Abbott v. Tootell et al

Filing 57

ORDER by Judge Lucy H. Koh denying 42 Motion to Dismiss; denying 53 Motion to Strike (Attachments: # 1 Certificate/Proof of Service) (mpb, COURT STAFF) (Filed on 11/13/2012)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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JOE ABBOTT,

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Plaintiff,
v.
DOCTOR E. TOOTELL, et al.,

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Defendants.

No. C 11-0183 LHK (PR)
ORDER DENYING MOTIONS TO
DISMISS; FURTHER BRIEFING

(Docket Nos. 42, 53)

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Plaintiff, a state prisoner proceeding pro se, filed an amended civil rights complaint
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pursuant to 42 U.S.C. § 1983 challenging the conditions of his confinement at San Quentin State
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Prison. Defendants have filed a motion to dismiss for failure to state a claim, and also for failing
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to exhaust in part. Plaintiff has filed an opposition,1 and Defendants have filed a reply. For the

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reasons stated below, Defendants’ motion to dismiss for failure to state a claim and motion to
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dismiss for failure to exhaust are DENIED.
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BACKGROUND
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In his amended complaint, Plaintiff states that he suffers from a variety of medical issues.
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He states that Defendants are failing to treat him or provide him adequate medical care, despite
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being aware that Plaintiff requires such care. Plaintiff alleges that Defendants have
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demonstrated deliberate indifference to his serious medical needs.
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Plaintiff’s motion to strike Defendants’ Exhibit 2 is GRANTED.

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I.

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Motion to Dismiss for Failure to State a Claim
Defendants move to dismiss the amended complaint for failure to state a claim.

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Specifically, Defendants argue that, at most, Plaintiff has merely alleged a difference of opinion

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as to the proper medical treatment, or a claim of negligence. Neither a difference of opinion nor

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negligence are sufficient to state a claim of deliberate indifference.

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Title 28 U.S.C. § 1915(e)(2) requires a Court to dismiss any case in which a litigant seeks

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leave to proceed in forma pauperis if the Court determines that the action is (1) frivolous or

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malicious; (2) fails to state a claim on which relief may be granted; or (3) seeks monetary relief

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against a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2). The

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determination of whether the litigant has stated a claim is decided under the same standard used

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in Rule 12(b)(6) motions to dismiss. Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012).

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As an initial matter, Defendants’ motion seeks to have the Court revisit a decision

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already made, as the Court had decided that the amended complaint did state a claim upon which

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relief may be granted. On January 24, 2012, the Court performed an initial screening of the

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complaint, which required the Court to dismiss, among other things, any claims that fail to state

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a claim upon which relief may be granted. The Court determined that, liberally construed, the

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allegations of the amended complaint adequately pleaded a cognizable Eighth Amendment

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claim.

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To seek reconsideration of an interlocutory order, such as the previous order’s

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determination that the complaint stated a claim upon which relief may be granted, Defendants

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had to comply with Local Rule 7-9(a). They did not. They did not obtain leave of Court to file a

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motion for reconsideration, and made no argument in her brief that would suggest that they could

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pass the test for such permission. That is, they did not show: (1) that at the time of the motion

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for leave, a material difference in fact or law existed from that which was presented to the Court

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before entry of the order for which the reconsideration is sought, and that in the exercise of

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reasonable diligence the party applying for reconsideration did not know such fact or law at the

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time of the order; (2) the emergence of new material facts or a change of law occurring after the

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time of such order; or (3) a manifest failure by the Court to consider material facts which were
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presented to the Court before such interlocutory order. See N.D. Cal. Civil L.R. 7-9(b). Even

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without the special requirements for motions to reconsider, Defendants have the problem that a

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pleading challenge following a Section 1915A screening of a prisoner complaint rarely will be

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successful, especially in light of the requirement that pro se complaints be liberally construed.

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See Hebbe, 627 F.3d at 342 (even after Supreme Court cases heightened the standards for

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pleading, the Court’s obligation “remains, ‘where the petitioner is pro se, particularly in civil

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rights cases, to construe the pleadings liberally and to afford the petitioner the benefit of any

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doubt.’”). Accordingly, the motion is DENIED.

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Alternatively, the Court also finds none of Defendants’ arguments are persuasive on the

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merits. A motion to dismiss for failure to state a claim under Rule 12(b)(6) tests the legal

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sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). In considering

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whether the complaint is sufficient to state a claim, the Court must accept as true all of the

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factual allegations contained in the complaint. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).

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However, the Court need not accept as true “allegations that contradict matters properly subject

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to judicial notice or by exhibit” or “allegations that are merely conclusory, unwarranted

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deductions of fact, or unreasonable inferences.” St. Clare v. Gilead Scis., Inc. (In re Gilead Scis.

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Sec. Litig.), 536 F.3d 1049, 1055 (9th Cir. 2008). While “a complaint need not contain detailed

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factual allegations . . . it must plead ‘enough facts to state a claim to relief that is plausible on its

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face.’” Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). “A claim has facial

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plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable

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inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.

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662, 678 (2009). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks

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for more than sheer possibility that a defendant acted unlawfully.” Iqbal, 556 U.S. at 678.

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Deliberate indifference to serious medical needs violates the Eighth Amendment’s

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proscription against cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 104 (1976);

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McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds, WMX

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Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). A determination of

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“deliberate indifference” involves an examination of two elements: the seriousness of the
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prisoner’s medical need and the nature of the defendant’s response to that need. McGuckin, 974

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F.2d at 1059. A “serious” medical need exists if the failure to treat a prisoner’s condition could

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result in further significant injury or the “unnecessary and wanton infliction of pain.” Id. (citing

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Estelle, 429 U.S. at 104). A prison official is deliberately indifferent if he knows that a prisoner

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faces a substantial risk of serious harm and disregards that risk by failing to take reasonable steps

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to abate it. Farmer v. Brennan, 511 U.S. 835, 837 (1994).

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Taking Plaintiff’s allegations as true as the Court is required to do, in the amended

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complaint, Plaintiff claims that, in 2006, he injured his achilles tendon and was seen by

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orthopedic specialist, Dr. Matan. (Am. Compl. at 8.) Plaintiff did not have surgery, and his foot

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began healing improperly. (Id.) In 2008 and 2009, Dr. Matan performed knee surgery and

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shoulder surgery on Plaintiff. (Id. at 9.) Because of the pain Plaintiff experienced from

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receiving multiple surgeries, Plaintiff was placed into the chronic care program. (Id. at 10.)

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Defendant Dr. Tootell discontinued Plaintiff’s “ice chrono” and issued a policy that ice would no

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longer be given for chronic pain, even though it had been part of Plaintiff’s recommended

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treatment for pain care management. (Id. at 9-10.) Dr. Matan also issued a permanent chrono

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for “no handcuffs” to be placed behind Plaintiff’s back (id. at 10) and “no leg irons/shackles” on

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Plaintiff’s right foot (id. at 11). Despite knowing about these chronos, Defendant Dr. Grant

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rescinded all of them without any examination of Plaintiff. (Id. at 11.) Thereafter, Dr. Matan

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again issued medical chronos for “waist restraints / no hands behind back,” “no kneeling on

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Plaintiff’s knees,” and an ankle wrap for Plaintiff’s right achilles. (Id.) Despite these chronos,

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Defendant Sergeant Seman told Plaintiff, “For every doctor you get to write you this s__, I have

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a doctor who can take it away.” (Id. at 12.) Defendants Lieutenant Arnold and Sergeant Seman

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persuaded Defendant Dr. Grant to rescind all of Dr. Matan’s medical chronos. (Id. at 13.) In

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2010, Defendant Dr. Jones began treating Plaintiff. (Id. at 20.) Without examining Plaintiff, Dr.

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Jones stated that she could not authorize a medical chrono for waist restraints like Dr. Matan did,

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but she permitted modified handcuffs. (Id. at 20-21.) Plaintiff’s physical therapist

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recommended that Plaintiff receive a medical boot and walking cane, both of which were

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subsequently denied by Dr. Jones. (Id. at 21.) Finally, Dr. Jones examined Plaintiff, and issued
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waist chain handcuffs. (Id. at 22.) Liberally construing Plaintiff’s amended complaint, an

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inference can be made that Defendants were aware of Plaintiff’s serious medical needs yet

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purposely failed to act.

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The Court also rejects Defendants’ argument that they are entitled to qualified immunity.

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The qualified immunity inquiry is separate from the constitutional inquiry for a claim of

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deliberate indifference under the Eighth Amendment. Estate of Ford v. Caden, 301 F.3d 1043,

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1053 (9th Cir. 2002). A determination that there is a triable issue of fact as to whether

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defendants were deliberately indifferent does not necessarily preclude a finding of qualified

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immunity. Id. For a qualified immunity analysis, the Court need not determine whether the

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facts alleged show that Defendants acted with deliberate indifference. See Osolinski v. Kane, 92

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F.3d 934, 936 (9th Cir. 1996). Rather, the Court need only review the relevant law to determine

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whether, in light of clearly established principles at the time of the incident, the officials could

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have reasonably believed their conduct was lawful. See id. at 939 (granting qualified immunity

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on Eighth Amendment safety claim because reasonable prison official could have reasonably

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believed that defendants’ conduct, as alleged, did not violate Eighth Amendment). Here,

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viewing the evidence in the light most favorable to Plaintiff, the Court concludes that a

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reasonable officer in Defendants’ positions could not have concluded that their actions were

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lawful.

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Defendant’s motion to dismiss for failure to state a claim is DENIED.
II.

Motion to Dismiss for Failure to Exhaust
The Prison Litigation Reform Act (“PLRA”) provides that “[n]o action shall be brought

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with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a

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prisoner confined in any jail, prison, or other correctional facility until such administrative

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remedies as are available are exhausted.” 28 U.S.C. § 1997e(a). Nonexhaustion under

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§ 1997e(a) is an affirmative defense; that is, Defendants have the burden of raising and proving

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the absence of exhaustion. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). In deciding a

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motion to dismiss for failure to exhaust administrative remedies, the Court may look beyond the

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pleadings and decide disputed issues of fact. Id. at 1119-20. If the Court concludes that the
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prisoner has not exhausted nonjudicial remedies, the proper remedy is dismissal without

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prejudice. Id. at 1120.

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Failure to exhaust is an affirmative defense under the PLRA. Jones v. Bock, 549 U.S.

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199, 211 (2007). Defendants have the burden of raising and proving the absence of exhaustion,

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and inmates are not required to specifically plead or demonstrate exhaustion in their complaints.

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Id. at 215-17. As there can be no absence of exhaustion unless some relief remains available, a

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movant claiming lack of exhaustion must demonstrate that pertinent relief remained available,

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whether at unexhausted levels or through awaiting the results of the relief already granted as a

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result of that process. Brown v. Valoff, 422 F.3d 926, 936-37 (9th Cir. 2005).

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The California Department of Corrections and Rehabilitation (“CDCR”) provides its

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inmates and parolees the right to appeal administratively “any departmental decision, action,

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condition, or policy which they can demonstrate as having an adverse effect upon their welfare.”

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Cal. Code Regs. tit. 15, § 3084.1(a). It also provides its inmates the right to file administrative

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appeals alleging misconduct by correctional officers. Cal. Code Regs. tit. 15, § 3084.1(e). In

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order to exhaust available administrative remedies within this system, a prisoner must submit his

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complaint on CDCR Form 602 (“602”) and proceed through several levels of appeal:

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(1) informal level grievance filed directly with any correctional staff member, (2) first formal

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level appeal filed with one of the institution's appeal coordinators, (3) second formal level appeal

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filed with the institution head or designee, and (4) third formal level appeal filed with the CDCR

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director or designee (“Director’s level”). Cal. Code Regs. tit. 15, § 3084.5; Brodheim v. Cry,

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584 F.3d 1262, 1264-65 (9th Cir. 2009). This satisfies the administrative remedies exhaustion

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requirement under Section 1997e(a).

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Defendants argue that Plaintiff failed to exhaust his claim against Defendants Seman and

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Arnold. Specifically, Defendants state that Plaintiff’s grievance, SQ-09-00762, failed to allege

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that Seman or Arnold somehow interfered with Plaintiff’s medical treatment or rescinded

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Plaintiff’s medical chronos. A review of SQ-09-00762 demonstrates that Plaintiff complained

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that Dr. Matan’s chronos were not being adhered to by Dr. Grant, and that Dr. Grant disapproved

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the chronos “based on custody staff objections.” (Docket No. 54, Ex. 2 at 8, 10.) In Plaintiff’s
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amended complaint, he alleges that Defendants Seman and Arnold persuaded Defendant doctors

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to rescind Dr. Matan’s chronos and recommended treatments.

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Compliance with prison grievance procedures is all that is required by the PLRA to

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“properly exhaust.” Jones v. Bock, 549 U.S. 199, 217-18 (2007). In California, the regulation

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requires the prisoner “to lodge his administrative complaint on CDC form 602 and ‘to describe

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the problem and action requested.’” Morton v. Hall, 599 F.3d 942, 946 (9th Cir. 2010) (quoting

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Cal. Code Regs. tit. 15 § 3084.2(a)). In Jones, the Supreme Court held that because the

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Michigan Department of Corrections’ procedures made no mention of naming particular

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officials, the Sixth Circuit’s rule imposing such a prerequisite to proper exhaustion was

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unwarranted. Jones, 549 U.S. at 217. The Court stated that the “name all defendants”

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requirement under the Sixth Circuit rule may promote early notice to those who might later be

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sued, but that has not been thought to be one of the leading purposes of the exhaustion

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requirement. Id. at 219 (“We are mindful that the primary purpose of a grievance is to alert

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prison officials to a problem, not to provide personal notice to a particular official that he may be

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sued; the grievance is not a summons and complaint that initiates adversarial litigation.”). The

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Court concluded that exhaustion is not per se inadequate simply because an individual later sued

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was not specifically named in the grievances. Id. (citation omitted).

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That Plaintiff failed to name Defendants Seman and Arnold in his grievance does not

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equate a failure to properly exhaust. Plaintiff claimed that Dr. Grant overruled Dr. Matan’s

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chronos based on “prison guards’ objections” (Docket No. 54, Ex. 2 at 10), and the Director’s

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Level of Review acknowledged this portion of Plaintiff’s claim (id. at 8). The Court concludes

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that Plaintiff properly complied with the prison grievance procedure, and that the grievance,

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liberally construed, had the same subject and same request for relief as that in Plaintiff’s

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amended complaint.

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Accordingly, Defendants’ motion to dismiss for failure to exhaust is DENIED.

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CONCLUSION

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For the foregoing reasons, the Court hereby orders as follows:

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Defendants’ motions to dismiss are DENIED.

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No later than ninety (90) days from the date of this order, Defendants shall file a

motion for summary judgment with respect to the cognizable claims in the amended complaint.

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Any motion for summary judgment shall be supported by adequate factual

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documentation and shall conform in all respects to Rule 56 of the Federal Rules of Civil

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Procedure. Defendants are advised that summary judgment cannot be granted, nor

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qualified immunity found, if material facts are in dispute. If Defendants are of the opinion

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that this case cannot be resolved by summary judgment, they shall so inform the Court

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prior to the date the summary judgment motion is due.

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Plaintiff’s opposition to the dispositive motion shall be filed with the Court and

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served on Defendants no later than twenty-eight (28) days from the date Defendants’ motion is

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filed.

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

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

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

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claim). Plaintiff is cautioned that failure to file an opposition to Defendants’ motion for

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summary judgment may be deemed to be a consent by Plaintiff to the granting of the motion, and

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granting of judgment against Plaintiff without a trial. See Ghazali v. Moran, 46 F.3d 52, 53-54

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(9th Cir. 1995) (per curiam); Brydges v. Lewis, 18 F.3d 651, 653 (9th Cir. 1994).

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Defendants shall file a reply brief no later than fourteen (14) days after

Plaintiff’s opposition is filed.
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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.
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All communications by the Plaintiff with the Court must be served on

Defendants’ counsel, by mailing a true copy of the document to Defendants’ counsel.
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Discovery may be taken in accordance with the Federal Rules of Civil Procedure.

No further Court order is required before the parties may conduct discovery.
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It is Plaintiff’s responsibility to prosecute this case. Plaintiff must keep the Court

and all parties informed of any change of address and must comply with the Court’s orders in a
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timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute

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pursuant to Federal Rule of Civil Procedure 41(b).

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This order terminates docket numbers 42 and 53.

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IT IS SO ORDERED.

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DATED: 11/12/12

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LUCY H. KOH
United States District Judge

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