(PC) Gray v. Khoo et al

Filing 116

ORDER GRANTING 73 Plaintiff's Motion for Reconsideration, Granting 72 , 112 Motion to Substitute Party Defendant, and DENYING 111 Motion to Stay as Moot, signed by Magistrate Judge Stanley A. Boone on 07/29/2022. Defendant Ola added. (Maldonado, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DANA GRAY,

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Plaintiff,

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v.

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A. KHOO, et al.,

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Defendants.

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Case No.: 1:20-cv-01047-SAB (PC)
ORDER GRANTING PLAINTIFF’S MOTION
FOR RECONSIDERATION, GRANTING
MOTION TO SUBSTITUTE PARTY
DEFENDANT, AND DENYING MOTION TO
STAY AS MOOT
(Doc. Nos. 72, 73, 111, 112.)

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Plaintiff Dana Gray is proceeding pro se and in forma pauperis in this civil rights action

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pursuant to 42 U.S.C. § 1983. The parties have consented to Magistrate Judge jurisdiction. (ECF No.

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108.)

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I.

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RELEVANT BACKGROUND

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On March 16, 2022, Plaintiff filed a motion to substitute Dr. Flagg for defendant Mitchell in
his/her official capacity and objections to the court’s March 4, 2022. (ECF Nos. 72, 73.)
On July 26, 2022, Plaintiff filed a motion to stay reconsideration of the Court’s March 4, 2022
order and another motion to substitute a party. (ECF Nos. 111, 112.)
On June 21, 2022, the Court ordered Defendants to file a response to Plaintiff’s motion to
substitute. (ECF No. 98.) Defendants filed a response on July 12, 2022. (ECF No. 106.)
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II.

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DISCUSSION

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The court construes Plaintiff's objections to the March 4, 2022 order as a motion for

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reconsideration. Pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, “[o]n motion and just

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terms, the court may relieve a party ... from a final judgment, order, or proceeding for the following

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reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence ... (3)

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fraud ...; (4) the judgment is void; (5) the judgment has been satisfied, released or discharged; ... or (6)

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any other reason that justifies relief.” Fed. R. Civ. Proc. 60(b). Where none of these factors is present

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the motion is properly denied. Fuller v. M.G. Jewelry, 950 F.2d 1437, 1442 (9th Cir.1991).

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“A motion for reconsideration should not be granted, absent highly unusual circumstances,

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unless the district court is presented with newly discovered evidence, committed clear error, or if there

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is an intervening change in the controlling law,” and it “may not be used to raise arguments or present

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evidence for the first time when they could reasonably have been raised earlier in the litigation.”

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Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir.2009)

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(internal quotations marks and citations omitted) (emphasis in original).

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In his March 16, 2022 objections, Plaintiff argues that Rule 25(d) applies in cases where state

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officials are being sued in their official capacities, and have the responsibility to prevent “ongoing

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constitutional violations.” (ECF No. 73 at 1.) Plaintiff also points out that she requested injunctive

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relief in her second amended complaint. (Id.; ECF No. 24 at 22.) Plaintiff further argues that the

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Court improperly construed her official capacity claims as asserting municipal liability under Monell

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v. Dept. of Soc. Serv., 436 U.S. 658 (1978). (ECF No. 73 at 2.)

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In denying Plaintiff’s motion for substitution of the Chief Medical Officer, the Court found

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that Plaintiff could not proceed on her claims against Defendants in their official capacities because

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Plaintiff had not sufficiently alleged that a custom or policy was the moving force behind the alleged

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violation. (ECF No. 70.)

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The Eleventh Amendment bars suits for money damages in federal court against state officials

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in their official capacity. Aholelei v. Department of Public Safety, 488 F.3d 1144, 1147 (9th Cir.

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2007). However, it does not bar official capacity suit for prospective relief, Wolfson v. Brammer, 616
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F.3d 1045, 1065-66 (9th Cir. 2010); nor does it bar suit for damages against state officials in their

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personal capacities. Hafer v. Melo, 502 U.S. 21, 30 (1991); Porter v. Jones, 319 F.3d 483, 491 (9th

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Cir. 2003).

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“Personal-capacity suits...seek to impose individual liability upon a government officer for

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actions taken under color of state law.” Hafer, 502 U.S. at 25; Suever v. Connell, 579 F.3d 1047,

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1060-61 (9th Cir. 2009). Where a plaintiff is seeking damages against a state official and the

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complaint is silent as to capacity, a personal capacity suit is presumed given the bar against

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an official capacity suit. Shoshone-Bannock Tribes v. Fish & Game Comm'n, 42 F.3d 1278, 1284 (9th

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Cir. 1994); Price v. Akaka, 928 F.2d 824, 828 (9th Cir. 1991). A claim for prospective relief against a

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state official in his official capacity is not barred by the Eleventh Amendment provided the official has

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authority to implement the requested relief. Will v. Michigan Dept. of State Police, 491 U.S. 58, 92

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(1989); accord Rouser v. White, 707 F. Supp. 2d 1055, 1066 (E.D. Cal. 2010) (proper defendant for

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injunctive relief in suit seeking implementation of CDCR policy is the CDCR Secretary in his official

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capacity). Since Plaintiff's claim for medical treatment is prospective, official capacity claims would

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be allowed.

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Federal Rule of Civil Procedure 25(d), allows an officer's successor to be substituted when the

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original “public officer who is a party in an official capacity ... ceases to hold office while the action is

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pending.” Fed. R. Civ. P. 25(d). “The officer’s successor is automatically substituted as a party.” (Id.)

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Liberally construed and based on further review of the operative complaint and Plaintiff’s

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motions, the Court agrees that Plaintiff may proceed against the current Chief Medical Officer, Doctor

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Ola, in his/her official capacity for any prospective injunctive relief based on the ongoing and

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continued denial of lumbar fusion revision surgery. Plaintiff has alleged that she was denied revision

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surgery despite the medical need and failure to follow the policy as to the appliable criteria. Drawing

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all reasonable inferences in favor of Plaintiff, the Court finds that she has pleaded sufficient facts to

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allow the Court to reasonably infer that official policies or customs played a part in the constitutional

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violations she alleges. Accordingly, Plaintiff may substitute the acting Chief Medical Officer, Doctor

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Ola, as a Defendant, in place of Doctor Mitchell, in his/her official capacity for prospective injunctive

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relief only. Fed. R. Civ. P. 25(d). Doctor Mitchell remains a Defendant in his/her personal capacity

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for monetary damages.

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III.

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CONCLUSION AND ORDER

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Based on the foregoing, it is HEREBY ORDERED that:

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1.

Plaintiff’s motion for reconsideration (ECF No. 73) is granted;

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2.

Plaintiff’s motions to substitute current Chief Medical Officer, Doctor Ola (ECF Nos.
72, 112) are granted;

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Plaintiff’s motion to stay the proceedings (ECF No. 111) is denied as moot;

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The Clerk of Court is directed to add Chief Medical Officer, Doctor Ola, as a

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Defendant in this action in place of Defendant Mitchell in his/her official capacity only;

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and
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The action shall continue to proceed against Defendant Mitchell in his/her personal
capacity.

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IT IS SO ORDERED.

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Dated:

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July 29, 2022
UNITED STATES MAGISTRATE JUDGE

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