Robison v. Hill et al
Filing
33
ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge John F. Moulds on 6/5/2011 ORDERING that dfts' 22 motion for extension of time to answer the cmplt is GRANTED; dfts have 10 days for the date of any order by the district court resolving dfts' motion to dismiss; and RECOMMENDING that dfts' 22 motion to dismiss be granted in part and denied in part, and dfts Grannis, Stocker and Johnson be directed to answer the Eigth Amendment claim w/in 10 days of any order adopting these F&R. Referred to Judge John A. Mendez; Objections due w/in 14 days. (Yin, K)
1
2
3
4
5
6
7
8
IN THE UNITED STATES DISTRICT COURT
9
FOR THE EASTERN DISTRICT OF CALIFORNIA
10
GLEN W. ROBISON,
11
Plaintiff,
12
13
No. 2:10-cv-2954-JAM-JFM (PC)
vs.
PARAMVIR SAHOTA, et al.,
14
ORDER AND
Defendants.
15
FINDINGS AND RECOMMENDATIONS
/
16
Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to
17
42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28
18
U.S.C. § 636(b)(1). Plaintiff claims that his rights under the Eighth Amendment have been
19
violated by deliberate indifference to his serious medical needs. This action is proceeding
20
against nine defendants named in plaintiff’s original complaint, filed December 7, 2010. This
21
matter is before the court on the motion of defendants Grannis, Stocker and Johnson to dismiss
22
pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief may be granted.1
23
/////
24
1
25
The remaining defendants have requested an extension of time until ten days after
disposition of the instant motion in which to file an answer to the complaint. Good cause
appearing, that request will be granted.
26
1
1
STANDARDS FOR A MOTION TO DISMISS
2
Rule 12(b)(6) of the Federal Rules of Civil Procedures provides for motions to
3
dismiss for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6).
4
In considering a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the court must accept as
5
true the allegations of the complaint in question, Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197
6
(2007), and construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes,
7
416 U.S. 232, 236 (1974). In order to survive dismissal for failure to state a claim a complaint
8
must contain more than “a formulaic recitation of the elements of a cause of action;” it must
9
contain factual allegations sufficient “to raise a right to relief above the speculative level.” Bell
10
Atlantic Corp. v. Twombly, 550 U.S. 544, 554 (2007). However, “[s]pecific facts are not
11
necessary; the statement [of facts] need only ‘“give the defendant fair notice of what the . . .
12
claim is and the grounds upon which it rests.”’” Erickson, 551 U.S. 89, 127 S.Ct. at 2200
13
(quoting Bell Atlantic at 554, in turn quoting Conley v. Gibson, 355 U.S. 41, 47 (1957).
14
ALLEGATIONS OF PLAINTIFF’S COMPLAINT
15
16
Plaintiff’s complaint contains the following allegations relevant to the instant
motion.
17
In 1981, plaintiff was shot just above the knee cap with a 30.6 rifle. The injury
18
required three surgeries and left his left femur 1 3/4 inches shorter. Thereafter, plaintiff required
19
a left lift shoe, which he wore until he was sent to state prison. In 2003, plaintiff arrived at
20
Folsom State Prison (Folsom). He went to sick call on a few occasions and explained that
21
without and orthopedic shoe, a double right knee brace, and a pair of thermal underwear he
22
suffered severe pain in his left hip and knee, particularly in the winter. Plaintiff filed a grievance
23
in January 2004 from the delay in receiving the shoe. He did not receive the shoe until
24
November 2004. He was denied a pair of thermals and a visit with an orthopedic specialist by
25
defendants Grannis and Peterson.
26
/////
2
1
In January 2005, plaintiff filed another grievance seeking a pair of thermals,
2
which had been ordered for him by a treating physician. That grievance was denied by
3
defendants Grannis and Stocker based on statements from defendant Peterson that there was no
4
indication plaintiff needed thermals,
5
In 2006, plaintiff was taken off pain medication. Defendants Grannis, Stocker
6
and Sahota refused to correct this or to consider placing plaintiff on different pain medication.
7
On December 26, 2007, plaintiff attempted to file a grievance to substantiate his
8
ongoing and increasing pain. Defendant Johnson rejected the grievance as duplicative of another
9
grievance.
10
From the time of his arrival at Folsom in 2003, plaintiff’s weight on his 6'2" frame
11
dropped from 183 pounds to 161 pounds and his pelvis and knee became weaker. In October
12
2006, plaintiff wrote a grievance requesting physical therapy and transfer to a medical facility.
13
Defendants Grannis, Stocker, Cardino and Dunlap granted him physical therapy without an
14
instructor, a therapy room, or equipment.
15
From May 2007 through 2010, plaintiff has made several attempts to obtain
16
access to a program to gain weight, these requests have been denied by defendants Stocker,
17
Grannis, Cardino, and Sahota.
18
19
DEFENDANTS’ MOTION
Plaintiff raises two separate claims against defendants Grannis, Stocker and
20
Johnson. First, he includes these defendants in his claim that his rights under the Eighth
21
Amendment have been violated by defendants’ deliberate indifference to his serious medical
22
need for adequate treatment of the pain in his left hip, leg and knee. In order to state a claim for
23
relief under the Eighth Amendment, plaintiff must allege that he had a “serious medical need”
24
and that defendant acted with “deliberate indifference” to that need. Estelle v. Gamble, 429 U.S.
25
97, 105 (1976). A medical need is serious if “the failure to treat a prisoner’s condition could
26
result in further significant injury or the ‘unnecessary and wanton infliction of pain.’” McGuckin
3
1
v. Smith, 974 F.2d 1050, 1059 (9th Cir.1992) (quoting Estelle, 429 U.S. at 104). Deliberate
2
indifference is proved by evidence that a prison official “knows of and disregards an excessive
3
risk to inmate health or safety; the official must both be aware of the facts from which the
4
inference could be drawn that a substantial risk of serious harm exists, and he must also draw the
5
inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). Mere negligence is insufficient for
6
Eighth Amendment liability. Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998).
7
Whether a defendant had requisite knowledge of a substantial risk is a question of
8
fact and a fact finder may conclude that a defendant knew of a substantial risk based on the fact
9
that the risk was obvious. Farmer, 511 U.S. at 842. While the obviousness of the risk is not
10
conclusive, a defendant cannot escape liability if the evidence shows that the defendant merely
11
refused to verify underlying facts or declined to confirm inferences that he strongly suspected to
12
be true. Id. Deliberate indifference specifically to medical needs “may be shown by
13
circumstantial evidence when the facts are sufficient to demonstrate that a defendant actually
14
knew of a risk of harm.” Lolli v. County of Orange, 351 F.3d 410, 421 (9th Cir. 2003).
15
“Prison officials are deliberately indifferent to a prisoner’s serious medical needs
16
when they deny, delay, or intentionally interfere with medical treatment.” Hallett v. Morgan, 296
17
F.3d 732, 744 (9th Cir. 2002) (internal citations and quotation marks omitted). However, delay
18
in providing medical treatment to a prisoner does not constitute deliberate indifference unless the
19
delay causes harm. Shapley v. Nevada Bd. of State Prison Com’rs, 766 F.2d 404 (9th Cir. 1985).
20
“A prisoner need not show his harm was substantial; however, such would provide additional
21
support for the inmate’s claim that the defendant was deliberately indifferent to his needs.” Jett
22
v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (citing McGuckin, at 1060).
23
Defendants Grannis, Stocker and Johnson seek dismissal on the ground that the
24
allegations against them all relate to the processing of plaintiff’s inmate grievances, that plaintiff
25
has no substantive right in an inmate grievance procedure, and that their response to plaintiff’s
26
grievance cannot form the basis for liability in this § 1983 action.
4
1
With respect to his Eighth Amendment claim, plaintiff seeks to impose liability on
2
said defendants on the ground that their responses to his administrative appeals contributed to the
3
delays in getting necessary care and the attendant pain and suffering he has experienced and
4
continues to experience.
5
[A]n appeals coordinator does not cause or contribute to a
completed constitutional violation that occurs in the past. See
George v. Smith, 507 F.3d 605, 609-610 (7th Cir.2007) (“[a] guard
who stands and watches while another guard beats a prisoner
violates the Constitution; a guard who rejects an administrative
complaint about a completed act of misconduct does not”).
However, if there is an ongoing constitutional violation and the
appeals coordinator had the authority and opportunity to prevent
the ongoing violation, a plaintiff may be able to establish liability
by alleging that the appeals coordinator knew about an impending
violation and failed to prevent it. See Taylor v. List, 880 F.2d
1040, 1045 (9th Cir.1989) (supervisory official liable under
Section 1983 if he or she knew of a violation and failed to act to
prevent it).
6
7
8
9
10
11
12
13
Herrera v. Hall, 2010 WL 2791586, slip op. at 4 (E.D.Cal. 2010). Plaintiff has stated a
14
cognizable Eighth Amendment claim against these defendants.
15
Plaintiff also claims that these defendants violated his rights under the First and
16
Fourteenth Amendments in the manner in which his grievances were processed. To the extent
17
that plaintiff alleges that defendants failed to follow specific procedures in processing his
18
grievances, he has not stated a cognizable claim for relief. See Ramirez v. Galaza, 334 F.3d 850,
19
860 (9th Cir. 2003) (“inmates lack a separate constitutional entitlement to a specific grievance
20
procedure.”).2
21
For the foregoing reasons, defendants’ motion to dismiss plaintiff’s Eighth
22
Amendment claim against defendants Grannis, Stocker and Johnson should be denied. Any
23
claim that plaintiff’s rights under the First and Fourteenth Amendments were violated by the
24
/////
25
2
26
It appears that these allegations are directed primarily to defendant Johnson, whom
plaintiff alleges improperly dismissed a grievance as duplicative.
5
1
specific manner in which one or more of his grievances were processed is not cognizable and
2
should be dismissed.
3
In accordance with the above, IT IS HEREBY ORDERED that:
4
1. Defendants’ March 17, 2011 motion for an extension of time to answer the
5
complaint is granted;
6
2. Defendants are granted ten days from the date of any order by the district court
7
resolving defendant Grannis, Stocker and Johnson’s motion to dismiss in which to answer the
8
complaint; and
9
IT IS HEREBY RECOMMENDED that:
10
11
1. The motion of defendants Grannis, Stocker and Johnson to dismiss be granted
in part and denied in part; and
12
2. Defendants Grannis, Stocker and Johnson be directed to answer the Eighth
13
Amendment claim raised in plaintiff’s complaint within ten days from the date of any order by
14
the district court adopting these findings and recommendations.
15
These findings and recommendations are submitted to the United States District
16
Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen
17
days after being served with these findings and recommendations, any party may file written
18
objections with the court and serve a copy on all parties. Such a document should be captioned
19
“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the
20
objections shall be filed and served within fourteen days after service of the objections. The
21
/////
22
/////
23
/////
24
/////
25
/////
26
/////
6
1
parties are advised that failure to file objections within the specified time may waive the right to
2
appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
3
DATED: June 5, 2011.
4
5
6
7
8
12
robi2954.mtd
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?