Jones v. Senogor et al

Filing 41

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 10/26/21 RECOMMENDING that defendants' motion to dismiss the first amended complaint 37 be denied. Motion 37 referred to Judge Kimberly J. Mueller. Objections due within 14 days.(Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MARK A. JONES,

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No. 2:17-cv-1422 KJM AC P

Plaintiff,

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v.

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FINDINGS AND RECOMMENDATIONS

SENOGOR, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42

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U.S.C. § 1983. Currently before the court is Defendants’ motion to dismiss the first amended

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complaint on the ground that the claims were not exhausted until after the original complaint was

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filed. ECF No. 37. Plaintiff opposes the motion. ECF No. 38.
I.

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Factual and Procedural History
A. Original Complaint

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Plaintiff filed his original complaint on July 6, 2017,1 alleging that Defendants Senogor

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and San Joaquin General Hospital violated his Eighth Amendment rights. ECF No. 1. The

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complaint alleged that Senogor performed Plaintiff’s back surgery at San Joaquin General

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Since plaintiff is a prisoner proceeding pro se, the filing date is determined according to the
prison mailbox rule. Houston v. Lack, 487 U.S. 266, 276 (1988) (establishing rule that a
prisoner’s court document is deemed filed on the date the prisoner delivered the document to
prison officials for mailing).
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Hospital on May 25, 2017, and that two hours after Plaintiff awoke from surgery, he was forced

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to walk while heavily sedated. Id. at 3. Plaintiff then suffered chest pains after his pain

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medication was removed, and he did not receive a response until an hour and a half after

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notifying a nurse. Id. at 3-4. On either May 26 or May 27, 2017, at 12:30 a.m., a transport team

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arrived to return Plaintiff to the prison. Id. at 4. During transport, which was authorized by

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Defendant Senogor, Plaintiff was chained around his back where he just had surgery, causing his

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wound to re-open and become infected, ultimately leading to another hospitalization and surgery

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on June 11, 2017. Id. Plaintiff asserted it was cruel and unusual punishment to release a patient

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hours after surgery when he was unable to move or walk. Id. The complaint was screened and

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dismissed with leave to amend because Plaintiff did not state cognizable claims against either

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Senogor or San Joaquin General Hospital. ECF No. 7.

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B. First Amended Complaint
Plaintiff filed the first amended complaint (“FAC”) on December 12, 2018. It alleged

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violations of his Eighth Amendment rights by Defendants Senogor, Veater, Pruitt, Baker, and San

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Joaquin General Hospital. ECF No. 10. The FAC described the same events addressed in the

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original complaint, making substantially the same allegations against Defendants Senogor and

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San Joaquin General Hospital and adding specific allegations against newly-named Defendants

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Pruitt, Veater, and Baker. Id. at 7-9.

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Plaintiff alleged that correctional officers Pruitt and Veater transported him back to the

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prison in an improper vehicle for transporting a surgical patient, and that when he told them about

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his surgery they replied he “was leaving one way or another.” Id. at 8. Plaintiff alleged that

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Defendants Pruitt and Veater chained him around his back, where he had just had surgery,

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causing extreme pain and bleeding. Id. They then used a wheelchair to transport him to and from

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the van, which caused additional pain and bleeding, and he was in pain the entire way back to the

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prison. Id. Defendant Baker was alleged to have trained transport officers on the protocols for

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medical transports. Id. at 9. Attached to the FAC was documentation showing Plaintiff

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exhausted an administrative appeal related to the allegations against Pruitt, Veater, and Baker on

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January 29, 2018. Id. at 10-11.
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The undersigned screened the FAC and found that Plaintiff had successfully stated an

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Eighth Amendment claim against Pruitt and Veater, but had once again failed to state cognizable

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claims against Defendants Senogor and San Joaquin General Hospital. ECF No. 13 at 3-5.

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Plaintiff also failed to state a cognizable claim against Baker. Id. at 6.

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The claims against Senogor, San Joaquin General Hospital, and Baker were ultimately

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dismissed without leave to amend. ECF No. 24. Accordingly, the case proceeds against Pruitt

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and Veater only.

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II.

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Defendants’ Motion to Dismiss
Defendants Pruitt and Veater move to dismiss the FAC on the ground that Plaintiff’s

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claims were not administratively exhausted before the original complaint was filed. ECF No. 37.

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They argue that Plaintiff’s exhaustion of his claims prior to amendment of the complaint fails to

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save them from dismissal as unexhausted, because the claims themselves are not “new” within the

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meaning of Cano v. Taylor, 739 F.3d 1214 (9th Cir. 2014), or Rhodes v. Robinson, 621 F.3d

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1002 (9th Cir. 2010). Id. at 6-7.

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Plaintiff opposes the motion on the grounds that his grievance provided the necessary

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level of detail to satisfy the exhaustion requirement, and that the exhaustion of his administrative

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remedies between the original and amended complaint was proper under Cano. ECF No. 38.

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III.

Legal Standards for Dismissal Under Federal Rule of Civil Procedure 12(b)(6)
Under Rule 12(b)(6), a complaint will be dismissed for failure to state a claim if it makes

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only “a formulaic recitation of the elements of a cause of action” rather than factual allegations

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sufficient “to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550

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U.S. 544, 555 (2007) (citations omitted). “Dismissal under Rule 12(b)(6) on the basis of an

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affirmative defense is proper only if the defendant shows some obvious bar to securing relief on

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the face of the complaint.” ASARCO, LLC v. Union Pac. R.R. Co., 765 F.3d 999, 1004 (9th Cir.

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2014) (citations omitted).

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

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complaint in question, Hosp. Bldg. Co. v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976)

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(citation omitted), and construe the pleading in the light most favorable to the party opposing the
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motion and resolve all doubts in the pleader’s favor, Jenkins v. McKeithen, 395 U.S. 411, 421

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(1969) (citations omitted). The court will “presume that general allegations embrace those

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specific facts that are necessary to support the claim.” Nat’l Org. for Women, Inc. v. Scheidler,

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

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However, while pro se pleadings are held “to less stringent standards than formal pleadings

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drafted by lawyers,” Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam) (citations omitted),

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

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

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IV.

The Administrative Exhaustion Requirement
Because Plaintiff is a prisoner suing over the conditions of his confinement, his claims are

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subject to the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a). Under the PLRA,

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“[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or

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any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until

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such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a); Porter v.

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Nussle, 534 U.S. 516, 520 (2002) (“§ 1997e(a)’s exhaustion requirement applies to all prisoners

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seeking redress for prison circumstances or occurrences”). “[T]hat language is ‘mandatory’: An

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inmate ‘shall’ bring ‘no action’ (or said more conversationally, may not bring any action) absent

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exhaustion of available administrative remedies.” Ross v. Blake, 136 S. Ct. 1850, 1856 (2016)

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(citations omitted). However, “inmates are not required to specially plead or demonstrate

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exhaustion in their complaints.” Jones v. Bock, 549 U.S. 199, 216 (2007). Instead, “the

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defendant in a PLRA case must plead and prove nonexhaustion as an affirmative defense,” and it

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is the defendant’s burden “to prove that there was an available administrative remedy, and that

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the prisoner did not exhaust that available remedy.” Albino v. Baca, 747 F.3d 1162, 1171-72 (9th

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Cir. 2014) (en banc) (citations omitted). “In the rare event that a failure to exhaust is clear on the

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face of the complaint, a defendant may move for dismissal under Rule 12(b)(6).” Id. at 1166.

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A prisoner must exhaust his available administrative remedies for constitutional claims

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prior to asserting them in a civil rights complaint. 42 U.S.C. § 1997e(a); McKinney v. Carey,

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311 F.3d 1198, 1199 (9th Cir. 2002) (per curiam). A complaint may be amended to add new
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claims so long as the administrative remedies for the new claims are exhausted prior to

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amendment. Cano v. Taylor, 739 F.3d 1214, 1220 (9th Cir. 2014); Rhodes v. Robinson, 621 F.3d

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1002, 1007 (9th Cir. 2010). However, if a prisoner exhausts a claim after bringing it before the

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court, his subsequent exhaustion cannot excuse his earlier failure to exhaust. Vaden v.

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Summerhill, 449 F.3d 1047, 1051 (9th Cir. 2006) (“[A prisoner] may initiate litigation in federal

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court only after the administrative process ends and leaves his grievances unredressed. It would

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be inconsistent with the objectives of the statute to let him submit his complaint any earlier than

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that.”); McKinney, 311 F.3d at 1199 (“a prisoner does not comply with [the exhaustion]

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requirement by exhausting available remedies during the course of the litigation.”).

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When the district court concludes that the prisoner has not exhausted administrative

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remedies on a claim, “the proper remedy is dismissal of the claim without prejudice.” Wyatt v.

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Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003) (citation omitted), overruled on other grounds by

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Albino, 747 F.3d at 1168-69.

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V.

Discussion

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It is clear from the face of the First Amended Complaint, and the parties agree, that

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Plaintiff exhausted all administrative remedies for his claims against Pruitt and Veater on January

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29, 2018. ECF No. 10 at 10-11; ECF No. 37 at 3, 5; ECF No. 38 at 2. It is thus undisputed that

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Plaintiff exhausted his claims after filing the original complaint on July 6, 2017, but before filing

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the FAC on December 12, 2018.

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Defendants argue that because the claims contained in the FAC are the same as those

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alleged in the original complaint, and arose prior to the initiation of this action, they do not

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constitute “new” claims that may be added by amendment after post-filing exhaustion.

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Defendants contend that “a ‘new’ claim is one that arises after the original complaint is filed.”

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ECF No. 37-1 at 6 (citing Cano, 739 F.3d at 1220; Rhodes, 621 F.3d at 1006-07). While

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Defendants accurately cite Rhodes for that proposition, they fail to recognize that Cano expanded

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the availability of post-exhaustion amendment to claims that arose before the original complaint

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was filed.

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In Rhodes, the Ninth Circuit held that “[t]he PLRA’s exhaustion requirement is satisfied

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so long as [the plaintiff] exhausted his administrative remedies with respect to the new claims

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asserted in his [amended complaint] before he tendered that complaint to the court for filing.”

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Rhodes, 621 F.3d at 1007. Under Rhodes, “a prisoner may file an amended complaint and add

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new claims where the additional cause of action arose after the initial filing, as long as he has

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exhausted administrative remedies as to those additional claims before filing the amended

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complaint.” Cano, 739 F.3d at 1220 (emphasis added) (citing Rhodes, 621 F.3d at 1007).

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However, in Cano itself the Ninth Circuit considered a scenario different from that presented in

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Rhodes: claims that arose prior to the filing of the original complaint, were exhausted between

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the filing of the original complaint and FAC, and were raised for the first time in the FAC. Cano,

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739 F.3d at 1220. In Cano, the court held that “claims that arose as a cause of action prior to the

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filing of the initial complaint may be added to a complaint via an amendment, as long as they are

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administratively exhausted prior to the amendment.” Id. (emphasis added). It is Cano, not

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Rhodes, that governs the instant case.

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Defendants argue that Plaintiff asserted the “exact same allegations” against them in the

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FAC as he alleged in the original complaint, and that the claims against them are thus not “new”

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claims that may be added after exhaustion. ECF No. 37-1 at 6. The court is unpersuaded. First,

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and most fundamentally, the moving Defendants were not named as defendants in the initial

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complaint. This alone distinguishes the instant case from those cited in the moving papers, in

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which the court found Cano inapplicable because the plaintiff had raised the same claims against

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the same defendants in the original and amended complaints. See O’Neal v. Peterson, No. 2:13-

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cv-1054 KJN P, 2015 WL 1183593, at *7 n.2, 2015 U.S. Dist. LEXIS 31331, at *17 (E.D. Cal.

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Mar. 13, 2015) (Cano inapplicable because plaintiff raised the same claims against the same

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defendants in original complaint); Cochran v. Aguierre, No. 1:15-cv-1092 AWI SAB P, 2017 WL

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3149585, at *7, 2017 U.S. Dist. LEXIS 116187, at *18 (E.D. Cal. July 25, 2017) (same); Ricks v.

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Doe, No. 1:10-cv-2256 LJO SKO P, 2015 WL 673035, at *5, 2015 U.S. Dist. LEXIS 18890, at

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*12 (E.D. Cal. Feb. 17, 2015) (same).

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In the case at bar, the original complaint named only Senogor and San Joaquin General

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Hospital as defendants. ECF No. 1. The few allegations that Plaintiff made about his transport

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were in the context of the appropriateness of Senogor’s release order rather than the conduct of

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the transporting officers. Id. at 4. Moreover, the allegations of the FAC are substantially more

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specific and detailed than those in the original complaint. The FAC includes additional, specific

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allegations regarding the conduct of Defendants Pruitt and Veater, including the unfit state of the

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transport van, their conduct and verbal responses disregarding Plaintiff’s concerns, and the injury

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Plaintiff suffered during the transportation as a result of their disregard for his condition. ECF

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No. 10 at 8. These are facts alleged for the first time in the FAC, in support of claims against

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newly added defendants.

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This case is analogous to Toscano v. Adam, No. 16-cv-06800-EMC, 2019 WL 2288281,

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at *11, 2019 U.S. Dist. LEXIS 90077, at *28 (N.D. Cal. May 29, 2019), in which the court

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applied Cano to find post-exhaustion amendment proper. In Toscano, as here, plaintiff exhausted

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his claims between the filing of the original complaint and the FAC. The original complaint had

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included only general allegations about healthcare and did not name the doctor as a defendant,

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while the FAC named the individual doctor as defendant and made specific claims about the

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doctor’s conduct. Id. Here, the original complaint included only general allegations about

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transport and did not name the transporting officers as defendants, while the FAC names the

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officers as defendants and makes specific claims about their conduct. Accordingly, Cano applies.

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Because Pruitt and Veater were not named as defendants in the original complaint, and

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their alleged liability is asserted for the first time in the FAC, the claims against them are “new.”

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Because plaintiff exhausted his claims against Pruitt and Veater prior to adding them by

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amendment, the exhaustion requirement is satisfied. The motion to dismiss should therefore be

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denied.

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VI.

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Plain Language Summary of this ORDER for a Pro Se Litigant
The magistrate judge is recommending that Defendants’ motion to dismiss be denied,

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because you added the claims against Pruitt and Veater after you had exhausted your prison

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appeal about what they did.
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CONCLUSION
Accordingly, IT IS HEREBY RECOMMENDED that Defendants’ motion to dismiss the
first amended complaint, ECF No. 37, be DENIED.

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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.” Any response to the

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

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

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

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DATED: October 26, 2021

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