Kimpel v. California Department of Corrections et al

Filing 45

ORDER granting defendants' 42 motion to dismiss plaintiff's Second Amended Complaint, and denying plaintiff's motion for leave to file a Third Amended Complaint; because the Court finds amendment of Plaintiffs § 1983 claims would be futile at this time, leave to amend is denied; the Clerk of Court shall close the file. Signed by Judge Larry Alan Burns on 6/19/10. (All non-registered users served via U.S. Mail Service)(kaj)

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 I. P ROCEDURAL BACKGROUND J a y Kimpel ("Plaintiff"), a prisoner currently incarcerated at the Richard J. Donovan vs. R O B E R T WALKER, Doctor; P . JAYASUNDARA, Doctor, D e f e n d a n ts . J A Y KIMPEL, C D C R #V-01627, P l a in tif f , O R D E R GRANTING DEFENDANTS' M O T I O N TO DISMISS P L A IN T I F F 'S SECOND AMENDED C O M P L A IN T PURSUANT TO F E D .R .C I V .P . 12(b)(6) [D o c . No. 42] Civil No. 0 8 - 1 7 3 4 LAB (JMA)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

C o rre c tio n a l Facility located in San Diego, California, proceeding pro se and in forma pauperis (" IF P " ) has filed a civil rights action pursuant to 42 U.S.C. § 1983. Defendants Walker and Jayasundara ("Defendants") have filed a Motion to Dismiss P la in tif f 's Second Amended Complaint ("SAC") pursuant to FED.R.CIV.P. 12(b)(6) [Doc. No. 4 2 ]. Plaintiff filed his Opposition on April 29, 2010 [Doc. No. 43] to which Defendants have filed their Reply [Doc. No. 44]. T h e Court has determined that Defendants' Motion is suitable for disposition upon the p a p e rs without oral argument and that no Report and Recommendation from Magistrate Judge J a n M. Adler is necessary. See S.D. CAL. CIVLR 7.1(d)(1), 72.3(e). 1

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II.

P LAINTIFF'S FACTUAL ALLEGATIONS O n December 15, 2007, while incarcerated at the Richard J. Donovan Correctional

F a c ility ("RJDCF") Plaintiff sought medical treatment for "unbearable pain." (See SAC at 1, 3 .) Plaintiff claims that he was examined by Defendants Walker and Jayasundara who refused to renew pain medication that had been prescribed for him by a different doctor. (Id.) Plaintiff c la im s that Defendants told him he was "faking it" and denied him any treatment. (Id.) S e v e ra l months later, Plaintiff was being examined by Dr. Hunt1 on June 24, 2008. (Id. a t 4.) Plaintiff claims that Defendant Jayasundara interrupted this examination and told Dr. Hunt th a t Plaintiff was a "big faker." (Id.) On July 7, 2008, Plaintiff alleges that Defendant

J a ya s u n d a ra refused to provide a wrist brace for Plaintiff that was ordered by Dr. Hunt. (Id. at 5 .) III. D EFENDANTS' MOTION TO DISMISS A. D efe n d a n ts' Arguments

D e f e n d a n ts seek dismissal of Plaintiff's Second Amended Complaint pursuant to Rule 1 2 (b )(6 ) on the ground that Plaintiff has failed to allege facts sufficient to show that any of them a c ted with deliberate indifference to his serious medical needs in violation of the Eighth A m e n d m e n t. B. F ED.R .C IV.P . 12(b)(6) Standard of Review

A Rule 12(b)(6) dismissal may be based on either a "`lack of a cognizable legal theory' o r `the absence of sufficient facts alleged under a cognizable legal theory.'" Johnson v. R iv e r s id e Healthcare System, LP, 534 F.3d 1116, 1121-22 (9th Cir. 2008) (quoting Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990)). In other words, the plaintiff's c o m p la in t must provide a "short and plain statement of the claim showing that [he] is entitled to relief." Id. (citing FED.R.CIV.P. 8(a)(2)). "Specific facts are not necessary; the statement need o n ly give the defendant[s] fair notice of what ... the claim is and the grounds upon which it re sts ." Erickson v. Pardus, 551 U.S. 89, 127 S. Ct. 2197, 2200 (2007) (internal quotation marks o m itte d ).

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Dr. Hunt is not a named Defendant in this matter. 2

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A motion to dismiss should be granted if plaintiff fails to proffer "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2 0 0 7 ). "A claim has facial plausibility when the plaintiff pleads factual content that allows the c o u rt to draw the reasonable inference that the defendant is liable for the misconduct alleged." A s h c ro ft v. Iqbal, 556 U.S. ----, 129 S.Ct. 1937, 1949 (2009) . In addition, factual allegations asserted by pro se petitioners, "however inartfully p le a d ed ," are held "to less stringent standards than formal pleadings drafted by lawyers." Haines v . Kerner, 404 U.S. 519-20 (1972). Thus, where a plaintiff appears in propria persona in a civil rig h ts case, the Court must construe the pleadings liberally and afford plaintiff any benefit of the d o u b t. See Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988). N e v e rt h e l e s s , and in spite of the deference the court is bound to pay to any factual a l l e g a tio n s made, it is not proper for the court to assume that "the [plaintiff] can prove facts w h ic h [he or she] has not alleged." Associated General Contractors of California, Inc. v. C a l ifo r n i a State Council of Carpenters, 459 U.S. 519, 526 (1983). Nor must the court "accept a s true allegations that contradict matters properly subject to judicial notice or by exhibit" or th o se which are "merely conclusory," require "unwarranted deductions" or "unreasonable in f e re n c es ." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.) (citation omitted), a m e n d e d on other grounds, 275 F.3d 1187 (9th Cir. 2001); see also Ileto v. Glock Inc., 349 F.3d 1 1 9 1 , 1200 (9th Cir. 2003) (court need not accept as true unreasonable inferences or conclusions o f law cast in the form of factual allegations). C. E ig h th Amendment Inadequate Medical Treatment Claims

D e f en d a n ts seek dismissal of Plaintiff's Second Amended Complaint on grounds that he h a s failed to plead facts to show the deliberate indifference required to support an Eighth A m e n d m e n t violation. (See Defs.' P&A's at 17-20.) /// /// /// /// 3

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1.

S t a n d a r d of Review

T o constitute cruel and unusual punishment in violation of the Eighth Amendment, prison c o n d itio n s must involve "the wanton and unnecessary infliction of pain." Rhodes v. Chapman, 4 5 2 U.S. 337, 347 (1981). A prisoner's claim of inadequate medical care does not rise to the le v e l of an Eighth Amendment violation unless (1) "the prison official deprived the prisoner of the `minimal civilized measure of life's necessities,'" and (2) "the prison official `acted with d e lib e ra te indifference in doing so.'" Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (q u o tin g Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) (citation omitted)). Before it can b e said that a prisoner's civil rights have been abridged, "the indifference to his medical needs m u st be substantial. Mere `indifference,' `negligence,' or `medical malpractice' will not support t h is cause of action." Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (c itin g Estelle v. Gamble, 429 U.S. 97, 105-06 (1976)). "[A] complaint that a physician has been n e g lig e n t in diagnosing or treating a medical condition does not state a valid claim of medical m is tr e a t m e n t under the Eighth Amendment. Medical malpractice does not become a

c o n stitu tio n a l violation merely because the victim is a prisoner." Estelle, 429 U.S. at 106; see a l so Anderson v. County of Kern, 45 F.3d 1310, 1316 (9th Cir. 1995). A prison official does not act in a deliberately indifferent manner unless the official " k n o w s of and disregards an excessive risk to inmate health or safety." Farmer v. Brennan, 511 U .S . 825, 834 (1994). Deliberate indifference may be manifested "when prison officials deny, d e la y or intentionally interfere with medical treatment," or in the manner "in which prison p h ys ic ia n s provide medical care." McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), o v e rr u le d on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (e n banc). Where a prisoner alleges delay in receiving medical treatment, he must show that the d e la y led to further harm. Id. at 1060 (citing Shapely v. Nevada Bd. of State Prison Comm'rs, 7 6 6 F.2d 404, 407 (9th Cir. 1985)). /// /// /// 4

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2.

A p p lic a tio n to Plaintiff's Allegations

"Deliberate indifference is a high legal standard." Toguchi, 391 F.3d at 1060. "Under th is standard, the prison official must not only `be aware of the facts from which the inference c o u ld be drawn that a substantial risk of serious harm exists,' but that person `must also draw th e inference.'" Id. at 1057 (quoting Farmer, 511 U.S. at 837). "`If a prison official should have b e e n aware of the risk, but was not, then the official has not violated the Eighth Amendment, no m a tte r how severe the risk.'" Id. (quoting Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1 1 8 8 (9th Cir. 2002)). P la in tif f alleges that on December 15, 2007 Defendant Walker refused to renew P la in tif f 's prescription for the pain medication Neurontin. (See SAC at 3.) Plaintiff further c la im s that Defendant Walker accused him of "faking" his pain. (Id.) These are the only a lle g a tio n s against Defendant Walker. Plaintiff also alleges that Defendant Jayasundara accused h im of "faking" his pain and refused to order a wrist brace for Plaintiff that Dr. Hunt had p re sc rib e d . When considering whether a prison official has acted with deliberate indifference, th e court must focus on the seriousness of the prisoner's medical needs and the nature of each d e f e n d a n t's response to those needs. See McGuckin, 974 F.2d at 1059. Here, it is not at all clear f ro m Plaintiff's factual allegations that he had a "serious medical need." While he complains o f muscle pain, his allegations are vague at best. The Court has reviewed Plaintiff's allegations and exhibits, and finds no facts sufficient to show that either Defendant acted with deliberate indifference to Plaintiff's serious medical n e e d s simply by allegedly failing to provide him with the medication he believed he needed or th e wrist brace. It is well-settled that a difference of opinion between a physician and a prisoner c o n c ern in g the appropriate course of treatment does not amount to deliberate indifference. J a c k s o n v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996). Even when medical officials disagree a s to the proper course of treatment, deliberate indifference is only shown when the prisoner can s h o w that "the course of treatment the doctors chose was medically unacceptable under the c irc u m sta n c e s," and that "they chose this course in conscious disregard of an excessive risk to [ th e prisoner's] health." Id. at 332. 5

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In his Opposition to Defendants' Motion, Plaintiff claims that he has alleged facts su f f icie n t to state an Eighth Amendment claim and argues that the Court should liberally c o n s tru e his Second Amended Complaint. (See Pl.'s Opp'n at 7.) Liberal construction does not re q u ire the Court to consider facts alleged in the Opposition that are not contained in the body o f the pleading itself. See Associated General Contractors of California, Inc., 459 U.S. at 526. M o r e o v e r , the Court previously found that the allegations contained in his previously filed First A m e n d e d Complaint were defecient to state an Eighth Amendment claim and yet, Plaintiff a lle g e s even fewer facts in his Second Amended Complaint. This is despite the fact that the C o u rt informed him that he must take heed of the Court's instructions to correct the deficiencies o f pleading identified by the Court. (See Feb. 8, 2010 Order at 3-4.) H e re , the Court finds that Plaintiff has failed to allege any facts that would demonstrate d e lib e ra te indifference on the part of Defendants Walker or Jayasundara Accordingly,

D e f en d a n ts ' Motion to Dismiss Plaintiff's Second Amended Complaint pursuant to FED.R.CIV.P. 12(b)(6) is GRANTED. IV . M OTION FOR LEAVE TO FILE AMENDED COMPLAINT PURSUANT TO FED.R.CIV.P. 15 In Plaintiff's Opposition to Defendants' Motion, he requests that the Court provide him lea v e to file a Third Amended Complaint in order add a conspiracy cause of action pursuant to 4 2 U.S.C. § 1985(3). (See Pl.'s Opp'n at 9.) The Court construes this to be a Motion for Leave to File a Third Amended Complaint pursuant to FED.R.CIV.P. 15(a). Under Rule 15(a), a party m a y amend his pleading "once as a matter of course" only if it is within certain time frames. FED. R. CIV. P. 15(a). Otherwise, a party may amend only by leave of the court or by written c o n s e n t of the adverse party. Id. Leave to amend under FED. R. CIV. P. 15(a) "shall be freely g iv e n when justice so requires," therefore the decision to grant leave to amend is one that rests in the sound discretion of the trial court. International Ass'n of Machinists & Aerospace W o r k e r s v. Republic Airlines, 761 F.2d 1386, 1390 (9th Cir. 1985). This discretion must be g u id e d by the strong federal policy favoring the disposition of cases on the merits and permitting a m e n d m e n ts with "extreme liberality." DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th C ir. 1987). 6

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C o u rts generally consider four factors in determining the propriety of a motion for leave to amend: bad faith, undue delay, prejudice to the opposing party, and futility of amendment. R o t h v. Garcia Marquez, 942 F.2d 617, 628 (9th Cir. 1991). Here, while the Court finds no e v id e n c e that Plaintiff seeks leave to file a Third Amended Complaint in bad faith or for p u rp o se s of undue delay, it does appear that it would be futile to add conspiracy claims to this a c ti o n . " T o state a cause of action under § 1985(3), a complaint must allege (1) a conspiracy, (2 ) to deprive any person or a class of persons the equal protection of the laws, or of equal p riv ile g e s and immunities under the laws, (3) an act by one of the conspirators in furtherance of th e conspiracy, and (4) a personal injury, property damage or a deprivation of any right or p riv ile g e of a citizen of the United States." Gillespie v. Civiletti, 629 F.2d 637, 641 (9th Cir. 1 9 8 0 ); see also Griffin v. Breckenridge, 403 U.S. 88, 102-03 (1971); Sever v. Alaska Pulp Corp., 9 7 8 F.2d 1529, 1536 (9th Cir. 1992). "[T]he language requiring intent to deprive equal

p ro te c tio n . . . means that there must be some racial, or perhaps otherwise class-based, invidiou b v s ly discriminatory animus behind the conspirators' action." Griffin, 403 U.S. at 102; see also S e v er , 978 F.2d at 1536. H e re , Plaintiff fails to allege anywhere in his Opposition a membership in a protected class and fails to allege that any Defendant acted with class-based animus, both of which are e s s e n tia l elements of a cause of action under 42 U.S.C. § 1985(3). See Griffin, 403 U.S. at 1 0 1 -0 2 ; Schultz v. Sundberg, 759 F.2d 714, 718 (9th Cir. 1985) (holding that conspiracy plaintiff m u st show membership in a judicially-designated suspect or quasi-suspect class); Portman v. C o u n t y of Santa Clara, 995 F.2d 898, 909 (9th Cir. 1993). Accordingly, Plaintiff's Motion for Leave to File a Third Amended Complaint is D E N I E D pursuant to FED.R.CIV.P. 15(a). V. C ONCLUSION AND ORDER B a s e d on the foregoing, the Court hereby:

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G R A N T S Defendants' Motion to Dismiss all claims against them found in Plaintiff's S e c o n d Amended Complaint pursuant to FED.R.CIV.P. 12(b)(6) [Doc. No. 42] and DENIES P la in tif f 's Motion for Leave to File a Third Amended Complaint. Moreover, because the Court fin d s amendment of Plaintiff's § 1983 claims would be futile at this time, leave to amend is D E N IE D . See Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 339 (9th Cir. 1996) (denial of a lea v e to amend is not an abuse of discretion where further amendment would be futile); see also R o b in s o n v. California Bd. of Prison Terms, 997 F. Supp. 1303, 1308 (C.D. Cal. 1998) ("Since p lain tiff has not, and cannot, state a claim containing an arguable basis in law, this action should b e dismissed without leave to amend; any amendment would be futile.") (citing Newland v. D a lto n , 81 F.3d 904, 907 (9th Cir. 1996)). T h e Clerk of Court shall close the file. I T IS SO ORDERED. D A T E D : June 19, 2010

HON. LARRY ALAN BURNS U n ite d States District Judge

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