Melvin Wishum et al v. State of California et al
Filing
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ORDER GRANTING 59 MOTION TO DISMISS. This action is DISMISSED with prejudice, and judgment shall be entered accordingly. Signed by Judge William H. Orrick on 06/25/2015. (jmdS, COURT STAFF) (Filed on 6/25/2015)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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MELVIN WISHUM, et al.,
Case No. 14-cv-01491-WHO
Plaintiffs,
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v.
ORDER GRANTING MOTION TO
DISMISS
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EDMUND G. BROWN, et al.,
Re: Dkt. No. 59
Defendants.
United States District Court
Northern District of California
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Markise Wishum died of cancer. His parents, plaintiffs Melvin Wishum and Chrystal
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Tyler, assert that defendant Matthew Cate, the former Secretary of the California Department of
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Corrections and Rehabilitation (“CDCR”), was deliberately indifferent to their son’s serious
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medical needs while he was incarcerated. Their complaint has been dismissed three times. See
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Dkt. Nos. 23, 37, 54. For reasons unexplained, Cate is the only defendant plaintiffs served with
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the Second Amended Complaint (“SAC”). Despite the directions in my earlier Order that
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dismissed the First Amended Complaint (“FAC”) against Cate and detailed the information
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needed to state a plausible claim, the SAC once again fails to adequately plead a causal connection
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between Cate’s actions and a violation of 42 U.S.C. § 1983. Because plaintiffs’ counsel admitted
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at oral argument that he had no other allegations to add to the claim against Cate, I GRANT the
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motion to dismiss with prejudice.
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BACKGROUND
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I accept all statements of material fact presented in the SAC as true. See Davis v. HSBC
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Bank Nevada, N.A., 691 F. 3d 1152, 1159 (9th Cir. 2012). In my most recent Order, I discussed
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the factual background of this case, which is substantially the same as in the FAC. See Order at 1-
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2 (Dkt. No. 54). The decedent was diagnosed with Metastatic Squamous Cell Carcinoma while he
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was incarcerated. SAC ¶ 3. He was treated for the cancer at the Natividad Medical Center and
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went into remission between September 2009 and May 2010, at which point he was released into
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the Salinas Valley State Prison. Id. ¶¶ 3, 13.
The hospital administered a CT scan in May of 2010, which did not detect a new tumor
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that the decedent had developed near his eye. Id. ¶ 13. In the months following the CT scan, the
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decedent noticed swelling over his left eye, began complaining of headaches, and requested a
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change in medication. Id. He had been instructed to have another CT scan two to three months
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after the first CT scan, but did not see a physician until February 2, 2011, nearly eight months
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later. Id. Plaintiffs allege that defendants denied the decedent medical care during this eight-
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month period, directly resulting in his death in August 2011. Id. ¶ 14.
Plaintiffs filed the SAC after I dismissed the FAC against defendant Cate for failure to
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United States District Court
Northern District of California
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state a claim against him with leave to amend. Order at 5-6. I heard oral argument on June 17,
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2015.
LEGAL STANDARD
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Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint
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if it fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to
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dismiss, the plaintiff must allege “enough facts to state a claim to relief that is plausible on its
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face.” See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547 (2007). A claim is facially plausible
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when the plaintiff pleads facts that “allow[] the court to draw the reasonable inference that the
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defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
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(internal quotations omitted). There must be “more than a sheer possibility that a defendant has
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acted unlawfully.” Id. While courts do not require “heightened fact pleading of specifics,” a
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plaintiff must allege facts sufficient to “raise a right to relief above the speculative level.”
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Twombly, 550 U.S. at 555, 570.
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In deciding whether the plaintiff has stated a claim upon which relief can be granted, the
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Court accepts the plaintiff’s allegations as true and draws all reasonable inferences in favor of the
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plaintiff. See Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, the court
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is not required to accept as true “allegations that are merely conclusory, unwarranted deductions of
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fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir.
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2008) (internal quotations omitted).
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If the court dismisses the complaint, it “should grant leave to amend even if no request to
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amend the pleading was made, unless it determines that the pleading could not possibly be cured
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by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). In making
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this determination, the court should consider factors such as “the presence or absence of undue
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delay, bad faith, dilatory motive, repeated failure to cure deficiencies by previous amendments,
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undue prejudice to the opposing party and futility of the proposed amendment.” Moore v. Kayport
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Package Exp., Inc., 885 F.2d 531, 538 (9th Cir. 1989).
DISCUSSION
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A prisoner alleging Eighth Amendment violations under section 1983 must show that (i)
United States District Court
Northern District of California
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the alleged constitutional deprivation was sufficiently serious, such that it resulted in the denial of
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“the minimal civilized measure of life’s necessities,” and that (ii) the prison official acted with
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“deliberate indifference” to the inmate’s health and safety. Farmer v. Brennan, 511 U.S. 825, 834
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(1994) (internal citations and quotations omitted). Deliberate indifference may be shown where
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“prison officials deny, delay or intentionally interfere with medical treatment, or it may be shown
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by the way in which prison officials provide medical care.” Crowley v. Bannister, 734 F.3d 967,
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978 (9th Cir. 2013) (internal citations and quotations omitted).
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A supervisor may be found liable if the supervisor “acted, or failed to act, in a manner that
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was deliberately indifferent to an inmate’s Eighth Amendment rights.” Starr v. Baca, 652 F.3d
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1202, 1206-07 (9th Cir. 2011). This requires that either (i) the supervisor was personally involved
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in the deprivation of rights, or (ii) there is a sufficient causal connection between the constitutional
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violation and the supervisor’s wrongful conduct. Id. at 1207. A causal connection may be
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established if the supervisor “set[] in motion a series of acts by others,” or “knowingly refus[ed] to
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terminate a series of acts by others, which [the supervisor] knew or reasonably should have known
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would cause others to inflict a constitutional injury.” Id. at 1207-08 (internal citations and
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quotations omitted).
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As in the prior versions of the complaint, plaintiffs have not adequately pleaded specific
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facts establishing defendant Cate’s liability. See Hydrick v. Hunter, 669 F.3d 937, 942 (9th Cir.
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2012) (holding that complaint alleging violation of section 1983 did not include sufficient facts to
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establish defendant’s liability because it was “based on conclusory allegations and generalities,
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without any allegation of the specific wrong-doing by each Defendant”). Although I described the
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type of allegations needed to support a plausible claim, plaintiffs did not allege them. See Order at
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4.
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The only updated allegations involving defendant Cate in the SAC state that (i) the
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decedent told Cate of the risk of serious harm to him, thus giving Cate “actual knowledge”; (ii)
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“CATE and/or his office was contacted repeatedly by Plaintiffs having been advised by various
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prison staff that CATE had the authority and power to intervene and order to [sic] immediate
health care for [decedent];” and (iii) “Plaintiffs’ [sic] were so desperate to obtain medical care that
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United States District Court
Northern District of California
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their persistence resulted in the actual contact and communication with [the current secretary of
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the CDCR] Beard at a time prior to the critical time of medical care.” See SAC ¶ 6. In addition,
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the SAC states that Markise Wishum spoke to the prison warden about his health issues and was
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“assured Defendant would look into the matter.” Id. ¶ 7.
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When I assume the truth of these allegations, I understand that Cate knew that Markise
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Wishum was ill. (It is worth noting that plaintiff’s counsel undercut those allegations at oral
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argument by admitting that plaintiffs did not know whether or not they actually spoke to Cate. See
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Oral Argument at 2:03:44-2:03:52 (June 17, 2015)). Even so, plaintiffs do not identify a specific
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wrongful act by Cate. An allegation that Cate knew of the decedent’s condition is not the same as
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an allegation that Cate set in motion a series of acts by others or refused to terminate the actions of
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others. See Order at 4-5. No new facts have been added regarding Cate’s alleged involvement in
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the alleged denial of medical care to the decedent or the specific denial of medical care that
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occurred. The SAC fails for the same reasons as the FAC, as set forth in my prior order.
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I inquired at the hearing if plaintiffs could allege any additional facts regarding Cate. Their
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counsel said that they could not. He argued that the defendants possessed all of the pertinent
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information about plaintiffs’ claims, see Oral Argument at 2:02:43-2:03:00 (June 17, 2015), but
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that is not true. The plaintiffs, and not defendant Cate, are in the best position to know whether
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they contacted Cate and what actions the plaintiffs and the decedent took in attempting to obtain
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medical care. In addition, plaintiffs have their son’s medical records. Counsel added that he did
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not have the needed information because his clients are “unsophisticated.” That is no excuse –
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obtaining the necessary information to assert a plausible claim is the prosecuting attorney’s
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responsibility in drafting a complaint. Without it, the complaint cannot survive a motion to
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dismiss.
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Cate was the Secretary of CDCR, charged with overseeing more than 100,000 inmates in
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more than thirty adult facilities. See California Prisoners and Parolees, 2010, California
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Department of Corrections and Rehabilitation (2011)
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http://www.cdcr.ca.gov/Reports_Research/Offender_Information_Services_Branch/Annual/CalPri
s/CALPRISd2010.pdf. It is baffling to me why plaintiffs pursued him as a defendant rather than
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United States District Court
Northern District of California
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others more directly involved in Markise Wishum’s care. But that was the choice they made.
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Because plaintiffs are unable to allege particularized facts to establish that Cate was personally
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involved in the alleged Eighth Amendment violations, or that there was a causal connection
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between Cate’s conduct and the constitutional violation to support their claims, dismissing the
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complaint with leave to amend yet another time would be futile. See Lopez, 203 F.3d at 1129
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(“district courts are only required to grant leave to amend if a complaint can possibly be saved”).
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Accordingly, the SAC fails to state a claim upon which relief can be granted, cannot be saved, and
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must be DISMISSED.
CONCLUSION
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For the foregoing reasons, defendant Cate’s motion to dismiss is GRANTED. Plaintiffs
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previously abandoned their claims against Governor Brown and never served Warden Hedgepath.
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See Dkt. No. 37. This action is DISMISSED with prejudice, and judgment shall be entered
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accordingly.
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IT IS SO ORDERED.
Dated: June 25, 2015
______________________________________
WILLIAM H. ORRICK
United States District Judge
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