Rushdan v. Hamkar et al

Filing 44

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 6/6/13 RECOMMENDING that Defendants October 19, 2012 motion to dismiss 19 be granted to the following extent: a. Defendants Sahota and Bal are dismissed from this actio n; b. Plaintiffs claims that defendants denied him post- surgical pain medication in violation of the Eighth Amendment are dismissed; c. Plaintiffs state law claims are dismissed; d. Plaintiffs request for injunctive relief is moot; and Defendants Hamkar, Ali, and Nangalama be directed to file an answer to the remaining claims in this action. Referred to Judge Morrison C. England, Jr.; Objections to F&R due within 14 days.(Dillon, M)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

SALADIN RUSHDAN,

12

No. 2:12-cv-0562 MCE CKD P

Plaintiff,

13

v.

14

HAMKAR, et al.,

15

FINDINGS AND RECOMMENDATIONS
Defendants.

16
17

Plaintiff, a state prisoner proceeding pro se, has filed a civil rights action pursuant to 42

18

U.S.C. § 1983. This action proceeds on the complaint filed March 2, 2012 (ECF No. 1

19

(“Compl.”)), which was served on five named defendants (ECF No. 7). Plaintiff alleges that,

20

while he was incarcerated at California State Prison-Sacramento (“CSP-Sac”) and suffering from

21

the skin condition keloids, the physicians named as defendants were deliberately indifferent to his

22

serious medical needs in violation of the Eighth Amendment and negligent under state law.

23

Before the court is defendants’ October 19, 2012 motion to dismiss, arguing that (1)

24

plaintiff fails to state a claim concerning defendants’ alleged failure to provide pain medication;

25

(2) plaintiff fails to state a claim against defendants Bal and Sahota; (3) plaintiff’s state law

26

claims should be dismissed for failure to comply with the Government Claims Act; (4) plaintiff’s

27

request for injunctive relief is moot; and (5) plaintiff should be sanctioned with dismissal under

28

Rule 41(b) for lying about his prior litigation history. (ECF No. 19-1.) Plaintiff filed an
1

1

opposition (ECF No. 26); defendants filed a reply (ECF No. 28); and plaintiff was permitted to

2

file a sur-reply (ECF No. 40). For the reasons set forth below, the undersigned will recommend

3

that defendants’ motion to dismiss be granted in part and denied in part.

4

I. Failure to State a Claim – Bal and Sahota

5

A. Allegations

6

In its May 1, 2012 order, the court found that for screening purposes the complaint stated

7

claims against the following defendants for violating plaintiff’s Eighth Amendment protection

8

against deliberate indifference: Dr. Sahota (Chief Physician and Surgeon at CSP-Sac); Dr. Bal

9

(Chief Medical Officer at CSP-Sac); Dr. Hamkar (a physician at CSP-Sac); and Dr. Ali and Dr.

10

Nangalama (plaintiff’s primary care physicians at CSP-Sac). (ECF No. 6.)
The court first addresses defendants’ argument that plaintiff fails to state a claim against

11
12

defendants Bal and Sahota under Federal Rule of Civil Procedure 12(b)(6). The following

13

allegations are relevant:

14

Plaintiff was transferred from the California Medical Facility (CMF) to CSP-Sac in 2001.

15

(Compl. at ¶ 1.) Plaintiff had been diagnosed with keloids after an operation in 1977 at San

16

Quentin State Prison. (Id. at ¶ 2.) In 1994, plaintiff and the director of CDCR had entered into a

17

settlement agreement providing that plaintiff would receive medical care for his keloids from an

18

outside dermatologist, Dr. Grekin, in Grekin’s office or associated facility in San Francisco, on

19

dates and times specified by Dr. Grekin. (Id. at 40.1) It further provided that Dr. Grekin would

20

prescribe medical care for plaintiff to be rendered by correctional staff at CMF. (Id. at 40-41.)

21

The agreement provided that the Chief Medical Officer at CMF would oversee Dr. Grekin’s

22

prescribed medical care for plaintiff and that CDCR would fully comply with Dr. Grekin’s

23

medical orders for plaintiff. (Id., Ex. B at 41.)2
During the relevant period after plaintiff’s transfer in 2001, Dr. Sahota was the Chief

24
25

Physician and Surgeon at CSP-Sac.

26

1

27
28

2

Page citations are to page numbers assigned by the court’s docketing system.

As noted in the screening order, none of the parties to the 1994 agreement are defendants in this
action. (ECF No. 6 at 4.)
2

1

By way of position, (602) appeals and meetings, defendant Sahota
was aware of plaintiff’s serious medical needs and the prescribed
treatment necessary to combat Keloid complications. Defendant
Sahota, in a decision making position failed to ensure treatment was
available in a continuous timely manner that was medically
acceptable for his serious condition. Such a failure put plaintiff at a
substantial risk of further harm and constitute[d] act of deliberate
indifference to plaintiff’s well-documented serious medical needs.

2
3
4
5
6

(Id. at ¶19.) Similarly, plaintiff alleges: “Due to awareness, title, position and 602 appeals,

7

Defendant Sahota’s non-actions were a breach of duty, causing a relapse in Plaintiff’s Keloid

8

condition along with the additional pain and suffering plaintiff endured due to ‘no pain-

9

medication’ upon returning from surgery.” (Id. at ¶ 50.) In administrative records attached to the

10

complaint, defendant Dr. Ali notes that on June 17, 2010, he discussed plaintiff’s care for keloids

11

with Dr. Sahota. (Id., Ex. A at 33.)
Defendant Bal was Chief Medical Officer while plaintiff was at CSP-Sac,

12
13

and was responsible for ensuring inmates received necessary
prescribed care. Defendant Bal was informed by 602s and meetings
that plaintiff was not receiving his prescribed treatment for Keloid
complications in a timely manner. Defendant Bal[] was made
aware that plaintiff’s condition was exacerbating and causing pain
and suffering. Defendant Bal[] was aware of the specific and
details agreed upon treatment plan to be done continuously by Dr.
Grekin. The continuous and timely Keloid treatment /surgery was
delayed/prolonged and interfered with, causing plaintiff’s condition
to get worse during the long – no treatment – intervals. The denial
of treatment plain . . . constitut[ed] an act of deliberate indifference
to plaintiff’s well-documented medical needs.

14
15
16
17
18
19
20

(Id. at ¶ 22; see also id. at ¶ 53.) In an administrative record attached to the complaint, Dr. Bal on

21

August 4, 2009 denied an inmate appeal by plaintiff at the Second Level of Review, finding that

22

that plaintiff had timely received his pain medication following surgery in June 2009. (Id., Ex. D

23

at 59-60.)
Plaintiff further alleges that “[a]ll mentioned defendants . . . were aware that Dr. Grekin

24
25

had been approved to treat plaintiff and ha[d] control over treatment, over-all plan, consisting of

26

continuous Keloid treatment for complications.” (Id. at ¶ 27.) All defendants were “aware that

27

Dr. Grekin had ordered plaintiff returned in 6-8 week intervals – continuously rescheduled – to

28

/////
3

1

effectively combat a progressive keloid condition.”3 (Id. at ¶ 44.)

2

As recounted in the screening order, plaintiff alleges that after his 2001 transfer to CSP-

3

Sac, he was not returned to Dr. Grekin every six to eight weeks. Rather, his visits to Dr. Grekin

4

were delayed by several months and up to five years. (Id. at ¶¶10-11.) In a March 2004 inmate

5

grievance attached to the complaint, plaintiff claimed that, despite submitting numerous requests

6

for treatment, he had been at CSP-Sac “for two and a half (2 ½) years without medical treatment

7

resuming” and was losing sleep and unable to work, exercise, or eat without pain. (Id., Ex. G at

8

76.) Plaintiff alleges that between 2005 and 2010 he “[was] constantly having to beg & demand

9

that medical staff provide the necessary timely treatment/surgery as Dr. Grekin ordered, which

10

CDC medical staff did not do in a manner to reduce a relapse of condition.” (Id. at ¶ 13.) As a

11

result, his condition has “visibly spread on infected areas (shoulder) and developed into an

12

assortment of other painful and complex symptoms,” including “hundreds of ingrown hairs,

13

folliculitis,” lumps, and scarring in the face and jaw area which creates difficulty eating. This

14

worsening of his condition has led to “years of daily pain and discomfort.” (Id. at ¶¶ 14-16.)

15

B. Legal Standard

16

In order to survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a

17

complaint must contain more than a “formulaic recitation of the elements of a cause of action”; it

18

must contain factual allegations sufficient to “raise a right to relief above the speculative level.”

19

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). “The pleading must contain something

20

more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable

21

right of action.” Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp.

22

235-236 (3d ed. 2004). “[A] complaint must contain sufficient factual matter, accepted as true, to

23
24
25
26
27
28

3

The1994 settlement agreement simply provided that Dr. Grekin would treat plaintiff “on the
dates and times specified by” him. As to plaintiff’s allegation that he was ordered to be seen by
Dr. Grekin every six to eight weeks, the court assumes for purposes of the motion that plaintiff is
referring to a subsequent order or orders by Dr. Grekin. A 1992 letter by Dr. Grekin, attached to
the complaint and outlining plaintiff’s course of treatment, notes that “persistence and consistency
in therapy is extremely important. Sporadic intermittent treatments will always meet with failure.
I cannot overstate the need for patient, persistent uniform therapy in order to gain the best
possible results.” (Compl., Ex. C at 48.)
4

1

‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

2

(quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads

3

factual content that allows the court to draw the reasonable inference that the defendant is liable

4

for the misconduct alleged.” Id.

5

In considering a motion to dismiss, the court must accept as true the allegations of the

6

complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976),

7

construe the pleading in the light most favorable to the party opposing the motion, and resolve all

8

doubts in the pleader’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421, reh’g denied, 396 U.S.

9

869 (1969). The court will “‘presume that general allegations embrace those specific facts that

10

are necessary to support the claim.’” National Organization for Women, Inc. v. Scheidler, 510

11

U.S. 249, 256 (1994), quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).

12

Moreover, pro se pleadings are held to a less stringent standard than those drafted by lawyers.

13

Haines v. Kerner, 404 U.S. 519, 520 (1972).

14

The court may consider facts established by exhibits attached to the complaint. Durning

15

v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). The court may also consider facts

16

which may be judicially noticed, Mullis v. United States Bankruptcy Ct., 828 F.2d 1385, 1388

17

(9th Cir. 1987); and matters of public record, including pleadings, orders, and other papers filed

18

with the court, Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986). The

19

court need not accept legal conclusions “cast in the form of factual allegations.” Western Mining

20

Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).

21

C. Analysis
In their motion, defendants argue that plaintiff has failed to allege “deliberate

22
23

indifference” by Dr. Sahota and Dr. Bal sufficient to state an Eighth Amendment claim.

24

Defendants also argue that plaintiff has failed to allege the personal involvement of Dr. Sahota

25

and Dr. Bal in any constitutional violation so as to subject them to supervisory liability under

26

§ 1983. The court therefore reviews the allegations against these defendants in light of the

27

following legal standards:

28

////
5

1

1. Medical Indifference
Under §1983, an individual may sue “[e]very person, who, under color of [law] subjects”

2
3

him “to the deprivation of any rights, privileges, or immunities secured by the Constitution and

4

laws.” An individual may be liable for deprivation of constitutional rights “within the meaning of

5

section 1983 ‘if he does an affirmative act, participates in another’s affirmative acts, or omits to

6

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

7

made.’” Preschooler II v. Clark County Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007).
In order to state an Eighth Amendment claim for inadequate medical care, “a prisoner

8
9

must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious

10

medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). Plaintiff must plead sufficient facts

11

to permit the court to infer that (1) plaintiff had a “serious medical need,” and that (2) individual

12

defendants were “deliberately indifferent” to that need. Jett v. Penner, 439 F.3d 1091, 1096 (9th

13

Cir. 2006). A prisoner can satisfy the “serious medical need” prong by demonstrating that

14

“failure to treat [his] condition could result in further significant injury or the unnecessary and

15

wonton infliction of pain.” Id. (internal citations and quotations omitted).4
As to the “deliberate indifference” prong, individual defendants are not liable under the

16
17

Eighth Amendment for their part in denying necessary medical care unless they knew “of and

18

disregard[ed] an excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825,

19

837, (1994); Gibson v. County of Washoe, Nev., 290 F.3d 1175, 1187-88 (9th Cir. 2002).

20

Deliberate indifference contains both an objective and subjective component: “the official must

21

both be aware of facts from which the inference could be drawn that a substantial risk of serious

22

harm exists, and he must also draw that inference.” Farmer, 511 U.S. at 837. “If a person should

23

have been aware of the risk, but was not,” then the standard of deliberate indifference is not

24

satisfied “no matter how severe the risk.” Gibson, 290 F.3d at 1188 (citing Jeffers v. Gomez, 267

25

F.3d 895, 914 (9th Cir. 2001)). Plaintiffs “need not show that a prison official acted or failed to

26

act believing that harm actually would befall an inmate; it is enough that the official acted or

27
28

4

Defendants do not dispute for purposes of their Rule 12(b)(6) motion that plaintiff had a serious
medical need.
6

1

failed to act despite his knowledge of a substantial risk of serious harm.” Farmer, 511 U.S. at

2

842.

3

“The indifference to medical needs must be substantial; a constitutional violation is not

4

established by negligence or ‘an inadvertent failure to provide adequate medical care.’”

5

Anderson v. County of Kern, 45 F.3d 1310, 1316 (9th Cir. 1995) (quoting Estelle, 429 U.S. at

6

105-06). Generally, defendants are “deliberately indifferent to a prisoner’s serious medical needs

7

when they deny, delay, or intentionally interfere with medical treatment.” Hallett v. Morgan, 296

8

F.3d 732, 744 (9th Cir. 2002); Lolli v. County of Orange, 351 F.3d 410, 419 (9th Cir. 2003).

9

2. Supervisory Liability

10

Government officials acting as supervisors may be liable pursuant to Section 1983 under

11

certain circumstances. “[W]hen a supervisor is found liable based on deliberate indifference, the

12

supervisor is being held liable for his or her own culpable action or inaction, not held vicariously

13

liable for the culpable action or inaction of his or her subordinate.” Starr v. Baca, 652 F.3d 1202,

14

1207 (9th Cir. 2011).

15

A defendant may be held liable as a supervisor under Section 1983 if there exists “either

16

(1) his or her personal involvement in the constitutional deprivation; or (2) a sufficient causal

17

connection between the supervisor’s wrongful conduct and the constitutional violation.” Hansen

18

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

19

connection between a supervisor’s wrongful conduct and the violation of the prisoner’s

20

Constitutional rights can be established in a number of ways. The plaintiff may show that the

21

supervisor set in motion a series of acts by others, or knowingly refused to terminate a series of

22

acts by others, which the supervisor knew or reasonably should have known would cause others

23

to inflict a constitutional injury. Dubner v. City & County of S.F., 266 F.3d 959, 968 (9th Cir.

24

2001); Larez v. City of L.A., 946 F.2d 630, 646 (9th Cir. 1991).

25

Also, a supervisor’s own culpable action or inaction in the training, supervision, or control

26

of his subordinates may establish supervisory liability. Starr, 652 F.3d at 1208; Larez, 946 F.2d

27

at 646. Finally, a supervisor’s acquiescence in the alleged constitutional deprivation, or conduct

28

showing deliberate indifference toward the possibility that efficient performance of the task may
7

1

violate the rights of others, may establish the requisite causal connection. Starr, 652 F.3d at 1208;

2

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

3

3. Discussion

4

Here, plaintiff has alleged that Dr. Sahota and Dr. Bal were aware that plaintiff was not

5

receiving timely or adequate treatment for his keloids, but failed to ensure that plaintiff received

6

adequate treatment. Plaintiff contends that these defendants knew about his lack of treatment

7

through “position,” “title,” “602 appeals,” and “meetings.” He alleges that Dr. Bal was aware of

8

“the specific and detail[ed] agreed upon treatment plan to be done continuously by Dr. Grekin,”

9

and that Dr. Sahota also knew of plaintiff’s “prescribed treatment.”

10

However, plaintiff has not made specific, plausible allegations that these supervisory

11

defendants were “aware of facts from which the inference could be drawn that a substantial risk

12

of serious harm exist[ed], and . . . also dr[e]w that inference.” See Farmer, 511 U.S. at 837. Two

13

recent Ninth Circuit cases on supervisory liability are instructive:

14

In Starr, supra, 652 F. 3d 1202, the plaintiff, an inmate at the Los Angeles County Jail,

15

was physically attacked by inmates and deputy sheriffs. He filed a § 1983 action against Los

16

Angeles County Sheriff Leroy Baca as well as the deputies involved in the attack, arguing that his

17

conditions of his confinement violated the Eighth and Fourteenth Amendments. The plaintiff

18

contended that even though Sheriff Baca was not personally involved in the attack, Sheriff Baca

19

was nonetheless “liable in his individual capacity because he knew or should have known about

20

the dangers in the Los Angeles County Jail, and that he was deliberately indifferent to those

21

dangers.” Id. at 1204-05.

22
23
24
25
26
27
28

The Ninth Circuit concluded that plaintiff stated a deliberate indifference claim against
Sheriff Baca. Id. at 1208. The court reasoned that the complaint made
detailed factual allegations that go well beyond reciting the
elements of a claim of deliberate indifference. These allegations are
neither ‘bald’ nor ‘conclusory,’ and hence are entitled to the
presumption of truth. [Ashcroft v. Iqbal, 129 S. Ct. [1937] at
1951[, (2009)]. Starr specifically alleges numerous incidents in
which inmates in Los Angeles County jails have been killed or
injured because of the culpable actions of the subordinates of
Sheriff Baca. The complaint specifically alleges that Sheriff Baca
was given notice of all of these incidents. It specifically alleges, in
8

1

addition, that Sheriff Baca was given notice, in several reports, of
systematic problems in the county jails under his supervision that
have resulted in these deaths and injuries. Finally, it alleges that
Sheriff Baca did not take action to protect inmates under his care
despite the dangers, created by the actions of his subordinates, of
which he had been made aware.

2
3
4

...
5
Second, the factual allegations in Starr's complaint plausibly
suggest that Sheriff Baca acquiesced in the unconstitutional conduct
of his subordinates, and was thereby deliberately indifferent to the
danger posed to Starr.

6
7
8

Id. at 1216.
In contrast, in Hydrick v. Hunter, 669 F.3d 937, 941 (9th Cir. 2012), the Ninth Circuit

9
10

determined that plaintiffs, a class of civilly committed persons at Atascadero State Hospital,

11

failed to state a § 1983 claim against hospital administrators and other supervisory defendants.

12

Unlike in Starr, the Ninth Circuit reasoned, “[p]laintiff’s complaint is based on conclusory

13

allegations and generalities, without any allegation of the specific wrong-doing by each

14

Defendant. . . . [T]here is no allegation of . . . a specific event or events instigated by the

15

Defendants that led to [the] purportedly unconstitutional [conduct].” Id. at 942. Nor were there

16

“specific allegations regarding each Defendant’s purported knowledge” of the allegedly

17

unconstitutional conduct. Id. Rather, plaintiff’s claims against these defendants were “devoid of

18

specifics.” Id. The Ninth Circuit continued:

19

The absence of specifics is significant because, to establish
individual liability under 42 U.S.C. § 1983, ‘a plaintiff must plead
that each Government-official defendant, through the official's own
individual actions, has violated the Constitution.’ Iqbal, 129 S. Ct.
at 1948. Even under a ‘deliberate indifference’ theory of individual
liability, the Plaintiffs must still allege sufficient facts to plausibly
establish the defendant's ‘knowledge of’ and ‘acquiescence in’ the
unconstitutional conduct of his subordinates. Starr, 652 F.3d at
1206–07. In short, Plaintiffs’ ‘bald’ and ‘conclusory’ allegations
are insufficient to establish individual liability under 42 U.S.C. §
1983. See Iqbal, 129 S. Ct. at 1950–53; cf. Starr, 652 F.3d at 1216–
17.

20
21
22
23
24
25
26
27
28

Id.
In the instant case, the undersigned concludes that plaintiff’s allegations as to Dr. Sahota
and Dr. Bal are closer to the conclusory allegations in Hydrick than the detailed and specific
9

1

allegations in Starr. As plaintiff has not pled specific facts to plausibly establish these

2

defendants’ knowledge of or acquiescence in the alleged deliberate indifference to plaintiff’s

3

serious medical need, defendants’ Rule 12(b)(6) motion should be granted as to Dr. Sahota and

4

Dr. Bal.

5

II. Failure to State a Claim – Pain Medication

6

Defendants next argue that plaintiff has failed to state a claim based on alleged delays in

7

receiving pain medication. In fact, plaintiff makes two types of allegations regarding pain: first,

8

that his “inadequate care has subjected him to years of daily pain and discomfort” due to the

9

painful nature of keloids (e.g., Compl. at ¶ 16), and second, that he was not provided with pain

10

medication after undergoing surgery for keloids. (Compl. at ¶¶ 16, 25, 42.) Defendants’

11

argument concerns the second allegations.

12

Plaintiff has attached to the complaint a 602 inmate appeal, Log No. SAC-10-09-11305, in

13

which he stated that on June 3, 2009, after he returned from keloids surgery, the triage nurse did

14

not provide his ordered pain medication. (Compl., Ex. D at 54-61.) Plaintiff asserted that this

15

was the fifth time this had happened. (Id. at 56; see also id. at ¶ 42 (alleging that plaintiff was not

16

given his prescribed pain medication “after each treatment/surgery”).) On June 22, 2009, the first

17

level reviewer found that plaintiff’ s medication record reflected that he “received

18

Acetaminophen with Codeine #3 for pain from June 4, 2009 to June 10, 2009.” (Id. at 57.) This

19

602 appeal was subsequently denied at the second and third levels of review. (Id. at 54-61.)

20

In sum, plaintiff has specifically alleged only a one-time delay in pain medication by a

21

non-defendant nurse. Even if defendants were allegedly responsible for this delay, it does not rise

22

to the level of an Eighth Amendment violation. See Wood v. Housewright, 900 F. 2d 1332, 1335

23

(9th Cir. 1990) (alleged delay of several days in receiving pain medication did not amount to

24

constitutional violation). Nor is plaintiff’s general allegation that he was denied post-surgical

25

pain medication multiple times sufficient to state a claim against any named defendant. Insofar as

26

plaintiff claims that defendants unconstitutionally failed to provide post-surgical pain medication,

27

those claims should be dismissed.

28

/////
10

1

III. State Law Claims

2

In addition to his Eighth Amendment claims, plaintiff alleges that defendants were

3

negligent under state law. (Compl. at ¶¶ 44-48.) Defendants assert that plaintiff’s state law

4

claims should be dismissed because plaintiff has not complied with the California Tort Claims

5

Act (‘CTCA’). Gov. Code § 900 et seq.
The CTCA applies to claims brought against state employees “for injury resulting from an

6
7

act or omission in the scope of his employment as a public employee,” Cal. Gov't Code § 950.2,

8

and requires that tort claims against state employees be presented to the California Victim

9

Compensation and Government Claims Board (“Board”), formerly known as the State Board of

10

Control, no more than six months after the cause of action accrues, Cal. Gov’t Code §§ 910,

11

911.2. Once a claim is rejected and the claimant is permitted to file a lawsuit, the claimant has

12

six months after the date such notice is personally delivered or deposited in the mail within which

13

to file a law suit. Cal. Gov’t Code §§ 945.5, 945.6(a)(1).
Here, the Board received plaintiff’s claim number G593206 on November 18, 2010.

14
15

(ECF No. 20, Ex G at 65.) In it, plaintiff alleged that in December 2009, when he returned from

16

keloids surgery, Dr. Hamkar negligently failed to place Dr. Grekin’s dressing change instructions

17

into plaintiff’s medical file. (Id. at 70.) On November 22, 2010, the Board informed plaintiff that

18

the claim was not presented within six months of the alleged incidents as required. (Id. at 66.)

19

On March 25, 2011, the Board rejected plaintiff’s claim and informed him that he had only six

20

months from the date of the notice to file a court action on the claim. (Id. at 64.)

21

Plaintiff filed the instant action on March 2, 2012, well after the six-month deadline to file

22

his negligence claim had expired. The Ninth Circuit has held that “failure to comply with state-

23

imposed procedural conditions to sue the state bars the maintenance of a cause of action based

24

upon these pendent state claims.” Ortega v. O’Connor, 764 F.2d 703, 707 (9th Cir. 1985), rev’d

25

on other grounds, 480 U.S. 709 (1987), citing Willis v. Reddin, 418 F.2d 702, 704 (9th Cir.

26

1969). Thus defendants’ motion to dismiss should be granted as to plaintiff’s state law claims.

27

/////

28

/////
11

1

IV. Injunctive Relief

2

Defendants, who are all physicians at CSP-Sac, contend that plaintiff’s requested

3

injunctive relief is moot because he is no longer housed at CSP-Sac. The docket reflects that in

4

July 2012, plaintiff was transferred to CSP-Solano. (ECF No. 12.)

5

Plaintiff seeks the following injunctive relief from defendants:
A: For the “Compromise and Release” treatment plan, signed by
the Director of the California Department of Corrections to be
followed by Dr. Grekin (specialist) to have authority over the
duration of the prescribed treatment/surgery care plan.

6
7
8

B. For medical staff at CDC & R to provide the arrangement of
timely/continuously scheduled Keloid treatment/surgery, so Dr.
Grekin can effectively treat plaintiff’s condition.

9
10

C: For plaintiff to receive prescribed pain medication promptly
after returning from each Keloid treatment/surgery.

11
12

(Compl. at ¶ 23.)

13

Generally, when an inmate seeks injunctive or declaratory relief concerning the prison

14

where he is incarcerated, his claims for such relief become moot when he is no longer subjected

15

to those conditions. Nelson v. Heiss, 271 F.3d 891, 897 (9th Cir. 2001); Dilley v. Gunn, 64 F.3d

16

1365, 1368 (9th Cir.1995); Johnson v. Moore, 948 F.2d 517, 519 (9th Cir.1991). Because none

17

of the defendants are in a position to effect the requested relief now that plaintiff is house at CSP-

18

Solano, his request for injunctive relief is moot.

19

V. Prior Litigation History

20

Lastly, defendants assert that the complaint should be dismissed pursuant to Rules 11 and

21

41(b) of the Federal Rules of Civil Procedure because plaintiff misrepresented his prior litigation

22

history. In the complaint, plaintiff stated that he had only filed one prior lawsuit, Rushdan v.

23

Alameda, et al., No. 2:02-cv-1468 (E.D. Cal), which was “dismissed and settled.” (Compl. at 1.)

24

However, court records show that in Rushdan v. Alameda, the district court dismissed the action

25

for failure to exhaust administrative remedies.5

26

/////

27
28

5

A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman, 802 F.2d
500, 595 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980).
12

1

Plaintiff also failed to disclose six prior civil actions that he filed in the Eastern and

2

Northern Districts of California between 2001 and 2006, five of which were dismissed. (ECF No.

3

20, Exs. A-E.) A sixth action, Rushdan v. Weden, et al., No. 3:90-cv-2985 (N.D. Cal.), was

4

dismissed pursuant to the settlement agreement providing for Dr. Grekin’s ongoing treatment of

5

plaintiff’s keloids, described above. (ECF No. 20, Ex. F.) In his opposition to defendants’

6

motion, plaintiff asserts that he inadvertently failed to list these prior lawsuits in the complaint,

7

but was not intentionally dishonest. (ECF No. 40 at 8-9.)

8
9

Rule 11 forbids lying in pleadings, motions, and other papers filed with the court. As it
“explicitly applies to parties not represented by attorneys,” pro se litigants are not exempt from its

10

requirements. Warren v. Guelker, 29 F.3d 1386, 1390 (9th Cir. 1994). Where a pro se prisoner

11

fails to indicate in a civil action that he has filed numerous other similar suits, dismissal may be

12

an appropriate sanction. See, e.g., Cranford v. Ahlin, 2012 WL 3912762 at *6 (E.D. Cal. Sept. 7,

13

2012) (dismissing under Rule 11 duplicative lawsuit by civil detainee who failed to disclose

14

previous lawsuits).

15

Here, while plaintiff failed to disclose several previous lawsuits, the instant action is not

16

duplicative. In plaintiff’s most recent prior action, Rushdan v. Perbula, No. 2:06-cv-729 GEB

17

GGH P (E.D. Cal.), the district court on August 9, 2010 dismissed plaintiff’s complaint6 claiming

18

breach of the 1992 settlement agreement. (Id., ECF No. 73.) However, most of plaintiff’s

19

allegations in Perbula concerned his time at CMF, prior to his transfer to CSP-Sac (see id., ECF

20

No. 71 at 8), and none of the defendants in Perbula are named in the instant action.

21

As the instant action is not duplicative, the undersigned will not recommend Rule 11

22

dismissal for plaintiff’s (allegedly inadvertent) misrepresentation of his litigation history.

23

However, plaintiff is advised that any future misrepresentation to the court will be subject to

24

sanction, including possible dismissal of this action.

25

/////

26
27
28

6

The district court dismissed plaintiff’s claims for untimeliness, failure to exhaust administrative
remedies, failure to state a claim, and failure to demonstrate compliance with the California Tort
Claims act, respectively. (Id., ECF No. 71.)
13

1

VI. Conclusion
In sum, the undersigned will recommend that defendants’ Rule 12(b)(6) motion to dismiss

2
3

be granted as to defendants Sahota and Bal and as to claims that plaintiff was unconstitutionally

4

denied pain medication following surgery. The court will also recommend that plaintiff’s claims

5

for injunctive relief from defendants at CSP-Sac be denied as moot, and that plaintiff’s state law

6

claims be dismissed for failure to comply with the CTCA.
However, the court will not recommend that plaintiff’s remaining claims be dismissed as a

7
8

sanction for misrepresenting his litigation history. Rather, this action should proceed on those

9

claims against remaining defendants Dr. Ali, Dr. Hamkar, and Dr. Nangalama.

10

Accordingly, IT IS HEREBY RECOMMENDED that:

11

1. Defendants’ October 19, 2012 motion to dismiss (ECF No. 19) be granted to the

12

following extent:

13

a. Defendants Sahota and Bal are dismissed from this action;

14

b. Plaintiff’s claims that defendants denied him post-surgical pain medication in

15

violation of the Eighth Amendment are dismissed;

16

c. Plaintiff’s state law claims are dismissed;

17

d. Plaintiff’s request for injunctive relief is moot; and

18
19

2. Defendants Hamkar, Ali, and Nangalama be directed to file an answer to the remaining
claims in this action.

20

These findings and recommendations are submitted to the United States District Judge

21

assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

22

after being served with these findings and recommendations, any party may file written

23

objections with the court and serve a copy on all parties. Such a document should be captioned

24

“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

25

objections shall be served and filed within fourteen days after service of the objections. The

26

parties are advised that failure to file objections within the specified time may waive the right to

27

appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

28

/////
14

1

Dated: June 6, 2013

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

2
3
4
5

2
rush0562.mtd

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
15