Hutchison v. California Prison Industry Authority et al

Filing 8

ORDER OF SERVICE OF AMENDED COMPLAINT. Habeas Answer or Dispositive Motion due by 6/3/2014. Signed by Judge Claudia Wilken on 4/4/2014. (Attachments: # 1 Certificate/Proof of Service)(ndr, COURT STAFF) (Filed on 4/4/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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EDWIN JAY HUTCHISON,

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United States District Court
For the Northern District of California

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Plaintiff,

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v.

Case No.: C 13-4635 CW (PR)
ORDER OF SERVICE OF AMENDED
COMPLAINT

CALIFORNIA PRISON INDUSTRY
AUTHORITY, et al.,
Defendants.

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INTRODUCTION
Plaintiff Edwin Jay Hutchison, a state prisoner incarcerated

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at San Quentin State Prison (SQSP), filed a pro se civil rights

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action pursuant to 42 U.S.C. § 1983, alleging the violation of his

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constitutional rights by the California Prison Industry Authority

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(CALPIA), operating under the auspices of the California

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Department of Corrections and Rehabilitation (CDCR), and

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individuals who are employees of CALPIA or of SQSP.

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On January

13, 2014, the Court dismissed with leave to amend the claims
asserted by Plaintiff because he did not causally connect the

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actions of each Defendant to the alleged constitutional
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deprivations.

On February 6, 2014, Plaintiff filed his First

Amended Complaint (1AC), which the Court now reviews.

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DISCUSSION
I.

Standard of Review
A federal court must conduct a preliminary screening in any

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case in which a prisoner seeks redress from a governmental entity

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or officer or employee of a governmental entity.

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§ 1915A(a).

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claims and dismiss any claims that are frivolous, malicious, fail

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to state a claim upon which relief may be granted or seek monetary

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relief from a defendant who is immune from such relief.

United States District Court
For the Northern District of California

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28 U.S.C.

In its review, the court must identify any cognizable

§ 1915A(b)(1), (2).

Id.

Pro se pleadings must be liberally construed.

Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.
1988).
To state a claim under 42 U.S.C. § 1983, a plaintiff must
allege two essential elements: (1) that a right secured by the

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Constitution or laws of the United States was violated, and
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(2) that the alleged violation was committed by a person acting
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under the color of state law.

West v. Atkins, 487 U.S. 42, 48

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(1988).
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Liability may be imposed on an individual defendant under 42
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U.S.C. § 1983 if the plaintiff can show that the defendant’s
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actions both actually and proximately caused the deprivation of a
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federally protected right.

Lemire v. California Dept. Corrections

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& Rehabilitation, 726 F.3d 1062, 1074 (9th Cir. 2013); Leer v.
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Murphy, 844 F.2d 628, 634 (9th Cir. 1988); Harris v. City of
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Roseburg, 664 F.2d 1121, 1125 (9th Cir. 1981).

A person deprives

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another of a constitutional right within the meaning of § 1983 if
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he does an affirmative act, participates in another's affirmative
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act or omits to perform an act which he is legally required to do,
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that causes the deprivation of which the plaintiff complains.

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Leer, 844 F.2d at 633.

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superior liability under § 1983.

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in layman's terms, under no circumstances is there liability under

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§ 1983 solely because one is responsible for the actions or

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omissions of another.

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Cir. 1989); Ybarra v. Reno Thunderbird Mobile Home Village, 723

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F.2d 675, 680-81 (9th Cir. 1984).

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Under no circumstances is there respondeat
Lemire, 726 F.3d at 1074.

Or,

Taylor v. List, 880 F.2d 1040, 1045 (9th

A supervisor may be liable under § 1983 upon a showing of

United States District Court
For the Northern District of California

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personal involvement in the constitutional deprivation or a

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sufficient causal connection between the supervisor's wrongful

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conduct and the constitutional violation.

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Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (en banc) (citation

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omitted).

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constitutional violations of his subordinates if the supervisor

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participated in or directed the violations, or knew of the

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violations and failed to act to prevent them."

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at 1045.

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"a policy so deficient that the policy itself is a repudiation of

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constitutional rights and is the moving force of the

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constitutional violation."

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Gomez, 267 F.3d 895, 917 (9th Cir. 2001).

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II.

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Redman v. County of San

A supervisor therefore generally "is only liable for

Taylor, 880 F.2d

This includes allegations that a supervisor implemented

Redman, 942 F.2d at 1446; Jeffers v.

Plaintiff’s Allegations
In his 1AC, Plaintiff asserts: (1) an Eighth Amendment claim

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for deliberate indifference to the serious risk of harm from

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exposing him to asbestos and lead at the CALPIA furniture factory

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where he worked; (2) a state law claim against the CALPIA under

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California Government Code section 835,1 which provides that a

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public entity is liable for injury proximately caused by a

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dangerous condition on its property; (3) an Eighth Amendment claim

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for deliberate indifference to his serious medical need by failing

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to provide testing to determine his exposure to asbestos or lead;

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and (4) a state law claim for fraudulent concealment.

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A. Claim for Deliberate Indifference to Serious Risk of Harm

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The legal standard for this Eighth Amendment claim was

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provided in the Court’s Order dismissing the complaint with leave

United States District Court
For the Northern District of California

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to amend.

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Defendants in this claim: (1) Ronald Glass, CALPIA Industrial

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Supervisor; (2) Gary S. Loredo, CALPIA Superintendent II;

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(3) Philip Earley, CALPIA Industries Administrator/Lead Manager;

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(4) Luu Rogers, CALPIA Industrial Supervisor/Health and Safety

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Coordinator; (5) John Walker, SQSP Health and Safety Manager;

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(6) Elizabeth Babcock, SQSP Hazardous Material Specialist;

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(7) Brad Smith, Branch Manager at CALPIA Sacramento Headquarters;

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(8) Charles Pattillo, General Manager at CALPIA Sacramento

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Headquarters; and (9) Kevin Chappell, SQSP Warden.

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See Doc. no. 5 at 6-7.

Plaintiff names the following

In the Order of Dismissal, the Court found that Plaintiff’s

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allegations of exposure to lead and asbestos were sufficiently

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serious to fulfill the objective requirement of an Eighth

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Amendment violation but that he had failed to allege the

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subjective component of the claim.

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U.S. 825, 832 (1994).

See Farmer v. Brennan, 511

For Plaintiff to remedy this deficiency,

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Plaintiff refers to California Government Code section 830,
but he quotes from California Government Code section 835. The
latter appears to be the relevant statute.

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the Court indicated that he must allege how each Defendant knew

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that he faced a substantial risk of serious harm and how that

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Defendant failed to take reasonable steps to abate that risk of

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serious harm.

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Plaintiff’s amended allegations indicate what each Defendant

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knew about the hazardous conditions at the furniture factory, that

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each Defendant had a responsibility to remedy the hazardous

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conditions, and that each Defendant failed to do so.

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allegations are sufficient to state a cognizable Eighth Amendment

United States District Court
For the Northern District of California

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The amended

against all the above-named Defendants.

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B. Public Entity Liability Claim Against CALPIA

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Plaintiff alleges that CALPIA, operating under the auspices

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of the CDCR, is a public entity responsible for the operation of

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the furniture factory where Plaintiff worked.

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Plaintiff was allegedly exposed to the hazardous conditions of

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latent asbestos fibers and lead-based paints.

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that CALPIA was responsible for creating these dangerous

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conditions and failed to remedy them, even after it became aware

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of their existence.

At that factory,

Plaintiff alleges

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California Government Code section 835 provides:

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Except as provided by statute, a public entity is liable for
injury caused by a dangerous condition of its property if the
plaintiff establishes that the property was in a dangerous
condition at the time of the injury, that the injury was
proximately caused by the dangerous condition, that the
dangerous condition created a reasonably foreseeable risk of
the kind of injury which was incurred, and that either:

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(a) A negligent or wrongful act or omission of an employee of
the public entity within the scope of his employment created
the dangerous condition; or

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(b) The public entity had actual or constructive notice of
the dangerous condition under section 835.2 a sufficient time
prior to the injury to have taken measures to protect against
the dangerous condition.
Cal. Gov. Code § 835.
Liberally construed, Plaintiff’s allegations state a claim
against CALPIA under section 835.

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C. Claim for Deliberate Indifference to Serious Medical Needs

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The legal standard for this Eighth Amendment claim also was

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provided in the Court’s Order dismissing the complaint with leave

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to amend.

See Doc. no. 5 at 7-8.

Plaintiff names the following

United States District Court
For the Northern District of California

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Defendants in this claim: (1) Dr. John Cranshaw, Plaintiff’s

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primary care provider (PCP) during the time at issue; (2) R.

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Dixon, RN, who denied Plaintiff’s appeal pertaining to his lack of

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adequate medical treatment at the first level of review; (3)

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Andrew W. Deems, Chief Executive Officer (CEO) of SQSP Health Care

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Services, who denied Plaintiff’s appeal at the second level of

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review; (4) C. Harless, Health Care Appeals Coordinator, who
denied Plaintiff’s request for an interview regarding the delay in
the response to his original appeal; and (5) Chief L.D. Zamora,
who denied Plaintiff’s appeal at the third level of review.
In its previous Order, the Court found that Plaintiff had

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alleged a serious medical need, but had failed to allege that
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Defendants were aware that Plaintiff faced a substantial risk of
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serious harm and disregarded that risk by failing to take
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reasonable steps to abate it.
In his 1AC, Plaintiff alleges the following against Dr.
Cranshaw.

On July 4, 2012, while Plaintiff was working at the

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CALPIA factory, he submitted a health care services request form

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to Dr. Cranshaw seeking comprehensive blood and lungs testing for

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possible exposure to lead and/or asbestos while he was assigned to

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the CALPIA furniture factory.

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Cranshaw mailed a note to Plaintiff stating, “Plaintiff have [sic]

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not been identified by PIA as significantly exposed to lead or

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asbestos.

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Department] can do to evaluate you.

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United States District Court
For the Northern District of California

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1AC, Ex. R.

On July 5, 2012, Dr.

Therefore, there is nothing we [SQSP Medical
IF you believe you are

significantly exposed, please discuss it with the appropriate
individuals in the PIA.”

1AC, Ex. R.

Plaintiff alleges that Dr. Cranshaw’s denial of testing was
the result of action by P. Early who had notified the SQSP Medical
Department of the inmates to be tested as a result of a June 6,

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2012 exposure incident.
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Plaintiff claims that Dr. Cranshaw’s reliance on P. Early’s
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notification was contrary to recognized rules and procedures which
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provide that only health care staff are authorized to diagnose
illnesses, prescribe medication and treat inmates and, because Dr.
Cranshaw did not obey these procedures, he was deliberately
indifferent toward Plaintiff’s serious medical needs.
Even if Dr. Cranshaw’s reliance on P. Early’s notification

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violated prison regulations, it does not rise to the level of

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deliberate indifference.

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submitted one request for testing to Dr. Cranshaw based on his

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possible exposure to asbestos or lead while working at the CALPIA

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factory, which Dr. Cranshaw denied.

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testing, without more, does not show deliberate indifference.

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Furthermore, even though Plaintiff alleges in his 1AC that, from

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August 2009 to the present he suffers from severe pain, frequent

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headaches, nasal and sinus problems, coughing and chest pains, see

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1AC at 12, in his request for testing, Plaintiff did not inform

The allegations show that Plaintiff

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The denial of one request for

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Dr. Cranshaw that he had any physical signs or symptoms from

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asbestos or lead exposure, see 1AC, Ex. R.

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allegations fail to show that, at the time Dr. Cranshaw denied

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Plaintiff’s request, he was aware that Plaintiff had a serious

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medical need and that his denial of testing would create a

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substantial risk of serious harm.

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United States District Court
For the Northern District of California

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Thus, Plaintiff’s

Accordingly, the Eighth

Amendment claim against Dr. Cranshaw is dismissed, without leave
to amend further.
Plaintiff alleges that Nurse Dixon denied his first level
appeal for medical testing.

In her denial, Nurse Dixon wrote that

Plaintiff was not “identified by P. Earley on the day of the
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incident.

Plaintiff can go to the PIA supervisor to file a

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workman’s compensation form and the medical department will
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address any and all medical issue reported.
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At this time there is

no definitive test for exposure to asbestos.”
Plaintiff argues that Nurse Dixon was deliberately
indifferent to his medical needs because she should have provided

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Plaintiff with the “mandatory medical questionnaire” which must be

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administered to all employees who are exposed to asbestos.

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also alleges that, contrary to Nurse Dixon’s statement, tests for

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exposure to asbestos do exist.

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above in regard to Dr. Cranshaw, these allegations are

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insufficient to state a claim for deliberate indifference against

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Nurse Dixon.

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grievance does not amount to a constitutional violation.

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Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (no federal

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constitutional right to a prison administrative appeal or

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grievance system for California inmates); Mann v. Adams, 855 F.2d

He

For the same reasons discussed

Furthermore, the denial of an administrative

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See

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639, 640 (9th Cir. 1988); Antonelli v. Sheahan, 81 F.3d 1422, 1430

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(7th Cir. 1996).

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Plaintiff alleges that CEO Deems, C. Harless and L.D. Zamora

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are also liable because they denied his appeals at higher levels

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of review.

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insufficient to state an Eighth Amendment claim against these

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United States District Court
For the Northern District of California

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Defendants.

For the reasons discussed above, these allegations are

See Ramirez, 334 F.3d at 860.

Accordingly, the

Eighth Amendment claim based on the allegations that Defendants
denied Plaintiff’s appeals is dismissed without leave to amend
further.
However, Plaintiff also alleges that Deems, as CEO of SQSP

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Health Care Services, created a policy, custom and practice of
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denying prisoners, including Plaintiff, adequate medical attention
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and treatment for exposure to asbestos, as evidenced by CEO
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Deems’s delay and denial of testing Plaintiff for signs and
symptoms of asbestos or lead exposure.

As stated above, a

supervisor may be liable if he implemented "a policy so deficient

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that the policy itself is a repudiation of constitutional rights

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and is the moving force of the constitutional violation."

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942 F.2d at 1446; Jeffers, 267 F.3d at 917.

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did not have sufficient information to be aware that his denial of

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testing might cause a serious risk to Plaintiff’s health,

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Defendant Deems, as CEO of SQSP Health Care Services, allegedly

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knew or should have known of a risk of exposure to asbestos and

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lead at the CALPIA factory, and yet did not implement a policy

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that allowed Plaintiff, who feared he had been exposed to asbestos

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and lead, to be tested for such.

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alleges a policy so deficient that the policy itself is a

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repudiation of constitutional rights.

Redman,

Although Dr. Cranshaw

Liberally construed, this

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Therefore, Plaintiff

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sufficiently alleges an Eighth Amendment violation against CEO

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Deems.

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D. Claim for Fraudulent Concealment

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Plaintiff sues SQSP Appeals Coordinator Steve Hay and SQSP

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Correctional Officer Keith Davis for fraudulent concealment.

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Plaintiff alleges that Appeals Coordinator Hay received a

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United States District Court
For the Northern District of California

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directive to decide Plaintiff’s appeal, regarding unsafe
conditions, within thirty days.

Although Plaintiff’s next

allegations are difficult to follow, it appears that he faults
Appeals Coordinator Hay for writing that B. Smith, PIA Branch
Manager, was no longer available when Appeals Coordinator Hay knew

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that B. Smith was available.

Plaintiff argues that this, and the

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fact that Appeals Coordinator Hay responded after the thirty-day
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deadline, show that Appeals Coordinator Hay is liable for
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fraudulent concealment because he “assisted the Defendants from
answering their own wrongs” and hindered Plaintiff “from
discovering his course of action in this matter, thereby

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preventing Plaintiff’s due process of exhausting administrative

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remedies.”

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notice from Appeals Coordinator Hay that his appeal was screened

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out and rejected.

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Plaintiff’s original filing, his appeal was denied at the third

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level of review.

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Appeals Coordinator Hay intentionally concealed and misrepresented

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material facts under a “Code of Silence” which encourages prison

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employees to remain silent about improper behavior of their fellow

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employees.

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1AC at 61-61.

On April 12, 2013, Plaintiff received

On May 13, 2013, approximately ten months after

Plaintiff claims that this also shows that

These allegations do not state a claim against Appeals
Coordinator Hay.

As discussed above, the denial of an appeal does

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not rise to the level of a constitutional violation.

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Plaintiff does not sufficiently allege the elements of common law

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fraud or fraudulent concealment.

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Appeals Coordinator Hay is dismissed.

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to amend further because Plaintiff has had an opportunity to

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remedy this claim and has failed to do so.

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United States District Court
For the Northern District of California

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Further,

Therefore, this claim against
Dismissal is without leave

Plaintiff alleges that Officer Davis observed the dangerous
conditions from asbestos at the CALPIA furniture factory when
supervising Plaintiff’s work detail, but remained silent.

Based

on this, Plaintiff claims that Officer Davis is liable for
implementing the Code of Silence regarding the improper behavior

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of other employees.
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This allegation is insufficient to state a claim against
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Officer Davis.
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Officer Davis may not have been aware of any

danger from asbestos exposure.

This can be inferred from the fact

that Officer Davis’s presence in the factory supervising
Plaintiff’s work detail may have exposed him to the same hazardous

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conditions as Plaintiff.

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insufficient to state a claim for fraud or fraudulent concealment.

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Furthermore, the allegations are

Therefore, this claim against Officer Davis is dismissed.

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Dismissal is without leave to amend further because Plaintiff has

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had an opportunity to remedy this claim and has failed to do so.

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CONCLUSION

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For the foregoing reasons, the Court orders as follows:

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1.

Plaintiff fails to state a cognizable claim for

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fraudulent concealment.

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amend.

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This claim is dismissed without leave to

2. Plaintiff fails to state a cognizable Eighth Amendment
claim for deliberate indifference to serious medical needs against
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Dr. Cranshaw.

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against Nurse Dixon, CEO Deems, C. Harless and L. D. Zamora based

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on their denial of his appeals.

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Defendants is dismissed without leave to amend.

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Plaintiff states a cognizable Eighth Amendment claim against CEO

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Deems who, as CEO of the Health Services Department, allegedly

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created a policy, custom or practice of failing to test inmates

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who may have been exposed to asbestos.

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United States District Court
For the Northern District of California

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He also fails to state this Eighth Amendment claim

The claim against these
However,

3. Plaintiff states a cognizable Eighth Amendment claim for
deliberate indifference to hazardous conditions against all the
Defendants he names in that claim.

Plaintiff also states a

cognizable state law claim against CALPIA.
4. In order to encourage the just, speedy and inexpensive

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determination of 42 U.S.C. § 1983 cases filed in this district,
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the parties may waive their right to proceed before a district
judge and consent to proceed before a magistrate judge for all
purposes.

Attached to this Order is a Notice of Option to Consent

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to Proceed Before United States Magistrate Judge and an Order

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requiring the parties to notify the Court whether they consent or

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decline to so proceeding.

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requisite consent or declination form and return it to the Court

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no later than thirty days from the date of this Order.

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The parties shall complete the

5. The Clerk of the Court shall mail a Notice of Lawsuit and

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Request for Waiver of Service of Summons, two copies of the Waiver

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of Service of Summons, a copy of the 1AC (docket no. 6) and all

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attachments thereto, a copy of this Order, the Order Dismissing

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Claims with Leave to Amend, (docket no. 5), and a copy of the form

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“Consent or Declination to Magistrate Judge Jurisdiction” to SQSP

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employees John Walker, Health and Safety Manager; Elizabeth
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Babcock, Hazardous Material Specialist; Kevin Chappell, Warden;

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and A. Deems, CEO of Health Services and to CALPIA employees

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Ronald Glass, Industrial Supervisor; Gary S. Loredo,

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Superintendent II; Philip Earley, Industries Administrator/Lead

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Manager; Luu Rogers, Industrial Supervisory/Health and Safety

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Coordinator; Brad Smith, Branch Manager; and Charles Pattillo,

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General Manager.

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CALPIA in care of its chief executive officer or other agent

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United States District Court
For the Northern District of California

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The Clerk shall send the same documents to

authorized by law to receive service of process.

The Clerk shall

also mail a copy of the 1AC and a copy of this Order and the Order
Dismissing Claims with Leave to Amend to the California Attorney
General’s Office.

Additionally, the Clerk shall mail a copy of

this Order to Plaintiff.
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6.

Defendants are cautioned that Rule 4 of the Federal Rules

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of Civil Procedure requires them to cooperate in saving
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unnecessary costs of service of the summons and complaint.
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Pursuant to Rule 4, if Defendants, after being notified of this
action and asked by the Court, on behalf of Plaintiff, to waive
service of the summons, fail to do so, they will be required to

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bear the cost of such service unless good cause be shown for the

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failure to sign and return the waiver forms.

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waived, this action will proceed as if Defendants had been served

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on the date that the waiver is filed, except that pursuant to Rule

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12(a)(1)(B), Defendants will not be required to serve and file an

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answer before sixty days from the date on which the request for

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waiver was sent.

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be required if formal service of summons is necessary.)

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If service is

(This allows a longer time to respond than would

Defendants are advised to read the statement set forth at the
foot of the waiver form that more completely describes the duties
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of the parties with regard to waiver of service of the summons.

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If service is waived after the date provided in the Notice but

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before Defendants have been personally served, the answer shall be

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due sixty days from the date on which the request for waiver was

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sent or twenty days from the date the waiver form is filed,

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whichever is later.

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United States District Court
For the Northern District of California

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7.

Defendants shall answer the complaint in accordance with

the Federal Rules of Civil Procedure.

The following briefing

schedule shall govern dispositive motions in this action:
a.

No later than thirty days from the date the answer

is due, Defendants shall file a motion for summary judgment or
other dispositive motion and opposition to Plaintiff’s motion for
a preliminary injunction.

If Defendants file a motion for summary

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judgment, it shall be supported by adequate factual documentation
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and shall conform in all respects to Federal Rule of Civil
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Procedure 56.
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If Defendants are of the opinion that this case

cannot be resolved by summary judgment, they shall so inform the
Court prior to the date the summary judgment motion is due.

All

papers filed with the Court shall be promptly served on Plaintiff.
At the time of filing the motion for summary judgment or

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other dispositive motion, Defendants shall comply with the Ninth

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Circuit’s decisions in Woods v. Carey, 684 F.3d 934 (9th Cir.

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2012), and Stratton v. Buck, 697 F.3d 1004 (9th Cir. 2012), and

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provide Plaintiff with notice of what is required of him to oppose

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a summary judgment motion or a motion to dismiss.

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b.

Plaintiff’s opposition to the motion for summary

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judgment or other dispositive motion shall be filed with the Court

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and served on Defendants no later than twenty-eight days after the

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date on which Defendants’ motion is filed.
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Before filing his opposition, Plaintiff is advised to read

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the notice that will be provided to him by Defendants when the

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motion is filed, and Rule 56 of the Federal Rules of Civil

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Procedure and Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (party

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opposing summary judgment must come forward with evidence showing

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triable issues of material fact on every essential element of his

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claim).

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of proving his allegations in this case, he must be prepared to

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United States District Court
For the Northern District of California

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Plaintiff is cautioned that because he bears the burden

produce evidence in support of those allegations when he files his
opposition to Defendants’ summary judgment motion.

Such evidence

may include sworn declarations from himself and other witnesses to
the incident, and copies of documents authenticated by sworn
declaration.

Plaintiff will not be able to avoid summary judgment

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simply by repeating the allegations of his complaint.
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c.

Defendants shall file a reply brief no later than

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fourteen days after the date Plaintiff’s opposition is filed.
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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.
8.

Discovery may be taken in this action in accordance with

the Federal Rules of Civil Procedure.
9.

All communications by Plaintiff with the Court must be

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served on Defendants, or Defendants’ counsel once counsel has been

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designated, by mailing a true copy of the document to Defendants

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or Defendants’ counsel.

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10.

It is Plaintiff’s responsibility to prosecute this case.

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Plaintiff must keep the Court informed of any change of address by

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filing a separate paper with the Clerk headed “Notice of Change of

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Address,” and must comply with the Court’s orders in a timely
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fashion.

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action for failure to prosecute pursuant to Federal Rule of Civil

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Procedure 41(b).

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11.

Failure to do so may result in the dismissal of this

Extensions of time are not favored, though reasonable

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extensions will be granted.

Any motion for an extension of time

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must be filed no later than fourteen days prior to the deadline

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sought to be extended.

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IT IS SO ORDERED.

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United States District Court
For the Northern District of California

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Dated:

4/4/2014

________________________
CLAUDIA WILKEN
UNITED STATES DISTRICT JUDGE

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18
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20
21
22
23
24
25
26
27
28
16