Bovarie v. Schwarzenegger, et al

Filing 57

ORDER Adopting in Part and Rejecting in Part 52 Report and Recommendation: Bovarie's claims against all of the Defendants in their official capacities are dismissed, with prejudice. Tetteh, Ko, Hodge, Cook, Hammond, Schwarzenegger, Cates, Tilt on, Smelosky, Almager, Giurbino and Robinson are dismissed from this case, with prejudice. Aymar's motion to dismiss is denied. Bovarie's claims for injunctive relief are dismissed. Bovarie's request for counsel is denied. Barreras, Calderon, Khatri, Manaig, Aymar and Navamani must answer Bovarie's remaining Eighth Amendment claim and pendant state law claims under California Government Code section 845.6 within 20 days of the date this Order is entered. Signed by Judge Larry Alan Burns on 3/18/10.(All non-registered users served via U.S. Mail Service)(pdc) (jrl).

1 2 3 4 5 6 7 8 9 10 11 12 vs . 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B o v a rie is a California prisoner currently incarcerated at Centinela State Prison. D e fe n d a n ts are the Governor of California, the secretary and former secretary of the C a lifo rn ia Department of Corrections and Rehabilitation, the warden and former w a rd e n s of Centinela, and a number of doctors and medical staff at Centinela. There a re eighteen defendants in all. The essence of Bovarie's claim, which he brings as a civil rights lawsuit under 42 U.S.C. § 1983, is that he received inadequate medical c a re at Centinela. The Court adopts the Report and Recommendation almost in its e n t ir e t y . I. P r o c e d u r a l History B o va rie filed this lawsuit on September 10, 2008, and pursuant to 28 U.S.C. § 6 3 6 (b ) and Civil Local Rules 72.1(c) and (d) it was referred to Magistrate Judge Nita S to rm e s for a Report and Recommendation ("R&R"). Because Bovarie is proceeding -108cv1661

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

M A R C U S BOVARIE, et al., P la in t iffs ,

C A S E NO. 08cv1661-LAB (N L S ) O R D E R ADOPTING IN PART AN D REJECTING IN PART R E P O R T AND R E C O M M E N D AT IO N

A R N O L D SCHW A R Z E N E G G E R , et a l ., D e fe n d a n ts .

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

p ro se, the Court screened his complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) and d is m is s e d it for failure to state a claim. (Doc. No. 3.) See Lopez v. Smith, 203 F.3d 1 1 2 2 , 1126­27 (9th Cir. 2000) (en banc). Bovarie then filed his First Amended C o m p la in t ("FAC") (Doc. No. 6), which the Court again screened and dismissed, but o n ly as against certain defendants. (Doc. No. 8.) The remaining defendants then m o ve d to dismiss, some individually, some collectively, and it is their motions to d ism iss that the R&R addresses and that are now before the Court. Three notable modifications were made to Bovarie's complaint as a result of the C o u rt's screenings pursuant to 28 U.S.C. § 1915(e)(2)(B). First, defendants

S c h w a r z e n e g g e r, Cates, Tilton, Smelosky, Almager, and Giurbino have been d ism iss e d without prejudice. Bovarie does not allege that any of these defendants w e re directly involved in or responsible for the inadequate medical care he allegedly re c e ive d , and there is no respondeat superior liability under 42 U.S.C. § 1983. Palmer v . Sanderson, 9 F.3d 1433, 1437­38 (9th Cir. 1993). Second, W a yn e W ic k e n was d is m is s e d as a co-plaintiff because he failed to file a Motion to Proceed In Forma P a u p e ris , and because Bovarie has no legal authority to represent him. Third,

B o v a rie 's motion for class certification was denied without prejudice. There is an a lm o s t identical class action, Plata v. Schwarzenegger, already pending in the N o rth e rn District of California. See N.D. Cal. Civil Case No. C-01-1351. J u d g e Stormes issued her R&R on January 21, 2010. Both Bovarie and the D e fe n d a n ts filed objections to it. II. T h e R&R Bovarie is clear in the FAC that he is suing Defendants in their individual and o ffic ia l capacities. The first conclusion of the R&R is that the Eleventh Amendment im m u n ize s Defendants from liability in their official capacities. See Will v. Mich. Dep't o f State Police, 491 U.S. 58, 71 n.10 (1989). Next, the R&R concludes that Tetteh, Ko, and Hodge should be dismissed as d e fe n d a n ts , with prejudice, because Bovarie doesn't allege he had any contact with -2-

08cv1661

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

th e m . These are doctors who treated W ic k e n , and the Court has already dismissed W ic k e n as a plaintiff in this case. T h e n the R&R turns to Cook, Hammond, and Robinson, who it concludes can't b e accused of deliberate indifference to Bovarie's medical needs because they merely re vie w e d and processed Bovarie's medical appeals by relying, in good faith, on the o p in io n s of the doctors who actually saw Bovarie. The R&R recommends dismissing C o o k , Hammond, and Robinson with prejudice. T h e R&R also concludes that Bovarie has pled sufficient facts to ground an E ig h th Amendment claim against Aymar, although this claim cannot be based upon A ym a r's allegedly inadequate medical licensing. Finally, the R&R recommends allowing Bovarie's claims for injunctive relief to g o forward on the ground that Defendants haven't adequately shown why those claims a re subsumed by the Plata class action. III. L e g a l Standards The Court reviews the R&R pursuant to Rule 72 of the Federal Rules of Civil P ro c e d u re . "The district judge must determine de novo any part of the magistrate ju d g e 's disposition that has been properly objected to. The district court may accept, re je c t, or modify the recommended disposition; receive further evidence; or return the m a tte r to the magistrate judge with instructions." Fed. R. Civ. P. 72(b)(3). The district ju d g e "must review the magistrate judge's findings and recommendations de novo if o b je c tio n is made, but not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1 1 2 1 (9th Cir. 2003) (en banc). The R&R itself warns that "failure to file objections w ith in the specified time may waive the right to raise those objections on appeal of the C o u rt's order." (R&R at 17.) B e c a u s e Bovarie is a prisoner and is proceeding pro se, the Court construes h is pleadings liberally and affords him the benefit of any doubt. See Karim-Panahi v. L .A . Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). The rule of liberal construction is "particularly important in civil rights cases." Ferdik v. Bonzelet, 963 F.2d 1258, 1261 -3-

08cv1661

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

(9 th Cir. 1992). That said, "[p]ro se litigants must follow the same rules of procedure tha t govern other litigants." King v. Atiyeh, 814 f.2d 565, 567 (9th Cir. 1987). IV. D i s c u s s io n A lth o u g h both parties filed objections to the R&R, not all of the R&R's c o n c lu s io n s have been objected to. B o va rie does not object to the dismissal of his claims against the Defendants in their official capacity. The Court agrees with the R&R that those claims should be d is m is s e d with prejudice. Nor does Bovarie object to the dismissal of Tetteh, Ko, and H o d g e , the doctors who he alleges only treated W ick e n . Again, the Court agrees with th e R&R's analysis, and dismisses these defendants with prejudice. The R&R

re c o m m e n d e d dismissing Cook, Hammond, and Robinson, who oversaw Bovarie's m e d ic a l appeals but didn't actually treat him, and Bovarie objects only to the dismissal o f Cook. Hammond and Robinson are therefore dismissed with prejudice. B o v a rie makes two other objections that don't relate to the R&R. First, he o b je c ts to the Court's dismissal, at the initial screening phase, of Schwarzenegger, T ilton , Smelosky, Almager, Giurbino, and Cates ­- all defendants the Court d e t e rm in e d could only be liable on a theory of respondeat superior that isn't c o n te m p la te d by 42 U.S.C. § 1983. Second, Bovarie seeks the appointment of c o u n s e l for himself and for W ick e n , a request he's made throughout this litigation. For Defendants' part, Aymar doesn't object to the R&R's conclusion that B o va rie has stated an Eighth Amendment claim against her. Aymar's motion to d is m is s is therefore denied in part and granted in part (to the extent Bovarie's claim a g a in s t her relies on her medical licensing). Defendants do object, however, to the R & R 's suggestion that they haven't sufficiently shown why Bovarie's claims for in ju n c tive relief are being addressed in Plata.1 //

To be clear, only Cook, Hammond, Barreras, Khatri, Calderon, Manaig, and N a va m a n i join in this objection. -408cv1661

1

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

A.

D is m is s a l of Cook

C o o k is a Health Care Appeals Coordinator at Centinela, and Bovarie alleges s h e "is and was responsible for all medical inmate appeals submitted by inmates at C E N , providing medical care for all inmates at CEN, including but not limited to d ia g n o s tic s and testing." (FAC ¶ 23.) She functions in a "`gate keeper' to medical c a re role in which she personally diagnoses inmates to grant or deny appeals." (Id.) It is not clear from the record that Cook personally diagnoses inmates. Rather, th e R&R describes her as a "fact-gathering employee with no medical training," whose jo b it is to assess the legitimacy of an inmate's medical appeals by reviewing the o p in io n s of the doctors who treated them. (R&R at 12.) The problem for Bovarie is th a t to be liable for the deprivation of his constitutional rights under 42 U.S.C. § 1983, C o o k must have performed an affirmative act, participated in another's affirmative a c ts , or omitted to perform an act she is legally required to perform that made her d e lib e ra te ly indifferent to his medical needs. Johnson v. Duffy, 588 F.2d 740, 743 (9th C ir. 1978). In other words, "there must be a showing of personal participation in the a lle g e d rights deprivation." Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). The C o u rt agrees with the R&R's conclusion that the mere good-faith and reasonable re vie w of other doctors' opinions cannot make Cook complicit in their alleged in d iffe re n c e to Bovarie's medical needs. (R&R at 11.) Deliberate indifference lies somewhere between negligence and "conduct e n g a g e d in for the very purposes of causing harm or with the knowledge that harm will re s u lt," Farmer v. Brennan, 511 U.S. 825, 836 (1994). To accuse Cook of deliberate in d iffe re n c e , moreover, Bovarie must allege knowledge on her part that a substantial ris k of harm existed in her taking the medical reports she reviewed at their word. Id. a t 837-838. The Court approves the R&R's conclusion, with respect to both of B o va rie 's medical grievances, that Cook reasonably relied on the opinions of Bovarie's d o c to rs , and could not have drawn the inference that a substantial risk of harm th re a te n e d Bovarie by her doing so. (R&R at 12­13.) -5-

08cv1661

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15

B o v a rie 's response to this is that Cook's very position is illegal, and that, in the firs t instance, a non-doctor shouldn't be reviewing the opinions of doctors to assess th e merits of a medical appeal. He claims Cook was deliberately indifferent by (1 ) performing this duty at all when it is painfully obvious she c a n n o t, on her own, determine if care is sufficient; (2) by not ta k in g her cases to a doctor (or anyone) to review before d e n ie d relief, and medical care, on her own insufficient o p in io n -- an opinion she knew or should have known was in s u ffic ie n t to make a medical decision for Plaintiff. (Obj. to R & R at 6.) T h e s e allegations, even assuming they are true, are insufficient to support the charge th a t Cook was deliberately indifferent to Bovarie's health. Bovarie's grievance isn't w ith Cook, really, as much as the regime of medical treatment at Centinela that e n tru s ts a non-physician with the responsibility of reviewing medical records and p ro c e s s in g appeals. Bovarie's objection to Cook's dismissal is therefore overruled, a n d she is dismissed with prejudice from this case. B. D is m is sa l of Schwarzenegger, Tilton, Smelosky, Almager, Giurbino, a n d Cates

S c h w a r z e n e g g e r (Governor of California), Tilton and Cates (secretaries of the 16 C a lifo rn ia Department of Corrections and Rehabilitation), and Smelosky, Almager, and 17 G iu rb in o (wardens of Centinela) were dismissed from this lawsuit at an early stage. 18 P u rsu a n t to 28 U.S.C. § 1915(e)(2)(B), the Court screens all IFP complaints for failure 19 to state a claim, and it twice determined that Bovarie alleged no direct involvement by 20 a n y of these Defendants in the medical care he received and was attempting to hold 21 th e m liable in their supervisory capacity. (See Doc. Nos. 3, 8.) Under 42 U.S.C. § 22 1 9 8 3 , however, there is no respondeat superior liability. Palmer, 9 F.3d at 1437­38. 23 B o va rie challenges the dismissal of Schwarzenegger, Tilton, Cates, Smelosky, 24 25 26 27 28 The R&R does not address the place of Schwarzenegger, Tilton, Cates, S m e lo s k y , Almager, and Giurbino in this lawsuit. The Court -- not Magistrate Judge S to rm e s -- dismissed these defendants pursuant to an initial screening of the FAC u n d e r 28 U.S.C. § 1915(e)(2)(B). Bovarie could have sought leave to amend the FAC to allege facts sufficient to include these defendants, but he did not. Therefore, the -608cv1661
2

A lm a g e r, and Giurbino in his objection to the R&R.2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

T h e s e Defendants cannot be held liable under section 1983 just because their jo b description includes the oversight of the prison where Bovarie is incarcerated. T h a t is what it means, in this context, to say there is no respondeat superior liability. H o w e ve r, a supervisory official may be liable under section 1983 if he personally p a rtic ip a te d in the constitutional deprivation alleged, or if there was a sufficient causal c o n n e c tio n between the supervisor's conduct and the deprivation. Redman v. County o f San Diego, 942 F.2d 1435, 1446­47 (9th Cir. 1991). Ultimately what matters is that d e fe n d a n ts can be said to have caused the deprivation. Galen v. County of Los A n g e le s , 477 F.3d 652, 659 (9th Cir. 2007); see also Duffy, 588 F.2d at 743­44 ("P e r s o n a l participation is not the only predicate for section 1983 liability. Anyone who `c a u s e s ' any citizen to be subjected to a constitutional deprivation is also liable."). T h a t causal connection can be established in a number of ways. If a supervisor im p le m e n ts or oversees a policy that gives constitutional rights undue consideration a n d sets the wheels in motion for their trampling, he can be liable. Cunningham v. G a te s , 229 F.3d 1271, 1292 (9th Cir. 2000). If a supervisor fails to train or oversee s u b o rd in a te s who go on to violate another's constitutional rights, he can be liable. Id. If a supervisor acquiesces in the deprivation of a constitutional right of which a c o m p la in t is made, he can be liable. Id. "The inquiry into causation must be

in d ivid u a liz e d and focus on the duties and responsibilities of each individual defendant w h o s e acts or omissions are alleged to have caused a constitutional deprivation." L e e r v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988). //

C o u rt interprets Bovarie's objection to their dismissal not as an objection to the R&R b u t as a request for leave to amend his FAC. Rule 15 of the Federal Rules of Civil P ro c e d u re mandates that leave to amend "be freely given when justice so requires." F e d . R. Civ. P. 15. "This policy is to be applied with extreme liberality." Eminence C a p ita l, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003). See also Foman v . Davis, 371 U.S. 178, 182 (1962) (implying leave to amend should be granted in the a b s e n c e of undue delay, bad faith or dilatory motive, or undue prejudice to the o p p o s in g party or futility of amendment). The Court needn't grant leave to amend, h o w e ve r, if amendment would be futile. Gardner v. Martino, 563 F.3d 981, 990 (9th C ir. 2009). -708cv1661

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

A n Eighth Amendment violation occurs when prison officials are deliberately in d iffe re n t to a prisoner's medical needs. Toguchi v. Chung, 391 F.3d 1051, 1057 (9th C ir. 2004); see also Leer, 844 F.2d at 633 ("A prisoner can state a section 1983 claim a g a in s t prison personnel under the eighth amendment by establishing that the prison p e rs o n n e l acted with `deliberate indifference' in creating the condition that violates the e ig h th amendment."). To act with deliberate indifference, a prison official must know o f and disregard an excessive risk to inmate health and safety. Toguchi, 391 F.3d at 1 0 5 7 (internal citation omitted). "If a [prison official] should have been aware of the ris k , but was not, then the [official] has not violated the Eighth Amendment, no matter h o w severe the risk." Id. (quoting Gibson v. County of W a s h o e , Nevada, 290 F.3d 1 1 7 5 , 1187 (9th Cir. 2002)). Bovarie alleges that Schwarzenegger "failed to provide adequate funding and le g is la tio n for adequate health care in California's prisons" and "allowed overcrowding in California's prisons to reach such a severe degree that the provision of adequate h e a lth care to California's prisoners is an impossibility." (Obj. to R&R at 2.) Likewise, B o v a r ie alleges that Cates and Tilton, secretaries of the California Department of C o r re c t io n s and Rehabilitation, allowed overcrowding to infringe on the provision of a d e q u a te health care, "failed to contract with adequate health care providers," "failed to establish adequate statewide protocol for the supervision and training of medical p e r s o n n e l," and "failed to provide adequate medical facilities and medical staff for C D C R 's prisons." (Obj. to R&R at 2­3.) Finally, Smelosky, Almager, and Giurbino, W a rd e n s of Centinela, "failed to establish adequate screening of private health care p ro vid e rs ," "failed to establish adequate protocol for the provision of health care to in m a te s of Centinela," "failed to establish adequate protocol for the supervision and tra in in g of Centinela . . . medical personnel," and failed to train and supervise those re s p o n s ib le for health care. (Obj. to R&R at 3­4.) Bovarie makes essentially the s a m e allegations in the FAC. He accuses each of these Defendants of being

d e lib e ra te ly indifferent to inmates' medical needs and grossly negligent in supervising -8-

08cv1661

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

th e ir medical care, as well as overseeing certain policies and practices that they knew w o u ld create an excessive risk to inmate health and safety. (FAC at ¶¶ 127­134.) Bovarie is obviously attempting to bring the dismissed Defendants into this la w s u it by pleading around the problem that there is no respondeat superior liability u n d e r section 1983. He comes up short. First, Bovarie pleads no factual content that allows the Court to draw the in fe re n c e that the Defendants violated his Eighth Amendment rights. See Ashcroft v. Iq b a l, 129 S.Ct. 1937, 1949 (2009). He is clearly familiar with the law on suing prison o ffic ia ls under section 1983, but when he accuses the Defendants, for example, of e n fo rc in g policies and procedures "that they knew or should have known would deny m e d ic a l care to CDCR inmates creating an excessive risk to inmate health and s a fety ," (see, e.g., FAC at ¶ 131) he is merely reciting, in a conclusory manner, the e le m e n ts of a cause of action. This is inadequate. Iqbal, 129 S.Ct. at 1949. Second, Bovarie outlines in broad strokes the alleged administrative failures of the Defendants to care for the medical needs of prisoners, but he doesn't even hazard a n explanation as to how these alleged failures caused the deprivations of which he c o m p la in s . He has to hazard one, however, if he cannot allege that they actually p a rticip a te d in the deprivations that are the subject of his lawsuit. Duffy, 588 F.2d at 7 4 3 ­ 4 4 . Moreover, Leer establishes that the causal link between a defendant's action o r inaction and a constitutional deprivation be specific to that particular defendant, but B o v a rie 's claims against Schwarzenegger, Tilton, Cates, Smelosky, Almager, and G iu rb in o are identically, and formulaically, pled. (See FAC at ¶¶ 127­34.) There is n o th in g in the FAC that connects his general claim that the Defendants oversee poor m e d ic a l care in California prisons with his specific claim that his Eighth Amendment rig h ts were violated because the doctors who treated him were deliberately indifferent to his well being. At best, Bovarie's allegations against Schwarzenegger, Cates, Tilton, Smelosky, A lm a g e r, and Giurbino state a claim for supervisory liability, and there is no such -9-

08cv1661

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

lia b ility under section 1983. Rather, he must allege and plead facts to show that the D e fe n d a n ts, as prison administrators, were deliberately indifferent to Bovarie's treating p h ys ic ia n s ' own alleged deliberate indifference to Bovarie's health.3 That is a high p le a d in g standard that Bovarie has proven himself unable to meet. The Court stands b y its dismissal of these Defendants at the screening phase of this lawsuit. Bovarie o b je c te d to their dismissal in his objection to the R&R, which the Court explained it w o u ld regard, charitably, as a request for leave to amend the FAC. That request is d e n ie d . The Court concludes amendment to include these Defendants would be fu tile , and they are again dismissed, this time with prejudice.4 C. B o va r ie 's Request for Counsel

B o v a rie requested counsel in the FAC, but he never made this request in a fo rm a l motion for the Court to consider. (See FAC at V.) In his objection to the R&R, B o v a rie again asks for counsel, for himself and for W ic k e n . W ic k e n has been

d is m is s e d from this lawsuit for the reasons given above, so the request as to him is d e n ie d . P ris o n e rs have no right to counsel in civil actions, unless their physical liberty is at stake. Lassiter v. Dep't of Soc. Serv.'s of Durham County, N.C., 452 U.S. 18, 25 (1 9 8 1 ). It is, however, within the Court's discretion to appoint counsel when the in te re s ts of justice so require. Wilborn v. Escalderon, 789 F.2d 1328, 1330­31 (9th C ir. 1986). Thus far, Bovarie appears to be on top of this case and to be plenty c a p a b le of litigating it himself. His pleadings are clear and intelligible, too, indicating

This is the point of the holding in Leer that "[a] prisoner can state a section 1 9 8 3 claim against prison personnel under the eighth amendment by establishing that th e prison personnel acted with `deliberate indifference' in creating the condition that vio la te s the eighth amendment." Leer, 844 F.2d at 633. Although the Court's analysis has focused on Bovarie's section 1983 claim a g a in s t the Defendants, it also concludes that Bovarie's claim against them pursuant to California Government Code section 845.6 should be dismissed. Section 845.6 h o ld s public employees liable if they know or have reason to know that a prisoner n e e d s immediate medical care and fail to take action. Cal. Gov. Code. § 845.6. T h e re is no allegation in Bovarie's complaint that the Defendants knew or should have k n o w n of Bovarie's medical needs in particular. - 10 08cv1661
4

3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

h e has a sufficient grasp of the issues this case involves and the hurdles he must c le a r to see it move forward. The request for counsel is denied. D. R e le v a n c e of Plata

D e fe n d a n ts Ko, Cook, Hammond, Barreras, Khatri, Calderon, Manaig, and N a va m a n i moved to dismiss Bovarie's claims for injunctive relief on the ground that a pending class action, Plata v. Schwarzenegger, already covers those claims. See N .D . Cal. Civil Case No. C-01-1351. The R&R concludes that the Court can't take ju d icia l notice of Plata, however, because the Defendants have only provided the case n u m b e r, not a copy of the docket sheet and operative complaint. (R&R at 16.) W ith o u t these, the R&R explains, "the court cannot compare the relief sought in that c a s e to the relief Bovarie requests here." (Id.) Defendants filed an objection to the R & R on this issue alone. In fact, the Court took judicial notice of Plata, in its second screening order u n d e r 28 U.S.C. § 1915(e)(2)(B), when it denied Bovarie's request for class c e rtific a tio n . (Doc. No. 8 at 2.) The Court noted, "It appears that the class action P la in tiff is seeking is identical to the class action that already exists in the Plata case." (Id.) The R&R, understandably, overlooks this. Bovarie did not reply to the

D e fe n d a n ts ' objection to the R&R, but the Court anticipates him arguing that the C o u rt's judicial notice of Plata was limited to his request for "certification of a class a c tio n lawsuit based on denial of medical care affecting all California Department of C o rre c tio n s and Rehabilitation's prisoners." (FAC at 3.) In other words, Plata, while it may preempt class certification of Bovarie's case, doesn't preempt Bovarie's specific c la im s for injunctive relief. D e fe n d a n ts are right to contest that argument. "Individual lawsuits for injunctive a n d declaratory relief may not be brought if there is a class action pending involving the same subject matter." Jacobson v. Schwarzenegger, 357 F.Supp.2d 1198, 1209 (C .D . Cal. 2004) (citing Crawford v. Bell, 599 F.2d 890, 892­93 (9th Cir. 1979). It w o u ld be one thing if Bovarie sought injunctive relief that is specific to his medical - 11 -

08cv1661

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

n e e d s or the circumstances of his incarceration. But the injunctive relief he seeks is s ys te m -w id e , structural reform. (See FAC at 71­73.) That is precisely the objective o f the plaintiffs in Plata. Defendants overstate the point slightly by arguing that the Court's prior notice o f Plata is "the law of the case" and that the Court "has already made a factual finding th a t the injunctive relief claims in the two cases are identical." The Court's actual h o ld in g was that Bovarie's proposed class action appeared to be identical to Plata, a n d it denied Bovarie's request for class certification without prejudice. Moreover, w h ile the initial screening of pro se complaints pursuant to 28 U.S.C. § 1915(e)(2)(B) is undertaken with care, it is undertaken sua sponte and without any input from p a rtie s , and is therefore not infallible. See Harris v. Lappin, Case No. 06-CV-664, 2 0 0 9 W L 789756 at *3 (C.D. Cal. Mar. 19, 2009). Nonetheless, the sensible

c o n c lu s io n here is that the injunctive relief Bovarie seeks maps closely onto the in ju n c tive relief the plaintiffs in Plata seek, and Bovarie can rest assured that the Plata litig a tio n is taking the concerns he voices quite seriously. His claims for injunctive re lie f are therefore dismissed with prejudice. V. C o n c l u s io n T h e Court reaches the following conclusions, almost all of which affirm those o f the R&R. F irs t, Bovarie's claims against all of the Defendants in their official capacities a re dismissed, with prejudice. Second, Tetteh, Ko, and Hodge are dismissed from this case, with prejudice. T h e y treated W ick e n , not Bovarie, and W ick e n is not a party to this lawsuit. T h ird , Cook, Hammond, and Robinson are also dismissed, with prejudice. They a ls o did not treat Bovarie but rather were responsible for adjudicating his medical a p p e a ls based on the opinions of other physicians who did treat him. // // - 12 -

08cv1661

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 P la ta .

F o u rth , Aymar's motion to dismiss is denied. Bovarie has alleged sufficient fa c ts to plead an Eighth Amendment claim against her. However, this claim cannot b e based on Aymar's ability to practice or her medical licensing. F ifth , Bovarie's claims for injunctive relief are dismissed, given the pendency of

Sixth, because Barreras, Calderon, Khatri, Manaig, and Navamani only moved to dismiss Bovarie's claims against them in their official capacities, along with his c la im s for injunctive relief, they must answer Bovarie's remaining Eighth Amendment c la im and pendant state law claims under California Government Code section 845.6 w ithin 20 days of the date this Order is entered. The same goes for Aymar. S e v e n th , Bovarie's request for counsel is denied. E ig h th , Schwarzenegger, Cates, Tilton, Smelosky, Almager, and Giurbino are d is m is s e d from this case with prejudice. Bovarie fails to state a claim against them a n d the Court believes allowing him to amend his complaint would be futile.

IT IS SO ORDERED. D A T E D : March 18, 2010

H ONORABLE LARRY ALAN BURNS U n ite d States District Judge

- 13 -

08cv1661