Oliver v. Grounds et al

Filing 28

ORDER SERVING COGNIZABLE CLAIMS. Signed by Judge ARMSTRONG on 5/30/13. (lrc, COURT STAFF) (Filed on 5/30/2013)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

NORTHERN DISTRICT OF CALIFORNIA
8
9

MAURICE P. OLIVIER,
Plaintiff,

United States District Court
For the Northern District of California

10
11
12

No. C 12-0176 SBA (PR)
ORDER SERVING COGNIZABLE
CLAIMS

v.
R. GROUNDS, et al.,
Defendants.

13

/

14
15

Plaintiff Maurice Olivier, an inmate presently incarcerated at Pleasant Valley State

16

Prison (PVSP) in Coalinga, California, has filed a pro se civil rights action under 42 U.S.C.

17

§ 1983 alleging claims against six individuals who are employed at the Correctional Training

18

Facility (CTF) in Soledad, California, where Plaintiff was previously incarcerated. The

19

gravamen of Plaintiff’s complaint is that these individuals were deliberately indifferent to

20

Plaintiff’s serious medical needs either by not allowing him adequate time to exercise or by

21

denying him adequate pain medication.

22
23
24
25
26
27
28

Venue is proper because the events giving rise to Plaintiff’s claims occurred at CTF,
which is located in this judicial district. See 28 U.S.C. § 1391(b).
Plaintiff previously was granted leave to proceed in forma pauperis. (Dkt. 11). The
Court now conducts a preliminary screening of the Complaint.
BACKGROUND
Plaintiff alleges that he suffers from chronic fibromyalgia, migraines, insomnia, acid
reflux, high blood pressure, hypertension, emotional distress, anxiety and constipation.
Comp. at 3A. At some time not specified in the pleadings, Plaintiff requested daily access to

1

the exercise yard and to the day room to alleviate the symptoms from his medical conditions.

2

Id. The request was denied. On July 29, 2011, Plaintiff filed a California Department of

3

Corrections and Rehabilitation (CDCR) 602 Inmate Appeal which requested a CDCR Form

4

7410 Comprehensive Accommodation Chrono for daily exercise yard and day room access.

5

Id. Correctional Counselor K. Mensing denied the appeal at the first level of review. Comp.

6

at 3D. At the second level of review, CDW-C M.E. Spearman reviewed and adopted

7

Mensing's decision.1 Plaintiff claims that Warden Grounds failed to protect Plaintiff from a

8

known risk of substantial harm from his deteriorating health by not authorizing Plaintiff's

9

access to daily exercise. Comp. at 3. Warden R. Grounds followed a prison policy

United States District Court
For the Northern District of California

10

authorized by DOM Supplement #29 which instituted restrictions on recreation in response

11

to overcrowding at CTF. Warden Grounds also failed to properly train, supervise, direct or

12

control the actions of his subordinates who were responsible for denying Plaintiff's appeals

13

for adequate physical exercise.

14

On February 16, 2011, Dr. Z. Ahmed, M.D. allegedly ignored Plaintiff's medical chart

15

from Calipatria State Prison, where Plaintiff had been incarcerated prior to his transfer to

16

CTF. This chart indicated that Plaintiff be prescribed topomax and gabapentin to treat his

17

pain. Dr. Ahmed reduced Plaintiff's prescription for topomax and tapered his prescription for

18

gabapentin. Comp. at 3G. On February 17, 2011, the prison pharmacy failed to process Dr.

19

Ahmed's prescription for topomax for Plaintiff. Plaintiff requested to see a neurologist. Dr.

20

Ahmed complied and initiated a request for Plaintiff to see a neurologist.

21

On July 25, 2011, Plaintiff was seen via telemedicine consultation by neurologist

22

Asela P. Jumao, M.D. Comp. at 3H. Dr. Jumao ordered Dr. Ahmed to restart the topomax.

23

However, Dr. Jumao's recommendations were not forwarded to the North Medical Clinic to

24

process and Plaintiff continued to be denied topomax. Comp. at H. Subsequently, Dr.

25

Ahmed placed a pharmacy order for topomax but, on November 8, 2011, this was rejected by

26

Chief Medical Executive (CME) M. Sepulveda.

27
28

1

Plaintiff does not define the meaning of "CDW-C."
2

On December 12, 2011, Plaintiff was again seen by Dr. Ahmed who resubmitted

1
2

another pharmacy order attaching Dr. Jumao's recommendations. However, Plaintiff was

3

concerned that this order would again be rejected by CME Sepulveda and asked Dr. Ahmed

4

to prescribe another type of pain medication. Dr. Ahmed did so and prescribed

5

acetaminophen with codeine and naproxen. Comp. at 3H.

6

Plaintiff filed two CDCR 602 Inmate Appeals requesting that he be prescribed

7

topomax and gabapentin for his pain. CME Sepulveda and Chief Executive Officer (CEO)

8

G. Ellis denied the appeals. Comp. at 3J. CME Sepulveda denied the appeals on the grounds

9

that the topomax was not required for fibromyalgia migraine pain and that there was no

United States District Court
For the Northern District of California

10

medical indication for gabapentin and no medical studies supported the use of it for

11

Plaintiff's conditions. Comp. at 3J. In denying Plaintiff's appeals, CME Sepulveda ignored

12

Dr. Jumao's order reinstating topomax. CME Sepulveda's medical decisions subjected

13

Plaintiff to severe neurolgic damage, insomnia, fibromyalgia migraine headaches, emotional

14

distress and anxiety. Comp. at 3K.

15

On the basis of these allegations, Plaintiff claims that Defendants were deliberately

16

indifferent to his serious medical needs, and violated his rights under the Equal Protection

17

Clause of the Fourteenth Amendment, under Article II § 2 of a treaty establishing protections

18

against torture and under California Penal Code §§ 147 and 2652.

19

Plaintiff seeks monetary damages.

20
21

DISCUSSION
A.

Legal Standard for Review of Complaint

22

A federal court must engage in a preliminary screening of any case in which a

23

prisoner seeks redress from a governmental entity or officer or employee of a governmental

24

entity. 28 U.S.C. § 1915A(a). The court must identify any cognizable claims, and dismiss

25

any claims which are frivolous, malicious, fail to state a claim upon which relief may be

26

granted, or seek monetary relief from a defendant who is immune from such relief. Id. at

27

1915A(b)(1),(2). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police

28

Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
3

1

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that

2

a right secured by the Constitution or laws of the United States was violated, and (2) that the

3

violation was committed by a person acting under the color of state law. West v. Atkins, 487

4

U.S. 42, 48 (1988). Liability may be imposed on an individual defendant under 42 U.S.C.

5

§ 1983 if the plaintiff can show that the defendant proximately caused the deprivation of a

6

federally protected right. Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988); Harris v. City

7

of Roseburg, 664 F.2d 1121, 1125 (9th Cir. 1981). A person deprives another of a

8

constitutional right within the meaning of § 1983 if he does an affirmative act, participates in

9

another's affirmative act or omits to perform an act which he is legally required to do, that

United States District Court
For the Northern District of California

10

causes the deprivation of which the plaintiff complains. Leer, 844 F.2d at 633. There is no

11

liability under § 1983 solely because one is responsible for the actions or omissions of

12

another. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); Ybarra v. Reno Thunderbird

13

Mobile Home Village, 723 F.2d 675, 680-81 (9th Cir. 1984).

14

B. Legal Claims

15

1. Deliberate Indifference to Serious Medical Needs

16

Plaintiff asserts two deliberate indifference claims: the first is based on the lack of

17

adequate exercise and the second is based on the failure to provide him with adequate pain

18

medications.

19

a. Lack of Exercise

20

Exercise is one of the basic human necessities protected by the Eighth Amendment.

21

LeMaire v. Maass, 12 F.3d 1444, 1457 (9th Cir. 1993); Toussaint v. Rushen, 553 F. Supp.

22

1365, 1380 (N.D. Cal. 1983), aff'd in part and vacated in part, 722 F.2d 1490 (9th Cir. 1984).

23

Some form of regular exercise, including outdoor exercise, "is extremely important to the

24

psychological and physical well-being" of prisoners. Spain v. Procunier, 600 F.2d 189, 199

25

(9th Cir. 1979). Prison officials therefore may not deprive prisoners of regular exercise.

26

Toussaint v. McCarthy, 597 F. Supp. 1388, 1393 (N.D. Cal. 1984), rev’d on other grounds

27

801 F.2d 1080 (9th Cir. 1986). A claim of deliberate indifference against a supervisor may

28

be stated based upon the supervisor’s knowledge of and acquiescence in unconstitutional
4

1

conduct by his or her subordinates.” Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011).

2

Plaintiff's allegations that Warden Grounds instituted a policy that denied Plaintiff

3

adequate exercise and that Officers Mensing and Spearman denied Plaintiff adequate

4

exercise so that his medical conditions were exacerbated, liberally construed, states a

5

cognizable claim of deliberate indifference under the Eighth Amendment.

6
7

b. Lack of Adequate Pain Medication
Deliberate indifference to serious medical needs violates the Eighth Amendment’s

8

proscription against cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 104

9

(1976). To establish a claim for deliberate indifference to serious medical needs, the plaintiff

United States District Court
For the Northern District of California

10

must show (1) “a serious medical need by demonstrating that failure to treat a prisoner’s

11

condition could result in further significant injury or the unnecessary and wanton infliction of

12

pain,” and (2) that “the defendant’s response to the need was deliberately indifferent.” Jett v.

13

Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (internal quotations and citations omitted).

14

Plaintiff's allegations regarding Dr. Ahmed establish that although Dr. Ahmed

15

originally did not prescribe Plaintiff his allegedly proper pain medication, Dr. Ahmed

16

responded positively to Plaintiff's requests by prescribing topomax for him and by filing the

17

paperwork so that Plaintiff could be seen by a neurologist. These allegations show that,

18

contrary to Plaintiff's claim, Dr. Ahmed was responsive to Plaintiff's medical needs and

19

requests. Therefore, Plaintiff's allegations do not state a claim for deliberate indifference

20

against Dr. Ahmed and the claim against Dr. Ahmed is dismissed, with leave to amend to

21

remedy the noted deficiency.

22

Plaintiff's allegations against CME Sepulveda are sufficient to state a claim for

23

deliberate indifference to Plaintiff's serious medical needs because CME Sepulveda

24

continually denied Plaintiff the pain medication that others had prescribed for him. On the

25

other hand, Plaintiff's allegations against CEO Ellis are insufficient to state a claim. The only

26

allegation against CEO Ellis is that he denied Plaintiff's 602 appeals. From Plaintiff's

27

allegations, it appears that CME Sepulveda, rather than CEO Ellis, was the individual who

28

decided that Plaintiff was not to receive the medication that Plaintiff felt alleviated his pain.
5

1

Furthermore, Plaintiff's allegation that CEO Ellis adopted a policy to deny adequate medical

2

care is conclusory and fails to describe such a policy.

3

In order to hold Ellis liable for any constitutional deprivations, Plaintiff must allege
facts affirmatively linking him to the violation. Rizzo v. Goode, 423 U.S. 362, 371-72

5

(1976); Leer, 844 F.2d at 631. The mere fact that Ellis may have denied a 602 appeal is not

6

enough. A defendant may only be held liable in a supervisory capacity if he “participated in

7

or directed the violations, or knew of the violations and failed to act to prevent them.”

8

Taylor, 880 F.2d at 1045. Because the Complaint fails to allege any facts linking Ellis to this

9

constitutional deprivation, this claim against him will be dismissed. Plaintiff is granted leave

10
United States District Court
For the Northern District of California

4

to amend to add allegations remedying the noted deficiencies. Therefore, the claims against

11

CEO Ellis are dismissed.

12

2. Equal Protection

13

“The Equal Protection Clause of the Fourteenth Amendment commands that no State

14

shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is

15

essentially a direction that all persons similarly situated should be treated alike.” City of

16

Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985). A plaintiff alleging denial of

17

equal protection under 42 U.S.C. § 1983 based on race or other suspect classification must

18

plead intentional unlawful discrimination or allege facts that are at least susceptible of an

19

inference of discriminatory intent. Monteiro v. Tempe Union High School Dist., 158 F.3d

20

1022, 1026 (9th Cir. 1998). To state a claim for relief, the plaintiff must allege that the

21

defendant state actor acted at least in part because of plaintiff's membership in a protected

22

class. Serrano v. Francis, 345 F.3d 1071, 1081-82 (9th Cir. 2003).

23

Plaintiff avers that he was denied adequate exercise and proper medication in

24

violation of his equal protection rights under the Fourteenth Amendment. However, he

25

offers no facts to support this conclusory assertion. He does not allege that he is a member of

26

a protected class or that any Defendant acted, even in part, on the basis of Plaintiff's

27

membership in a protected class. “Threadbare recitals of the elements of a cause of action,

28

supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662,
6

1

678 (2009). Here, there are no facts in the Complaint to support Plaintiff’s claim that he was

2

discriminated against on the basis of his membership in a protected class. Plaintiff’s equal

3

protection claim is therefore dismissed with leave to amend to remedy these deficiencies, if

4

he truthfully can do so.

5

3. Claims Under Treaty Against Torture and California Criminal Statutes

6

Plaintiff has not identified any treaty against torture that would apply to him as an

7

inmate in a California state prison, nor is the Court aware of any treaty that could apply to

8

him. Therefore, this claim is DISMISSED WITHOUT LEAVE TO AMEND as amendment

9

would be futile.

United States District Court
For the Northern District of California

10

Likewise, Plaintiff's claims pursuant to California Criminal Code sections 147 and

11

2652 must be dismissed without leave to amend. Section 147, which addresses willful

12

inhumanity or oppression toward a prisoner, does not create a private right of action for a

13

civil lawsuit. See Young v. City of Visalia, 687 F. Supp. 2d 1155, 1167 (E.D. Cal. 2010).

14

Section 2652, which prohibits cruel, corporal or unusual punishment that would impair the

15

health of a prisoner, likewise does not create a private right of action, but merely sheds light

16

on a defendant's existing duty of care. See Walker v. Woodford, No. 05-cv-1705-

17

LAB(NLS); 2007 WL 2406893, *6 (S.D. Cal. 2007). Therefore, this claim is DISMISSED

18

WITHOUT LEAVE TO AMEND as amendment would be futile.

19

CONCLUSION

20

For the foregoing reasons,

21

IT IS HEREBY ORDERED THAT:

22

1. Plaintiff's deliberate indifference claim based on insufficient exercise against

23
24

Defendants Mensing, Spearman and Warden Grounds is cognizable.
2. Plaintiff's deliberate indifference to serious medical needs claim against Dr.

25

Ahmed and CEO Ellis is dismissed with LEAVE TO AMEND. Plaintiff's deliberate

26

indifference to serious medical needs claim against CME Sepulveda is cognizable.

27
28

3. Plaintiff's claim based on violation of his equal protection rights is dismissed with
leave to amend, as described above.
7

4. Plaintiff's claims under a treaty against torture and California penal statutes are

1
2

DISMISSED WITHOUT LEAVE TO AMEND.
5. The amended pleading must be in the Court's civil rights complaint form and must

3
4

include the caption and civil case number used in this Order -- No. C 12-0176 SBA (PR) --

5

and the words AMENDED COMPLAINT on the first page. Failure to file a proper

6

amended complaint within thirty (30) days of the filing date of this Order will result in

7

the dismissal of this action.

8
9
United States District Court
For the Northern District of California

10

6. The Clerk of the Court shall provide Plaintiff with a blank civil rights complaint
form.
7. The Clerk of the Court shall mail a Notice of Lawsuit and Request for Waiver of

11

Service of Summons, two copies of the Waiver of Service of Summons, a copy of the

12

complaint and all attachments thereto (docket nos. 1 and 2) and a copy of this Order to

13

Defendants Grounds, Mensing, Spearman and Sepulveda. The Clerk of the Court shall also

14

mail a copy of the complaint and a copy of this Order to the State Attorney General's Office

15

in San Francisco. Additionally, the Clerk shall mail a copy of this Order to Plaintiff.

16

8. Defendants are cautioned that Rule 4 of the Federal Rules of Civil Procedure

17

requires them to cooperate in saving unnecessary costs of service of the summons and

18

complaint. Pursuant to Rule 4, if Defendants, after being notified of this action and asked by

19

the Court, on behalf of Plaintiff, to waive service of the summons, fail to do so, they will be

20

required to bear the cost of such service unless good cause be shown for their failure to sign

21

and return the waiver form. If service is waived, this action will proceed as if Defendants

22

had been served on the date that the waiver is filed, except that pursuant to Rule 12(a)(1)(B),

23

Defendants will not be required to serve and file an answer before sixty (60) days from the

24

date on which the request for waiver was sent. (This allows a longer time to respond than

25

would be required if formal service of summons is necessary.) Defendants are asked to read

26

the statement set forth at the foot of the waiver form that more completely describes the

27

duties of the parties with regard to waiver of service of the summons. If service is waived

28

after the date provided in the Notice but before Defendants have been personally served, the
8

1

Answer shall be due sixty (60) days from the date on which the request for waiver was sent

2

or twenty (20) days from the date the waiver form is filed, whichever is later.

3

9. Defendants shall answer the complaint in accordance with the Federal Rules of

4

Civil Procedure. The following briefing schedule shall govern dispositive motions in this

5

action:

6

a. No later than sixty (60) days from the date his answer is due, Defendants

7

shall file a motion for summary judgment or other dispositive motion. The motion shall be

8

supported by adequate factual documentation and shall conform in all respects to Federal

9

Rule of Civil Procedure 56. If Defendants are of the opinion that this case cannot be

United States District Court
For the Northern District of California

10

resolved by summary judgment, they shall so inform the Court prior to the date the summary

11

judgment motion is due. All papers filed with the Court shall be promptly served on

12

Plaintiff.

13

b. Plaintiff's opposition to the dispositive motion shall be filed with the Court

14

and served on Defendants no later than sixty (60) days after the date on which Defendants'

15

motion is filed.

16
17
18
19
20
21
22
23
24

1. In the event Defendants file an unenumerated motion to dismiss under Rule
12(b), Plaintiff is hereby cautioned as follows:2
The defendants have made a motion to dismiss pursuant to Rule 12(b) of
the Federal Rules of Civil Procedure, on the ground you have not exhausted
your administrative remedies. The motion will, if granted, result in the
dismissal of your case. When a party you are suing makes a motion to dismiss
for failure to exhaust, and that motion is properly supported by declarations (or
other sworn testimony) and/or documents, you may not simply rely on what
your complaint says. Instead, you must set out specific facts in declarations,
depositions, answers to interrogatories, or documents, that contradict the facts
shown in the defendant’s declarations and documents and show that you have
in fact exhausted your claims. If you do not submit your own evidence in
opposition, the motion to dismiss, if appropriate, may be granted and the case
dismissed.
2. In the event Defendants file a motion for summary judgment, the

25
26
27

Ninth Circuit has held that the following notice should be given to Plaintiff:
2

The following notice is adapted from the summary judgment notice to be given to pro
se prisoners as set forth in Rand v. Rowland, 154 F.3d 952, 963 (9th Cir. 1998) (en banc). See
28
Wyatt v. Terhune, 315 F.3d 1108, 1120 n.14 (9th Cir. 2003).
9

1
2
3
4
5
6
7
8
9
United States District Court
For the Northern District of California

10
11

The defendants have made a motion for summary judgment by which
they seek to have your case dismissed. A motion for summary judgment under
Rule 56 of the Federal Rules of Civil Procedure will, if granted, end your case.
Rule 56 tells you what you must do in order to oppose a motion for
summary judgment. Generally, summary judgment must be granted when
there is no genuine issue of material fact--that is, if there is no real dispute
about any fact that would affect the result of your case, the party who asked for
summary judgment is entitled to judgment as a matter of law, which will end
your case. When a party you are suing makes a motion for summary judgment
that is properly supported by declarations (or other sworn testimony), you
cannot simply rely on what your complaint says. Instead, you must set out
specific facts in declarations, depositions, answers to interrogatories, or
authenticated documents, as provided in Rule 56(e), that contradict the facts
shown in the defendants’ declarations and documents and show that there is a
genuine issue of material fact for trial. If you do not submit your own evidence
in opposition, summary judgment, if appropriate, may be entered against you.
If summary judgment is granted in favor of defendants, your case will be
dismissed and there will be no trial.
See Rand, 154 F.3d at 963.

12

Plaintiff is advised to read Rule 56 of the Federal Rules of Civil Procedure and

13

Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (party opposing summary judgment must come

14

forward with evidence showing triable issues of material fact on every essential element of

15

his claim). Plaintiff is cautioned that because he bears the burden of proving his allegations

16

in this case, he must be prepared to produce evidence in support of those allegations when he

17

files his opposition to Defendants' dispositive motion. Such evidence may include sworn

18

declarations from himself and other witnesses, and copies of documents authenticated by

19

sworn declaration. Plaintiff will not be able to avoid summary judgment simply by repeating

20

the allegations of his complaint.

21
22
23
24
25

c. If Defendants wish to file a reply brief, they shall do so no later than thirty
(30) days after the date Plaintiff's opposition is filed.
d. The motion shall be deemed submitted as of the date the reply brief is due.
No hearing will be held on the motion unless the Court so orders at a later date.
10. Discovery may be taken in this action in accordance with the Federal Rules of

26

Civil Procedure. Leave of the Court pursuant to Rule 30(a)(2) is hereby granted to

27

Defendant to depose Plaintiff and any other necessary witnesses confined in prison.

28

11. All communications by Plaintiff with the Court must be served on Defendants, or
10

1

Defendants' counsel once counsel has been designated, by mailing a true copy of the

2

document to Defendants or their counsel.

3

12. It is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the Court

4

informed of any change of address and must comply with the Court's orders in a timely

5

fashion.

6

13. Extensions of time are not favored, though reasonable extensions will be granted.

7

Any motion for an extension of time must be filed no later than fifteen (15) days prior to the

8

deadline sought to be extended.

9
United States District Court
For the Northern District of California

10
11

IT IS SO ORDERED.
DATED:

5/30/13

12

SAUNDRA BROWN ARMSTRONG
United States District Judge

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
11

1
2

UNITED STATES DISTRICT COURT
FOR THE

3
NORTHERN DISTRICT OF CALIFORNIA
4
5
6
7

MAURICE P. OLIVER,

Case Number: CV12-00176 SBA

8

Plaintiff,

CERTIFICATE OF SERVICE

9
v.
United States District Court
For the Northern District of California

10
11
12

R. GROUNDS et al,
Defendant.
/

13
14
15
16
17
18

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on May 30, 2013, I SERVED a true and correct copy(ies) of the attached, by placing said
copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said
envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle
located in the Clerk's office.

19
20
21
22

Maurice P. Olivier F83603
Pleasant Valley State Prison
P.O. Box 8500
Coalinga, CA 93210

23
24
25

Dated: May 30, 2013
Richard W. Wieking, Clerk
By: Lisa Clark, Deputy Clerk

26
27
28
12

1
2
3
4

G:\PRO-SE\SBA\CR.12\Oliver176.Ord of Ser.md.wpd

5
6
7
8
9
United States District Court
For the Northern District of California

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