Tandel v. County of Sacramento, et al

Filing 93

MEMORANDUM and ORDER signed by Judge Morrison C. England, Jr on 8/21/12 County ORDERING Defendants' and Defendant Sokolov's motions are granted in part and denied in part, consistent with the foregoing, as follows: 1. With respect to County Defendants' Motion to Dismiss 80 : a) Plaintiff's First Claim under § 1983 for failure to provide adequate medical care is GRANTED as to Hambly, Carl, Gaddis and Keillor; b) Plaintiff's Sixth Claim under § 1983 for retaliat ion for protesting is GRANTED as to Bauer, Boylan and McGinness; c) Plaintiff's Tenth Claim for negligence is GRANTED as to McGinness, Boylan, Wilson, and Austin, and is DENIED as to Felicano, Sahba, Sotak, Bauer and Kroner; d) Plaintiff's Eleventh Claim for medical negligence is DENIED as to Sotak, Bauer and Sahba; e) Defendants' Motion to Dismiss Plaintiff's newly named Doe Defendants is DENIED; 2. With respect to Defendant Sokolov's Motion to Dismiss 76 : a) Plaintif f's Second Claim under § 1983 for failure to provide adequate medical care is GRANTED as to Sokolov; b) Plaintiff's Tenth Claim for negligence is GRANTED as to Sokolov; c) Plaintiff's Eleventh Claim for medical negligence is GRANT ED as to Sokolov; 3. Sokolov's Motion for a More Definitive Statement 76 is deemed as moot because his Motion to Dismiss was granted; County Defendants' Motion to Strike 81 is DENIED. Because Plaintiff has already been accorded leave to amend, and since his attempts to plead cognizable claims against the various defendants remain unavailing as set forth above, no further leave to amend will be permitted as to the claims dismissed herein. (Becknal, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SANDIPKUMAR TANDEL,

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No. 2:11-cv-00353-MCE-GGH
[Consolidated with case
No. 2:09-cv-00842-MCE-GGH)

Plaintiff,
v.

MEMORANDUM AND ORDER

COUNTY OF SACRAMENTO, et al.,
Defendants.
----oo0oo----

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Plaintiff Sandipkumar Tandel (“Plaintiff”) seeks redress for

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several federal and state law claims against various named

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Defendants, including the County of Sacramento (“County”),

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Sheriff of Sacramento County, John McGinness (“McGinness”),

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Undersheriff and Jail Captain Michael Iwasa (“Iwasa”), Chief of

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Sacramento County Jail Correctional Health Services Ann Marie

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Boylan (“Boylan”), Interim Medical Director of Sacramento County

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Jail Correctional Health Services Asa Hambly, M.D. (“Hambly”),

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Medical Director of Sacramento County Jail Michael Sotak, M.D.

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(“Sotak”), Director of Nursing Shelly Jordan (“Jordan”), Susan

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Kroner, R.N. (“Kroner”), Agnes R. Felicano, N.P. (“Felicano”),
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James Austin, N.P. (“Austin”), Richard L. Bauer, M.D. (“Bauer”),

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Gregory Sokolov, M.D. (“Sokolov”), Keelin Garvey, M.D.

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(“Garvey”), Glayol Sahba, M.D. (“Sahba”), Chris Smith, M.D.

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(“Smith”), Hank Carl, R.N. (“Carl”), Sergeant Tracie Keillor

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(“Keillor”), Deputy Pablito Gaddis (“Gaddis”), Deputy John Wilson

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(“Wilson”), Deputy Jacoby (“Jacoby”), and Deputy Medeiros

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(“Medeiros”).

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violated his civil rights during Plaintiff’s detentions at the

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Sacramento County Main Jail from February 7, 2007 to May 20, 2007

Plaintiff alleges that Defendants’ conduct

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and from March 23, 2010 to May 10, 2010.

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alleges a claim under the Americans with Disabilities Act, as

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well as state common law claims, as a result of the treatment he

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received during the two aforementioned incarcerations.

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Plaintiff further

On May 4, 2011, this Court granted Defendants’ Motion to

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Consolidate the case regarding the alleged 2007 incidents with

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the subsequently filed case, which alleged various claims

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stemming from Plaintiff’s incarceration in 2010.

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Defendants moved to dismiss certain portions of both actions, and

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those motions were granted in part and denied in part by Orders

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filed on February 21, 2012, and February 23, 2012.

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69.]

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file a single, unitary complaint encompassing both incarcerations.

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In his resulting Consolidated Second Amended Complaint (“CSAC”),

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Plaintiff seeks general and special damages, punitive damages,

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damages for future lost earnings and lost earning capacity, other

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proven losses, attorneys’ fees and costs and declaratory relief.

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///

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///

[ECF No. 26.]

[ECF Nos. 68,

Plaintiff was accorded leave to amend and was directed to

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Presently before the Court is the Motion to Dismiss of

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Defendants County, McGinness, Boylan, Sotak, Kroner, Felicano,

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Austin, Hambly, Keillor, Gaddis, Sahba, Bauer and Wilson

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(collectively “County Defendants”).

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Dismiss Pl.’s Cons. Sec. Am. Compl. [“County MTD”], filed

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June 28, 2012 [ECF No. 80].)

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Sokolov and Garvey’s separately filed Motion to Dismiss and/or

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Motion for a More Definitive Statement.

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Sokolov’s Mot. to Dismiss and For More Def. Stmt. [“Sokolov

(See County Defs.’ Mot. to

Also before the Court is Defendants

(Defs.’ Garvey and

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MTD”], filed May 31, 2012 [ECF No. 76].)

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the Court is the County Defendants’ Motion to Strike.

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County Defs.’ Mot. to Strike [“MTS”], filed June 28, 2012 [ECF

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No. 81].)

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on May 14, 2012.

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Statement of Non-Opposition to County Defendants’ Motion to

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Dismiss and Motion to Strike.

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Defendants filed a Statement of Non-Opposition to Defendants

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Sokolov and Garvey’s Motion to Dismiss and/or for a More Definite

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Statement.

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Also presently before
(See

The Parties stipulated to dismissing Defendant Garvey
[ECF No. 82.]

Defendant Sokolov filed a

[ECF No. 88, 89.]

County

[ECF No. 83.]

For the reasons set forth below, County Defendants’ and

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Sokolov’s motions are granted in part and denied in part.1

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Because oral argument will not be of material assistance,
the Court ordered this mater submitted on the briefing. E.D.
Cal. R. 230(g).
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BACKGROUND2

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On February 7, 2007, Plaintiff was arrested and incarcerated

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at the Sacramento County Main Jail (“the Jail”) as a pre-trial

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detainee.

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he was housed with the African-American inmates.

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2007, Plaintiff suffered a head injury as a result of a racial

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altercation at the Jail.

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Room at the Doctor’s Center in Sacramento, where Dr. Gray, M.D.,

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treated Plaintiff’s injury by cleaning and suturing the wound and

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vaccinating Plaintiff for Tetanus.

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Plaintiff back to the Jail with instructions to remove the

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sutures in five days, leaving the wound open to air and keeping

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the wound clean.

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seen by the Jail’s medical personnel who evaluated Plaintiff,

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noted the treatment and vaccination, and referred the matter to a

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doctor.

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headache.

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Plaintiff’s chart on April 30, 2007.

Plaintiff alleges that because of his dark skin color,
On April 27,

Plaintiff was sent to the Emergency

The same day, Dr. Gray sent

Upon Plaintiff’s return to the Jail, he was

Plaintiff informed Jail medical personnel that he had a
Plaintiff alleges that Defendant Hambly reviewed

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After returning to the Jail, Plaintiff was placed into

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Administrative Segregation, where he remained for approximately

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two weeks.

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was an indirect supervision unit and that, if he wanted to

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communicate with the staff, he had to push the call button in his

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cell.

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Plaintiff alleges that the unit where he was housed

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The following facts are taken from Plaintiff’s CSAC,
unless otherwise noted.

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Plaintiff claims that many of his calls went unanswered, and that

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when the calls were answered, he was told “we are working on it”

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and to “stop using the call button,” and finally to “stop

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complaining.”

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Plaintiff’s calls altogether.

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without running water in his cell and regular showers, he could

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not keep his wound clean as prescribed by Dr. Gray.

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Eventually, the Jail staff stopped answering
Plaintiff further alleges that,

Plaintiff was moved to a regular cell and immediately
requested medical care.

Defendant Hank allegedly saw Plaintiff

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on May 13, 2007.

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suffering from headaches for the past four days.

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with Defendant Dr. Smith who ordered the stitches removed and

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gave Motrin to Plaintiff.

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Plaintiff informed Hank that he had been
Hank consulted

On or about May 14, 2007, Plaintiff again sought medical

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attention, complaining of headaches, sensitivity to light

and a

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nasal drip.

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was returned to his cell.

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collapsed while taking a shower when he lost control of his legs.

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Defendant Officer Gaddis responded to Plaintiff’s request for

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help, but allegedly failed to use the radio to properly alert

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medical and custody staff of the emergency.

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Plaintiff, Gaddis also failed to file an incident or casualty

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report following the incident in violation of Jail policy.

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When Plaintiff was wheeled in a wheelchair for evaluation, he

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told Defendant Hank about his unexplained loss of use of his

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extremities and collapse.

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conduct an adequate medical assessment of a patient presenting

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with an apparent spinal cord injury or neurological disorder.

Plaintiff was examined by a nurse, Jim Austin, and
On or about May 17, 2007, Plaintiff

According to

Plaintiff alleges that Hank failed to

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Carl ordered Plaintiff returned to his cell without arranging for

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any medical follow up.

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On May 18, 2007, Plaintiff had a sudden and acute loss of

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vision in his left eye and started noticing that he was not able

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to move his lower extremities.

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urinary retention and constipation.

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emergency bell to summon help and informed the officers on duty

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that his legs did not work, that he could not urinate and that he

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was going blind, but was told to stop using the call button and

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He was also suffering from
He repeatedly rang the

that “these things would not kill him.”

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On May 20, 2007, at 11:44 a.m., Defendant Carl saw Plaintiff

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and referred him to see Defendant Dr. Smith.

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at 12:30 p.m., but allegedly “failed to provide any meaningful

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evaluation of Tandel’s medical condition.”

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Dr. Horowitz evaluated Plaintiff.

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suffering from vision loss, an inability to move or control his

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extremities, get up to “void or defecate,” and other neurological

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impairments.

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room where he was found to have an expansive lesion in the spine

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and brain involvement.

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Smith saw Plaintiff

At 9:45 p.m.,

Plaintiff claimed to be

Dr. Horowitz sent Plaintiff to a local emergency

On May 21, 2007, Plaintiff was admitted to the University of

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California, Davis, Medical Center (“UCD”).

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Plaintiff was found to have bilateral lower extremity

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paraparesis, vision loss, weakness in his upper extremities,

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constipation, renal insufficiency and neurogenic bladder, fever

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and elevated white blood cell count.

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Upon admission,

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Because Plaintiff’s medical history allegedly did not accompany

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him to the hospital, the UCD treating physicians were unaware of

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the treatment already rendered to Plaintiff, but the physicians

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immediately commenced procedures for Central Nervous System

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(“CNS”) disorders.

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UCD diagnosed Plaintiff with Acute Disseminated

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Encephalomyelitis (“ADEM”).

ADEM is a neurological disorder

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characterized by inflammation of the brain and spinal cord caused

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by damage to the myelin sheath.

Vaccination for Tetanus is

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allegedly a known cause of ADEM.

Upon further testing at

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Stanford University Medical Center, Tandel’s diagnosis was

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ultimately adjusted to include the related neuroimmunologic

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disorder of the CNS known as Neuromyelitis Optica (“NMO”).

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attacks the optic nerve and a person with NMO is at risk for

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multiple attacks.

NMO

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Plaintiff alleges that due to the failure to provide timely

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treatment, he suffered permanent and complete T6 paraplegia with

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bilateral, severe neuropathic pain and neurogenic bladder and

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bowels.

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still remains dependent for his activities in daily living and

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must use a catheter and diaper.

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serious bouts of depression and emotional distress.

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While Plaintiff’s condition improved with treatment, he

Plaintiff alleges ongoing

In 2007, Plaintiff was released from the Jail because of the

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nature and severity of his condition.

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Plaintiff achieved significant medical improvement with

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appropriate treatment through UCD.

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Following his release,

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In 2009, Plaintiff filed a lawsuit against the County and a

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number of individual defendants under 42 U.S.C. § 1983, alleging

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his civil rights’ violations during the 2007 detention.

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Pl.’s Second Am. Compl., Case No. 2:09-cv-0842-MEC-GGH [ECF

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No. 43].)

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(See

On March 23, 2010, Plaintiff was again arrested and detained

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as a pretrial detainee at the Jail.

At the time of his 2010

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arrest, Plaintiff required a wheelchair and was unable to move

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from the nipple line down.

Plaintiff’s medical record allegedly

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indicates that during the 2010 detention, all Defendants were

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aware of Plaintiff’s serious neurologic autoimmune disease and

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were aware that Plaintiff required appropriate treatment.

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According to Plaintiff, Defendants were also aware that Plaintiff

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suffered from osteoporosis and depression with suicidal ideation.

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Plaintiff alleges that, for the entirety of his 2010

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incarceration, Defendants denied Plaintiff necessary medical

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treatment despite Plaintiff’s repeated requests for such

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treatment.

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Plaintiff alleges that he requested but was not provided

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enough catheters to adequately relieve his bladder; requested but

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was denied adequate and timely suppositories and pads; and was

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not provided adequate medication to control his pain.

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result, Plaintiff allegedly routinely urinated on himself and his

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clothes, was left waiting for assistance in soiled clothes, did

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not have bowel movements for days and was in severe pain.

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Defendant Bauer allegedly advised Plaintiff to reuse the

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catheters, thereby increasing the risk of infection.

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As a

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On March 25, 2010, Defendant Sahba allegedly placed

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Plaintiff on a suicide watch.

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on the floor without his clothes.

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allegedly were aware of this situation.

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the Jail’s psychiatric unit was unable to handle a patient with

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his medical condition and who required catheters.

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Defendants Sokolov, Sahba and Sotak knowingly left Plaintiff “to

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lay naked, on a mattress on the floor, unable to adequately move,

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unable to reach the call button, in severe pain, under-medicated,

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and without adequate supplies or treatment to urinate or defecate

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cleanly and regularly for a period of three days.”

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As a result, Plaintiff allegedly urinated on himself numerous

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times, was unable to have regular bowel movements and developed

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bed sores.

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routinely interfered with Plaintiff’s access to medical care,

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Plaintiff’s bed sores worsened.

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Plaintiff was placed on a mattress
Defendants Sokolov and Sotak
According to Sokolov,

Therefore,

(CSAC ¶ 172.)

Because custodial officers at the Jail allegedly

On April 9, 2010, Plaintiff complained to the Jail’s medical

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staff of burning on the tip of his penis and so Sahba ordered

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another medical prescription, a double mattress and a urine

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culture and a test for sexually transmitted diseases.

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Plaintiff’s neighboring inmate pressed the call button on

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Plaintiff’s behalf several times after hearing Plaintiff

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screaming in agony, but the medical staff never responded.

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Plaintiff received medical care on April 11, 2010.

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2010, Defendant Bauer prescribed an antibiotic to Plaintiff to

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treat a bed sore on his left leg and a urinary tract infection.

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On April 13,

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By April 22, 2010, Plaintiff had developed blurry vision in

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his left eye over the prior two weeks.

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allegedly performed a vision exam but failed to request a

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necessary neurological referral and instead referred Plaintiff to

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be seen by a doctor at some point in the future.

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Plaintiff again complained of penile burning, pain in his eye and

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vision problems.

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Plaintiff’s left eye blurriness with history of ADEM.

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requested urinalysis and blood work with follow-up in two weeks.

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Defendant Kroner

On April 23,

On April 23, 2010, Defendant Sahba documented
Sahba

Sahba also prescribed an antifungal agent to Plaintiff.

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Defendant Bauer allegedly recorded that because Plaintiff’s

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pain had not been well-controlled by Norco-5, he prescribed

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Morphine and increased his Norco-5 prescription to control

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Plaintiff’s pain.

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that he had been experiencing pain, weight loss and episodes of

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double vision, but Sotak just ordered physical therapy.

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May 10, 2010, Sotak transferred Plaintiff to UCD where he was

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diagnosed with acute right optic neuritis.

On May 4, 2010, Plaintiff reported to Sotak

On

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Plaintiff alleges that medical Defendants’ deliberate

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indifference resulted in and/or increased the acuteness of his

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attack and accelerated the recurrence of his disease, which

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resulted in irreversible damage to new areas of myelin, causing

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cumulative and permanent disfigurement and disability, as well as

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decreasing Plaintiff’s future opportunity for rehabilitation and

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decreasing his life expectancy.

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STANDARD

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A.

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Motion to Dismiss

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4

On a motion to dismiss for failure to state a claim under

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Federal Rule of Civil Procedure 12(b)(6),3 all allegations of

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material fact must be accepted as true and construed in the light

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most favorable to the nonmoving party.

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Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996).

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also assume that “general allegations embrace those specific

Cahill v. Liberty Mut.
The Court must

10

facts that are necessary to support a claim.”

Smith v. Pacific

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Props. & Dev. Corp., 358 F.3d 1097, 1106 (9th Cir. 2004).

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8(a)(2) “requires only ‘a short and plain statement of the claim

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showing that the pleader is entitled to relief,’ in order to

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‘give the defendant a fair notice of what the [. . .] claim is

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and the grounds upon which it rests.’”

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Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson,

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355 U.S. 41, 47 (1957)).

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motion to dismiss does not require detailed factual allegations.

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Id.

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his entitlement to relief requires more than labels and

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conclusions, and a formulaic recitation of the elements of a

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cause of action will not do.”

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quotations omitted).

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“legal conclusion couched as a factual allegation.”

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Rule

Bell. Atl. Corp. v.

A complaint attacked by a Rule 12(b)(6)

However, “a plaintiff’s obligation to provide the grounds of

Id.

(internal citations and

A court is not required to accept as true a

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3

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All further references to “Rule” or “Rules” are to the
Federal Rules of Civil Procedure unless otherwise noted.
11

1

Ashcroft v. Iqbal,129 S. Ct. 1937, 1950 (2009) (quoting Twombly,

2

550 U.S. at 555).

3

true allegations that are merely conclusory, unwarranted

4

deductions of fact, or unreasonable inferences.”

5

Sciences Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008).

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“Factual allegations must be enough to raise a right to relief

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above the speculative level.”

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5 Charles Alan Wright & Arthur R. Miller, Federal Practice and

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Procedure § 1216 (3d ed. 2004) (stating that the pleading must

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contain something more than a “statement of facts that merely

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creates a suspicion [of] a legally cognizable right of

12

action.”)).

The Court also is not required “to accept as

In re Gilead

Twombly, 550 U.S. at 555 (citing

13

Furthermore, “Rule 8(a)(2) . . . requires a ‘showing,’

14

rather than a blanket assertion, of entitlement to relief.”

15

Twombly, 550 U.S. at 556 n.3 (internal citations and quotations

16

omitted).

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is hard to see how a claimant could satisfy the requirements of

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providing not only ‘fair notice’ of the nature of the claim, but

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also ‘grounds’ on which the claim rests.”

20

Alan Wright & Arthur R. Miller, supra, at § 1202).

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must contain “only enough facts to state a claim to relief that

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is plausible on its face.”

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have not nudged their claims across the line from conceivable to

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plausible, their complaint must be dismissed.”

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well-pleaded complaint may proceed even if it strikes a savvy

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judge that actual proof of those facts is improbable, and ‘that a

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recovery is very remote and unlikely.’”

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Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).

“Without some factual allegation in the complaint, it

Id. at 570.

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Id.

(citing 5 Charles
A pleading

If the “plaintiffs . . .

Id.

However, “a

Id. at 556 (quoting

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A court granting a motion to dismiss a complaint must then

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decide whether to grant a leave to amend.

Leave to amend should

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be “freely given” where there is no “undue delay, bad faith or

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dilatory motive on the part of the movant, . . . undue prejudice

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to the opposing party by virtue of allowance of the amendment,

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[or] futility of the amendment . . . .”

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178, 182 (1962); Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d

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1048, 1052 (9th Cir. 2003) (listing the Foman factors as those to

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be considered when deciding whether to grant leave to amend).

Foman v. Davis, 371 U.S.

10

Not all of these factors merit equal weight.

Rather, “the

11

consideration of prejudice to the opposing party . . . carries

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the greatest weight.”

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(citing DCD Programs, Ltd. v. Leighton, 833 F. 2d 183, 185 (9th

14

Cir. 1987)).

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it is clear that “the complaint could not be saved by any

16

amendment.”

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499 F.3d 1048, 1056 (9th Cir. 2007) (internal citations and

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quotations omitted).

Eminence Capital, 316 F. 3d at 1052

Dismissal without leave to amend is proper only if

Intri-Plex Techs., Inc. v. Crest Group, Inc.,

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B.

Motion for a More Definitive Statement

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22

Before interposing a responsive pleading, a defendant may

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move for a more definitive statement “[i]f a pleading...is so

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vague or ambiguous that a party cannot reasonably be required to

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frame a responsive pleading....”

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12(e) motion is proper when the plaintiff’s complaint is so

27

indefinite that the defendant cannot ascertain the nature of the

28

claim being asserted.
13

Fed. R. Civ. P. 12(e). A Rule

1

Gay-Straight Alliance Network v. Visalia Unified Sch. Dist., 262

2

F. Supp. 2d 1088, 1099 (E.D. Cal. 2001).

3

Due to the liberal pleading standards in the federal courts

4

embodied in Rule 8(e) and the availability of extensive

5

discovery, courts should not freely grant motions for more

6

definitive statements.

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Inc., 525 F. Supp. 940, 949 (E.D. Cal. 1981).

8

for a more definitive statement should be denied unless the

9

information sought by the moving party is not available or is not

10

Famolare, Inc. v. Edison Bros. Stores,

ascertainable through discovery.

Indeed, a motion

Id.

11
C.

12

Motion to Strike

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14

The Court may strike “from any pleading any insufficient

15

defense or any redundant, immaterial, impertinent, or scandalous

16

matter.”

17

motion to strike is to avoid the expenditure of time and money

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that must arise from litigating spurious issues by dispensing

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with those issues prior to trial....”

20

Robins Co., 697 F.2d 880, 885 (9th Cir. 1983).

21

is that which has no essential or important relationship to the

22

claim for relief or the defenses being pleaded.

23

Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993)(rev’d on other

24

grounds Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994))(internal

25

citations and quotations omitted).

26

of statements that do not pertain, and are not necessary, to the

27

issue in question.

28

///

(Fed. R. Civ. P. 12(f).)

Id.

14

“[T]he function of a 12(f)

Sidney-Vinstein v. A.H.
Immaterial matter

Fantasy, Inc. v.

Impertinent matter consists

ANALYSIS

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The Court examines Plaintiff’s claims in the following

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order: (1) Plaintiff’s § 1983 claim for failure to provide

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appropriate medical care against Hambly, Carl, Keillor and Gaddis

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(First Claim for Relief); (2) Plaintiff’s § 1983 claim for

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failure to provide appropriate medical care against Sokolov

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(Second Claim for Relief); (3) Plaintiff’s claim for retaliation

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for protesting unconstitutional and unlawful jail conditions

10

against McGinness, Boylan and Bauer (Sixth Claim for Relief);

11

(4) Plaintiff’s claim for negligence against McGinness, Boylan,

12

Sotak, Kroner, Felicano, Austin, Bauer, Sahba, Wilson and Sokolov

13

(Tenth Claim for Relief); (5) Plaintiff’s claim for medical

14

negligence against Sokolov, Sotak, Bauer and Sahba (Eleventh

15

Claim for Relief); (6) County Defendants’ Motion to Dismiss

16

Plaintiff’s newly named Doe Defendants; (7) Sokolov’s Motion for

17

a More Definitive Statement; and (8) County Defendants’ Motion to

18

Strike.

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A.

First Claim for Relief: Claims Brought Pursuant to
42 U.S.C. § 1983 for Violations of the Fourteenth
Amendment to the United States Constitution for Failure
to Provide Appropriate Medical Care against Defendants
Hambly, Carl, Gaddis, and Keillor in Their Individual
Capacities

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24

Plaintiff alleges that the above-enumerated individual

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County Defendants failed to provide appropriate medical care to

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Plaintiff during his 2007 incarceration and that he suffered and

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continues to suffer personal injury and emotional distress and

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incurred damages as a result of such failure.
15

(CSAC ¶¶ 336-37.)

1

Under 42 U.S.C. § 1983, an individual may sue “[e]very person,

2

who, under color of [law] subjects” him “to the deprivation of

3

any rights, privileges, or immunities secured by the Constitution

4

and laws.”

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liability upon a government officer for actions taken under color

6

of state law.”

7

Government officials may not be held liable for the

8

unconstitutional conduct of their subordinates under a theory of

9

respondeat superior.

Individual capacity suits “seek to impose individual

Hafer v. Melo, 502 U.S. 21, 25 (1991).

Iqbal, 129 S. Ct. at 1948.

Rather, an

10

individual may be liable for deprivation of constitutional rights

11

“within the meaning of section 1983, if he does an affirmative

12

act, participates in another’s affirmative acts, or omits to

13

perform an act which he is legally required to do that causes the

14

deprivation of which complaint is made.”

15

County Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007).

16

Thus, a plaintiff cannot demonstrate that an individual officer

17

is liable “without a showing of individual participation in the

18

unlawful conduct.”

19

Cir. 2002).

20

participation’ of the officers in the alleged constitutional

21

violation,” which requires “some fundamental involvement in the

22

conduct that allegedly caused the violation.”

23

City of Orange, 485 F.3d 463, 481 n.12 (9th Cir. 2007); Jones,

24

297 F.3d at 935.

25

///

26

///

27

///

28

///

Preschooler II v. Clark

Jones v. Williams, 297 F.3d 930, 935 (9th

Plaintiff must “establish the ‘integral

16

Blankenhorn v.

1

Government officials acting as supervisors may be liable

2

under § 1983 under certain circumstances.

“[W]hen a supervisor

3

is found liable based on deliberate indifference, the supervisor

4

is being held liable for his or her own culpable action or

5

inaction, not held vicariously liable for the culpable action or

6

inaction of his or her subordinate.”

7

1202, 1207 (9th Cir. 2011).

8

supervisor under § 1983 if there exists “either (1) his or her

9

personal involvement in the constitutional deprivation; or (2) a

Starr v. Baca, 652 F.3d

A defendant may be held liable as a

10

sufficient causal connection between the supervisor’s wrongful

11

conduct and the constitutional violation.”

12

885 F.2d 642, 646 (9th Cir. 1989); Starr, 652 F.3d at 1207.

13

Hansen v. Black,

A supervisor’s physical presence is not required for

14

supervisory liability.

Starr, 652 F.3d at 1205.

Rather, the

15

requisite causal connection between a supervisor’s wrongful

16

conduct and the violation of the prisoner’s Constitutional rights

17

can be established in a number of ways.

18

that the supervisor set in motion a series of acts by others, or

19

knowingly refused to terminate a series of acts by others, which

20

the supervisor knew or reasonably should have known would cause

21

others to inflict a constitutional injury.

22

County of S.F., 266 F. 3d 959, 968 (9th Cir. 2001); Larez v. City

23

of L.A., 946 F.2d 630, 646 (9th Cir. 1991).

24

supervisor’s own culpable action or inaction in the training,

25

supervision, or control of his subordinates may establish

26

supervisory liability.

27

at 646.

28

///

The plaintiff may show

Dubner v. City &

Similarly, a

Starr, 652 F.3d at 1208; Larez, 946 F.2d

17

1

Finally, a supervisor’s acquiescence in the alleged

2

constitutional deprivation, or conduct showing deliberate

3

indifference toward the possibility that deficient performance of

4

the task may violate the rights of others, may establish the

5

requisite causal connection.

6

City of Seattle, 409 F. 3d 1113, 1149 (9th Cir. 2005).

7

Starr, 652 F.3d at 1208; Menotti v.

As opposed to prisoner claims under the Eighth Amendment, a

8

pretrial detainee is entitled to be free of cruel and unusual

9

punishment under the Due Process Clause of the Fourteenth

10

Amendment.4

11

Simmons v. Navajo County, Ariz., 609 F. 3d 1011, 1017 (9th Cir.

12

2010).

13

have the established right to not have officials remain

14

deliberately indifferent to their serious medical needs.”

15

Gibson v. County of Washoe, Nev., 290 F.3d 1175, 1187 (9th Cir.

16

2002) (quoting Carnell v. Grimm, 74 F.3d 977, 979 (9th Cir.

17

1996)).

18

is violated when a jailer fails to promptly and reasonably

19

procure competent medical aid when the pretrial detainee suffers

20

a serious illness or injury while confined.

21

429 U.S. 97, 104-105 (1976).

Bell v. Wolfish, 441 U.S. 520, 537 n. 16 (1979);

The Due Process Clause requires that “persons in custody

A pretrial detainee’s due process right in this regard

Estelle v. Gamble,

22
23
24
25
26
27
28

4
In his first claim for relief, Plaintiff alleges that
County Defendants failed to provide appropriate medical care
during his 2007 incarceration in violation of the Fourteenth
Amendment to the Constitution. It would follow that Plaintiff
was a pre-trial detainee at the time of these alleged violations
because Plaintiff only invokes the Fourteenth Amendment. In his
second claim for relief, however, Plaintiff alleges Defendants
failed to provide appropriate medical care during his 2010
incarceration in violation of both the Eighth and Fourteenth
Amendments to the Constitution. This suggests that Plaintiff had
been convicted of a crime during some portion of the 2010
incarceration, although the CSAC remains unclear on that point.

18

1

Deliberate indifference can be “manifested by prison doctors in

2

their response to the prisoner’s needs or by prison guards in

3

intentionally denying or delaying access to medical care or

4

intentionally interfering with the treatment once prescribed.”

5

Id.

6

provide medical treatment, Plaintiff must plead sufficient facts

7

to permit the Court to infer that (1) Plaintiff had a “serious

8

medical need,” and that (2) individual Defendants were

9

“deliberately indifferent” to that need.

In order to establish a plausible claim for failure to

Jett v. Penner,

10

439 F.3d 1091, 1096 (9th Cir. 2006); Cf. Farmer v. Brennan,

11

511 U.S. 825, 834, 837 (1994).

12

Plaintiff can satisfy the “serious medical need” prong by

13

demonstrating that “failure to treat [his] condition could result

14

in further significant injury or the unnecessary and wonton

15

infliction of pain.”

16

and quotations omitted); Clement v. Gomez, 298 F.3d 898, 904 (9th

17

Cir. 2002).

18

“[t]he existence of an injury that a reasonable doctor or patient

19

would find important and worthy of comment or treatment, the

20

presence of a medical condition that significantly affects an

21

individual’s daily activities, or the existence of chronic and

22

substantial pain.”

23

2000).

24

to make a plausible showing that his medical need was serious.

25

Plaintiff suffered a head injury which required sutures, was

26

suffering from persistent headaches, loss of vision, inability to

27

move his lower extremities, and urinary retention and

28

constipation.

Jett, 439 F. 3d at 1096 (internal citations

Examples of such serious medical needs include

Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir.

The Court finds that Plaintiff alleges sufficient facts

(CSAC ¶¶ 43, 55, 74, 81.)
19

1

The Court recognizes that such symptoms not only affected

2

Plaintiff’s daily activities, but also that a reasonable doctor

3

would find such symptoms noteworthy.

4

The next issue for the Court is whether individual

5

Defendants were deliberately indifferent to Plaintiff’s serious

6

medical need.

7

the contours of the “deliberate indifference” standard.

8

Specifically, individual Defendants are not liable under the

9

Fourteenth Amendment for their part in allegedly denying

The Supreme Court, in Farmer, explained in detail

10

necessary medical care unless they knew “of and disregard[ed] an

11

excessive risk to [Plaintiff’s] health and safety.”

12

511 U.S. at 837; Gibson, 290 F.3d at 1187-88.

13

indifference contains both an objective and subjective component:

14

“the official must both be aware of facts from which the

15

inference could be drawn that a substantial risk of serious harm

16

exists, and he must also draw that inference.”

17

at 837.

18

not,” then the standard of deliberate indifference is not

19

satisfied “no matter how severe the risk.”

20

1188 (citing Jeffers v. Gomez, 267 F.3d 895, 914 (9th Cir.

21

2001)).

22

failed to act believing that harm actually would befall on

23

inmate; it is enough that the official acted or failed to act

24

despite his knowledge of a substantial risk of serious harm.”

25

Farmer, 511 U.S. at 842.

26

///

27

///

28

///

Farmer,

Deliberate

Farmer, 511 U.S.

“If a person should have been aware of the risk, but was

Gibson, 290 F.3d at

Plaintiff “need not show that a prison official acted or

20

1

Important for purposes of the motions at issue, “[w]hether a

2

prison official had the requisite knowledge of a substantial risk

3

is a question of fact subject to demonstration in the usual ways,

4

including inference from circumstantial evidence, . . . and a

5

fact finder may conclude that a prison official knew of a

6

substantial risk from the very fact that the risk was obvious.”

7

Id. (emphasis added) (internal citations omitted); see also

8

Lolli v. County of Orange, 351 F.3d 410, 421 (9th Cir. 2003)

9

(“Much like recklessness in criminal law, deliberate indifference

10

to medical needs may be shown by circumstantial evidence when the

11

facts are sufficient to demonstrate that a defendant actually

12

knew of a risk of harm.”).

13

“The indifference to medical needs must be substantial; a

14

constitutional violation is not established by negligence or ‘an

15

inadvertent failure to provide adequate medical care.’”

16

Anderson v. County of Kern, 45 F.3d 1310, 1316 (9th Cir. 1995)

17

(quoting Estelle, 429 U.S. at 105-06).

18

“deliberately indifferent to a prisoner’s serious medical needs

19

when they deny, delay, or intentionally interfere with medical

20

treatment.”

21

2002); Lolli, 351 F.3d at 419.

22

neglect do not constitute deliberate indifference.”

23

Cal. Substance Abuse Treatment Facility at Concord,

24

No. 1:10-cv-02336, 2011 WL 2224817, at *3 (E.D. Cal. June 7,

25

2011) (citing Jett, 439 F.3d at 1096).

26

///

27

///

28

///

Generally, defendants are

Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir.
However, “[i]solated incidents of

21

Bowell v.

1

Further, a mere delay in receiving medical treatment, without

2

more, does not constitute “deliberate indifference,” unless the

3

plaintiff can show that the delay caused serious harm to the

4

plaintiff.

5

1990).

Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir.

6
1.

7

Defendant Hambly

8
9

Plaintiff alleges that Defendant Hambly, as a treating

10

physician, was deliberately indifferent to his serious medical

11

needs.

12

Dr. Hambly “evaluated Tandel’s medical condition and provided him

13

a small amount of Bacitracin, an antibiotic.”

14

Plaintiff further alleges that Hambly allowed “[Plaintiff] to be

15

placed into Administrative Segregation” and did not arrange for a

16

follow-up medical visit.

17

finds that these allegations are insufficient to demonstrate that

18

Hambly was deliberately indifferent as a treating physician.

19

Nowhere in the CSAC does Plaintiff allege that Hambly, as

20

Plaintiff’s treating physician, personally denied, delayed, or

21

intentionally interfered with Plaintiff’s medical treatment.

22

Hallett, 296 F.3d at 744; Lolli, 351 F. 3d at 419.

23

that Hambly provided Tandel with an antibiotic and allowed him to

24

be placed into Administrative Segregation without ensuring he had

25

any medical follow-up are insufficient to demonstrate that Hambly

26

was deliberately indifferent to Plaintiff’s serious medical

27

needs.

28

///

(Pl.’s Opp. at 11:19-21.)

Plaintiff alleges that

(CSAC ¶ 47.)

(Pl.’s Opp. at 11:25-28.)

22

The Court

See

Allegations

1

Similarly absent from the CSAC are any allegations of

2

Hambly’s supervisory liability.

Plaintiff alleges that Hambly

3

was responsible for the supervision and training of all medical

4

providers in the main jail in 2007, and that he failed to ensure

5

that all nurses were properly trained and supervised, which

6

resulted in Tandel’s injury.

7

further alleges that Hambly participated in meetings discussing

8

environmental factors which impact health, such as overcrowding,

9

and that he was on notice of the jail’s custom and practice of

(Pl.’s Opp. at 12:2-8.)

Plaintiff

10

failing to provide medical care for its inmates.

11

12:9-13, 21-22.)

12

statement that a defendant was employed in a supervisory capacity

13

and acted within the scope of his employment is not sufficient,

14

by itself, to infer that the defendant should be personally

15

liable for Plaintiff’s alleged constitutional deprivations.

16

(Id. at

But, as the Court explained earlier, a

Plaintiff relies on Starr and Redman to sustain his claim

17

that Dr. Hambly should be found deliberately indifferent as a

18

supervisor.

19

specifically alleged that the Sheriff was ultimately in charge of

20

the facility’s operations, that the Sheriff knew that the

21

facility was not a proper place to detain the plaintiff and posed

22

a risk of harm to the plaintiff, but placed the plaintiff there

23

anyway.

24

similarly alleged that the Sheriff knew of the unconstitutional

25

activities in the jail, including that his subordinates were

26

engaging in some culpable actions.

27

///

28

///

(Pl.’s Opp. at 12:8-22.)

Redman, 942 F.2d at 1446-47.

23

In Redman, a plaintiff

In Starr, the plaintiff

Starr, 652 F.3d at 1208.

1

In fact, the plaintiff’s complaint in Starr contained numerous

2

specific factual allegations demonstrating the Sheriff’s

3

knowledge of unconstitutional acts at the jail and the Sheriff’s

4

failure to terminate those acts, including that the U.S.

5

Department of Justice gave the Sheriff clear written notice of a

6

pattern of constitutional violations at the jail, that the

7

Sheriff received “weekly reports from his subordinates

8

responsible for reporting deaths and injuries in the jails,” that

9

the Sheriff personally signed a Memorandum of Understanding that

10

required him to address and correct the violations at the Jail,

11

and that the Sheriff was personally made aware of numerous

12

concrete instances of constitutional deprivations at the jail.

13

Id. at 1209-12.

14

Here, on the other hand, Plaintiff’s CSAC does not contain

15

sufficient factual allegations demonstrating that Hambly was

16

aware of Plaintiff’s constitutional deprivations or of any other

17

wrongful acts by Jail personnel.

18

medical director until the beginning of 2007, and yet most of

19

Plaintiff’s allegations that Dr. Hambly was on notice rely on

20

reports made before he assumed this post.

21

has not pleaded sufficient facts to support the inference that

22

Hambly was deliberately indifferent to Plaintiff’s medical needs.

23

Inasmuch as leave to amend has already been accorded, the Court

24

now dismisses Defendant Hambly from Plaintiff’s first claim for

25

relief.

26

///

27

///

28

///
24

Dr. Hambly was not the interim

Accordingly, Plaintiff

2.

1

Defendant Carl

2
3

Nurse Carl evaluated Plaintiff on three occasions.

On

4

May 13, 2007, Nurse Carl saw Plaintiff when Plaintiff complained

5

about persistent headaches.

6

with Dr. Smith, who ordered Plaintiff’s stitches to be removed

7

and pain medication to be administered.

8

2007, after Plaintiff collapsed in the shower, Plaintiff again

9

saw Nurse Carl.

(CSAC ¶ 66.)

(Id. ¶¶ 71-74.)

Nurse Carl consulted

(Id. ¶ 68.)

On May 17,

Plaintiff alleges that Carl

10

“failed to engage in even the most rudimentary of the tests for

11

[Central Nervous System] disorders even after being alerted to

12

the new symptoms. . . .”

13

that Carl cleared Plaintiff, without arranging for any medical

14

follow-up.

15

complaining about vision loss, urinary retention and

16

constipation, in addition to inability to move his lower

17

extremities and persistent headaches, Carl again saw Plaintiff

18

and referred Plaintiff to see Dr. Smith.

19

Plaintiff’s allegations against Carl still do not rise to the

20

level of deliberate indifference.

21

stated in the first Order, Plaintiff’s allegations demonstrate

22

that each time Carl saw Plaintiff, he evaluated Plaintiff’s

23

complaints and twice referred Plaintiff to a doctor.

24

Plaintiff’s allegations concerning the incident on May 17 permit

25

the Court to infer that Carl might have been negligent in sending

26

Plaintiff back to the cell, nothing in the CSAC suggests that

27

Carl knew “of a substantial risk of serious harm,” but chose to

28

disregard it.

(Id.)

(Id. ¶ 79.)

Plaintiff further alleges

On May 20, 2007, after Plaintiff started

(Id. ¶¶ 81-82, 86, 89.)

On the contrary, as previously

See Gibson, 290 F.3d at 1187-88.
25

While

1

Carl evaluated Plaintiff three times, but was unable to determine

2

or diagnose the cause or reason for his pain and symptoms.

3

¶¶ 66-67, 74, 86).

4

Carl failed to follow the Standardized Nursing Procedure,

5

supports the inference of negligence, not deliberate

6

indifference.

7

demonstrate “deliberate indifference,” the Court dismisses

8

Defendant Carl from Plaintiff’s first claim.

9

at 1096.

(Id.

Plaintiff’s own allegation that, on May 17,

Because one isolated incident of neglect does not

See Jett, 439 F.3d

10
11

3.

Defendant Gaddis

12
13

Plaintiff alleges that Officer Gaddis did not adequately

14

respond as the Control Booth Operator to Tandel’s requests for

15

medical assistance. (CSAC ¶¶ 72-73, 331.)

16

alleges that “Gaddis’s failure to properly summon help through

17

the radio, as is Jail policy, resulted in a delay of necessary

18

medical care” and that on July 18, Gaddis “ignored his request

19

for medical care, ignored the call button which was used to

20

request medical treatment on Tandel’s behalf, and admonished

21

Tandel for using the call button to request medical treatment.”

22

(Pl.’s Opp. at 18:12-17.)

23

insufficient to state a claim of deliberate indifference against

24

Officer Gaddis.

25

the inference of deliberate indifference on the part of Officer

26

Gaddis is that he delayed alerting the medical staff of

27

Plaintiff’s medical needs.

28

significant the delay was and how the delay harmed Plaintiff.

Plaintiff specifically

The Court finds these allegations

The only plausible allegation that can lead to

However, the CSAC fails to allege how

26

1

See Hertig v. Cambra, No. 1:04-cv-5633, 2009 WL 62126, at *4

2

(E.D. Cal. Jan. 8, 2009) (citing Shapley v. Nevada Bd. of State

3

Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985)) (“[A] delay in

4

receiving medical care, without more, is insufficient to state a

5

claim against a jailor for deliberate indifference unless the

6

plaintiff can show that the delay in treatment harmed him.”).

7

Plaintiff does not provide evidentiary support for his conclusion

8

that the delay resulted in a deterioration of his condition and

9

eventual paralysis.

10

(See CSAC ¶ 83.)

Moreover, “[t]o have acted with deliberate indifference,

11

. . . the officers also must have inferred . . . that [the

12

plaintiff] was at serious risk of harm” if he did not receive

13

immediate medical attention.

14

fails to provide any evidence beyond mere conclusions that Gaddis

15

knew that Plaintiff was at serious risk of harm if he did not

16

receive immediate medical attention.

17

first claim against Defendant Gaddis is also dismissed.

Lolli, 351 F.3d at 420.

The CSAC

Accordingly, Plaintiff’s

18
4.

19

Defendant Keillor

20
21

Plaintiff alleges that Sergeant Keillor was employed at all

22

relevant times as supervisory custodial staff at the Jail, and

23

that Sergeant Keillor was responsible for supervising custodial

24

staff at the Jail.

25

///

26

///

27

///

28

///

(CSAC ¶ 322.)

27

1

Plaintiff alleges in his Consolidated Opposition that Keillor

2

“failed to prevent Gaddis and other officers in her control, from

3

ignoring Tandel’s requests for medical care, ignoring the call

4

button which was used to request medical treatment, and

5

admonishing Tandel for using the call button to request medical

6

treatment.”

7

(Pl.’s Opp. at 19:23-25.)

As Keillor’s alleged liability is based on his supervisory

8

status, Plaintiff must demonstrate Keillor’s “‘own culpable

9

action or inaction in the training, supervision, or control of

10

his subordinates,’ ‘his acquiescence in the constitutional

11

deprivations of which the complaint is made,’ or ‘conduct that

12

showed a reckless or callous indifference of others.’”

Starr,

13

652 F.3d at 1205-06 (quoting Larez, 946 F.2d at 646).

Plaintiff

14

does not plead sufficient facts to support the inference that

15

Defendant Keillor was deliberately indifferent to Plaintiff’s

16

medical needs.

17

actions that suggest Keillor acted properly as a supervisor.

18

Plaintiff said Keillor was not on duty during the May 17, 2007

19

incident and that she was “concerned” that she had not been

20

notified when her duties as custody supervisor commenced later

21

that day.

22

Gaddis for not properly notifying custody and medical personnel

23

and provided Gaddis with training materials.

24

Clearly, Keillor intervened by reporting Gaddis’s negligent act

25

and by providing her with the appropriate training materials.

26

Moreover, Plaintiff fails to allege any facts suggesting that

27

Keillor knew of the alleged constitutional violations before they

28

occurred and failed to act to prevent them.

Rather, Plaintiff states evidence of Keillor’s

(CSAC ¶¶ 323-24.)

In fact, Keillor acted by reporting

28

(Id. at ¶¶ 324-25.)

1

Thus, Plaintiff does not adequately allege a deliberate

2

indifference claim against Keillor.

3

Additionally, as clearly stated in the previous Order, there

4

can be no showing that supervisory defendants should be held

5

liable under § 1983 without a showing that their subordinates

6

violated Plaintiff’s constitutional rights.

7

Bremerton, 268 F.3d 646, 653 (9th Cir. 2001).

8

Plaintiff cannot demonstrate that Keillor, as a supervisor, was

9

deliberately indifferent to Plaintiff’s serious medical needs

Jackson v. City of
Thus, again,

10

without first demonstrating that Keillor’s subordinate, Defendant

11

Gaddis, committed a constitutional violation.

12

Court dismisses Defendant Keillor from Plaintiff’s first claim.

Accordingly, the

13
B.

14
15
16

Second Claim for Relief: Claims Brought Pursuant to
42 U.S.C. § 1983 for Violations of the Eighth and
Fourteenth Amendment to the United States Constitution
for Failure to Provide Appropriate Medical Care against
Defendant Gregory Sokolov in His Individual Capacity

17
18

Plaintiff alleges that Dr. Sokolov failed to provide

19

appropriate medical care during his 2010 incarceration in

20

violation of the Eighth and Fourteenth Amendments.

21

similar “deliberate indifference” standard for claims brought

22

under the Eighth Amendment for convicted prisoners and the

23

Fourteenth Amendment for pre-trial detainees.

24

of Washoe, 290 F.3d 1175, 1187, 1190 n.9 (9th Cir. 2002).

25

the Court will not readdress the legal standard for Plaintiff’s

26

second claim because it was outlined above for Plaintiff’s first

27

claim for violation of the Fourteenth Amendment.

28

///
29

Courts use a

See Gibson v. Cty.
Thus,

1

Plaintiff alleges that (1) Sokolov provided psychiatric

2

services to Sacramento Main Jail inmates, including Mr. Tandel,

3

under a contract the County of Sacramento maintains with the

4

University of California Davis (Pl.’s Opp. at 4:1-3.); (2) On

5

March 25, 2010, Sokolov refused to admit Tandel into the

6

psychiatric unit of the jail, despite his alleged acute and

7

suicidal state, because of his need for medical care that the

8

psyche unit at the jail was ill-equipped to provide, (Id. at

9

3:5-7.); (3) Sokolov knowingly left Plaintiff to lay naked on a

10

mattress on the floor, unable to adequately move, unable to reach

11

the call button, in severe pain, under-medicated and without

12

adequate supplies or treatment to urinate or defecate cleanly and

13

regularly, (CSAC ¶ 172.); (4) As a result of placing Tandel in a

14

jail cell in the medical unit of the jail, Plaintiff suffered

15

infection resulting in permanent neurological and spinal cord

16

damage and extreme pain and suffering.

(Pl.’s Opp. at 3:8-11.)

17

The Court finds that, based on the specific factual

18

allegations in the CSAC and Plaintiff’s Opposition, Plaintiff

19

fails to adequately allege deliberate indifference as to

20

Plaintiff’s serious medical condition.

21

be placed in the medical unit on suicide watch because he did not

22

believe the psychiatric unit was equipped to meet Plaintiff’s

23

needs, which presumably shows lack of deliberate indifference

24

because it was motivated by his desire to find adequate care for

25

Plaintiff.

26

Sokolov knew or should have known that Plaintiff’s medical needs

27

would not be adequately met in the infirmary.

28

///

(Id. at 6:16-19.)

Sokolov suggested Tandel

Plaintiff does not show that

30

1

Moreover, even if Plaintiff’s medical needs were not met in the

2

infirmary, that does not mean Sokolov should be held liable for

3

the alleged wrongdoing that occurred while Plaintiff was under

4

the care of the CHS medical providers because he was not

5

responsible for Plaintiff’s medical needs, but only his

6

psychiatric needs.

7

nurse while he was in the medical infirmary because he was on

8

suicide watch.

9

Defendant Sokolov’s Motion to Dismiss Plaintiff’s second claim

10

Moreover, Plaintiff was seen by a psychiatric

(CSAC ¶ 167.)

Accordingly, the Court grants

for relief as to Sokolov.

11
C.

12

Plaintiff’s Sixth Claim for Relief: Claims Brought
Pursuant to 42 U.S.C. § 1983 for Violations to the
First Amendment to the United States Constitution for
Retaliation for Protesting Regarding Unconstitutional
and Unlawful Jail Conditions Against Defendants
McGinness, Boylan, and Bauer

13
14
15
16

Plaintiff alleges that McGinness, Boylan and Bauer acted “in

17

retaliation for Plaintiff Tandel’s pending lawsuit.”

(CSAC

18

¶ 432.).

19

Plaintiff’s pain medication after his deposition on April 14,

20

2010.

21

and Boylan “through Bauer” failed to provide adequate and

22

effective pain management.

23

that McGinness and Boylan “intentionally allowed Tandel to remain

24

at the jail and did not ensure that his known medical needs were

25

met.”

26

alleged acts, he “suffered a predictable exacerbation of a

27

condition.”

28

///

Plaintiff alleges that Bauer “inexplicably” reduced

(Id. ¶ 192.)

(Id. ¶ 430.)

Further, Plaintiff alleges that McGinness

(Id. ¶ 431.)

Plaintiff also alleges

Plaintiff alleges that as a result of these

(Id.)

31

1

In order to state a claim for retaliation, Plaintiff must

2

demonstrate that: (1) the Jail officials took an adverse action

3

against him; (2) the adverse action was taken because Plaintiff

4

engaged in the protected conduct; (3) the adverse action chilled

5

Plaintiff’s First Amendment rights; and (4) the adverse action

6

did not serve a legitimate penological purpose, such as

7

preserving institutional order and discipline.

8

Robinson, 408 F.3d 559, 568 (9th Cir. 2005); Barnett v. Centoni,

9

31 F.3d 813, 815-16 (9th Cir. 1994).

10

Rhodes v.

Plaintiff fails to adequately state a claim for retaliation

11

because he has not stated facts demonstrating that these

12

Defendants took an adverse action against him.

13

allegation that Bauer “inexplicably” reduced Plaintiff’s pain

14

medication is unfounded because Plaintiff stated in his CSAC that

15

Bauer had prescribed the two tablets of the medication to be

16

taken three times a day for “just two days beginning on April 13,

17

and ending on 14th.”

18

the prescription on April 15, 2010.

19

Bauer did not disregard the pain that Plaintiff was suffering; in

20

fact, Bauer changed Plaintiff’s medication on April 13, 2010,

21

because the medication he was taking then turned out to be

22

inadequate.

23

two weeks later, he increased his prescribed dosage of the

24

medication after noticing that it was not controlling the pain.

25

(Id. ¶ 205.)

26

so Bauer’s actions do not rise to a level the Court can consider

27

to be retaliation.

28

///

(CSAC ¶ 190.)

(Id. ¶ 190.)

Plaintiff’s

Accordingly, Bauer reduced
(Id. ¶ 192.)

Moreover,

When Bauer saw Tandel again less than

Thus, Bauer’s actions were not “inexplicable” and

32

1

Accordingly, County Defendants’ Motion to Dismiss Plaintiff’s

2

Sixth Claim for Relief against Bauer is granted.

3

Plaintiff further alleges that McGinness and Boylan acted

4

through Bauer in retaliating, but these allegations are inadequate

5

given that the Court finds that Bauer did not take an adverse action

6

against him.

7

retaliated by intentionally allowing Plaintiff to remain at the jail

8

and no steps were taken to continue his pain management.

9

430.)

Moreover, Plaintiff claims that McGinness and Boylan

(Id. ¶

This claim is similarly unfounded because Plaintiff’s CSAC

10

describes steps taken to continue Plaintiff’s pain management,

11

including Bauer’s prescription of pain medication and the fact that

12

Plaintiff was seen on multiple occasions by medical personnel at the

13

jail during his pending litigation.

14

200.)

15

Sixth Claim for Relief against McGinness and Boylan is granted.

(See, e.g., id. ¶¶ 190, 194,

Accordingly, County Defendants’ Motion to Dismiss Plaintiff’s

16
17
18

D.

Plaintiff’s Tenth Claim for Relief: Claims Brought for
Negligence Against Defendants McGinness, Boylan,
Felicano, Austin, Wilson, Sotak, Kroner, Sahba, Bauer,
and Sokolov in Their Individual Capacities

19
20

Plaintiff re-alleges that Defendants “negligently, carelessly

21

and unskillfully cared for, attended to, handled, controlled and

22

failed to supervise, monitor and attend to Tandel and/or failed to

23

refer him to medical care providers, negligently failed to provide

24

physician’s care and carelessly failed to detect and monitor his

25

condition, and negligently, carelessly and unskillfully failed to

26

possess and exercise the degree of skill and knowledge ordinarily

27

possessed and exercised by others in the same profession and in the

28

same locality as Defendants.”

(CSAC ¶ 462.)
33

1

According to Plaintiff, Defendants also failed to supervise,

2

train and monitor their subordinates, to maintain proper

3

supervision, classification and staffing and to timely refer

4

Plaintiff for medical and/or hospital care.

5

Plaintiff further alleges that the supervisory defendants failed

6

to conduct appropriate investigatory procedures to determine the

7

need to obtain medical care for Plaintiff, and failed to have

8

proper investigation and reports of allegations of subordinates’

9

wrongful conduct.

(Id. ¶ 463.)

(Id. ¶ 464.)

10

According to Plaintiff, the Defendants listed knew or had

11

reason to know that Plaintiff was in need of immediate medical

12

care, and ongoing follow-up medical care, and failed to take

13

reasonable action to procure such medical care.

(Id. ¶ 465.)

14

a result, Plaintiff allegedly suffered damages.

(Id. ¶ 466.)

15

As

Plaintiff does not seek negligence liability against the

16

County or any official capacity Defendant and so the Court will

17

not address these issues.

(Pl.’s Opp. at 23:8-11.)

18
19

1.

Defendants McGinness and Boylan

20
21

Plaintiff alleges that McGinness and Boylan were negligent

22

in their training, hiring and supervision.

23

Defendants’ previous Motion to Dismiss Plaintiff’s negligence

24

claim with regard to these Defendants and Plaintiff’s CSAC fails

25

to allege adequate additional facts to change that determination.

26

Plaintiff alleges that McGinness and Boylan were aware of the

27

deficiencies of the jail, and yet continued to have Tandel

28

detained there.
34

The Court granted

1

In its previous Order, the Court did not consider this conclusory

2

allegation, standing alone, as sufficient to support a viable

3

claim for negligence.

4

CSAC to flesh out that claim further, it remains just as

5

inadequate now as it was previously.

6

Defendants’ Motion to Dismiss Plaintiff’s negligence claim

7

against McGinness and Boylan is granted.

Since Plaintiff has made no attempt in the

Therefore, County

8
2.

9

Defendant Austin

10
11

Plaintiff does not allege any adequate additional facts that

12

Austin negligently treated Tandel, on or about May 14, 2007, in

13

his CSAC.

14

to Dismiss Plaintiff’s negligence claim against Austin is without

15

merit and County Defendants’ Motion to Dismiss Plaintiff’s claim

16

for negligence as to Austin is granted.

Thus, the Court finds that County Defendants’ Motion

17
3.

18

Defendant Felicano

19
20

Plaintiff alleges that Felicano is a medical provider who

21

had a duty to render medical care to Tandel and that she

22

allegedly denied Tandel half of the number of catheters he

23

reportedly needed.

24

Felicano’s denial of adequate sterile catheters put Tandel at

25

risk of a urinary tract infection, kidney damage, bed sores and

26

other maladies which can and did have profound effects on him.

27

(Id. ¶ 153.)

28

///

(CSAC ¶¶ 25, 150.)

35

Plaintiff alleges that

1

Plaintiff alleges adequate additional facts regarding Nurse

2

Practitioner Felicano to survive a motion to dismiss a claim for

3

negligence.

4

Plaintiff’s claim for negligence as to Felicano is denied.

Accordingly, County Defendants’ Motion to Dismiss

5
4.

6

Defendant Wilson

7
8
9

Plaintiff alleges that Wilson “was responsible for ensuring
inmates, including Tandel, had access to medical care and

10

treatment, and failed to provide Tandel with access to necessary

11

medical treatment.”

12

alleged in his First Amended Complaint (“FAC”) that Wilson had in

13

fact summoned medical care for Plaintiff.

14

further alleges that Wilson delayed Plaintiff’s medical care, but

15

this isolated incident is inadequate to show negligence.

16

¶ 255.)

17

Plaintiff’s claim for negligence as to Wilson is granted.

(Pl.’s Opp. at 23:18-20.)

Yet, Plaintiff

(FAC ¶ 71.)

Plaintiff

(CSAC

Accordingly, County Defendants’ Motion to Dismiss

18
5.

19

Defendant Sokolov

20
21

Plaintiff fails to adequately allege a negligence claim for

22

Defendant Sokolov.

As stated previously with respect to

23

Plaintiff’s Second Claim for Relief, Sokolov did not believe the

24

psychiatric unit could adequately meet Plaintiff’s needs given

25

his medical condition.

26

be placed in the medical infirmary on suicide watch, and so a

27

psychiatric nurse visited him at the medical infirmary.

28

///

Thus, Sokolov recommended that Plaintiff

36

1

Based on this action, Plaintiff cannot show that Sokolov was

2

negligent in not allowing Plaintiff to enter the psychiatric ward

3

because Sokolov knew that the ward would not meet Plaintiff’s

4

medical needs.

5

medical infirmary, Sokolov did not have control over the alleged

6

wrongdoings that occurred during Plaintiff’s medical treatment.

7

Accordingly, Defendant Sokolov’s Motion to Dismiss Plaintiff’s

8

Tenth Cause of Action as to Sokolov is granted.

Beyond this decision to place Plaintiff in the

9
6.

10

Defendants Sahba, Sotak, Bauer and Kroner

11
12

This Court has already ruled that Plaintiff alleged

13

sufficient facts to sustain a cause of negligence against Sahba,

14

Sotak, Bauer and Kroner.

15

County Defendants’ Motion to Dismiss Plaintiff’s Negligence

16

claims against Sahba, Sotak, Bauer and Kroner is denied.

[ECF No. 69 at 70:16-21.]

Accordingly,

17
E.

18
19

Plaintiff’s Eleventh Cause of Action: Claims Brought
for Medical Negligence Against Defendants Sotak, Bauer,
Sokolov and Sahba

20
21

Plaintiff’s Eleventh Cause of Action alleging medical

22

negligence against the medical Defendants Sotak, Bauer, Sokolov

23

and Sahba is similar to his Tenth Cause of Action alleging

24

negligence.

25

///

26

///

27

///

28

///
37

1

Plaintiff alleges in his Eleventh Cause of Action that the

2

medical defendants “failed to refer him to specialist psychiatric

3

care providers, negligently failed to provide psychiatric and

4

psychological care, and carelessly failed to detect, monitor and

5

follow-up on Tandel’s deteriorating psychological condition, thus

6

negligently, carelessly, and unskillfully failing to possess and

7

exercise that degree of skill and knowledge ordinarily possessed

8

and exercised by others in the same profession and in the same

9

locality as Defendants.”

(CSAC ¶ 467.)

The Court dealt with

10

similar allegations in Plaintiff’s general negligence claim and

11

so it does not need to further analyze them here.

12

reasons stated in Plaintiff’s Tenth Cause of Action with respect

13

to all four medical Defendants, and in the Court’s previous order

14

on Plaintiff’s claim for negligence against Sotak, Bauer and

15

Sahba, the Court finds that Plaintiff’s claim of medical

16

negligence against Sokolov is inadequate, but his claims of

17

medical negligence against Sotak, Bauer and Sahba are adequate.

18

Accordingly, Defendant Sokolov’s Motion to Dismiss Plaintiff’s

19

Eleventh Cause of Action as to Sokolov is granted.

20

Defendants’ Motion to Dismiss as to Sotak, Bauer and Sahba is

21

denied.

22

For the

County

Defendant does not seek medical negligence liability against

23

Kroner, the County or any official capacity Defendant and so the

24

Court will not address the County Defendants’ Motion to Dismiss

25

regarding these parties.

26

///

27

///

28

///

(Pl.’s Opp. at 23:8-11.)

38

F.

1

County Defendants’ Motion to Dismiss Newly Named Doe
Defendants

2
3

County Defendants argue that Plaintiff failed to request

4

leave of court for the substitution of Defendants Mark Iwasa,

5

Shelley Jordan, Deputy Jacoby, Deputy Medeiros and Jim Austin, in

6

the place of DOE Defendants.

7

contend that the inclusion of these individuals in the CSAC is

8

improper.

9

County Defendants consequently

While not technically correct in terms of the procedure

10

proposed, the Court nonetheless finds good cause to allow

11

Plaintiff to name DOE Defendants in this consolidated action.

12

Plaintiff was granted leave to amend and consolidate his

13

complaint, and while Plaintiff was not expressly granted leave to

14

name the DOE Defendants, the Court will overlook this procedural

15

deficiency since Plaintiff has shown in his papers that the

16

inclusion of those individuals herein is proper.

17

Plaintiff sought leave to amend to name said Defendants in his

18

Consolidated Opposition dated June 28, 2012, and demonstrated why

19

each Defendant belonged in this lawsuit.

20

28:15-18.]

21

information to grant leave to name DOE defendants and therefore

22

the filing of a subsequent motion would be redundant and

23

unnecessary.

24

the newly named DOE Defendants is denied.

25

///

26

///

27

///

28

///

Specifically,

[ECF No. 90 at

The Court therefore has before it all necessary

Accordingly, County Defendants’ Motion to Dismiss

39

1

G.

Sokolov’s Motion for a More Definitive Statement

2
3

Defendant Sokolov’s motions to dismiss were granted;

4

therefore, his Motion for a More Definite Statement is deemed as

5

moot.

6
7

H.

County Defendants’ Motion to Strike

8
9

County Defendants move the Court pursuant to Rule 12(f) of

10

the Federal Rules of Civil Procedure for an order striking

11

fifteen statements from Plaintiff’s CSAC.

12

Plaintiff moves to strike are alleged conversations between

13

Plaintiff’s counsel and County Defense counsel regarding

14

Plaintiff’s medical condition during his 2010 incarceration at

15

the Main Jail.

16

“Plaintiff’s allegations regarding such conversations are highly

17

inappropriate and raise the prospect that both Plaintiff’s

18

counsel and Defense counsel would become witnesses in this case

19

in support of Plaintiff’s claims.”

20

MTS at 2:1-3.)

(Id. at 2-4.)

(MTS)

The portions

County Defendants contend that

(Defs.’ Memo. in Support of

21

Knowledge of the attorney is imputed to his client “where

22

the knowledge of the attorney has been gained in the course of

23

the particular transaction in which he has been employed by that

24

principal.”

25

(Cal. App. 2d Dist. 1986).

26

been retained for the 2007 lawsuit at the time that these alleged

27

conversations took place during the time of Plaintiff’s 2010

28

incarceration.

Zirbes v. Stratton, 187 Cal. App. 3d 1407, 1413
County Defense counsel had already

40

1

The 2007 and 2010 cases are so similar that the lawsuits have

2

been consolidated by this Court.

3

County Defense counsel had already been retained for the 2007

4

case at the time of the conversations in 2010, and that therefore

5

the knowledge of Defense counsel is imputed to Defendants.

6

id.)

7

County Defense counsel regarding Plaintiff’s condition during his

8

2010 incarceration and allegations impute knowledge to County

9

Defendants.

10

Thus, it is safe to say that

(See

Accordingly, conversations between Plaintiff’s counsel and

County Defendants’ Motion to Strike these portions

is therefore denied.

11

Denying County Defendants’ Motion to Strike these portions

12

of the Complaint does not require County Defense counsel to waive

13

the attorney-client privilege.

14

Defense counsel was retained for the purpose of litigation only,

15

but counsel was retained prior to these alleged conversations and

16

therefore it is assumed that the prudent counsel would have

17

informed County Defendants of information regarding the

18

litigation.

19

client, the Court’s decision not to strike these portions does

20

not prejudice the County Defendants because counsel does not need

21

to admit or deny that counsel shared this information with the

22

Defendants because such action is presumed.

23

The Court understands that County

Given that knowledge of a lawyer is knowledge of the

(See id.)

Moreover, County Defendants contend that Plaintiff has

24

already identified County Defense counsel as a witness.

25

that counsel is a potential witness is not a reason to strike

26

these portions of the CSAC.

27

///

28

///
41

The fact

1

Plaintiff has every right to call County Defense counsel as a

2

witness with respect to his knowledge and/or participation in the

3

circumstances surrounding Plaintiff’s 2010 incarceration during

4

the time of that imprisonment.

5

County Defendants have failed to demonstrate that any of the

6

portions moved to be stricken are irrelevant, prejudicial or

7

otherwise admissible.

8

to Strike is denied.

Accordingly, the County Defendants’ Motion

9
CONCLUSION

10
11
12

For the reasons stated above, County Defendants’ and

13

Defendant Sokolov’s motions are granted in part and denied in

14

part, consistent with the foregoing, as follows:

15

1.

16

[ECF No. 80]:

17

With respect to County Defendants’ Motion to Dismiss

a)

Plaintiff’s First Claim under § 1983 for failure to

18

provide adequate medical care is GRANTED as to Hambly, Carl,

19

Gaddis and Keillor;

20

b)

21
22

Plaintiff’s Sixth Claim under § 1983 for

retaliation for protesting is GRANTED as to Bauer, Boylan
and McGinness;

23

c)

Plaintiff’s Tenth Claim for negligence is GRANTED

24

as to McGinness, Boylan, Wilson, and Austin, and is DENIED as to

25

Felicano, Sahba, Sotak, Bauer and Kroner;

26

d)

Plaintiff’s Eleventh Claim for medical negligence

27

is DENIED as to Sotak, Bauer and Sahba;

28

///
42

1
2

e)

Defendants’ Motion to Dismiss Plaintiff’s newly

named Doe Defendants is DENIED.

3

2.

4

[ECF No. 76]:

5
6

a)

b)

11

Plaintiff’s Tenth Claim for negligence is GRANTED

as to Sokolov;

9
10

Plaintiff’s Second Claim under § 1983 for failure

to provide adequate medical care is GRANTED as to Sokolov;

7
8

With respect to Defendant Sokolov’s Motion to Dismiss

c)

Plaintiff’s Eleventh Claim for medical negligence

is GRANTED as to Sokolov.
3.

Sokolov’s Motion for a More Definitive Statement [ECF

12

No. 76] is deemed as moot because his Motion to Dismiss was

13

granted.

14

4.

15

DENIED.

16

County Defendants’ Motion to Strike [ECF No. 81] is

Because Plaintiff has already been accorded leave to amend,

17

and since his attempts to plead cognizable claims against the

18

various defendants remain unavailing as set forth above, no

19

further leave to amend will be permitted as to the claims

20

dismissed herein.

21
22

IT IS SO ORDERED.
Dated: August 21, 2012

23
24
25

_____________________________
MORRISON C. ENGLAND, JR.
UNITED STATES DISTRICT JUDGE

26
27
28
43