Abbott v. Tootell et al

Filing 156

ORDER by Judge Lucy H. Koh granting in part and denying in part 103 Motion to Dismiss; granting in part and denying in part 122 Motion to Dismiss (Attachments: # 1 Certificate/Proof of Service) (mpb, COURT STAFF) (Filed on 2/25/2014)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 JOE ABBOTT, 11 Plaintiff, 12 v. 13 DOCTOR E. TOOTELL, et al., 14 Defendants. 15 ) ) ) ) ) ) ) ) ) ) No. C 11-0183 LHK (PR) ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS TO DISMISS; DIRECTING PLAINTIFF TO FILE SECOND AMENDED COMPLAINT (Docket Nos. 103, 122) 16 Plaintiff, a state prisoner proceeding pro se, filed an amended civil rights complaint 17 pursuant to 42 U.S.C. § 1983, challenging the conditions of his confinement at San Quentin State 18 Prison. Defendants Guithrie, Thompson, Zeiler, Van Mastrigt, Cullen, and Orozco have filed a 19 motion to dismiss for failure to state a claim. Defendants Dacanay, McGehee, Asuncion, and 20 Wong have also filed a motion to dismiss for failure to state a claim. Plaintiff has filed a 21 consolidated opposition, and defendants have filed a consolidated reply. For the reasons stated 22 below, defendants’ motions to dismiss for failure to state a claim are GRANTED in part and 23 DENIED in part. 24 25 BACKGROUND In his amended complaint, plaintiff states that he suffers from a variety of medical issues. 26 He claims that defendants have denied or delayed adequate medical care, despite being aware 27 that plaintiff requires such care. Plaintiff alleges that defendants have demonstrated deliberate 28 Order Granting in Part and Denying in Part Defendants’ Motions to Dismiss; Directing Plaintiff to File Second Amended Complaint P:\PRO-SE\LHK\CR.11\Abbott183mtd3.wpd 1 indifference to his serious medical needs, and that defendant Correctional Officer Orozco used 2 excessive force against him. 3 4 ANALYSIS A motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 5 12(b)(6) tests the legal sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 6 2001). In considering whether the complaint is sufficient to state a claim, the court must accept 7 as true all of the factual allegations contained in the complaint. Ashcroft v. Iqbal, 129 S.Ct. 8 1937, 1949 (2009). However, the court need not accept as true “allegations that contradict 9 matters properly subject to judicial notice or by exhibit” or “allegations that are merely 10 conclusory, unwarranted deductions of fact, or unreasonable inferences.” St. Clare v. Gilead 11 Scis., Inc. (In re Gilead Scis. Sec. Litig.), 536 F.3d 1049, 1055 (9th Cir. 2008). While “a 12 complaint need not contain detailed factual allegations . . . it must plead ‘enough facts to state a 13 claim to relief that is plausible on its face.’” Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 14 2009). “A claim has facial plausibility when the plaintiff pleads factual content that allows the 15 court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 16 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility standard is not akin to a 17 ‘probability requirement,’ but it asks for more than sheer possibility that a defendant acted 18 unlawfully.” Iqbal, 556 U.S. at 678. 19 Deliberate indifference to serious medical needs violates the Eighth Amendment’s 20 proscription against cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 104 (1976); 21 McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds, WMX 22 Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). A determination of 23 “deliberate indifference” involves an examination of two elements: the seriousness of the 24 prisoner’s medical need and the nature of the defendant’s response to that need. McGuckin, 974 25 F.2d at 1059. A “serious” medical need exists if the failure to treat a prisoner’s condition could 26 result in further significant injury or the “unnecessary and wanton infliction of pain.” Id. (citing 27 Estelle, 429 U.S. at 104). A prison official is deliberately indifferent if he knows that a prisoner 28 Order Granting in Part and Denying in Part Defendants’ Motions to Dismiss; Directing Plaintiff to File Second Amended Complaint 2 P:\PRO-SE\LHK\CR.11\Abbott183mtd3.wpd 1 faces a substantial risk of serious harm and disregards that risk by failing to take reasonable steps 2 to abate it. Farmer v. Brennan, 511 U.S. 835, 837 (1994). 3 Taking plaintiff’s allegations as true as the court is required to do, plaintiff claims that, 4 due to his medical issues, Dr. Matan issued a medical chrono that plaintiff was to have “no leg 5 irons/shackles on right Achilles” and a chrono stating that plaintiff could not put his hands 6 behind his back and should be cuffed with waist restraints rather than handcuffs. (Am. Compl. at 7 11.) Dr. Matan also issued a chrono for “no kneeling on plaintiff’s knees” and a chrono for 8 using an ankle wrap on plaintiff’s right Achilles. (Id.) 9 I. 10 Defendant Sergeant Guithrie In his amended complaint, plaintiff alleges that, in September 2009, Sergeant Guithrie 11 replaced Sergeant Seman as supervisor in the Adjustment Center. (Am. Compl. at 17.) Sergeant 12 Guithrie ordered the correctional officers not to honor any of plaintiff’s chronos. (Id. at 18.) 13 Assuming these facts to be true, liberally construed, plaintiff’s claim against Sergeant Guthrie is 14 sufficient to state a claim. See, e.g., Wakefield v. Thompson, 177 F.3d 1160, 1165 & n.6 (9th Cir. 15 1999) (“we have held that a prison official acts with deliberate indifference when he ignores the 16 instructions of the prisoner’s treating physician or surgeon”). Accordingly, defendants’ motion 17 to dismiss the claim against Sergeant Guithrie is DENIED. 18 II. 19 Defendant Correctional Officer Van Mastrigt On September 21, 2009, Correctional Officer Van Mastrigt tried to restrain plaintiff with 20 a pair of modified cuffs even though plaintiff had a chrono for double cuffs. (Am. Compl. at 18.) 21 When Correctional Officer Herrea tried to show Correctional Officer Van Mastrigt how to use 22 two mechanical restrains, Correctional Officer Van Mastrigt responded that he would cuff 23 plaintiff however he saw fit. (Id.) Correctional Officer Van Mastrigt also stated that he thought 24 plaintiff was faking his injury, and then said that Sergeant Guthrie told him not to honor 25 plaintiff’s medical chronos. (Id.) Liberally construed, it can be inferred that Correctional 26 Officer Van Mastrigt knew that plaintiff’s medical chronos prohibited regular and modified 27 cuffs, yet Correctional Officer Van Mastrigt intentionally and specifically disregarded the order. 28 Order Granting in Part and Denying in Part Defendants’ Motions to Dismiss; Directing Plaintiff to File Second Amended Complaint 3 P:\PRO-SE\LHK\CR.11\Abbott183mtd3.wpd 1 As alleged, Correctional Officer Van Mastrigt’s actions amounted to more than mere negligence 2 or poor judgment. See, e.g., Martinez v. Mancusi, 443 F.2d 921, 924 (2nd Cir. 1971) (prisoner’s 3 allegation that guards forced prisoner to walk after leg surgery in direct violation of surgeon’s 4 orders was sufficient to state a cause of action under Section 1983). Accordingly, defendants’ 5 motion to dismiss the claim against Correctional Officer Van Mastrigt is DENIED. 6 III. 7 Defendants Correctional Officers Orozco, Zeiler, and McGehee, and Sergeant Thompson Plaintiff alleges that, on June 5, 2009, that Correctional Officer Orozco denied plaintiff 8 his morning shower because plaintiff asked to be cuffed in waist restraints. (Id. at 12.) 9 Correctional Officer Orozco initially denied plaintiff’s request, but eventually complied. (Id.) 10 After plaintiff had filed an administrative grievance against Correctional Officer Orozco 11 regarding the denial of a shower, Correctional Officer Orozco kept antagonizing plaintiff. (Id. at 12 14.) On June 22, 2009, plaintiff alleges that Correctional Officer Orozco assaulted plaintiff. 13 (Id.) 14 On October 24, 2009, Correctional Officer Orozco placed plaintiff in restraints with his 15 hands behind his back, despite plaintiff’s medical chrono prohibiting such restraints, and when 16 Correctional Officer Orozco went to remove them, he yanked plaintiff’s arms out and 17 backwards, causing something to pop in plaintiff’s shoulder. (Id. at 15.) Plaintiff went man- 18 down. (Id. at 16.) Correctional Officer Zeiler arrived and escorted plaintiff to a holding cell. 19 (Id.) When plaintiff said that something was wrong with his shoulder, Correctional Officer 20 Zeiler said that someone would come to see plaintiff “in a minute.” (Id.) Sergeant Thompson 21 then came out, accompanied by eight to ten officers, and told plaintiff he would not be receiving 22 any medical treatment and would return instead to his cell. (Id.) When plaintiff asked why he 23 would not be receiving medical treatment, Correctional Officer McGehee threatened plaintiff 24 with pepper spray and reiterated that he would not be receiving medical treatment that day. (Id. 25 at 15-16.) Plaintiff did not receive treatment for his shoulder for six to eight weeks. (Id. at 17.) 26 As a result, plaintiff’s shoulder had become significantly worse. (Id.) 27 Plaintiff claimed that Correctional Officer Orozco used excessive force against him, and 28 Order Granting in Part and Denying in Part Defendants’ Motions to Dismiss; Directing Plaintiff to File Second Amended Complaint 4 P:\PRO-SE\LHK\CR.11\Abbott183mtd3.wpd 1 that Correctional Officers Zeiler and McGehee, and Sergeant Thompson were deliberately 2 indifferent to his serious medical needs.1 3 While the extent of injury suffered by an inmate is one factor that may suggest whether 4 the use of force could possibly have been thought necessary in a particular situation, see Hudson 5 v. McMillian, 503 U.S. 1, 7 (1992), it may also provide some indication of the amount of force 6 applied, see Wilkins v. Gaddy, 130 S. Ct. 1175, 1178 (2010). The Eighth Amendment’s 7 prohibition of cruel and unusual punishment necessarily excludes from constitutional recognition 8 de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the 9 conscience of mankind. Hudson, 503 U.S. at 9. An inmate who complains of a push or shove 10 that causes no discernable injury almost certainly fails to state a valid excessive force claim. Id. 11 Here, the court cannot say that plaintiff’s claims of excessive force against Correctional Officer 12 Orozco, liberally construed, amount to mere allegations that Correctional Officer Orozco used de 13 minimis force. Accordingly, defendants’ motion to dismiss the excessive force claim against 14 Correctional Officer Orozco is DENIED. 15 Plaintiff’s claim that Correctional Officer Zeiler brought plaintiff to a holding cell and 16 then informed plaintiff that someone would come see plaintiff “in a minute,” is insufficient to 17 state a claim that Correctional Officer Zeiler was deliberately indifferent to plaintiff’s serious 18 medical needs. Plaintiff does not allege that Correctional Officer Zeiler purposefully acted or 19 failed to act in response to plaintiff’s statement that there was something wrong with plaintiff’s 20 shoulder. See McGuckin, 974 F.2d at 1060. Even assuming that plaintiff alleged that he had a 21 serious medical need, plaintiff does not allege sufficient facts to show that Correctional Officer 22 Zeiler knew that plaintiff faced a substantial risk of serious harm, or that Correctional Officer 23 Zeiler disregarded that risk by failing to take reasonable steps to abate it. See Farmer, 511 U.S. 24 25 1 26 27 28 To the extent defendants’ motion argues that plaintiff has failed to state a deliberate indifference claim against Correctional Officer Orozco, the motion is GRANTED. A review of plaintiff’s amended complaint shows that plaintiff does not allege that Correctional Officer Orozco was deliberately indifferent to his medical needs – only that Correctional Officer Orozco violated plaintiff’s right to be free from cruel and unusual punishment, i.e., used excessive force. Order Granting in Part and Denying in Part Defendants’ Motions to Dismiss; Directing Plaintiff to File Second Amended Complaint 5 P:\PRO-SE\LHK\CR.11\Abbott183mtd3.wpd 1 at 837; Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) (plaintiff must “state a claim 2 for relief that is plausible on its face.”). Accordingly, defendants’ motion to dismiss the claim 3 against Correctional Officer Zeiler is GRANTED. 4 Plaintiff’s claims that Sergeant Thompson and Correctional Officer McGehee refused to 5 allow plaintiff to seek medical help on October 24, 2009, liberally construed, is sufficient to state 6 a claim for relief. In contrast to plaintiff’s allegation against Correctional Officer Zeiler, plaintiff 7 implies that Correctional Officers Thompson and McGehee knew that plaintiff needed medical 8 attention for his shoulder yet refused to allow him to receive it. It can be inferred that 9 Correctional Officers Thompson and McGehee acted callously in response to plaintiff’s plea for 10 medical attention. “Much like recklessness in criminal law, deliberate indifference to medical 11 needs may be shown by circumstantial evidence when the facts are sufficient to demonstrate that 12 a defendant actually knew of a risk of harm.” Lolli v. County of Orange, 351 F.3d 410, 421 (9th 13 Cir. 2003). Accordingly, defendants’ motion to dismiss the claim against Sergeant Thompson 14 and Correctional Officer McGehee is DENIED. 15 IV. 16 Defendant Correctional Officer Asuncion Plaintiff alleges that, on November 9, 2009, Correctional Officer Asuncion denied 17 plaintiff access to physical therapy. (Id. at 19.) Plaintiff further states that, on November 13, 18 2009, Correctional Officer Asuncion denied plaintiff access to a doctor based on Sergeant 19 Guithrie’s orders. (Id.) However, these allegations, without more, do not amount to a claim of 20 deliberate indifference to a serious medical need. Plaintiff does not allege what, if any, 21 particular serious medical need he had at that time, nor whether Correctional Officer Asuncion 22 knew about that need and purposely disregarded it. See McGuckin, 974 F.2d at 1059. 23 Accordingly, defendants’ motion to dismiss the claim against Correctional Officer Asuncion is 24 GRANTED. 25 V. Defendants Dacanay, Cullen, and Wong 26 Plaintiff alleges that Wardens Cullen and Wong and Associate Warden Dacanay were 27 liable as supervisors, and they failed to properly train or supervise their subordinates. “In a § 28 Order Granting in Part and Denying in Part Defendants’ Motions to Dismiss; Directing Plaintiff to File Second Amended Complaint 6 P:\PRO-SE\LHK\CR.11\Abbott183mtd3.wpd 1 1983 or a Bivens action – where masters do not answer for the torts of their servants – the term 2 ‘supervisory liability’ is a misnomer. Absent vicarious liability, each Government official, his or 3 her title notwithstanding, is only liable for his or her own misconduct.” Iqbal, 556 U.S. at 677. 4 A supervisor may be liable under section 1983 upon a showing of: (1) personal involvement in 5 the constitutional deprivation, or (2) a sufficient causal connection between the supervisor’s 6 wrongful conduct and the constitutional violation. Henry A. v. Willden, 678 F.3d 991, 1003-04 7 (9th Cir. 2012) (citing Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011)). 8 As the court already noted, “a plaintiff’s obligation to provide the ‘grounds of his 9 ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of 10 the elements of a cause of action will not do. . . . Factual allegations must be enough to raise a 11 right to relief above the speculative level.” Twombly, 550 U.S. at 553-56. A motion to dismiss 12 should be granted if the complaint does not proffer “enough facts to state a claim for relief that is 13 plausible on its face.” Id. at 570. 14 Here, plaintiff’s allegations against Wardens Cullen and Wong, and Associate Warden 15 Dacanay do nothing more than provide formulaic assertions with no identifiable facts. (Am. 16 Compl. at 7, 27.) Although plaintiff attempts to add additional allegations against these 17 defendants in his opposition, the court cannot look beyond the contents of the complaint. See 18 Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994); see also Knievel v. 19 ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005) (noting that, in general, for Rule 12(b)(6) motions, 20 courts “must disregard facts that are not alleged on the face of the complaint or contained in 21 documents attached to the complaint”). 22 Thus, defendants’ motion to dismiss the claim against Wardens Cullen and Wong, and 23 Associate Warden Dacanay is GRANTED. 24 VI. 25 Amendment Federal Rule of Civil Procedure 15(a) is to be applied liberally in favor of amendments 26 and, in general, leave shall be freely given when justice so requires. See Janicki Logging Co. v. 27 Mateer, 42 F.3d 561, 566 (9th Cir. 1994). “In the absence of any apparent or declared reason – 28 Order Granting in Part and Denying in Part Defendants’ Motions to Dismiss; Directing Plaintiff to File Second Amended Complaint 7 P:\PRO-SE\LHK\CR.11\Abbott183mtd3.wpd 1 such as undue delay, bad faith or dilatory motive on the part of the movant, . . . undue prejudice 2 to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. – the 3 leave sought should, as the rules require, be freely given.” Hall v. City of Los Angeles, 697 F.3d 4 1059, 1073 (9th Cir. 2012) (citations omitted). Accordingly, plaintiff’s claims against 5 Correctional Officer Zeiler, Correctional Officer Asuncion, Wardens Cullen and Wong, and 6 Associate Warden Dacanay are DISMISSED WITH LEAVE TO AMEND. Plaintiff will be 7 provided with thirty days in which to file a second amended complaint to allege sufficient facts 8 to state a claim against these defendants if he can do so in good faith. 9 Plaintiff is advised that an amended complaint supersedes the previous complaint. Thus, 10 claims not included in an amended complaint would no longer be claims, and defendants not 11 named in an amended complaint would no longer be defendants. See Ferdik v. Bonzelet, 963 12 F.2d 1258, 1262 (9th Cir. 1992). 13 CONCLUSION 14 For the foregoing reasons, the Court hereby orders as follows: 15 1. Defendants’ motions to dismiss are GRANTED in part and DENIED in part. 16 Defendants’ motion to dismiss is GRANTED as to Correctional Officer Zeiler, Correctional 17 Officer Asuncion, Wardens Cullen and Wong, and Associate Warden Dacanay. Defendants’ 18 motion to dismiss is DENIED as to the remaining defendants. 19 2. If plaintiff can cure the pleading deficiencies described above, he shall file a 20 SECOND AMENDED COMPLAINT within thirty days from the date this order is filed. The 21 second amended complaint must include the caption and civil case number used in this order (C 22 11-0183 LHK (PR)) and the words SECOND AMENDED COMPLAINT on the first page. The 23 second amended complaint must indicate which specific, named defendant(s) was involved in 24 each cause of action, what each defendant did, what effect this had on plaintiff and what right 25 plaintiff alleges was violated. Plaintiff may not incorporate material from the prior complaint by 26 reference. If plaintiff files a second amended complaint, he must allege, in good faith, facts - not 27 merely conclusions of law - that demonstrate that he is entitled to relief under the applicable 28 Order Granting in Part and Denying in Part Defendants’ Motions to Dismiss; Directing Plaintiff to File Second Amended Complaint 8 P:\PRO-SE\LHK\CR.11\Abbott183mtd3.wpd 1 federal statutes. Failure to file a second amended complaint within thirty days and in 2 accordance with this order will result in dismissal of the claims against Correctional 3 Officer Zeiler, Correctional Officer Asuncion, Wardens Cullen and Wong, and Associate 4 Warden Dacanay with prejudice. 5 3. Plaintiff is advised that an amended complaint supersedes the original complaint. 6 “[A] plaintiff waives all causes of action alleged in the original complaint which are not alleged 7 in the amended complaint.” London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981). 8 Defendants not named in an amended complaint are no longer defendants. See Ferdik v. 9 Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). 10 4. It is the plaintiff’s responsibility to prosecute this case. Plaintiff must keep the 11 court informed of any change of address by filing a separate paper with the Clerk headed “Notice 12 of Change of Address,” and must comply with the court’s orders in a timely fashion. Failure to 13 do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule 14 of Civil Procedure 41(b). 15 This order terminates docket numbers 103 and 122. 16 IT IS SO ORDERED. 17 18 DATED: 2/24/14 LUCY H. KOH United States District Judge 19 20 21 22 23 24 25 26 27 28 Order of Dismissal with Leave to Amend; Order Granting in Part and Denying in Part Defendants’ Motions to Dismiss; Directing Plaintiff to File Second Amended Complaint 9 P:\PRO-SE\LHK\CR.11\Abbott183mtd3.wpd

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