Thompson v. California Department of Corrections and Rehabilitation

Filing 100


Download PDF
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?