Rowell v. Zamora, et al
Filing
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AMENDED FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 3/15/18 recommending that defendants' motion to dismiss 36 be granted in part as follows: The official capacity claims against defendants Abdur Rahman, Doroth y Swingle, and David Medina should be dismissed for failure to state a claim. The medical delberate indifference claims based on the prescription of NSAIDs against Rahman, Swingle and Medina should also be dismissed for failure to state ca claim; and the motion should be denied in all other respects. MOTION to DISMISS 36 referred to Judge Kimberly J. Mueller. Objections due within 14 days. (Plummer, M) Modified on 3/16/2018 (Plummer, M).
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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SEAN LOUIS ROWELL,
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No. 2:14-cv-1888-KJM-EFB P
Plaintiff,
v.
AMENDED FINDINGS AND
RECOMMENDATIONS
L.D. ZAMORA, et al.,
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Defendants.
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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42
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U.S.C. § 1983. He alleges that defendants violated his Eighth Amendment rights through
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deliberate indifference toward his serious medical needs. ECF No. 20. Defendant Abdur
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Rahman has filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) (ECF
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No. 36), defendants Dorothy Swingle and David Medina have joined that motion (ECF Nos. 44,
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57). Plaintiff has filed an opposition (ECF No. 56) and no reply has been filed within the allotted
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time. For the reasons discussed below, the motion should be granted in part and denied in part.
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I.
Legal Standard
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A complaint may be dismissed under that rule for “failure to state a claim upon which
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relief may be granted.” Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss for failure to
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state a claim, a plaintiff must allege “enough facts to state a claim to relief that is plausible on its
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face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim has “facial plausibility
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when the plaintiff pleads factual content that allows the court to draw the reasonable inference
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that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
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(2009) (citing Twombly, 550 U.S. at 556). The plausibility standard is not akin to a “probability
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requirement,” but it requires more than a sheer possibility that a defendant has acted unlawfully.
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Iqbal, 556 U.S. at 678.
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In addressing a motion under Rule 12(b)(6), the court generally considers only allegations
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contained in the pleadings, exhibits attached to the complaint, and matters properly subject to
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judicial notice, and construes all well-pleaded material factual allegations in the light most
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favorable to the nonmoving party. Chubb Custom Ins. Co. v. Space Sys./Loral, Inc., 710 F.3d
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946, 956 (9th Cir. 2013); Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012).
Dismissal under Rule 12(b)(6) may be based on either: (1) lack of a cognizable legal
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theory, or (2) insufficient facts under a cognizable legal theory. Chubb Custom Ins. Co., 710 F.3d
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at 956. Dismissal also is appropriate if the complaint alleges a fact that necessarily defeats the
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claim. Franklin v. Murphy, 745 F.2d 1221, 1228-1229 (9th Cir. 1984).
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Pro se pleadings are held to a less-stringent standard than those drafted by lawyers.
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Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam). However, the Court need not accept as
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true unreasonable inferences or conclusory legal allegations cast in the form of factual
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allegations. See Ileto v. Glock Inc., 349 F.3d 1191, 1200 (9th Cir. 2003) (citing Western Mining
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Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981)).
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II.
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Defendants raise two primary arguments in favor of dismissal.
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First, they argue that the allegations in the current, second amended complaint (SAC) are
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factually inconsistent with the allegations raised in the previous, first amended complaint (FAC).
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ECF No. 36-1 at 2. They contend that the claims in the FAC and SAC are “so contradictory that
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both versions of events cannot be true.” Id. at 6. Defendants also note that the exhibits attached
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to the FAC – which the court partially relied on in screening that earlier complaint – have been
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omitted from the SAC. Id. at 6-7. Based on the foregoing, they argue that the SAC was filed in
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bad faith and the court should not accept its allegations as true. Id. at 9.
Analysis
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Second, defendants argue that plaintiff is barred from seeking damages against them in
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their official capacities. Id. at 11.
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A.
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Inconsistent Allegations
The court cannot dismiss the instant complaint based on inconsistencies between it and
plaintiff’s FAC. The Ninth Circuit has held that:
The short of it is that there is nothing in the Federal Rules of Civil
Procedure to prevent a party from filing successive pleadings that
make inconsistent or even contradictory allegations. Unless there is
a showing that the party acted in bad faith--a showing that can only
be made after the party is given an opportunity to respond under the
procedures of Rule 11--inconsistent allegations are simply not a
basis for striking the pleading.
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PAE Gov't Servs. v. MPRI, Inc., 514 F.3d 856, 860 (9th Cir. 2007). Additionally, “Rule 12
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provides no authority to dismiss “sham” pleadings.” Id. Based on the foregoing, the court cannot
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strike the original complaint on a Rule 12 motion, nor can it decline to take the current allegations
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as true for purposes of a Rule 12(b)(6) motion to dismiss. Instead, “[i]f a party believes that its
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opponent pled in bad faith, it can seek other means of redress, such as sanctions under Rule 11, 28
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U.S.C. § 1927 or the court’s inherent authority.” Id. Further, defendants are free to utilize the
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earlier allegations and attachments in deposing plaintiff, and if necessary, in cross examination, as
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well in testing the sufficiency of plaintiff’s evidence in an appropriate motion under Rule 56. But
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the instant motion tests only the sufficiency of the allegations of the second amended complaint.
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For similar reasons, the court also declines to look to the administrative appeal exhibits
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attached to the FAC in weighing whether to dismiss the SAC. Generally, an amended complaint
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supersedes its predecessor, “the latter being treated thereafter as non-existent.” Rhodes v.
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Robinson, 621 F.3d 1002, 1005 (9th Cir. 2010); see also Lacey v. Maricopa Cnty., 693 F.3d 896,
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927 (9th Cir. 2012). With few exceptions, a court is not permitted to look beyond the operative
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complaint in weighing a 12(b)(6) motion. See Marder v. Lopez, 450 F.3d 445, 448 (9th Cir.
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2006). “[T]he weight of federal authority suggests that previous complaints do not generally fall
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within those exceptions.” Santana v. State of Cal. Dep't of Corr. & Rehab., Case No. 09-cv-
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03226, 2010 U.S. Dist. LEXIS 111499, at *18 (N.D. Cal. Oct. 19, 2010). Thus, the remedy for
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defendants is provided under Rule 56 if, as they argue, the attachments to the earlier complaint
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disprove the allegations of the instant complaint. The standards applicable under Rule 56 will
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enable the parties and ultimately the court to analyze whether plaintiff can produce evidence
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sufficient to enable a reasonable jury to find in his favor on the requisite elements of his claims,
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but that is not the purpose of Rule 12(b)(6).
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B.
Official Capacity Claims
The court does agree that the Eleventh Amendment bars plaintiff’s official capacity claims
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against the defendants. Under the Eleventh Amendment, a state and its official arms are immune
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from section 1983 suit. See Howlett v. Rose, 496 U.S. 356, 365 (1990); Brown v. Cal. Dept. of
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Corrections, 554 F.3d 747, 752 (9th Cir. 2009) (“California has not waived its Eleventh
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Amendment immunity with respect to claims brought under § 1983 in federal court”). And “[a]
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suit against a state official in his or her official capacity . . . is no different from a suit against the
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State itself.” Flint v. Dennison, 488 F.3d 816, 824-25 (9th Cir. 2007). It follows that state
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officials sued in their official capacity only for damages are typically entitled to immunity. Id. at
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825. Here, plaintiff has not requested any injunctive relief; he seeks only money damages. ECF
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No. 20 at 9.
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C.
Miscellaneous Arguments
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The court notes that defendants raise two other brief, ancillary arguments in their motion.
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Defendants argue that “[contradictory] factual allegations aside”, the claims in plaintiff’s
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SAC are too conclusory to proceed. ECF No. 36-1 at 10. The court has already found these
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allegations sufficient to proceed past screening, however. ECF No. 21. Accordingly it declines
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to dismiss these allegations as ‘conclusory’ at this juncture.
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Finally, defendants argue that plaintiff cannot pursue a deliberate indifference claim
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against him based on an allegation that the prescription of nonsteroidal anti-inflammatory drugs
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(NSAIDs) violated California Prison Healthcare Guidelines. ECF No. 36-1 at 10-11. Review of
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the SAC indicates that plaintiff’s allegations against the defendants are premised on two separate
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theories of medical deliberate indifference. First, he alleges that a specialist – Dr. Imperial – had
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prescribed a course of treatment that defendants declined to follow. ECF No. 20 at 6-7. He
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claims that he sustained liver damage as a result of defendants’ failure to follow Imperial’s
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recommendations. Id. at 7. This theory is suitable to proceed. Second, he claims that, after
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reviewing the aforementioned guidelines, he learned that individuals with his condition should
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not be prescribed NSAIDs – which defendants allegedly prescribed. Id. at 7-8. He goes on to
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state that, “under the Prison Health Care Guideline set, this course of treatment was medically
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unacceptable under the circumstances.” Id. at 8. Plaintiff does not, however, allege that the
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prescription of NSAIDs itself actually resulted in any direct harm to his liver (or other part of his
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person) – that is, damage beyond what was allegedly caused by the failure to implement
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Imperial’s treatment plan. “In a constitutional tort, as in any other, a plaintiff must allege that the
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defendant's actions caused him some injury.” Resnick v. Hayes, 213 F.3d 443, 449 (9th Cir.
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2000). Mere failure to comply with a prison guideline does not give rise to a cognizable injury
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under section 1983. See Ybarra v. Bastian, 647 F.2d 891, 892 (9th Cir. 1981) (“Only federal
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rights, privileges, or immunities are protected by the section. Violations of state law alone are
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insufficient.”).
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III.
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For the foregoing reasons, it is hereby RECOMMENDED that defendants’ motion to
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dismiss (ECF No. 36) be granted in part as follows:
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The official capacity claims against defendants Abdur Rahman, Dorothy Swingle,
and David Medina should be dismissed for failure to state a claim;
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Conclusion
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The medical deliberate indifference claims based on the prescription of NSAIDs
against Rahman, Swingle, and Medina should also be dismissed for failure to state a claim; and
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3.
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These findings and recommendations are submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days
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after being served with these findings and recommendations, any party may file written
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objections with the court and serve a copy on all parties. Such a document should be captioned
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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections
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The motion should be denied in all other respects.
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within the specified time may waive the right to appeal the District Court’s order. Turner v.
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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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DATED: March 15, 2018.
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