Hughes v. CDCR

Filing 37

ORDER signed by Judge Kimberly J. Mueller on 9/30/2014 FINDINGS AND RECOMMENDATIONS 35 are NOT Adopted; Defendant's 21 Motion to Dismiss under Rule 12(b)(1) is GRANTED; and the motion to dismiss under Rule 12(b)(6) is DENIED as MOOT; Plaintiff's amended complaint is due withing 21 days of the date of this order; this case is REFERRED back to the Magistrate Judge for further handling consistent with this order. (Reader, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BERNARD HUGHES,

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Plaintiff,

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No. 2:11-cv-01856-KJM-EFB

v.

ORDER

MARTIN H. JANSEN, M.D.,

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Defendant.

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Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action

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seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate

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Judge as provided by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On February 18, 2014, the magistrate judge filed findings and recommendations,

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which were served on all parties and which contained notice to all parties that any objections to

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the findings and recommendations were to be filed within fourteen days. Defendant has filed

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objections to the findings and recommendations.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule

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304, this court has conducted a de novo review of this case. Having carefully reviewed the file,

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the court declines to adopt the findings and recommendations and instead GRANTS the motion to

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dismiss.

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I. BACKGROUND
On July 14, 2011, Bernard Hughes (“plaintiff”), then a prisoner at Deuel

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Vocational Institute (“DVI”), filed a civil rights complaint against the California Department of

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Corrections and Rehabilitation (“CDCR”) and alleged the following: Plaintiff suffers from

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“documented major depression and other mental disorders” he was successfully treating with

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Wellbutrin. ECF No. 1 at 5. In 2010, CDCR issued a memorandum informing DVI’s medical

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staff that inmates were “hoarding and misusing” Wellbutrin and directing the staff to order and

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prescribe alternative medications. Id. at 5–6. Plaintiff “tr[ied] multiple replacements, all [of]

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which g[a]ve [him] side effects and d[id] not help treat [his] depression.” Id. at 6. Plaintiff

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requested relief in the form of an order allowing his “treating psychiatrist . . . to prescribe [him]

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Wellbutrin . . . .” Id. at 7. The court screened the complaint pursuant to 28 U.S.C. § 1915A and

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dismissed it with leave to amend for failure to state a claim upon which relief could be granted

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because plaintiff’s claim was against a state agency immune from liability under § 1983. See

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ECF No. 6 at 2–3.

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On February 8, 2012, plaintiff filed a first amended complaint (“FAC”) naming

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Dr. Jansen (identified here as “defendant”), as well as Dr. Coppola, Dr. Zhou and others as

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defendants, and alleging the following: In 2008, CDCR prescribed plaintiff Wellbutrin for his

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depression, which “worked extremely well” until May 2010, when plaintiff was prescribed

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Strattera, an ADHD medication, and attemped suicide. ECF No. 9 at 6. Suicide is a “very well-

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known [sic] and documented” side effect of Strattera, and plaintiff had “no prior history of

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suicidal behavior . . . .” Id. Plaintiff was admitted to suicide watch on June 1, 2010, and

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continued taking Strattera after defendant refused to prescribe him Wellbutrin. Id. Plaintiff told

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Dr. Zhou, his primary physiatrist operating under Dr. Coppola following his suicide attempt,

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“[his] depression and feelings of suicide . . . [were] being exacerbated by Strattera.” Id. at 7.

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Plaintiff “requested Wellbutrin on numerous occasions” but Drs. Zhou and Coppola instead

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administered “approximately ten [sic] different medications” they “approved as alternatives [sic]

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to Wellbutrin.” Id. Plaintiff suffered side effects from these medications and was unable to

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“attend yard, conduct research on [his] criminal case, and perform other various activities . . . .”
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Id. at 7–8. In 2012, plaintiff “refused further treatment” and had Dr. Hanlin, his treating

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psychiatrist at that time, request he be treated with Wellbutrin; Dr. Coppola denied the request.

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Id. at 7–9. Plaintiff requested “any [relief] [the] court deem[ed] necessary.” Id. at 5. In

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reviewing the amended complaint for screening under § 1915A, the court determined plaintiff

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could proceed in this action against defendant only. ECF No. 10 at 2. The court dismissed the

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other named defendants in part because plaintiff’s allegations they approved and prescribed

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approximately ten alternative medications showed they had not “acted with the requisite

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deliberate indifference for an Eighth Amendment claim . . . .” Id. at 2–3.

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On October 31, 2012, plaintiff was transferred from DVI, where defendant was

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and currently is employed, to Kern Valley State Prison. ECF Nos. 14 & 17 at 2. On August 9,

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2013, defendant filed a motion to dismiss plaintiff’s action or, alternatively, for a more definite

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statement in light of the broad prayer for relief in plaintiff’s First Amended Complaint. ECF No.

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21. On November 7, 2013, plaintiff filed a document he styled a “more definite statement,” or, in

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the alternative, an opposition to defendant’s motion to dismiss, and alleged the following:

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Defendant was “aware of the positive effects of Wellbutrin” plaintiff had experienced when

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defendant admitted plaintiff to suicide watch and refused to prescribe him Wellbutrin on June 1,

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2010. ECF No. 29 at 1–2. Because defendant instead prescribed plaintiff Stratterra on that date,

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plaintiff “did not receive proper treatment for [his depression] [sic] until after filing [his] initial

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complaint” and “suffered cruel and unusual punishment” in the interim. Id. at 2. Plaintiff averred

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he did not intend to “ask for anything improper” or “raise any new claims” in his First Amended

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Complaint’s prayer for relief, id. at 3, and therefore plaintiff’s original prayer for relief serves as

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his prayer for relief for this action. See Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989) (noting

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responsive pleadings “may be necessary for a pro se plaintiff to clarify his legal theories”).

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On January 16, 2014, defendant filed a reply memorandum in support of his

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motion to dismiss. ECF No. 33. Defendant argued plaintiff’s claim should be dismissed under

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Federal Rule of Civil Procedure 12(b)(1) because “the [c]ourt lack[ed] subject-matter

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jurisdiction” due to plaintiff’s failure to demonstrate an actual controversy between the parties.

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ECF No. 21 at 2. Defendant also argued plaintiff’s claim should be dismissed under Rule
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12(b)(6) because plaintiff failed to sufficiently plead a claim for cruel and unusual punishment

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under the Eighth Amendment. ECF No. 23 at 1–4.

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On February 18, 2014, the magistrate judge filed an order and findings and

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recommendations (“findings”) denying defendant’s motion to dismiss. ECF No. 35. The

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findings denied defendant’s Rule 12(b)(1) motion because plaintiff alleged an injury in fact, a

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connection between his injury and defendant’s conduct, and a likelihood his injury would be

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redressed by a favorable decision, thereby establishing a controversy between himself and

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defendant. Id. at 5. The findings also denied defendant’s Rule 12(b)(6) motion because

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“plaintiff’s pleadings place[d] [defendant] on reasonable notice as to the specific conduct . . .

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plaintiff claim[ed] violate[d] the Eighth Amendment, the harm plaintiff claim[ed] it [caused] him,

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and the remedy plaintiff [was asking] the court to grant him.” Id. at 6. Accordingly, plaintiff’s

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pleadings provided “adequate information upon which defendant [could] prepare an answer and

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proceed with a defense.” Id.

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On February 3, 2014, defendant filed an objection to the findings. ECF No. 36. In

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addition to reiterating his original arguments against plaintiff’s claims, defendant notes he is not

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plaintiff’s current treating psychiatrist and has had no involvement with plaintiff since admitting

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him to suicide watch and prescribing him Strattera on June 1, 2010. Id. at 5.

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II.

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APPLICABLE LEGAL STANDARDS
Although the court must construe pro se plaintiffs’ pleadings liberally, Erickson v.

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Pardus, 551 U.S. 89, 94 (2007) (per curiam), this rule “applies only to . . . factual allegations.”

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Neitzke, 490 U.S. at 330 n.9. “[A] liberal interpretation of a civil rights complaint may not supply

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essential elements of the claim that were not initially pled.” Armstrong v. Martinez, 1:12 CV

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00631 LJO, 2014 WL 2696625 (E.D. Cal. June 13, 2014) (quoting Bruns v. Nat’l Credit Union

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Admin., 122 F.3d 1251, 1257 (9th Cir. 1997)). Additionally, “[p]ro se litigants must follow the

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same rules of procedure that govern other litigants.” Portnoy v. City of Davis, 663 F. Supp. 2d

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949, 953 (E.D. Cal. 2009) (quoting King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987)).

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It is hornbook law that “[f]ederal courts are courts of limited jurisdiction,
possessing only that power authorized by Constitution and statute.” Gunn v. Minton, 133 S. Ct.
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1059, 1064 (2013) (internal quotation and citation omitted); accord, K2 America Corp. v. Roland

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Oil & Gas, LLC, 653 F.3d 1024, 1027 (9th Cir. 2011); Padres Gacia Una Vida Mejor v. Jackson,

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922 F. Supp. 2d 1057, 1061 (E.D. Cal. 2013). Rule 12(b)(1) allows a party to seek dismissal of

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an action where a plaintiff’s pleadings are insufficient to invoke federal subject-matter

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jurisdiction. See Friends of the River v. U.S. Army Corps of Eng’rs, 870 F. Supp. 2d 966, 972

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(E.D. Cal. 2012) (“Friends”). A challenge to subject-matter jurisdiction on the pleadings limits

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the court’s inquiry to the allegations in the complaint, see Savage v. Glendale Union High Sch.,

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343 F.3d 1036, 1039–40 n.2 (9th Cir. 2003); Friends, 870 F. Supp. 2d at 972, and “the court must

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assume that the factual allegations asserted in the complaint are true and construe those

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allegations in the light most favorable to the plaintiff.” Friends, 870 F. Supp. 2d at 972; accord

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Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003).

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When challenged, as here, “the plaintiff has the burden of establishing subject-

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matter jurisdiction” under Article III of the Constitution. Friends, 870 F. Supp. 2d at 972; accord

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Rattlesnake Coal v. U.S. E.P.A., 509 F.3d 1095, 1102 n.1 (9th Cir. 2007). To establish subject-

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matter jurisdiction, the plaintiff’s pleadings must show there is an actual, not theoretical, case or

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controversy. Arizonans for Official English v. Arizona, 520 U.S. 43, 65 (1997) (noting this test

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for standing determines whether a federal court has subject-matter jurisdiction). To show there is

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an actual controversy, the plaintiff’s pleadings must demonstrate: (1) an injury in fact; (2) a

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causal connection between the injury and the conduct complained of; and (3) a likelihood that the

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injury will be redressed by a favorable decision. See Clapper v. Amnesty Int’l USA, ___ U.S. ___,

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133 S. Ct. 1138, 1147 (2013); Harris v. Bd. of Supervisors, L.A. Cnty., 366 F.3d 754, 760 (9th

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Cir. 2004).

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Specifically, in this case, the plaintiff must meet two requirements to demonstrate

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deliberate indifference so as to satisfy his Eighth Amendment claim: “First, the plaintiff must

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show a serious medical need by demonstrating that failure to treat a prisoner's condition could

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result in further significant injury or the unnecessary and wanton infliction of pain. Second, the

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plaintiff must show the defendant's response to the need was deliberately indifferent. This second

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prong--defendant's response to the need was deliberately indifferent--is satisfied by showing (a) a
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purposeful act or failure to respond to a prisoner's pain or possible medical need and (b) harm

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caused by the indifference. Indifference may appear when prison officials deny, delay or

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intentionally interfere with medical treatment, or it may be shown by the way in which prison

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physicians provide medical care.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (internal

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citations & quotations omitted).

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To establish causation, “the plaintiff’s alleged injuries . . . must be ‘fairly

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traceable’ to the defendant’s conduct . . . .” Artichoke Joe’s v. Norton, 216 F. Supp. 2d 1084,

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1107 (E.D. Cal. 2002), aff'd sub nom. Artichoke Joe's California Grand Casino v. Norton, 353

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F.3d 712 (9th Cir. 2003) (quoting Pritikin v. Dep’t of Energy, 254 F.3d 791, 796 (9th Cir. 2001)).

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A third party cannot have caused the alleged injury. Lujan v. Defenders of Wildlife, 504 U.S. 555,

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560 (1992); Artichoke Joe’s, 216 F. Supp. 2d at 1107. To establish the alleged injury will be

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redressed by a favorable decision, the plaintiff must show it is “likely, as opposed to merely

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speculative[,] that the injury will be redressed . . . .” Artichoke Joe’s, 216 F. Supp. 2d at 1107

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(quoting Bernhardt v. Cnty. of Los Angeles, 279 F. 3d 862, 869 (9th Cir. 2002)).

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III.

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ANALYSIS OF PLAINTIFF’S COMPLAINT
Plaintiff has failed to meet his burden of establishing subject-matter jurisdiction

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because his pleadings, liberally construed, do not demonstrate an actual controversy exists.

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Plaintiff has not pled facts to demonstrate that a favorable decision would redress his alleged

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injury, nor could he if given leave to amend. Plaintiff alleges defendant prescribed him Strattera

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upon admitting him into suicide watch on June 1, 2010, but thereafter it was Drs. Zhou and

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Coppola who administered alternative medications and refused to prescribe Wellbutrin. ECF No.

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9 at 8-9; ECF No. 29 at 2. It was Dr. Coppola who denied Dr. Hanlin’s request to prescribe

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plaintiff Wellbutrin. Id. Accordingly, plaintiff has not alleged defendant actively withheld

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plaintiff’s Wellbutrin prescription at any point since their initial contact in June 2010 or after

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plaintiff was transferred from DVI. ECF Nos. 14 & 17 at 2. Further, plaintiff’s opposition

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indicates he has been prescribed Wellbutrin since initiating this action. His complaint says the

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action he seeks is “[t]o allow my treating psychiatrist the ability to prescribe me Wellbutrin to

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treat my depression.” ECF No. 1 at 5; see also ECF No. 29 at 2 (plaintiff alleging he received

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“proper treatment” for his condition after filing his initial complaint).

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Based on the complaint and as repeated in his opposition, plaintiff seeks an order

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that would restore his Wellbutrin prescription, an injury that would not be redressable by any

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order directing the defendant here to act. See, e.g., Dupree v. Lubbock Cnty. Jail, 805 F. Supp.

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20, 21 (N.D. Tex. 1992) (“[U]nder the rules requiring liberal construction of pro se petitions,

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when there is no evidence of a prayer for damages based on the allegations contained in the

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complaint, the court should consider [a] [p]laintiff's desired relief to be injunctive relief.”).

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Plaintiff’s pleadings, liberally construed, do not establish that plaintiff has standing to seek

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injunctive relief.

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A dismissal for lack of subject-matter jurisdiction generally should be without

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prejudice, Cooper v. Ramos, 704 F.3d 772, 777 (9th Cir. 2012); see also Noll v. Carlson, 809

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F.2d 1446, 1448 (9th Cir. 1987) (pro se litigant must be given leave to amend his or her complaint

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unless it is absolutely clear its deficiencies could not be cured by amendment). The court cannot

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say that plaintiff will be unable to cure the jurisdictional problems with his complaint. Moreover,

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in light of the conclusion that plaintiff lacks standing as the complaint is currently pleaded, the

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court denies the motion to dismiss under 12(b)(6) as moot.

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IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed February 18, 2014 are not adopted.

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2. Defendant’s motion to dismiss under Rule 12(b)(1) is granted and the motion to

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dismiss under Rule 12(b)(6) is denied as moot.
3. Plaintiff’s amended complaint is due within twenty-one days of the date of this
order. See Fed. R. Civ. P. 11.
4. This case is referred back to the magistrate judge for further handling consistent

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with this order.

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DATED: September 30, 2014.

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UNITED STATES DISTRICT JUDGE

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