Thompson v. California Department of Corrections and Rehabilitation
Filing
100
ORDER GRANTING IN PART AND DENYING IN PART INDIVIDUAL DEFENDANTS MOTION TO DISMISS CLAIMS IN SECOND AMENDED COMPLAINT by Judge Claudia Wilken. (dtmS, COURT STAFF) (Filed on 9/15/2017)
1
2
3
IN THE UNITED STATES DISTRICT COURT
4
FOR THE NORTHERN DISTRICT OF CALIFORNIA
5
6
RANDALL THOMPSON,
7
8
9
United States District Court
For the Northern District of California
10
11
12
Plaintiff,
v.
CALIFORNIA DEPARTMENT OF
CORRECTIONS AND REHABILITATION;
THEODORE ABREU; THOMAS BZOSKIE;
HARRY NEWMAN; JEROME PRICE;
MARGARET HANNA; RONALD DAVIS; and
DOES 1 to 50, inclusive,
ORDER GRANTING IN PART
AND DENYING IN PART
INDIVIDUAL DEFENDANTS’
MOTION TO DISMISS
CLAIMS IN SECOND
AMENDED COMPLAINT
(Docket No. 94)
Defendants.
13
14
No. 16-cv-03415-CW
________________________________/
15
Defendants Thomas Bzoskie, Harry Newman, Jerome Price,
16
Margaret Hanna and Ronald Davis (the Individual Defendants) move
17
to dismiss Plaintiff Randall Thompson’s first and second claims in
18
the second amended complaint (2AC).1
19
and the Individual Defendants filed a reply.
20
the parties’ papers, the Court grants in part and denies in part
21
the Individual Defendants’ motion to dismiss Plaintiff’s two
22
claims for relief against them.
Plaintiff opposed the motion
Having considered
23
24
25
26
27
28
Defendant Theodore Abreu, who is represented by separate
counsel, did not join in the motion to dismiss. Defendant Abreu
is not included in references in this order to the Individual
Defendants, unless specifically noted.
1
BACKGROUND
1
2
The following facts are taken from the 2AC and assumed to be
3
true for purposes of this motion.
Plaintiff was incarcerated at
4
various prisons operated by the California Department of
5
Corrections and Rehabilitation (CDCR) from May 2014 through March
6
2015.
7
Vocational Institute (DVI), Plaintiff was issued a Medical
8
Classification Chrono and a Comprehensive Accommodation Chrono for
9
“severe knee damage.”
In August 2014, while he was incarcerated at Deuel
Id. ¶ 13.
The chronos indicated that
United States District Court
For the Northern District of California
10
Plaintiff was to be housed in a ground floor cell, was not to use
11
the stairs and was restricted to limited duty.
12
Despite the chronos, Defendant Theodore Abreu, a correctional
13
officer at DVI, repeatedly ordered Plaintiff to shower on the
14
second floor even though showers were available on the ground
15
floor.
16
shower on the second floor for about the fourth time, Plaintiff
17
fell from about the middle of staircase and tumbled down the metal
18
steps while descending.
19
back, neck, knees and shoulder but had to wait for over thirty
20
minutes before medical personnel arrived with a gurney.
21
person who arrived was unable to lift him, so Plaintiff had to
22
stand and climb onto the gurney, which “caused him an extreme
23
amount of pain.”
24
On or about September 3, 2014, after being ordered to
He immediately complained of pain in his
The
Id. ¶ 16.
Plaintiff was then transported to the DVI infirmary, where
25
x-rays were taken.
No one read the x-rays, but Plaintiff was told
26
that he had no acute fractures, given a Motrin shot and sent back
27
to his cell.
28
After Plaintiff returned to his cell, Abreu told him “in a very
2
He was scheduled to see a doctor six days later.
1
stern and threatening voice ‘You know I didn’t order you to go up
2
the stairs.’”
Id. ¶ 18.
3
Plaintiff was unable to walk to the dining hall for dinner
4
that evening and his request to be fed in his cell was refused.
5
Other inmates helped him walk to the dining hall the next morning
6
but he collapsed when returning to his cell.
7
infirmary, where Defendant Dr. Harry Newman told him he needed to
8
“tough it out” and refused to give him a wheelchair or crutches.
9
Id.
¶ 19.
He returned to the
A worker in the infirmary told Plaintiff that, if he
United States District Court
For the Northern District of California
10
fell down again, “We’re not going to come get you.
11
gonna lay there.”
12
You’re just
Id.
Plaintiff alleges that over the next seven weeks, he filed
13
repeated requests for additional medical treatment and asked for
14
help with his condition and pain on a daily basis.
15
several times by Dr. Newman, who began to recognize that he was in
16
serious pain, prescribed pain medication and told plaintiff he had
17
a fracture in his lower back and had resulting nerve damage,
18
although Dr. Newman did not document that statement.”
19
Dr. Newman refused to order additional x-rays or an MRI.
20
Plaintiff that it was not his decision, that he had “a boss to
21
answer to,” and that if “you don’t have broken bones, you’re out
22
of luck.”
23
the direction of Defendant Bzoskie, the Chief Medical Officer
24
(CMO) at DVI, “who reviewed the 602’s filed by Plaintiff and was
25
therefore aware of Plaintiff’s serious medical condition,
26
substantial pain and Plaintiff’s request for further medical
27
services, and directed the denial of those requests.”
Id.
“He was seen
Id. ¶ 21.
He told
Plaintiff alleges that Dr. Newman was acting at
28
3
Id. ¶ 22.
Plaintiff alleges that, because of his continued complaints
1
2
and documentation of the inadequacy of his medical care, he was
3
transferred without notice, in the middle of the night, to San
4
Quentin State Prison on October 21, 2014.
5
during his administrative appeal regarding a referral to see an
6
orthopedic specialist, and was used by Michael D. Fox, M.D., who
7
is not a party to this action, as a basis to deny the appeal.
8
Plaintiff was encouraged to request services at San Quentin, but
9
his appeal of the previous denial was not transferred.
Upon his arrival at San Quentin, Plaintiff’s “vitals were
10
United States District Court
For the Northern District of California
The transfer occurred
11
taken,” but he was not examined regarding his complaints.
Id.
12
¶ 24.
13
Individual Defendant Nurse Practitioner Margaret Hanna for
14
approximately three minutes.
15
Plaintiff, but did a cursory review of his records and then let
16
his pain medication prescription expire, telling him that she
17
believed he was exaggerating his condition and leaving him without
18
pain relief.
19
Hanna denied the request and sent him back to his cell.
Two and a half weeks after the transfer, Plaintiff saw
Id.
N.P. Hanna did not examine
Plaintiff requested a specialist referral, and N.P.
At San Quentin, Plaintiff continued to seek medical
20
21
treatment, but “appointments were more difficult to obtain and set
22
much further out than at DVI.”
23
physical therapy, and a “TENS unit for his back,” but did not get
24
additional x-rays or any magnetic resonance imaging (MRI).
25
¶ 29.
26
therapist told him that he had a “severe neck injury and a lower
27
back injury, which needed further treatment and probably surgery.”
28
Id.
Id. ¶ 25.
He was given a pillow,
Id.
Physical therapy brought him some relief, and his physical
N.P. Hanna advised him to use the TENS unit on his neck for
4
1
pain relief, but only shrugged and walked away when Plaintiff
2
pointed out a warning label against use of the TENS unit on the
3
neck.
4
In February 2015, Plaintiff was transferred to Avenal State
5
Prison, where he remained until his release in March 2015.
6
his release, Plaintiff sought medical attention.
7
ordered a MRI and was surprised that he had not previously
8
received a MRI.
9
After
of the rotator cuff in his right shoulder with
His doctor
The MRI “revealed that Plaintiff has severe tears
United States District Court
For the Northern District of California
10
musculotendinoligamentous sprain/strain and a bulging disc in his
11
neck” as well as “significant facetarthropathy and mild
12
neuroforaminal narrowing in his lumber spine.”
13
referred to an orthopedist and treated with injections and “is a
14
surgical candidate if the conservative treatment ultimately is not
15
effective.”
16
Id. ¶ 30.
He was
Id.
Plaintiff alleges two claims for relief against all
17
Individual Defendants.
18
to his medical needs in violation of the Eighth and Fourteenth
19
Amendments, pursuant to 42 U.S.C. § 1983.
20
conspiracy to violate his civil rights, in violation of 42 U.S.C.
21
§ 1985.
22
claims.
23
First, he claims deliberate indifference
Second, he claims a
The Individual Defendants move to dismiss both of these
On August 23, 2016, the Court denied Defendant CDCR’s motion
24
to dismiss Plaintiff’s third cause of action, for disability
25
discrimination in violation of Title II of the Americans with
26
Disabilities Act (ADA), 42 U.S.C. § 12132.
27
Court granted the Individual Defendants’ motion to dismiss the two
28
claims against them in the first amended complaint (1AC) and
5
On June 7, 2017, the
1
granted leave to amend.
2
to the 1AC on May 29, 2017, but have not filed an answer to the
3
2AC.
LEGAL STANDARD
4
5
Defendants CDCR and Abreu filed an answer
A complaint must contain a “short and plain statement of the
6
claim showing that the pleader is entitled to relief.”
7
Civ. P. 8(a).
8
claim to relief that is plausible on its face.”
9
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Fed. R.
The plaintiff must proffer “enough facts to state a
Ashcroft v.
United States District Court
For the Northern District of California
10
Twombly, 550 U.S. 544, 570 (2007)).
11
12(b)(6) for failure to state a claim, dismissal is appropriate
12
only when the complaint does not give the defendant fair notice of
13
a legally cognizable claim and the grounds on which it rests.
14
Twombly, 550 U.S. at 555.
15
plaintiff pleads factual content that allows the court to draw the
16
reasonable inference that the defendant is liable for the
17
misconduct alleged.”
18
On a motion under Rule
A claim is facially plausible “when the
Iqbal, 556 U.S. at 678.
In considering whether the complaint is sufficient to state a
19
claim, the court will take all material allegations as true and
20
construe them in the light most favorable to the plaintiff.
21
Metzler Inv. GMBH v. Corinthian Colleges, Inc., 540 F.3d 1049,
22
1061 (9th Cir. 2008).
23
of the complaint, materials incorporated into the complaint by
24
reference, and facts of which the court may take judicial notice.
25
Id. at 1061.
26
conclusions, including threadbare “recitals of the elements of a
27
cause of action, supported by mere conclusory statements.”
28
556 U.S. at 678 (citing Twombly, 550 U.S. at 555).
6
The court’s review is limited to the face
However, the court need not accept legal
Iqbal,
1
When granting a motion to dismiss, the court is generally
required to grant the plaintiff leave to amend, even if no request
3
to amend the pleading was made, unless amendment would be futile.
4
Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc.,
5
911 F.2d 242, 246-47 (9th Cir. 1990).
6
amendment would be futile, the court examines whether the
7
complaint could be amended to cure the defect requiring dismissal
8
“without contradicting any of the allegations of [the] original
9
complaint.”
Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th
10
United States District Court
For the Northern District of California
2
Cir. 1990).
The court’s discretion to deny leave to amend is
11
“particularly broad” where the court has previously granted leave.
12
Chodos v. West Publ’g Co., 292 F.3d 992, 1003 (9th Cir. 2002).
DISCUSSION
13
14
15
In determining whether
I.
Shotgun Pleading
The Individual Defendants contend that Plaintiff’s first and
16
second claims for relief should be dismissed as “shotgun
17
pleading,” because he pleads multiple claims and does not identify
18
which specific facts are allocated to which claim.
19
Destfino v. Reiswig, 630 F.3d 952, 958 (9th Cir. 2011) (“the
20
complaint grouped multiple defendants together and failed to ‘set
21
out which of the defendants made which of the fraudulent
22
statements/conduct.’”).
23
impermissible shotgun pleading just because it re-alleges by
24
reference all of the factual paragraphs preceding the claims for
25
relief.”
26
1051 (N.D. Cal. 2016).
27
facts plead by Plaintiff are sufficient to state each claim as to
See, e.g.,
However, “a complaint does not employ
Sec. & Exch. Comm’n v. Bardman, 216 F. Supp. 3d 1041,
The Court addresses below whether the
28
7
1
each Individual Defendant.
2
specifics as to be dismissed wholesale as a “shotgun pleading.”
3
II.
4
However, the 2AC is not so lacking in
Deliberate Indifference
Title 42 U.S.C. § 1983 “provides a cause of action for the
5
‘deprivation of any rights, privileges, or immunities secured by
6
the Constitution and laws’ of the United States.”
7
Virginia Hosp. Ass’n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C.
8
§ 1983).
9
two essential elements: (1) that a right secured by the
Wilder v.
To state a claim under § 1983, a plaintiff must allege
United States District Court
For the Northern District of California
10
Constitution or laws of the United States was violated and
11
(2) that the alleged violation was committed by a person acting
12
under the color of state law.
13
(1988).
14
See West v. Atkins, 487 U.S. 42, 48
Deliberate indifference to serious medical needs violates the
15
Eighth Amendment’s proscription against cruel and unusual
16
punishment.
17
(1976).
18
examination of two elements: the seriousness of the prisoner’s
19
medical need and the nature of the defendant’s response to that
20
need.
21
overruled on other grounds, WMX Technologies, Inc. v. Miller, 104
22
F.3d 1133, 1136 (9th Cir. 1997) (en banc).
See, e.g., Estelle v. Gamble, 429 U.S. 97, 104
A determination of “deliberate indifference” involves an
See McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992),
23
A “serious” medical need exists if the failure to treat a
24
prisoner's condition could result in further significant injury or
25
the “unnecessary and wanton infliction of pain.”
26
974 F.2d at 1059 (citing Estelle, 429 U.S. at 104).
27
indications that a prisoner has a serious need for medical
28
treatment include the existence of an injury that a reasonable
8
McGuckin,
Examples of
1
doctor or patient would find important and worthy of comment or
2
treatment, the presence of a medical condition that significantly
3
affects an individual’s daily activities or the existence of
4
chronic and substantial pain.
5
Housewright, 900 F.2d 1332, 1337-41 (9th Cir. 1990)).
Id. at 1059-60 (citing Wood v.
A prison official is deliberately indifferent if he knows
6
7
that a prisoner faces a substantial risk of serious harm and
8
disregards that risk by failing to take reasonable steps to abate
9
it.
Farmer v. Brennan, 511 U.S. 825, 837 (1994).
The prison
United States District Court
For the Northern District of California
10
official must not only “be aware of facts from which the inference
11
could be drawn that a substantial risk of serious harm exists,”
12
but he “must also draw the inference.”
13
deliberate indifference to be established, therefore, there must
14
be a purposeful act or failure to act on the part of the defendant
15
and resulting harm.
16
Id.
In order for
See McGuckin, 974 F.2d at 1060.
Indifference may exist when prison officials deny, delay or
17
intentionally interfere with medical treatment, or it may be shown
18
in the way in which prison officials provide medical care.
19
id. at 1062 (delay of seven months in providing medical care
20
during which medical condition was left virtually untreated and
21
plaintiff was forced to endure “unnecessary pain” sufficient to
22
present colorable § 1983 claim); Wilhelm v. Rotman, 680 F.3d 1113,
23
1123 (9th Cir. 2012) (plaintiff stated a claim for deliberate
24
indifference where his failure to receive prescribed treatment was
25
due to defendant’s failure to request the treatment properly and
26
then unexplained cancellation of a second treatment request).
27
28
See
A claim of medical malpractice or negligence is insufficient
to make out a violation of the Eighth Amendment.
9
See, e.g.,
1
Toguchi v. Chung, 391 F.3d 1051, 1057, 1060-61 (9th Cir. 2004).
2
Likewise, a “difference of opinion between a prisoner-patient and
3
prison medical authorities regarding treatment does not give rise
4
to a § 1983 claim.”
5
Cir. 1981).
6
between alternative courses of treatment, a plaintiff must show
7
that the course of treatment the doctors chose was medically
8
unacceptable under the circumstances and that they chose this
9
course in conscious disregard of an excessive risk to the
Franklin v. Oregon, 662 F.2d 1337, 1344 (9th
In order to prevail on a claim involving choices
United States District Court
For the Northern District of California
10
plaintiff’s health.
Toguchi, 391 F.3d at 1058; Jackson v.
11
McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (citing Farmer,
12
511 U.S. at 837).
13
A.
Fourteenth Amendment
14
Plaintiff stipulates that he alleges a claim under the Eighth
15
Amendment as made applicable to the States under the Fourteenth
16
Amendment, but does not allege a separate substantive due process
17
claim under the Fourteenth Amendment.
18
the Court does not reach the Individual Defendants’ argument that
19
Plaintiff cannot state a separate claim under the Fourteenth
20
Amendment.
Opp. at 1.
Accordingly,
21
B.
Dr. Newman and Dr. Bzoskie
22
Plaintiff claims deliberate indifference by two doctors at
23
DVI: Dr. Newman, who was his treating physician, and CMO Bzoskie.
24
These Defendants argue that Plaintiff again fails to allege that
25
their acts or omissions evince subjectively deliberate
26
indifference to Plaintiff’s objectively serious medical needs.
27
28
Reviewing the allegations of the 2AC as a whole, the Court
finds that Plaintiff has plead sufficient facts to state a claim
10
1
against Dr. Newman and CMO Bzoskie.
Plaintiff alleges that these
2
Defendants denied him additional treatment, a specialist referral
3
and additional diagnostic testing, despite knowing of Plaintiff’s
4
objectively serious medical condition and pain.
5
initial denials of treatment were not based on any review of his
6
x-rays and that later, Dr. Newman made statements to him that
7
implied that DVI had a policy of not providing additional
8
diagnosis or treatment unless an inmate had broken bones.
9
Colwell v. Bannister, 763 F.3d 1060, 1068 (9th Cir. 2014) (holding
He alleges that
See
United States District Court
For the Northern District of California
10
that a policy of denying cataract surgery in one eye to inmates
11
with another good eye would be “the very definition of deliberate
12
indifference”).
13
direction of Dr. Bzoskie, who actually discussed and acquiesced in
14
the denials of care after being “provided information sufficient
15
to inform [him] of Plaintiff’s serious medical condition and his
16
significant pain as well as and [sic] his regular requests to see
17
a specialist and for further diagnostic testing.”
18
also id. ¶ 21-22.
19
He alleges that Dr. Newman was acting at the
2AC ¶ 26; see
The alleged statements by Dr. Newman, as plead, are open to
20
multiple interpretations other than the expression of a policy of
21
deliberate indifference and direct involvement of CMO Bzoskie in
22
the denial of care.
23
two alternative explanations, one advanced by defendant and the
24
other advanced by plaintiff, both of which are plausible,
25
plaintiff’s complaint survives a motion to dismiss under Rule
26
12(b)(6).
27
defendant’s plausible alternative explanation is so convincing
28
that plaintiff’s explanation is implausible.”
11
In the Ninth Circuit, however, if “there are
Plaintiff’s complaint may be dismissed only when
Starr v. Baca,
1
652 F.3d 1202, 1216 (9th Cir. 2011) (emphasis in original).
2
Plaintiff’s allegations are not particularized, but they are
3
sufficient to provide Dr. Newman and CMO Bzoskie with “‘fair
4
notice of what the . . . claim is and the grounds upon which it
5
rests.’”
6
355 U.S. 41, 47 (1957) (omission in original)).
Twombly, 550 U.S. at 555 (quoting Conley v. Gibson,
7
C.
8
Plaintiff alleges that during his three minutes with N.P.
9
Nurse Practitioner Hanna
Hanna, she performed a cursory review of his records on the
United States District Court
For the Northern District of California
10
computer and then stated her subjective belief that he was “faking
11
and exaggerating his condition.”
12
alleges that her belief that he was “‘faking’ was not based on
13
anything Plaintiff stated to Hanna and could only have come from
14
medical personnel at DVI.”
15
supporting a claim that it was “medically unacceptable under the
16
circumstances” for a nurse practitioner to rely on medical records
17
created by treating doctors at DVI.
18
1051, 1058 (9th Cir. 2004) (quoting Jackson v. McIntosh, 90 F.3d
19
330, 332 (9th Cir. 1996)).
20
Id.
2AC ¶ 24.
Plaintiff further
Plaintiff alleges no facts
Toguchi v. Chung, 391 F.3d
Plaintiff alleges that N.P. Hanna’s refusal to refill his
21
pain medication prescription, which appears to have occurred in
22
November 2014, left him “without pain relief.”
23
alleges, however, that at San Quentin in 2014, he was given a
24
pillow, a TENS unit and physical therapy that provided him with
25
some relief.
26
that N.P. Hanna or other medical personnel at San Quentin chose
27
his alternative treatment “in conscious disregard of an excessive
28
risk” to his health.
2AC ¶ 24.
He also
Plaintiff has not alleged facts supporting a claim
Toguchi, 391 F.3d at 1058.
12
1
Plaintiff’s allegation relating to N.P. Hanna’s discussion
2
with him about his TENS unit is insufficient to plead more than
3
negligence and is not, in any event, alleged to have resulted in
4
any harm to Plaintiff.
5
Finally, Plaintiff alleges no facts that plausibly support
6
his claim that N.P. Hanna was involved in the decision to transfer
7
him to San Quentin.
8
D.
Wardens Price and Davis
9
Finally, Plaintiff names Warden Price of DVI and Warden Davis
United States District Court
For the Northern District of California
10
of San Quentin as Defendants.
The Supreme Court has explained
11
that, because § 1983 suits do not allow for the imposition of
12
vicarious liability, “a plaintiff must plead that each Government-
13
official defendant, through the official’s own individual actions,
14
has violated the Constitution.”
15
“a plaintiff may state a claim against a supervisor for deliberate
16
indifference based upon the supervisor’s knowledge of and
17
acquiescence in unconstitutional conduct by his or her
18
subordinates.”
Iqbal, 556 U.S. at 676.
However,
Starr, 652 F.3d at 1207.
19
Plaintiff alleges generally that the wardens (and all other
20
Defendants) participated in staff meetings where they would have
21
been informed of Plaintiff’s medical condition, pain and requests
22
for additional treatment.
23
“participated in and/or directed the repeated denials and delays
24
of treatment and/or learned of the denials and delays and failed
25
to act to prevent them, and/or acted with deliberate indifference
26
to Plaintiff’s serious medical condition.”
27
alleges that the approval of the wardens was required for his
28
transfer to San Quentin.
He further alleges that all Defendants
2AC ¶ 26.
Finally, he
These boilerplate, group claims on
13
1
information and belief lack either plausibility or factual
2
allegations to support them with regard to the wardens.
3
Twombly, 550 U.S. at 555 (plaintiff must provide “more than labels
4
and conclusions”).
5
had injuries and wanted additional treatment, that does not,
6
without more, support the plausible inference that they
7
subjectively knew that the treatment Plaintiff was receiving was
8
deficient, only that Plaintiff was dissatisfied with it.
9
See
Even if the wardens were aware that Plaintiff
Additionally, Plaintiff alleges that Warden Davis “was the
United States District Court
For the Northern District of California
10
Warden or Acting Warden of San Quentin from at least December of
11
2014 until Plaintiff’s transfer to Avenal.”
12
words, Davis was not yet the warden at the time of Plaintiff’s
13
transfer or even at the time of his initial appointment with N.P.
14
Hanna.
15
his time as warden.
16
plausible for this additional reason.
17
III. Conspiracy to Violate Civil Rights
18
Id. ¶ 26.
In other
Plaintiff alleges no individual actions by Davis before
Plaintiff’s claim against Davis is not
Iqbal, 556 U.S. at 682-83.
Defendants contend that Plaintiff fails to state a claim
19
under 42 U.S.C. § 1985(3) because the 1AC does not sufficiently
20
allege that any defendant was motivated by “some racial, or
21
perhaps otherwise class-based, invidiously discriminatory animus.”
22
Griffin v. Breckenridge, 403 U.S. 88, 101-02 (1971); see also Bray
23
v. Alexandria Women’s Health Clinic, 506 U.S. 263, 267-68 (1993).
24
Plaintiff responds that his claim under § 1985(3) is based on
25
class-based animus against individuals with disabilities.
26
purpose of this motion to dismiss, the Individual Defendants have
27
not disputed that Plaintiff is an individual with a disability.
28
Mot. at 21.
14
For the
1
The Ninth Circuit has explained that, to state a cause of
2
action under § 1985(3), a plaintiff must allege: “(1) a
3
conspiracy, (2) to deprive any person or a class of persons of the
4
equal protection of the laws, or of equal privileges and
5
immunities under the laws, (3) an act by one of the conspirators
6
in furtherance of the conspiracy, and (4) a personal injury,
7
property damage or a deprivation of any right or privilege of a
8
citizen of the United States.”
9
637, 641 (9th Cir. 1980) (citing Griffin, 403 U.S. at 102-03); see
Gillespie v. Civiletti, 629 F.2d
United States District Court
For the Northern District of California
10
also Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1141 (9th Cir.
11
2000) (holding that § 1985(3) “prohibits two or more persons from
12
conspiring to deprive any person or class of persons of the equal
13
protection of the law”).
14
“The Supreme Court has not defined the parameters of a
15
‘class’ beyond race,” but federal courts must exercise restraint
16
in extending § 1985(3) beyond racial prejudice.
17
281 F.3d 1014, 1028 (9th Cir. 2002).
18
be construed as a general federal tort law.”
19
Madrid Hurtado, 819 F.2d 1511, 1518–19 (9th Cir. 1987); see also
20
Griffin, 403 U.S. at 101 (Congress did not intend § 1985(3) to
21
reach “all tortious, conspiratorial interferences with the rights
22
of others”).
23
24
25
26
27
28
Butler v. Elle,
Section “1985(3) is not to
Gerritsen v. de la
The Ninth Circuit has explained:
Although both § 1983 and § 1985 are civil rights
statutes, they have different origins. Section 1983 is
based upon the fourteenth amendment and thus concerns
deprivations of rights that are accomplished under the
color of state law. Section 1985, on the other hand, is
derived from the thirteenth amendment and covers all
deprivations of equal protection of the laws and equal
privileges and immunities under the laws, regardless of
its source.
Gillespie, 629 F.2d at 641 (citations omitted).
15
1
In the Ninth Circuit, the “rule is that section 1985(3) is
2
extended beyond race only when the class in question can show that
3
there has been a governmental determination that its members
4
require and warrant special federal assistance in protecting their
5
civil rights.”
6
(9th Cir. 1992) (internal quotation marks omitted).
7
specifically, the Court requires “either that the courts have
8
designated the class in question a suspect or quasi-suspect
9
classification requiring more exacting scrutiny or that Congress
Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1536
More
United States District Court
For the Northern District of California
10
has indicated through legislation that the class required special
11
protection.”
Id.
12
As discussed more fully in the Court’s June 7, 2017 order
13
granting the Individual Defendants’ motion to dismiss the 1AC,
14
whether a § 1985(3) claim may be based on class-based animus
15
against the disabled is a close question.
16
reach it to decide the pending motion to dismiss, however.
17
is because even if Plaintiff is a member of a class that is
18
cognizable under § 1985(3), he still must plead sufficient facts
19
to allege a conspiracy to deprive him of the equal protection of
20
the laws because of invidious animus against him as a member of
21
that class.
22
(9th Cir. 1983) (holding that plaintiff “failed to allege any
23
facts from which we might infer a class-based animus”); see also
24
Bray, 506 U.S. at 269-70 (“The record in this case does not
25
indicate that petitioners’ demonstrations are motivated by a
26
purpose (malevolent or benign) directed specifically at women as a
27
class.”).
The Court need not
This
See, e.g., Scott v. Rosenberg, 702 F.2d 1263, 1270
28
16
1
Assuming, without deciding, that a § 1985(3) claim may be
2
based on class-based animus against individuals with disabilities,
3
Plaintiff has not alleged facts supporting a plausible inference
4
that that any of the five Individual Defendants conspired to
5
deprive him of the equal protection of the laws, much less that
6
such a conspiracy was based on class-based invidiously
7
discriminatory animus due to his alleged disability.
8
alleges only that he was dissatisfied with his medical treatment,
9
that he pursued his right to that treatment and that he was
Plaintiff
United States District Court
For the Northern District of California
10
transferred to San Quentin with all Defendants’ approval “to
11
silence and cover up Plaintiff’s complaints.”
12
accompanied by the assertion that these actions “evidence a
13
pattern and practice constituting at a minimum an implicit
14
understanding to deny Plaintiff needed medical care and relief
15
from substantial pain.”
16
2AC ¶ 27.
This is
2AC ¶ 46; see also id. ¶ 47.
As explained in the Court’s prior order, even if a § 1985(3)
17
claim may be based on class-based animus against the disabled,
18
every act of deliberate indifference to medical needs is not
19
necessarily also a violation of § 1985(3).
20
of conspiracy lacks factual specificity or plausibility.
21
Johnson v. State of California, 207 F.3d 650, 655 (9th Cir. 2000).
22
Moreover, his claim that the Individual Defendants’ actions were
23
motivated by class-based discrimination against individuals with
24
disabilities is not plausible in light of “obvious alternative
25
explanations” including individual medical negligence, skepticism
26
of his complaints, deliberate indifference or even retaliation
27
directed at Plaintiff individually.
28
17
Plaintiff’s allegation
See
Iqbal, 556 U.S. at 682-83.
CONCLUSION
1
2
For the foregoing reasons, the Court GRANTS in part and
3
denies in part the motion to dismiss Plaintiff’s first and second
4
claims for relief in the 2AC (Docket No. 94), as follows.
5
The Court GRANTS the motion to dismiss Plaintiff’s first and
6
second claims for relief against Defendants Margaret Hanna, Ronald
7
Davis, and Jerome Price.
8
this action.
9
Thus, they are no longer Defendants in
The Court DENIES the motion to dismiss Plaintiff’s first
United States District Court
For the Northern District of California
10
claim for relief against Individual Defendants Harry Newman and
11
Thomas Bzoskie.
12
The Court GRANTS the motion of Defendants Newman and Bzoskie
13
to dismiss Plaintiff’s second claim for relief against them.
14
second claim for relief is therefore DISMISSED as to all five
15
Individual Defendants, but remains pending as to Defendant Abreu.
16
The
The Court DENIES further leave to amend the dismissed claims.
17
Plaintiff has already had two opportunities to amend these claims
18
in response to the Individual Defendants’ arguments, including one
19
opportunity granted by the Court in the June 7, 2017 order of
20
dismissal.
21
futile in light of the facts plead in the 2AC.
22
The Court finds that further leave to amend would be
Defendants Newman and Bzoskie shall file an answer to the
23
remaining claim against them in the 2AC within fourteen days after
24
the date of this order.
25
The case management conference remains scheduled for October
26
3, 2017.
In addition to the other issues that the parties must
27
address in the joint case management statement, the parties shall
28
18
1
address whether Defendants CDCR and Abreu must file an answer to
2
the 2AC.
3
IT IS SO ORDERED.
4
5
6
Dated: September 15, 2017
CLAUDIA WILKEN
United States District Judge
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
19
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?