Rowell v. Zamora, et al

Filing 64

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 3/14/2018 RECOMMENDING defendants' 54 motion to dismiss be denied. Referred to Judge Kimberly J. Mueller; Objections to F&R due within 14 days. (Yin, K)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

SEAN LOUIS ROWELL,

12
13
14

No. 2:14-cv-1888-KJM-EFB P

Plaintiff,
v.

FINDINGS AND RECOMMENDATIONS

L.D. ZAMORA, et al.,

15

Defendants.

16
17

Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

18

U.S.C. § 1983. He alleges that defendants violated his Eighth Amendment rights by deliberate

19

indifference toward his serious medical needs. ECF No. 20. Defendant A. Pomzal has filed a

20

motion to dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6). ECF No. 54. Plaintiff

21

has filed an opposition (ECF No. 61) and defendant has filed a reply (ECF No. 62). For the

22

reasons discussed below, the motion should be denied.

23

I.

Legal Standard

24

A complaint may be dismissed under that rule for “failure to state a claim upon which

25

relief may be granted.” Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss for failure to

26

state a claim, a plaintiff must allege “enough facts to state a claim to relief that is plausible on its

27

face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim has “facial plausibility

28

when the plaintiff pleads factual content that allows the court to draw the reasonable inference
1

1

that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678

2

(2009) (citing Twombly, 550 U.S. at 556). The plausibility standard is not akin to a “probability

3

requirement,” but it requires more than a sheer possibility that a defendant has acted unlawfully.

4

Iqbal, 556 U.S. at 678.

5

For purposes of dismissal under Rule 12(b)(6), the court generally considers only

6

allegations contained in the pleadings, exhibits attached to the complaint, and matters properly

7

subject to judicial notice, and construes all well-pleaded material factual allegations in the light

8

most favorable to the nonmoving party. Chubb Custom Ins. Co. v. Space Sys./Loral, Inc., 710

9

F.3d 946, 956 (9th Cir. 2013); Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012).

10

Dismissal under Rule 12(b)(6) may be based on either: (1) lack of a cognizable legal

11

theory, or (2) insufficient facts under a cognizable legal theory. Chubb Custom Ins. Co., 710 F.3d

12

at 956. Dismissal also is appropriate if the complaint alleges a fact that necessarily defeats the

13

claim. Franklin v. Murphy, 745 F.2d 1221, 1228-1229 (9th Cir. 1984).

14

Pro se pleadings are held to a less-stringent standard than those drafted by lawyers.

15

Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam). However, the Court need not accept as

16

true unreasonable inferences or conclusory legal allegations cast in the form of factual

17

allegations. See Ileto v. Glock Inc., 349 F.3d 1191, 1200 (9th Cir. 2003) (citing Western Mining

18

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

19

II.

20

Pomzal argues that plaintiff has failed to allege facts sufficient to state a cognizable claim

Analysis

21

against him. Plaintiff’s second amended complaint includes allegations that each of the

22

remaining defendants, including Pomzal, demonstrated deliberate indifference to his serious

23

medical needs by failing to adequately treat his Hepatitis C for approximately two and a half

24

years. ECF No. 20 at 3. Plaintiff claims that Pomzal, as chief physician, controlled the course of

25

his treatment by way of advice and recommendations to subordinates. Id. at 4-5. He also claims

26

that Pomzal “interviewed and examined” him in connection with his prison grievance appeals and

27

was, consequently, aware of the shortcomings in the treatment. Id. at 5. Finally, plaintiff alleges

28

that Pomzal “created a policy or custom that allowed or encouraged the illegal acts.” Id. at 8.
2

1

Pomzal raises four arguments. First, he argues that he cannot be held responsible for the

2

unconstitutional conduct of his subordinates under a theory of respondeat superior. ECF No. 54-1

3

at 4. While this is a correct articulation of law, see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009),

4

plaintiff’s claims as to Pomzal are not predicated solely on Pomzal’s supervisory position.

5

Rather, plaintiff alleges that Pomzal was directly involved in controlling the course of his

6

treatment by advising subordinate medical staff, see Hamilton v. Endell, 981 F.2d 1062, 1067 (9th

7

Cir. 1992) (holding that a supervisor may be held liable for the constitutional violations of his

8

subordinates “if the supervisor participated in or directed the violations, or knew of the violations

9

and failed to act to prevent them”), and by Pomzal’s own medical examination and assessment of

10
11

plaintiff’s medical condition.
Pomzal further argues, based on exhibits attached to the First Amended Complaint (ECF

12

No. 13 at 9), that plaintiff has misinterpreted Pomzal’s involvement. ECF No. 54-1 at 4-5. Even

13

assuming that to be the case, Pomzal has not provided any authority which supports the

14

proposition that the court may consider exhibits attached to a previous, superseded complaint in a

15

motion under Rule 12(b)(6). See Kennedy Funding, Inc. v. Chapman, 2010 U.S. Dist. LEXIS

16

60475, *14-15, 2010 WL 2528729 (N.D. Cal. June 18, 2010) (declining to consider exhibits

17

attached to a previous complaint when ruling on a 12(b)(6) motion). To the extent that Pomzal

18

asks this court to take judicial notice of those exhibits, it declines to do so. A court may generally

19

take judicial notice of earlier pleadings, but the first amended complaint is a superseded pleading

20

which no long performs any function in this case. See Shiry v. Moore, 1995 U.S. Dist. LEXIS

21

22054, *18-19, (N.D. Cal. Mar. 9, 1995) (Declining to take judicial notice of a previous

22

complaint that had been superseded). Pomzal is certainly free to utilize those documents in

23

subsequent stages of this case, whether in taking plaintiff’s deposition, testing the sufficiency of

24

his evidence with a motion under Rule 56, or in cross examination of plaintiff at trial. Simply

25

put, the remedy for defendants is provided under Rule 56 if--as they argue--the attachments to the

26

earlier complaint disprove the allegations of the instant complaint. The standards applicable

27

under Rule 56 will enable the parties and ultimately the court to analyze whether plaintiff can

28

produce evidence sufficient to enable a reasonable jury to find in his favor on the requisite
3

1

elements of his claims. But the instant motion tests only the sufficiency of the allegations in the

2

second amended complaint.

3

Finally, to the extent Pomzal alleges that plaintiff’s allegations against him are simply too

4

conclusory to proceed, the court disagrees. The court already determined that the allegations

5

were sufficiently drawn under the screening standards. And the screenings standards under 28

6

U.S.C. § 1915 mirror the standards for weighing a 12(b)(6) motion. See Watison v. Carter, 668

7

F.3d 1108, 1112 (9th Cir. 2012) (“The standard for determining whether a plaintiff has failed to

8

state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal

9

Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.”).

10

Second, Pomzal argues that liability cannot attach based solely on his participation in the

11

prison appeals process. ECF No. 54-1 at 5-6. The court agrees but, as noted above, plaintiff’s

12

claims against Pomzal are not based solely on his handling of plaintiff’s prison appeals.

13

Moreover, plaintiff appears to be raising these allegations in order to demonstrate that Pomzal

14

personally examined him and was aware of his medical condition. ECF No. 20 at 5.

15

Third, he argues that plaintiff’s allegations regarding the creation of a ‘custom or policy’

16

are insufficiently supported by factual allegations. ECF No. 54-1 at 6. A liberal reading of the

17

second amended complaint, however, indicates that the policy or custom plaintiff is referring to is

18

Pomzal’s rejection of a specialist’s recommended course of treatment. ECF No. 20 at 3-5.

19

Naturally, the court makes no finding at this time as to whether such rejection occurred or

20

whether it amounted to a policy. For the purposes of this motion, however, it treats plaintiff’s

21

allegations as true.

22

Finally, Pomzal argues that the claim that he directly participated in plaintiff’s medical

23

care is not supported by sufficient factual allegations. ECF No. 54-1 at 6-7. As noted above in

24

the rejection of Pomzal’s first argument, however, the court concludes that plaintiff’s allegations

25

of Pomzal’s involvement in his care are sufficiently drawn to state a cognizable claim under the

26

standards relevant to a 12(b)(6) motion.

27

/////

28

/////
4

1

III.

2

For the foregoing reasons, it is hereby RECOMMENDED that defendants’ motion to

3

Conclusion

dismiss (ECF No. 54) be DENIED.

4

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

5

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

6

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

7

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

8

“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

9

within the specified time may waive the right to appeal the District Court’s order. Turner v.

10

Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

11

DATED: March 14, 2018.

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5