1151, 1153 (9th Cir. 2000). Further, prisoners 9 proceeding pro se in civil rights actions are still entitled to have their pleadings liberally construed 10 and to have any doubt resolved in their favor. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) 11 (citations omitted). 12 C. Deliberate Indifference in Violation of the Eighth Amendment “[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate 13 14 must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091, 15 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two-part test for 16 deliberate indifference requires the plaintiff to show (1) “a ‘serious medical need’ by 17 demonstrating that failure to treat a prisoner’s condition could result in further significant injury 18 or the ‘unnecessary and wanton infliction of pain,’” and (2) “the defendant’s response to the need 19 was deliberately indifferent.” Jett, 439 F.3d at 1096; Wilhelm v. Rotman, 680 F.3d 1113, 1122 20 (9th Cir. 2012). 21 Deliberate indifference is shown where the official is aware of a serious medical need and 22 fails to adequately respond. Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1018 (9th Cir. 23 2010). Deliberate indifference is a high legal standard. Simmons, 609 F.3d at 1019; Toguchi v. 24 Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). The prison official must be aware of facts from 25 which he could make an inference that “a substantial risk of serious harm exists” and he must 26 make the inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). 27 /// 28 /// 4 1 2 D. Failure to Provide Adequate Food in Violation of the Eighth Amendment The Eighth Amendment’s prohibition against cruel and unusual punishment protects 3 prisoners not only from inhumane methods of punishment but also from inhumane conditions of 4 confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006) (citing Farmer, 511 5 U.S. at 847, and Rhodes v. Chapman, 452 U.S. 337, 347 (1981)) (quotation marks omitted). 6 Prison officials must ensure that inmates receive adequate food, clothing, shelter, medical care 7 and personal safety. Farmer, 511 U.S. at 832. 8 9 “Adequate food is a basic human need protected by the Eighth Amendment.” Keenan v. Hall, 83 F.3d 1083, 1091 (9th Cir. 1996). The Eighth Amendment requires only that prisoners 10 receive food that is adequate to maintain health. LeMaire v. Maass, 12 F.3d 1444, 1456 (9th Cir. 11 1993). However, the Ninth Circuit has found that “[t]he sustained deprivation of food can be cruel 12 and unusual punishment when it results in pain without any penological purpose.” Foster v. 13 Runnels, 554 F.3d 807, 812–13 (9th Cir. 2009) (finding the denial of sixteen meals in twenty- 14 three days a sufficiently serious deprivation for Eighth Amendment purposes). 15 16 17 E. Parties’ Positions i. Defendants’ Position Defendants argue that Plaintiff has not alleged facts sufficient to support a cognizable 18 claim for deliberate indifference to serious medical needs in violation of the Eighth Amendment. 19 Defendants first contend that while Dr. Garikaparthi allegedly told Plaintiff that he would need to 20 provide him a food supplement if his weight fell, Plaintiff fails to allege that he ever returned to 21 request a supplement, although he alleges that he lost weight. Defendants further argue that 22 Plaintiff’s facts as pled only show a doctor who was attentive to Plaintiff’s medical needs but had 23 limited medical authority to make sure those needs were met. 24 Defendants next contend that while Defendants Steiber, Keeler and Chavez allegedly told 25 Plaintiff that they cannot provide a specialized diet because then they would have to do so for all 26 prisoners with food allergies, these allegations only establish that Defendants Steiber, Keeler and 27 Chavez were merely food-service workers with limited authority to make changes to the 28 institutional provision of food. 5 1 2 ii. Plaintiff’s Opposition Plaintiff contends that Defendant Garikaparthi’s lack of treatment subjected Plaintiff to 3 weight loss, stomach aches, and hunger pains, and that this constitutes the “unnecessary and 4 wanton infliction of pain.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). Plaintiff asserts that he 5 has sufficiently stated a claim against Defendant Garikaparthi for deliberate indifference to 6 serious medical needs. 7 Plaintiff also contends that the allegations in his complaint are sufficient to show that all 8 of the Defendants were deliberately indifferent to Plaintiff’s medical needs. Plaintiff argues that 9 Defendants continued to allow Plaintiff to go without adequate food, resulting in daily pain and 10 suffering, and to allow Plaintiff’s food trays to be contaminated with eggs, which could result in 11 death. Plaintiff contends that, though not stated in the complaint and not known to him until after 12 the filing of the complaint, Defendants Steiber, Keeler and Chavez took no measures to 13 accommodate Plaintiff, and they fabricated responses to Plaintiff’s prison grievance. 14 Additionally, Plaintiff alleges that, on one occasion, a female employee spoke with him, but 15 Defendants Steiber, Keeler and Chavez did not. Plaintiff further alleges that Defendants sent 16 Plaintiff a response to his written requests stating that they would accommodate his diet if his 17 allergy could be verified. 18 As a final matter, Plaintiff asserts that Defendants have not argued that his failure to 19 provide adequate food claim should be dismissed. Plaintiff concludes that the Court should not 20 entertain Defendants’ contentions in light of their apparent “consent to the fact the complaint 21 states a valid Eighth Amendment failure to provide adequate food claim.” (ECF No. 40, p. 5.) 22 23 24 25 26 27 28 iii. Defendants’ Reply Defendants argue that Defendants Steiber, Keeler and Chavez should be dismissed from this action because Plaintiff introduces facts against them not stated in the complaint. F. Analysis i. Defendant Garikaparthi The Court finds that Plaintiff has alleged sufficient facts to support a claim for deliberate indifference to serious medical needs in violation of the Eighth Amendment against Defendant 6 1 Garikaparthi. Plaintiff alleges, “Defendant M. Garikparthi explained to Plaintiff that if his weight 2 dropped to 144 lbs. he would be forced to provide him with a food supplement. When Plaintiff’s 3 weight dropped to 144 lbs., Defendant Garikaparthi refused to give Plaintiff any type of 4 supplement.” (ECF No. 10, p. 7:19-23.) Assuming these statements to be true, which the Court 5 must do, the Court can reasonably infer that Defendant Garikaparthi was aware of a serious 6 medical need and failed to adequately respond. See Iqbal, 556 U.S. at 678 (a claim survives a 7 motion to dismiss when the allegations enable the court to reasonably infer that the defendant is 8 liable for the misconduct alleged). Accordingly, Defendants’ motion to dismiss for failure to state a claim of deliberate 9 10 indifference in violation of the Eighth Amendment against Defendant Garikaparthi should be 11 denied. 12 13 ii. Defendants Steiber, Keeler and Chavez The Court also finds that Plaintiff has alleged sufficient facts to support a claim for failure 14 to provide adequate food in violation of the Eighth Amendment against Defendants Steiber, 15 Keeler, and Chavez. On January 31, 2013, Defendant Chavez allegedly informed Plaintiff that he 16 would not be provided special food substitutions, despite having explained his issues to 17 Defendant Chavez. On March 11, 2013, Defendant Keeler allegedly informed Plaintiff that he 18 would not receive a special diet because then everyone with a food allergy would have to be 19 similarly accommodated. On April 24, 2013, Defendant Steiber allegedly told Plaintiff the same 20 thing that Defendant Keeler had, namely that the prison would not provide him a special diet 21 because then they would have to do that for everyone else. Assuming these allegations are true, as 22 the Court must do, Plaintiff has established that Defendants Steiber, Keeler and Chavez were 23 aware of his alleged egg allergy, knew of the danger to him, and that they failed to adequately 24 respond. 25 Regarding the new allegations against Defendants Steiber, Keeler and Chavez in 26 Plaintiff’s opposition, the Court advises Plaintiff that he is free to seek leave to amend his 27 complaint. Fed. R. Civ. P. 15(a). 28 7 1 2 Accordingly, the motion to dismiss with respect to Defendants Steiber, Keeler and Chavez should be denied as well. 3 G. Qualified Immunity 4 i. Legal Standard 5 Defendants argue that they are entitled to qualified immunity. Qualified immunity shields 6 government officials from civil damages unless their conduct violates “clearly established 7 statutory or constitutional rights of which a reasonable person would have known.” Harlow v. 8 Fitzgerald, 457 U.S. 800, 818 (1982). “Qualified immunity balances two important interests - the 9 need to hold public officials accountable when they exercise power irresponsibly and the need to 10 shield officials from harassment, distraction, and liability when they perform their duties 11 reasonably,” Pearson v. Callahan, 555 U.S. 223, 231 (2009), and it protects “all but the plainly 12 incompetent or those who knowingly violate the law,” Malley v. Briggs, 475 U.S. 335, 341 13 (1986). 14 An officer is entitled to qualified immunity unless (1) the facts that a plaintiff has alleged 15 or shown state a violation of a constitutional right, and (2) the right was “clearly” established at 16 the time of the alleged misconduct. Pearson v. Callahan, 555 U.S. 223, 232 (2009) (discussing 17 Saucier v. Katz, 533 U.S. 194, 201 (2001)). Although often appropriate to analyze in that order, 18 courts have the discretion to choose which prong to analyze first. Pearson, 555 U.S. at 236 19 (overruling the sequence of analysis for qualified immunity established in Saucier). If the answer 20 to the first prong is “no,” the defendant prevails because there was no violation of a constitutional 21 right. See Lacey v. Maricopa County, 693 F.3d 896, 915 (9th Cir. 2012). If the answer to the first 22 prong is “yes” and the second prong is “no,” the defendant is protected by qualified immunity. Id. 23 Even if the plaintiff has alleged violations of a clearly established right, the government official is 24 entitled to qualified immunity if he or she made a reasonable mistake as to what the law requires. 25 See Saucier, 533 U.S. at 205; Kennedy v. City of Ridgefield, 439 F.3d 1055, 1061 (9th Cir. 2006). 26 Although a defendant may raise a qualified immunity defense at early stages in the 27 proceedings, courts have recognized that the defense is generally not amenable to dismissal under 28 Federal Rule of Civil Procedure 12(b)(6) because facts necessary to establish this affirmative 8 1 defense generally must be shown by matters outside the complaint. See Morley v. Walker, 175 2 F.3d 756, 761 (9th Cir. 1999). Where extra-record evidence is proffered or required to determine 3 the facts at hand, qualified immunity must be asserted in a summary judgment motion. Cf. Moss, 4 572 F.3d at 973-74 (denying interlocutory appeal regarding qualified immunity issue when no 5 discovery had been ordered). 6 7 ii. Discussion Defendants contend that they are entitled to qualified immunity because Plaintiff has 8 failed to plead facts sufficient to show that Defendants deprived him of any clearly established 9 constitutional right. Defendants argue that Plaintiff’s first amended complaint merely suggests a 10 difference of opinion between Plaintiff and Defendant Garikaparthi, and that he does not allege 11 any further conversations with Defendants Steiber, Keeler and Chavez. 12 Plaintiff counters that Defendants violated his clearly established right to necessary 13 medical treatment and to adequate food. Plaintiff contends that he was diagnosed by a physician 14 as requiring treatment or that his need would be obvious to anybody. 15 In reply, Defendants argue that, despite Plaintiff’s claim in his opposition that he was 16 diagnosed by a physician who mandated treatments, Plaintiff does not allege in his complaint that 17 Defendant Garikparthi refused treatment that Plaintiff demanded. 18 Having considered the parties’ arguments, the Court finds that Defendants are not entitled 19 to qualified immunity at this stage of the litigation. As discussed above, Plaintiff has alleged facts 20 against the Defendants that, if true, state a violation of a constitutional right. Moreover, the 21 provision of adequate food and medical care were clearly established constitutional rights well 22 before the alleged conduct in this action. See, e.g., Keenan, 83 F.3d at 1091; Jett, 439 F.3d at 23 1096. Furthermore, the factual record is insufficiently developed at this stage of the litigation, as 24 the Court is confined to the allegations in the complaint. Here, the allegations state Plaintiff 25 informed each defendant of his allergy and that he could not eat the food provided. The Court 26 cannot, for example, adequately analyze whether Defendants’ actions were based on reasonably 27 mistaken beliefs. 28 9 1 2 Accordingly, the Court should deny, without prejudice, Defendants’ motion to dismiss on the basis of qualified immunity. 3 IV. 4 For the reasons stated, the Court HEREBY RECOMMENDS that Defendants’ motion to 5 6 Conclusion and Recommendation dismiss be DENIED. These Findings and Recommendations will be submitted to the United States District 7 Judge assigned to the case, under 28 U.S.C. § 636(b)(l). Within fourteen (14) days after being 8 served with these Findings and Recommendations, the parties may file written objections with the 9 Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 10 Recommendations.” The parties are advised that failure to file objections within the specified 11 time may result in the waiver of the “right to challenge the magistrate’s factual findings” on 12 appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 13 F.2d 1391, 1394 (9th Cir. 1991)). 14 15 16 17 IT IS SO ORDERED. Dated: /s/ Barbara February 1, 2017 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 10

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