Goolsby v. Ridge et al

Filing 39

ORDER (1) Granting In Part And Denying In Part Defendants' Motion To Dismiss Plaintiff's Second Amended Complaint (Doc. 29 ); And (2) Denying Plaintiff's Motion For Order On Defendants Motion To Dismiss As Moot (Doc. 38 ): The Court does not have jurisdiction over the personnel at Goolsby's current prison and his request for injunctive relief is dismissed. Defendants' answer to the Second Amended Complaint must be filed no later than 4/23/2012. Signed by Magistrate Judge Ruben B. Brooks on 3/29/2012. (All non-registered users served via U.S. Mail Service.) (mdc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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THOMAS GOOLSBY,

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Plaintiff,

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v.
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NEAL RIDGE, M.D.; M. MARTINEZ,
M.D.,

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Defendants.

Civil No. 09cv02654-RBB

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ORDER (1) GRANTING IN PART AND
DENYING IN PART DEFENDANTS'
MOTION TO DISMISS PLAINTIFF'S
SECOND AMENDED COMPLAINT [ECF
NO. 29]; AND (2) DENYING
PLAINTIFF'S MOTION FOR ORDER
ON DEFENDANTS MOTION TO
DISMISS AS MOOT [ECF NO. 38]

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Plaintiff Thomas Goolsby, a state prisoner proceeding pro se

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and in forma pauperis, filed a Complaint on November 23, 2009,

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against Defendants Ridge, Martinez, Sanchez, and Wilson, pursuant

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to 42 U.S.C. § 1983 [ECF Nos. 1, 4].

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filed an Amended Complaint against Defendants Ridge, Martinez, and

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Wilson [ECF No. 5].

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On March 24, 2010, Goolsby

All three Defendants filed a Motion to Dismiss Plaintiff's

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First Amended Complaint [ECF No. 13].

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issued its Report and Recommendation Granting Defendants' Motion to

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Dismiss Plaintiff's First Amended Complaint, the parties sought to

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One day after this Court

09cv02654-RBB

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consent to magistrate judge jurisdiction [ECF No. 21].

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district court subsequently referred the case to this Court for all

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proceedings [ECF No. 22].

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Order Granting Defendants' Motion to Dismiss Plaintiff's First

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Amended Complaint [ECF No. 23], which superseded the Report and

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Recommendation it issued on May 10, 2011.

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Defs.' Mot. Dismiss Pl.'s First Am. Compl. 1, ECF No. 23.)

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was only given leave to amend his claim that Defendants Ridge and

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Martinez were deliberately indifferent to Plaintiff's serious

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medical needs by failing to ensure that he received previously

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ordered medical tests.

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were dismissed without leave to amend.

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The

On May 23, 2011, the Court issued an

(Id. at 52-53.)

(See Order Granting
Goolsby

Goolsby's other claims
(Id.)

On June 13, 2011, Plaintiff filed a Second Amended Complaint

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against Defendants Ridge and Martinez [ECF No. 25].1

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Defendants' Motion to Dismiss Plaintiff's Second Amended Complaint

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was filed on June 23, 2011, along with a Memorandum of Points and

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Authorities and the Declaration of L. D. Zamora [ECF No. 29].

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Court then issued a Wyatt v. Terhune Notice advising Goolsby of

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Defendants' Motion to Dismiss, in part, for failing to exhaust, and

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giving him time to present any additional evidence demonstrating

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exhaustion [ECF No. 30].

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Opposition to Motion to Dismiss with a Memorandum of Points and

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Authorities [ECF No. 32].2

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Opposition was filed on July 18, 2011 [ECF No. 34].

The

The

On July 11, 2011, Plaintiff filed an

Defendants' Reply to Plaintiff's

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Because the Amended Complaint and the Second Amended
Complaint are not consecutively paginated, the Court will cite to
them using the page numbers assigned by the electronic case filing
system.
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The Court will also cite to Goolsby's Opposition using the
page numbers assigned by the Court's electronic filing system.
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09cv02654-RBB

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Also before the Court is Plaintiff's Motion for Order on

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Defendants' Motion to Dismiss, which was filed nunc pro tunc to

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February 29, 2012 [ECF No. 38].

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The Court has considered Plaintiff's Second Amended Complaint,

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Defendants' Motion to Dismiss and attachments, Goolsby's Opposition

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and attachment, Defendants' Reply, and Plaintiff’s Motion for

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Order.

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Motion to Dismiss is GRANTED in part and DENIED in part.

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Plaintiff's Motion for Order on Defendants' Motion to Dismiss is

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For the following reasons, Defendants Ridge and Martinez's

DENIED as moot.

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I.

FACTUAL BACKGROUND

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Goolsby is currently housed at California Correctional

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Institution in Tehachapi, California, but the allegations in the

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Second Amended Complaint arise from events that occurred while he

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was incarcerated at Richard J. Donovan Correctional Facility

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("Donovan") between December 16, 2008, and February 11, 2009.

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(Second Am. Compl. 1, ECF No 25.)

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The Plaintiff contends that he was transferred to Donovan from

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San Diego County Jail on December 16, 2008.

(Id. at 3.)

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housed at county jail, he was pushed down a flight of stairs; at

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the time, he was in waist chains and leg shackles.

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Although Goolsby had a prior right shoulder tear, it had healed

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sufficiently that he could exercise with a good range of motion.

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(Id.)

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cuff in his right shoulder and sprained or strained back and neck

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muscles as a result of the fall.

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medication and was referred to an orthopedic surgeon.

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after, Goolsby was sent to the emergency room because he was

While

(Id. at 4.)

Doctors at county jail diagnosed Goolsby with a torn rotator

(Id.)

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Plaintiff was given pain
(Id.)

Soon

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vomiting blood and had a bloody stool.

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and Plaintiff was told that he had strictures, which are intestinal

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cuts.

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colonoscopy to confirm the diagnosis and determine the extent of

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the damage.

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(Id.)

(Id.)

Tests were conducted

The county jail doctors then ordered an endoscopy and

(Id.)

The Plaintiff contends that he was subsequently involved in an

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altercation with his cellmate, during which Goolsby sustained

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several bite wounds on his fingers; medical staff at county jail

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treated him with "high power antibiotics" and monitored his bite

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wounds.

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directly on his back, neck, and head in his cell.

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again, Goolsby was sent to the emergency room where medical staff

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determined that, although he did not break his back, his back

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muscles were damaged.

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and a walker for the mobility impairment caused by the fall.

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(Id. at 5.)

Plaintiff alleges that he subsequently fell

(Id.)

(Id.)

Once

The Plaintiff was given a neck brace
(Id.)

Goolsby maintains that on December 16, 2008, he arrived at

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Donovan with all of these injuries.

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him a neck brace, a walker, pain medication, muscle relaxants,

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stomach medication, as well as orders from county jail physicians

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for an MRI from the orthopedic surgeon, an endoscopy, and a

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colonoscopy.

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explained his injuries to the screening nurse and told her he

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needed to see a physician as soon as possible.

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already had a list of the medical appliances, medications, and

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tests that were ordered while Goolsby was in county jail.

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5-6.)

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him, "'[Y]our not gonna get the M.R.I., and I doubt the endoscopy

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and colonoscopy either . . . Dr. Ridge never orders M.R.I.'s

(Id.)

(Id.)

He also brought with

Upon his arrival at Donovan, Plaintiff

(Id.)

The nurse

(Id. at

The nurse reviewed the list in front of Goolsby and told

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because they cost way too much.

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colonoscopy[.]'"

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with her and told her the tests were "vital," and the nurse said,

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"I'll call [Dr. Ridge] but I'm telling you he's not gonna do it."

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(Id.)

(Id. at 6.)

Same with the endoscopy and
Plaintiff alleges that he pleaded

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The nurse is alleged to have telephoned Doctor Ridge and

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relayed Plaintiff's injuries to him; Defendant Ridge told the nurse

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that he would examine Goolsby within three days.

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call, Plaintiff argues that he asked the nurse if there was a way

(Id.)

After the

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to ensure that he receive the previously ordered medical tests.

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(Id.)

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treating physician, and ONLY the treating physician can order those

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tests.

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how and when such tests could be ordered.'"

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asserts that by December 19, 2008, he still had not been seen by

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Dr. Ridge and Goolsby's medication stopped, "which exasperated

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[sic] [his] back neck, and shoulder injuries."

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Plaintiff then filed a request for medical attention and "began to

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suffer."

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The nurse responded, "'It's impossable [sic], he's your

There's no way around it.

He's the sole decision maker on
(Id.)

Plaintiff

(Id. at 7.)

The

(Id.)

On December 24, 2008, Nurse T. Sheriff came to Goolsby's cell
in response to the request for medical attention.

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argues that he complained to her that his medical condition was

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worsening, and he again requested that the medical tests be

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ordered.

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been seen by Dr. Ridge, and she would call the doctor immediately.

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(Id.)

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not "endorsed" by Donovan staff, Dr. Ridge would likely ignore the

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request because of his high caseload; the doctor is known to ignore

(Id.)

(Id.)

Plaintiff

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Nurse Sheriff informed Goolsby that he should have

The nurse also stated that because the medical tests were

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inmates until they transferred.

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then observed Nurse Sheriff contact Ridge on the telephone and

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inform the doctor of Goolsby's "severe medical needs."

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Plaintiff asserts that Dr. Ridge drew the conclusion that failing

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to treat Goolsby would cause severe pain and injury.

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same day, Plaintiff's muscle relaxant stopped with no reason or

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notice, causing Goolsby to be "virtually bed ridden."

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December 30, 2008, Plaintiff still had not been examined by Dr.

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Ridge, and Goolsby was in “tremendous pain,” so he filed another

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request for medical attention.

(Id.)

Plaintiff submits that he

(Id.)

(Id.)

(Id.)

That

As of

(Id. at 8.)

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In "late December 2008," the Plaintiff was transferred to a

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different housing unit in Donovan where Dr. Martinez was his new

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treating physician.

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allegedly told Plaintiff that only Goolsby's treating physician,

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Dr. Martinez, could order the walker returned.

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(Id. at 8-9.)

Correctional Officer Wilson

(Id. at 9.)

The Plaintiff argues that he filed another request for medical

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attention on January 5, 2009, "begging for a Dr. Martinez to see

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[Plaintiff] . . . as that’s the only way [Goolsby] could get the

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tests ordered and walker [returned] . . . ."

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2009, Plaintiff asserts that he was seen by two nurses, McArthur

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and Sanchez, who were appalled that Goolsby had not been examined

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yet.

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and walker, and one of the nurses stated that Dr. Martinez was the

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only person who could order the medical tests, and Goolsby had to

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see Dr. Martinez before he could order the tests.

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(Id.)

(Id.)

On January 12,

Plaintiff asked about the status of his medical tests

(Id.)

Plaintiff submits that Nurse Sanchez then telephoned Dr.

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Martinez and informed the doctor of Plaintiff's "severe and

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debilitating injuries."

(Id.)

She said that Goolsby would be seen

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on the next doctor line (the list of inmates seen every week).

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(Id. at 9-10.)

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"'[D]on't count on the tests especially the MRI cause Dr. Martinez

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told [Sanchez] they hardly ever order one due to budgetary

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constraints.

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10.)

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Plaintiff was "'an endorsed inmate.'"

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Martinez that Goolsby was not, Martinez stated, "'[L]et the prison

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he's endorsed to deal with him.'"

Plaintiff contends that Sanchez also said,

Same with the endoscopy and colonoscopy.'"

(Id. at

Sanchez also told Goolsby that Dr. Martinez asked her if
(Id.)

(Id.)

When Sanchez told Dr.

Nonetheless, Nurse

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Sanchez promised to put Goolsby in line for a doctor visit, and she

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hoped the doctor would see Plaintiff.

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(Id.)

On January 11, 2009, Goolsby filed an "emergency (602) appeal"

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against the prison medical staff for ignoring Plaintiff's requests

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and refusing to examine him, order the medical tests and

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appliances, and treat Plaintiff's serious medical needs.

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Goolsby argues that on January 22, 2009, he observed Dr. Martinez

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enter the "building."

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grievance and gave it to Correctional Officer Gamble to hand to

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Martinez.

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and his need for the medical tests and appliances ordered by county

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jail medical staff.

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hand the grievance to Dr. Martinez; the doctor read it and gave it

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back to Gamble, who then brought it back to Goolsby.

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told Plaintiff that Dr. Martinez said to him, "'I know all about

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Goolsby and his 602's, medical requests and complaints, but I don't

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deal with whiners, he's not endorsed [at Donovan] and we don't do

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MRIs cause they cost too much, give [the grievance] back to

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[Goolsby].'"

(Id.)

(Id.)

(Id.)

Plaintiff wrote another inmate

In the grievance, Goolsby outlined his injuries

(See id.)

Plaintiff watched Officer Gamble

(Id.)

Gamble

(Id. at 10-11.)

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Plaintiff alleges that later that morning, he asked a nurse if

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he was on the list to be seen by the doctor that day, and she said

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that he had been "scratched off by the doctor."

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Goolsby was transferred from Donovan to California Correctional

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Institution in Tehachapi, California on February 11, 2009.

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In count one, the Plaintiff argues that Dr. Ridge was

(Id. at 11.)

(Id.)

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responsible for his medical care at Donovan.

(Id. at 3.)

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improperly interfered with orders issued by the county jail doctors

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merely due to budget constraints and laziness.

Ridge

(Id. at 3, 8.)

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Goolsby asserts that because he was not "endorsed" to Donovan and

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Dr. Ridge had a heavy caseload, the doctor ignored Plaintiff's

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medical needs, hoping that Goolsby would go away.

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Ridge ignored the Plaintiff even though two different nurses called

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the doctor to notify him of Goolsby's serious and degenerating

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condition, and Plaintiff submitted two different medical requests.

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(Id. at 8.)

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doctor's orders for monetary and caseload reasons amounts to

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deliberate indifference of his serious medical needs, in a

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violation of the Eighth Amendment.

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(Id. at 3.)

Dr.

The Plaintiff argues that interfering with a previous

(Id.)

In count two, Goolsby asserts Dr. Martinez was responsible for
(Id. at 3.)

Plaintiff alleges that

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his medical care at Donovan.

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Dr. Martinez was aware of Goolsby's serious medical needs because

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Plaintiff submitted numerous medical requests and also observed

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Nurse Sanchez telephone the doctor.

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Martinez interfered with the orders from county jail doctors for

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medical tests for budgetary and caseload reasons.

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also argues that Martinez refused to see him; consequently,

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Plaintiff could not get his walker back, in violation of Goolsby's

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(Id. at 11.)

Defendant

(Id.)

Plaintiff

09cv02654-RBB

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constitutional rights.

(Id.)

"Dr. Martinez was the sole person

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who could control when and how such test[s] and medical appliances

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were given."

(Id.)

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In count three of the Second Amended Complaint, Goolsby

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alleges that Dr. Martinez retaliated against Plaintiff for filing

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requests for medical attention as well as inmate grievances by

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"scratching [Plaintiff] off the [doctor] line so [Goolsby] could

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not receive the medical care [he] so desperately needed."

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12.)

(Id. at

According to Goolsby, this chilled his First and Eighth

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Amendment rights, and Dr. Martinez had no legitimate correctional

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goal.

II.

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(Id.)

A.

APPLICABLE LEGAL STANDARDS

Motions to Dismiss for Failure to State a Claim
A motion to dismiss for failure to state a claim pursuant to

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Federal Rule of Civil Procedure 12(b)(6) tests the legal

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sufficiency of the claims in the complaint.

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County Bd. of Educ., 526 U.S. 629, 633 (1999).

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that the complaint must not be dismissed unless it is beyond doubt

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without merit -- was discarded by the Bell Atlantic decision [Bell

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Atl. Corp. v. Twombly, 550 U.S. 544, 563 n.8 (2007)]."

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Dev. Corp. v. Vill. of Lemont, 520 F.3d 797, 803 (7th Cir. 2008).

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A complaint must be dismissed if it does not contain "enough facts

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to state a claim to relief that is plausible on its face."

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Atl. Corp., 550 U.S. at 570.

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the plaintiff pleads factual content that allows the court to draw

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the reasonable inference that the defendant is liable for the

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misconduct alleged."

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Ct. 1937, 1949 (2009).

See Davis v. Monroe
"The old formula --

Limestone

Bell

"A claim has facial plausibility when

Ashcroft v. Iqbal, 556 U.S. 662, ___, 129 S.
This Court must accept as true all material

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factual allegations in the complaint, as well as reasonable

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inferences to be drawn from them, and must construe the complaint

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in the light most favorable to the plaintiff.

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Inc. v. Civish, 382 F.3d 969, 973 (9th Cir. 2004) (citing Karam v.

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City of Burbank, 352 F.3d 1188, 1192 (9th Cir. 2003)); Parks Sch.

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of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995).

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Cholla Ready Mix,

The court does not look at whether the plaintiff will

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ultimately prevail, but whether the plaintiff is entitled to

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present evidence to support the asserted claims.

Jackson v.

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Birmingham Bd. of Educ., 544 U.S. 167, 184 (2005) (quotation

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omitted); see Bell Atl. Corp., 550 U.S. at 563 n.8.

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under Federal Rule of Civil Procedure 12(b)(6) is generally proper

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only where there "is no cognizable legal theory or an absence of

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sufficient facts alleged to support a cognizable legal theory."

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Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001) (citing

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Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.

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1988)).

A dismissal

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The court need not accept conclusory allegations in the

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complaint as true; rather, it must "examine whether [they] follow

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from the description of facts as alleged by the plaintiff."

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v. Hagopian, 978 F.2d 1115, 1121 (9th Cir. 1992) (citation

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omitted); see Halkin v. VeriFone, Inc., 11 F.3d 865, 868 (9th Cir.

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1993); see also Clegg v. Cult Awareness Network, 18 F.3d 752,

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754-55 (9th Cir. 1994) ("[T]he court is not required to accept

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legal conclusions cast in the form of factual allegations if those

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conclusions cannot reasonably be drawn from the facts alleged.").

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"Nor is the court required to accept as true allegations that are

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merely conclusory, unwarranted deductions of fact, or unreasonable

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Holden

09cv02654-RBB

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inferences."

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(9th Cir. 2001).

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Sprewell v. Golden State Warriors, 266 F.3d 979, 988

In addition, when resolving a motion to dismiss for failure to

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state a claim, the court generally may not consider materials

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outside of the pleadings.

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F.3d 1194, 1197 n.1 (9th Cir. 1998); Jacobellis v. State Farm Fire

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& Cas. Co., 120 F.3d 171, 172 (9th Cir. 1997); Allarcom Pay

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Television Ltd. v. Gen. Instrument Corp., 69 F.3d 381, 385 (9th

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Cir. 1995).

"The focus of any Rule 12(b)(6) dismissal . . . is the

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complaint."

Schneider, 151 F.3d at 1197 n.1.

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consideration of "new" allegations that may be raised in a

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plaintiff's opposition to a motion to dismiss brought pursuant to

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Rule 12(b)(6).

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Schneider v. Cal. Dep't of Corr., 151

This precludes

Id. (citations omitted).

"When a plaintiff has attached various exhibits to the

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complaint, those exhibits may be considered in determining whether

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dismissal [i]s proper . . . ."

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(citation omitted).

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contents are alleged in a complaint and whose authenticity no party

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questions, but which are not physically attached to the

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[plaintiff's] pleading.'"

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Corp., 241 F. App'x 363, 365 (9th Cir. 2007) (quoting Janas v.

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McCracken (In re Silicon Graphics Inc. Sec. Litig.), 183 F.3d 970,

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986 (9th Cir. 1999)) (alterations in original); Stone v. Writer's

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Guild of Am. W., Inc., 101 F.3d 1312, 1313-14 (9th Cir. 1996).

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B.

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Parks Sch. of Bus., 51 F.3d at 1484

The court may also consider documents "'whose

Sunrize Staging, Inc. v. Ovation Dev.

Standards Applicable to Pro Se Litigants
Where a plaintiff appears in propria persona in a civil rights

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case, the court must construe the pleadings liberally and afford

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the plaintiff any benefit of the doubt.

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Karim-Panahi v. Los

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Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988).

The rule

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of liberal construction is "particularly important in civil rights

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cases."

4

In giving liberal interpretation to a pro se civil rights

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complaint, courts may not "supply essential elements of claims that

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were not initially pled."

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Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

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allegations of official participation in civil rights violations

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are not sufficient to withstand a motion to dismiss."

Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992).

Ivey v. Bd. of Regents of the Univ. of
"Vague and conclusory

Id.; see

10

also Jones v. Cmty. Redev. Agency, 733 F.2d 646, 649 (9th Cir.

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1984) (finding conclusory allegations unsupported by facts

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insufficient to state a claim under § 1983).

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allege with at least some degree of particularity overt acts which

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defendants engaged in that support the plaintiff's claim."

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v. Cmty. Redev. Agency, 733 F.2d at 649 (internal quotation

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omitted).

"The plaintiff must

Jones

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Nevertheless, the court must give a pro se litigant leave to

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amend his complaint "unless it determines that the pleading could

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not possibly be cured by the allegation of other facts."

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Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (quotation marks and

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citations omitted).

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may be dismissed, the court must provide the plaintiff with a

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statement of the complaint's deficiencies.

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at 623-24.

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would be futile, denial of leave to amend is appropriate.

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James v. Giles, 221 F.3d 1074, 1077 (9th Cir. 2000).

Lopez v.

Thus, before a pro se civil rights complaint

Karim-Panahi, 839 F.2d

But where amendment of a pro se litigant's complaint
See

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C.

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Stating a Claim Under 42 U.S.C. § 1983
To state a claim under § 1983, the plaintiff must allege facts

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sufficient to show (1) a person acting "under color of state law"

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committed the conduct at issue, and (2) the conduct deprived the

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plaintiff of some right, privilege, or immunity protected by the

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Constitution or laws of the United States.

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(West 2003); Shah v. County of Los Angeles, 797 F.2d 743, 746 (9th

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Cir. 1986).

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42 U.S.C.A. § 1983

These guidelines apply to Defendants' Motion to Dismiss.

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III.

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DEFENDANTS' MOTION TO DISMISS

Doctors Ridge and Martinez move to dismiss Plaintiff's Second

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Amended Complaint in its entirety.

13

ECF No. 29.)

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walker or retaliation claims against him.

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& A. 8.)

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state an Eighth Amendment claim against them, that they are

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entitled to qualified immunity, and that Goolsby fails to state a

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claim for injunctive relief.

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A.

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(Defs.’ Notice Mot. Dismiss 1,

Dr. Martinez argues that Goolsby did not exhaust the
(Id. Attach. #1 Mem. P.

Both Ridge and Martinez contend that Plaintiff fails to

(Id. at 11-16.)

New Claims Alleged Against Defendant Martinez
Under Federal Rule of Civil Procedure 15, a party may amend

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its pleading once as a matter of course.

Fed. R. Civ. P. 15(a).

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Thereafter, a party must seek leave of court or obtain written

23

permission from the opposing party to amend again.

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15(a)(2).

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First Amended Complaint were dismissed.

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Mot. Dismiss Pl.'s First Am. Compl. 52-53, ECF No. 23.)

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only granted Plaintiff leave to amend his claim concerning

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Defendants Ridge and Martinez's failure to ensure that the

Fed. R. Civ. P.

Here, all of Goolsby's causes of action alleged in the

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(Order Granting Defs.'
The Court

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previously ordered medical tests were performed.

(Id.)

Each of

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Goolsby's other claims was dismissed without leave to amend, and he

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was not given leave to add new causes of action.

(See id.)

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In a footnote, Dr. Martinez complains that Plaintiff added two

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new accusations relating to Defendant's retaliation and his failure

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to order Goolsby's walker returned without properly seeking leave

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of court.

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29.)

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failed to exhaust either assertion.

(Mot. Dismiss Attach. #1 Mem. P. & A. 8 n.3, ECF No.

Even so, Defendant Martinez argues at length that Goolsby
(Id. at 8.)

The Plaintiff

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insists that he properly exhausted these claims, but he does not

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address whether the causes of action were properly added to the

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Second Amended Complaint.

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ECF No. 32.)

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(See Opp'n Attach. #1 Mem. P. & A. 5-6,

Goolsby's walker claim was alleged in the First Amended

15

Complaint and was dismissed.

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that Defendant Martinez was deliberately indifferent to Plaintiff's

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serious medical needs because Dr. Martinez should have ordered

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Goolsby's walker returned to him).)

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finds that Plaintiff's walker claim was not properly included in

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the Second Amended Complaint.

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retaliation claim.

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Complaint that could give rise to that retaliation cause of action.

23

To that extent, Plaintiff also has alleged a new claim for

24

retaliation without leave of court under Federal Rule of Civil

25

Procedure 15(a).

(Am. Compl. 11, ECF No. 5 (asserting

For this reason, the Court

This is in contrast to the

There were no facts in the First Amended

26

"Although an amendment filed without leave of court, when

27

leave is required, has no legal effect, the court has discretion to

28

treat the amendment as properly filed if the court would have

14

09cv02654-RBB

1

granted leave to amend had leave been sought."

Taylor v. City of

2

San Bernardino, No. EDCV 09-240-MMM (MAN), 2010 U.S. Dist. LEXIS

3

140060, at *19 (C.D. Cal. Oct. 12, 2010) (citing Ritzer v.

4

Gerovicap Pharm. Corp., 162 F.R.D. 642, 644-45 (D. Nev. 1995);

5

Brockmeier v. Solano Cnty. Sheriff's Dep't, No. CIV S-05-2090 MCE

6

EFB PS, 2007 U.S. Dist. LEXIS 40580, at *1 (E.D. Cal. May 21,

7

2007)).

8

the court must remain guided by 'the underlying purpose of Rule 15

9

. . . to facilitate decision on the merits, rather than on the

Indeed, the Ninth Circuit has "repeatedly stressed that

10

pleadings or technicalities.'"

11

omitted).

12

discretion of the district court.

13

Inc., 91 F.3d 1326, 1331 (9th Cir. 1996).

14

Lopez, 203 F.3d at 1127 (citation

Whether to give leave to amend rests in the sound
Pisciotta v. Teledyne Indus.,

Courts typically consider the following five factors when

15

determining the propriety of granting leave to amend:

16

faith by the moving party; (2) undue delay in seeking leave to

17

amend; (3) prejudice to the opposing party; (4) futility of

18

amendment; and (5) whether the plaintiff has previously amended the

19

complaint.

20

2004).

21

factor."

22

1996) (citing Zenith Radio Corp. v. Hazeltine Research, Inc., 401

23

U.S. 321, 330-31 (1971)).

24

"is not dependent on whether the amendment will add causes of

25

action or parties."

26

186 (9th Cir. 1987).

27
28

(1) bad

Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir.

"Prejudice to the opposing party is the most important
Jackson v. Bank of Haw., 902 F.2d 1385, 1387 (9th Cir.

Whether leave to amend should be granted

DCD Programs, Ltd. v. Leighton, 833 F.2d 183,

Although Goolsby has not properly sought leave to amend his
pleading to add a retaliation claim against Dr. Martinez, the Court

15

09cv02654-RBB

1

will consider the cause of action if the Court would have granted

2

Plaintiff leave to amend.

3

140060, at *19.

4

not have been included in the Second Amended Complaint, the Court

5

will consider the claim if a motion for leave to amend would have

6

been granted.

7

undue delay as to either claim.

8

The Plaintiff accused Martinez of failing to reissue a walker in

9

the First Amended Complaint, and Goolsby submits that he learned of

See Taylor, 2010 U.S. Dist. LEXIS

Likewise, even if Goolsby's walker claim should

See id.

Here, there is no evidence of bad faith or
See Johnson, 356 F.3d at 1077.

10

Dr. Martinez's retaliatory conduct only recently.

11

Attach. #1 Mem. P. & A. 6, ECF No. 32.)

12

Plaintiff has amended his pleading twice, adding these two claims

13

will not substantially prejudice the Defendants.

14

F.3d at 1077.

15

Nevertheless, based on these factors, Plaintiff's walker and

16

retaliation claims against Dr. Martinez in the Second Amended

17

Complaint will be treated as properly asserted.

18

B.

19

(See Opp'n

Further, although

See Johnson, 356

The claims, as alleged, may not have been exhausted.

Exhaustion
1.

Motion to Dismiss Unexhausted Claims Pursuant to the
Unenumerated Portions of Rule 12(b)

20
21

Title 42 U.S.C. § 1997e(a) of the Prison Litigation Reform Act

22

("PLRA") states:

"No action shall be brought with respect to

23

prison conditions under . . . 42 U.S.C. 1983 . . . or any other

24

Federal law, by a prisoner confined in any jail, prison, or other

25

correctional facility until such administrative remedies as are

26

available are exhausted."

27

exhaustion requirement applies regardless of the relief sought.

42 U.S.C.A. § 1997e(a) (West 2003).

The

28

16

09cv02654-RBB

1

Booth v. Churner, 532 U.S. 731, 741 (2001) (footnote and citation

2

omitted).

3

"'[A]n action is "brought" for purposes of § 1997e(a) when the

4

complaint is tendered to the district clerk[]' . . . ."

5

Summerhill, 449 F.3d 1047, 1050 (9th Cir. 2006) (quoting Ford v.

6

Johnson, 362 F.3d 395, 400 (7th Cir. 2004)).

7

must "exhaust administrative remedies before submitting any papers

8

to the federal courts."

9

Vaden v.

Therefore, prisoners

Id. at 1048 (emphasis added).

Section 1997e(a)'s exhaustion requirement creates an

10

affirmative defense.

11

Cir. 2003).

12

the absence of exhaustion."

13

§ 1983 actions properly raise the affirmative defense of failure to

14

exhaust administrative remedies through an unenumerated motion to

15

dismiss under Federal Rule of Civil Procedure 12(b).

16

(citations omitted).

17

Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th

"[D]efendants have the burden of raising and proving
Id. (footnote omitted).

Defendants in

Id.

Unlike motions to dismiss for failure to state a claim upon

18

which relief may be granted, "[i]n deciding a motion to dismiss for

19

failure to exhaust nonjudicial remedies, the court may look beyond

20

the pleadings and decide disputed issues of fact."

21

(citing Ritza v. Int'l Longshoremen's & Warehousemen's Union, 837

22

F.2d 365, 369 (9th Cir. 1988)) (footnote omitted).

23

discretion regarding the method they use to resolve factual

24

disputes.

25

ruling on a motion to dismiss also may take judicial notice of

26

'matters of public record.'"

27

926, 928 (C.D. Cal. 2005) (citing Lee v. City of Los Angeles, 250

28

F.3d 668, 688 (9th Cir. 2001) (citations omitted)).

Id. at 1119-20

Courts have

Ritza, 837 F.2d at 369 (citations omitted).

"A court

Hazleton v. Alameida, 358 F. Supp. 2d

17

But "if the

09cv02654-RBB

1

district court looks beyond the pleadings to a factual record in

2

deciding the motion to dismiss for failure to exhaust[,] . . . the

3

court must assure that [the plaintiff] has fair notice of his

4

opportunity to develop a record."

5

Wyatt, 315 F.3d at 1120 n.14.

"[When] the district court concludes that the prisoner has not

6

exhausted nonjudicial remedies, the proper remedy is dismissal of

7

the claim without prejudice."

8

at 368 n.3).

9

2.

10

Id. at 1120 (citing Ritza, 837 F.2d

The Administrative Grievance Process

"The California Department of Corrections ['CDC'] provides a

11

four-step grievance process for prisoners who seek review of an

12

administrative decision or perceived mistreatment:

13

level, a first formal level, a second formal level, and the

14

Director's level."

15

Valoff, 422 F.3d 926, 929-30 (9th Cir. 2005)).

16

appeal system can be found in title 15, sections 3084.1, 3084.5,

17

and 3084.6 of the California Code of Regulations ("CCR").3

18

Brown, 422 F.3d at 929-30 (citing Cal. Code Regs. tit. 15, §§

19

3084.1(a), 3084.5(a)-(b), (e)(1)-(2), 3084.6(c) (amended 2011)).

20

To comply with the CDC's administrative grievance procedure, a

21

prisoner must submit the grievance at the informal level "within 15

22

working days of the event or decision being appealed . . . ."

an informal

Vaden, 449 F.3d at 1048-49 (citing Brown v.
The administrative

See

Cal.

23
3

24
25
26
27
28

The regulations that govern the prison administrative
grievance process were amended on December 17, 2010, effective
January 28, 2011. See Cal. Code Regs. tit. 15, §§ 3084-3084.8
(amended 2011). The events surrounding Goolsby's claims and the
submission of his grievances occurred prior to the amendment. (See
Second Am. Compl. 1, 10, ECF No. 25.) Accordingly, the Court will
apply the regulations in effect at the time those events occurred.
Cal. Code Regs. tit. 15, §§ 3084-3084.8 (2010) (current version at
Cal. Code Regs. tit. 15, §§ 3084-3084.8 (2011)); see also Jones v.
Washington, No. C09-3003 CW, 2011 U.S. Dist. LEXIS 108606, at *7
n.2 (N.D. Cal. Sept. 23, 2011).
18

09cv02654-RBB

1

Code Regs. tit. 15, § 3084.6(c) (2010); see also Brown, 422 F.3d at

2

929.

3

administrative process prior to initiating a § 1983 action in

4

federal court.

5

A prisoner must proceed through all levels of the

See Vaden, 449 F.3d at 1051.

An inmate's grievances must be "sufficient under the

6

circumstances to put the prison on notice of the potential claims

7

and to fulfill the basic purposes of the exhaustion requirement."

8

Irvin v. Zamora, 161 F. Supp. 2d 1125, 1135 (S.D. Cal. 2001).

9

Exhaustion serves several important purposes, including "allowing a

10

prison to address complaints about the program it administers

11

before being subjected to suit, reducing litigation to the extent

12

complaints are satisfactorily resolved, and improving litigation

13

that does occur by leading to the preparation of a useful record."

14

Jones v. Bock, 549 U.S. 199, 219 (2007) (citing Woodford v. Ngo,

15

548 U.S. 81, 88-91 (2006), Porter v. Nussle, 534 U.S. 516, 524

16

(2002)).

17

3.

18

In his Motion to Dismiss, Defendant Martinez asserts that

Goolsby's Failure to Exhaust Claims Against Dr. Martinez

19

Plaintiff failed to exhaust his claims that the doctor refused to

20

order Goolsby's walker returned to Plaintiff and retaliated against

21

him.

22

Martinez maintains that Goolsby filed only one inmate grievance

23

while incarcerated at Donovan, and it reads as follows:

24
25
26
27
28

(Mot. Dismiss Attach. #1 Mem. P. & A. 8, ECF No. 29.)

A. Describe Problem: On December 16th 2008 I arrived at
Richard J. Donovan from downtown county jail with a
bruised neck, damaged lower back, a torn rotator cuff and
gastronomical issues. For those debilitating medical
ailments, I was prescribed Metamucil, Prilosec, Morphine,
[Dicyclomine], Neurotin, and [Flexeril]! To date I've
yet to see a doctor and all my medication has been
stopped except for Prilosec and a fiber pill. I'm in
excruciating pain, and all my requests for medical

19

09cv02654-RBB

1

attention has been ignored.
requests without response.

I've submitted 3 medical

2
B. Action Requested: To be evaluated by a licensed
doctor as per Title 15 upon new appeal. I'm being
subjected to cruel and unusual punishment.

3
4
5

(Id. (citing id. Attach. #2 Decl. Zamora Ex. A, at 1).)

6

The Defendant urges that this grievance did not, even

7

indirectly, address Plaintiff's walker or retaliation claims

8

against Dr. Martinez.

9

these issues where he initially described the problem, he also

10

failed to mention them in subsequent requests for higher-level

11

reviews."

12

other grievance relating to medical treatment during his

13

incarceration at Donovan that was "received and exhausted at the

14

third level of review."

15

Court should dismiss Plaintiff's walker and retaliation causes of

16

action for failure to exhaust.

17

(Id.)

a.

18

(Id.)

"Not only did Plaintiff not mention

Martinez urges that Goolsby did not file any

(Id.)

According to the Defendant, the

(Id.)

Failure to order Plaintiff's walker returned

In his Opposition, Goolsby argues that Dr. Martinez's failure

19

to examine Plaintiff precluded him from getting his walker back.

20

(Opp'n Attach. #1 Mem. P. & A. 6, ECF No. 32.)

21

correctional officer confiscated Goolsby's medical appliance, the

22

only way to retrieve it was for Dr. Martinez to examine Plaintiff

23

and then order a walker for him.

24

25.)

25

denied him his walker, Plaintiff asserts that he has exhausted his

26

walker claim against Martinez.

27
28

After the

(See Second Am. Compl. 9, ECF No.

Because Defendant's refusal to examine Goolsby effectively

(See id.)

Dr. Martinez responds that even though Plaintiff’s grievance
states that he had not been examined, it would not alert the

20

09cv02654-RBB

1

institution that Goolsby was asserting that he needed a walker.

2

(Reply 4, ECF No. 34.)

3

conceded that this grievance is the only one he submitted.

4

Defendant maintains that Plaintiff has
(Id.)

The level of detail required for an administrative grievance

5

to properly exhaust a claim is determined by the prison's

6

applicable grievance procedures.

7

time Goolsby submitted his grievance, California regulations

8

required inmates to "describe the problem and action requested."

9

Cal. Code Regs. tit. 15, § 3084.2(a) (2010).

Bock, 549 U.S. at 218.

At the

"[W]hen a prison's

10

grievance procedures are silent or incomplete as to factual

11

specificity, 'a grievance suffices if it alerts the prison to the

12

nature of the wrong for which redress is sought.'"

13

Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009) (quotation omitted).

14

For the reasons discussed below, Plaintiff's claim that Dr.

Griffin v.

15

Martinez was deliberately indifferent for failing to reissue a

16

walker to Goolsby fails.

17

asserts a distinct claim that his Eighth Amendment rights were

18

violated because he was deprived of his walker for a period of

19

time, this claim is unexhausted.

20

alleges that Dr. Martinez is liable for failing to examine

21

Plaintiff so that the doctor could reissue a walker, this

22

contention fails on the merits because it was already dismissed

23

without leave to amend.

24
25

i.

First, to the extent the Plaintiff

Second, to the extent Goolsby

Deprivation of a medical appliance

If Goolsby's contention constitutes a distinct deprivation-of-

26

walker claim, it is unexhausted.

Indeed, an inmate grievance "need

27

not contain every fact necessary to prove each element of an

28

eventual claim," but the appeal must serve its purpose, which is to

21

09cv02654-RBB

1

alert the prison of a specific problem.

Id.

This Court previously

2

found that Goolsby had not exhausted his claim against former

3

defendant, Correctional Officer Wilson, for improperly taking

4

Plaintiff's walker.

5

Compl. 16-17, ECF No. 23.)

6

same one at issue here -- did not put the prison on notice of a

7

walker allegation against Wilson because it did not mention a

8

walker, state that Wilson took it, or request any relief regarding

9

a walker.

(Order Granting Defs.' Mot. Dismiss First Am.
The grievance lodged by Goolsby -- the

(Id. at 15-17.)

The Court determined that because the

10

grievance did not mention Wilson or the walker, "Goolsby did not

11

make clear that his request to be 'evaluated by a licensed doctor'

12

was related to Correctional Officer Wilson's taking of Plaintiff's

13

walker."

14

(Id.)

Similarly, Plaintiff's grievance does not put the prison on

15

notice of a claim that Dr. Martinez is liable for failing to

16

reissue a walker to Goolsby.

17

for exhaustion adopted by some courts, Plaintiff's grievance did

18

not present the "relevant factual circumstances giving rise to a

19

potential claim" against Dr. Martinez regarding the reissuance of a

20

confiscated medical appliance.

21

see also Roman v. Knowles, No. 07cv1343-JLS-POR, 2011 U.S. Dist.

22

LEXIS 95410, at *32-33 (S.D. Cal. June 20, 2011) (citing Gomez v.

23

Winslow, 177 F. Supp. 2d 977, 983 (N.D. Cal. 2001)).

24

complains that Plaintiff's medications were stopped and that

25

Goolsby sought to be "examined by a licensed doctor."

26

Dismiss Attach. #2 Decl. Zamora Ex. A, at 1, ECF No. 29.)

27

first and second level appeals, Goolsby complains that a physician

28

never examined him and that he still has not received the

Even under the "relaxed standards"

See Irvin, 161 F. Supp. 2d at 1134;

22

The grievance

(Mot.
In his

09cv02654-RBB

1

diagnostic tests ordered by county jail physicians.

2

6-8.)

3

(See id. at

None of the appeals mentioned the deprivation of Plaintiff's

4

walker.

See Saethong v. Yates, No. 1:08-cv-01126-AWI-GSA PC, 2009

5

U.S. Dist. LEXIS 63257, at *8 (E.D. Cal. July 23, 2009).

6

walker claim is not an aspect of the inadequate medical treatment

7

Plaintiff grieved, which was for failing to be examined, to receive

8

diagnostic tests, and to be prescribed pain medication.

9

Meharie v. Cox, No. S-08-1089 MCE DAD P, 2009 U.S. Dist. LEXIS

Goolsby's

Cf.

10

42207 (E.D. Cal. May 19, 2009) (explaining that inmates need not

11

exhaust a separate grievance each time they receive inadequate care

12

for one "ongoing condition"); Gomez, 177 F. Supp. 2d at 982-83

13

(noting that allegations that defendants failed to inform plaintiff

14

that he had hepatitis C, failed to begin treatment for several

15

years, or provide plaintiff with information were "encompassed

16

within" the claim of inadequate medical care because all of the

17

assertions related to the treatment plaintiff received for his

18

hepatitis).

19

needed Dr. Martinez to see him to reissue one back is not

20

"encompassed" within his grieved allegation of inadequate medical

21

care.

22

U.S. Dist. LEXIS 35409, at *21 (E.D. Cal. May 15, 2007) (finding

23

that plaintiff's cause of action was encompassed in his grievance

24

because plaintiff continuously grieved that he received inadequate

25

post-thyroidectomy follow-up care).

Goolsby's claim that he no longer had his walker and

Cf. Hampton v. Sahota, No. CIV S-06-0966 DFL DAD P, 2007

26

Without mentioning that his walker was improperly taken and

27

that Goolsby was requesting it, prison officials could not be on

28

notice that Plaintiff was seeking to have his walker returned to

23

09cv02654-RBB

1

him or reissued.

See Saethong, 2009 U.S. Dist. LEXIS 63257, at

2

*10-11 ("When, as here, an administrative petition does not

3

disclose an inmate's unspoken objective, prison officials are

4

unlikely to guess the objective and resolve or even address it.").

5

The separate and distinct deprivation-of-walker allegation is not

6

analogous to allegations in Gomez, which discussed “one medical

7

condition allegedly ignored in a myriad of ways."

8

Dir. Corr., No. 2:09-cv-2985 MCE KJN P, 2010 U.S. Dist. LEXIS

9

57007, at *6 (E.D. Cal. June 8, 2010).

See Ellington v.

To the extent Goolsby

10

alleges that his rights were violated because he was deprived

11

access to a medical appliance for a period of time, the claim is

12

unexhausted.

13

The Plaintiff need not be given leave to amend this claim if

14

it is too late to properly exhaust his administrative remedies.

15

See Pough v. Grannis, No. 08cv1498-JM(RBB), 2010 U.S. Dist. LEXIS

16

32514, at *23 (S.D. Cal. Jan. 6, 2010).

17

inmate grievance against Dr. Martinez within fifteen working days

18

of the action being challenged, and any attempt to file one now

19

would be untimely.

20

Goolsby did not submit an

See Cal. Code Regs. tit. 15, § 3084.6(c).

Exceptions to the exhaustion requirement are limited.

See

21

Booth v. Churner, 532 U.S. at 741.

In Booth, the Supreme Court

22

explained, "Thus, we think that Congress has mandated exhaustion

23

clearly enough, regardless of the relief offered through

24

administrative procedures."

25

U.S. 140, 144 (1992)) (footnote omitted).

26

specifically mandates, exhaustion is required[.]'"

27

McCarthy, 503 U.S. at 144).

Id. (citing McCarthy v. Madigan, 503
"'Where Congress
Id. (quoting

28

24

09cv02654-RBB

1

Goolsby's interaction with Dr. Martinez occurred between late

2

December 2008 and February 11, 2009, which is more than three years

3

ago.

4

Plaintiff to exhaust his administrative remedies against Martinez

5

for this claim, and there are no applicable exceptions to the

6

exhaustion requirement.

7

action, Plaintiff's deprivation-of-walker-claim fails.

(Second Am. Compl. 9, 11, ECF No. 25.)

8

ii.

9

It is too late for

Consequently, as a separate cause of

Failure to be examined

Alternatively, if Goolsby's argument is that Dr. Martinez is

10

liable for failing to examine Plaintiff so that the doctor could

11

reissue the walker, the claim fails on the merits.

12

previously dismissed Plaintiff's causes of action concerning Dr.

13

Martinez's failure to examine Goolsby.

14

Mot. Dismiss First Am. Compl. 43-44, 52, ECF No. 23 (reiterating

15

that Goolsby does not have a constitutional right to be personally

16

examined by Dr. Martinez while in prison).)

17

failure-to-examine claim against Dr. Martinez is encompassed by

18

Goolsby’s administrative grievance and is therefore exhausted, the

19

claim was dismissed on its merits without leave to amend.

20

52.)

21

This Court

(See Order Granting Defs.'

Although Plaintiff’s

(Id. at

For all of these reasons, Goolsby's claim that Dr. Martinez

22

was deliberately indifferent for failing to order that Plaintiff's

23

walker be returned to him, whether interpreted as an independent

24

claim or as a realleged failure-to-examine claim, will be

25

dismissed.

26

GRANTED without leave to amend.

Defendant Martinez's Motion to Dismiss this claim is

27
28

25

09cv02654-RBB

1

b.

2

Retaliation

Defendant Martinez also argues that the grievance Goolsby

3

submitted did not directly or indirectly address his claim that

4

Defendant retaliated against Goolsby.

5

Mem. P. & A. 8, ECF No. 29.)

6

(Mot. Dismiss Attach. #1

In the Opposition, Plaintiff states that he put prison

7

officials on notice of a retaliation claim when he alleged that Dr.

8

Martinez's refusal to examine Goolsby was because of the medical

9

request and grievance that he had submitted.

(See Opp'n Attach. #1

10

Mem. P. & A. 6, ECF No. 32.)

11

formed the basis of the retaliation allegation.

12

asserts he did not specifically use the word "retaliation" in his

13

grievance because at the time he submitted it, January 9, 2009, he

14

did not know the reason Dr. Martinez refused to examine Plaintiff.

15

(Id.)

16

retaliated against him for submitting medical requests was

17

exhausted by his grievance alleging that he was never examined by a

18

physician.

19

The Plaintiff alleges that this
(See id.)

Goolsby

Therefore, Goolsby maintains, his claim that Defendant

(Id.)

In the Reply, Defendant argues that the grievance complaining

20

about being examined by a physician would not put the institution

21

on notice that Goolsby was contending that Dr. Martinez was

22

retaliating against Plaintiff.

23

(Reply 4, ECF No. 34.)

When Goolsby appealed his grievance, he described his medical

24

problems and his need for treatment, but requested only to be

25

evaluated by a doctor.

26

Ex. A, at 1, ECF No. 29.)

27

appeals did Plaintiff contend that his inadequate care was the

28

result of retaliation.

(See Mot. Dismiss Attach. #2 Decl. Zamora
Nowhere in the grievance or subsequent

(Id.)

26

09cv02654-RBB

1

Even if the Plaintiff was unaware that he was being retaliated

2

against at the time he submitted his initial grievance, Goolsby was

3

still required to include the allegation in his subsequent appeals,

4

or file another grievance, when he learned of the distinct claim of

5

retaliation.

6

(finding that although plaintiff's initial grievance did not

7

mention retaliation, the retaliation claim was exhausted because

8

his subsequent appeal explicitly accused defendants of

9

intentionally placing him with an incompatible cellmate and sought

See Roman, 2011 U.S. Dist. LEXIS 95410, at *28-29, 33

10

to prevent future acts of retaliation by the defendants).

11

did neither.

12

administrative process with respect to his retaliation claim

13

against Dr. Martinez before initiating a lawsuit in federal court.

14

See Vaden, 449 F.3d at 1051; McKinney v. Carey, 311 F.3d 1198,

15

1199-1200 (9th Cir. 2002).

16

Goolsby

Plaintiff has therefore failed to complete the prison

Martinez's Motion to Dismiss count three of the Second Amended

17

Complaint for retaliation is GRANTED.

18

Goolsby to properly exhaust his administrative remedies regarding

19

the retaliation claim, he is not given leave to amend this claim.

20

See Pough v. Grannis, 2010 U.S. Dist. LEXIS 32514, at *23.

21

C.

Because it is too late for

Eighth Amendment Claim: Failure to Ensure that Plaintiff
Received Previously Ordered Medical Tests

22
23

The Eighth Amendment requires that inmates have "ready access
Hoptowit v. Ray, 682 F.2d 1237, 1253

24

to adequate medical care."

25

(9th Cir. 1982).

26

violates the Eighth Amendment's prohibition of cruel and unusual

27

punishment.

28

a claim, a prisoner's allegations must satisfy two requirements,

Deliberate indifference to serious medical needs

Estelle v. Gamble, 429 U.S. 97, 103 (1976).

27

To state

09cv02654-RBB

1

one objective and the other subjective.

Jett v. Penner, 439 F.3d

2

1091, 1096 (9th Cir. 2006); Lopez, 203 F.3d at 1132-33 (quoting

3

Allen v. Sakai, 48 F.3d 1082, 1087 (9th Cir. 1995)).

4

must first establish a "serious medical need" by showing that

5

"failure to treat a prisoner's condition could result in further

6

significant injury or the 'unnecessary and wanton infliction of

7

pain.'"

8

F.2d 1050, 1059 (9th Cir. 1991), overruled on other grounds by WMX

9

Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997)).

The plaintiff

Jett, 439 F.3d at 1096 (quoting McGuckin v. Smith, 974

"Second,

10

the plaintiff must show the defendant's response to the need was

11

deliberately indifferent."

12

1060).

Id. (citing McGuckin, 974 F.2d at

13

1.

Serious medical need

14

With regard to the objective requirement, "[e]xamples of

15

serious medical needs include '[t]he existence of an injury that a

16

reasonable doctor or patient would find important and worthy of

17

comment or treatment; the presence of a medical condition that

18

significantly affects an individual's daily activities; or the

19

existence of chronic and substantial pain.'"

20

1131 (quoting McGuckin, 974 F.2d at 1059-60).

Lopez, 203 F.3d at

The Plaintiff pleads that as a result of his torn rotator

21
22

cuff, strained back and neck muscles, and strictures, he "had an

23

extremely painful time moving."

24

25.)

25

and walker, and had an MRI, endoscopy, and colonoscopy ordered to

26

further diagnose and treat the injuries.

27

asserted that he suffered from substantial pain that affected his

28

daily activities and was worthy of treatment by a doctor while he

(Second Am. Compl. 4-5, ECF No.

Goolsby was treated with pain medications, given a neck brace

28

(Id.)

The Plaintiff has

09cv02654-RBB

1

was in Dr. Ridge's and Dr. Martinez's care.

See Lopez, 203 F.3d at

2

1131.

3

medical need and has satisfied the objective requirement for an

4

Eighth Amendment violation as to both Defendants.

Goolsby has therefore alleged the existence of a serious

5

2.

Deliberate indifference

6

Under the subjective element, prison officials are

7

deliberately indifferent to a prisoner's serious medical needs when

8

they "'deny, delay or intentionally interfere with medical

9

treatment.'"

Linderman v. Vail, 59 F. App'x 180, 182-83 (9th Cir.

10

2003) (quoting Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir.

11

2002)).

12

inference could be drawn that a substantial risk of serious harm

13

exists, and he must also draw the inference."

14

511 U.S. 825, 837 (1994).

15

malpractice, negligence, or even gross negligence, does not rise to

16

the level of a constitutional violation.

17

U.S. 294, 297 (1991) (quoting Estelle, 429 U.S. at 105-06); Toguchi

18

v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004).

19

or omissions will not amount to a constitutional violation unless

20

there is reckless disregard of a risk of serious harm to the

21

prisoner.

22

"know[n] that [the] inmate[] face[d] a substantial risk of serious

23

harm and disregard[ed] that risk by failing to take reasonable

24

measures to abate it."

25

"[T]he official must be both aware of facts from which the

Farmer v. Brennan,

Inadequate treatment due to medical

Farmer, 511 U.S. at 836.

See Wilson v. Seiter, 501

A defendant's acts

The official must have

Id. at 847.

In their Motion to Dismiss, Ridge and Martinez assert that

26

Plaintiff admits that the Defendants were merely responsible for

27

Goolsby's medical care while he was "passing through" Donovan on

28

his way to a permanent prison assignment.

29

(Mot. Dismiss Attach. #1

09cv02654-RBB

1

Mem. P. & A. 11, ECF No. 29.)

They maintain that Plaintiff does

2

not assert facts showing that Ridge or Martinez denied or

3

interfered with Goolsby's receipt of medical tests; rather,

4

Plaintiff alleges that the doctors delayed the tests by leaving

5

them to doctors where Goolsby would be permanently housed.

6

According to Defendants, Goolsby has not alleged that Dr. Ridge's

7

two-week delay, or Dr. Martinez's one and one-half-month delay,

8

caused substantial harm.

9

prison's response to Plaintiff's grievance at the first level,

(Id. at 12.)

(Id.)

Defendants cite to the

10

which indicated that Goolsby was examined by Dr. Grimm on March 24,

11

2009, slightly more than one month after Plaintiff left Dr.

12

Martinez's care.

13

endoscopy, and a colonoscopy were not medically necessary.

14

(citing id. Attach. #2 Decl. Zamora 4; Second Am. Compl. 13, ECF

15

No. 13).)

16

document when ruling on the Motion to Dismiss because Goolsby

17

referenced it in the Second Amended Complaint.

18

(Id.)

Dr. Grimm determined that an MRI, an
(Id.

Defendants contend that the Court can consider this

(Id.)

The Defendants further maintain, "Regardless of the

19

allegations that Drs. Ridge and Martinez did not send Plaintiff out

20

for the tests because of budgetary and work-load concerns,

21

Plaintiff cannot allege the decision to let the doctors at the

22

prison where Plaintiff would be sent deal with the tests caused

23

substantial harm."

24

subjectively aware of a risk of harm to Goolsby's health if the

25

tests were not immediately performed, the county jail physicians

26

would have had the tests performed immediately as opposed to

27

recommending that they be performed.

(Id.)

Also, if the Defendants were

(Id.)

28

30

09cv02654-RBB

1

In his Opposition, Goolsby insists he has adequately alleged

2

that Defendants "denied and delayed tests previously ordered by

3

county jail doctors, not in their 'medical opinion' but because of

4

budgetary, and desire for a lighter case load reasons."

5

Attach. #1 Mem. P. & A. 2-3, ECF No. 32.)

6

that Dr. Ridge's actions caused Goolsby to "'suffer,'" and Dr.

7

Martinez's conduct caused Plaintiff's "'deteriorating medical

8

needs.'"

9

he should be held to a less stringent standard than a plaintiff who

10
11

(Id. at 3.)

(Opp'n

Plaintiff has argued

As a pro se litigant, Plaintiff claims that

is represented by an attorney.

(Id.)

In the Reply, Defendants urge that the two phrases Plaintiff

12

cites to are insufficient to state a claim.

13

"These statements do not allege harm from having to wait a couple

14

of weeks (Dr. Ridge) or a month and a half (Dr. Martinez), to be

15

sent out for MRI, an endoscopy, and a colonoscopy."

16

Moreover, Ridge and Martinez argue that "Plaintiff's own exhibit"

17

indicates that a nonparty doctor found that the requested tests

18

were not necessary.

19

suffering related to the denial of medications, not the lack of

20

diagnostic testing.

21

if Plaintiff accuses them of delaying the tests due to budgetary

22

concerns, Goolsby does not show that the doctors were deliberately

23

indifferent.

24

(Id.)

(Id.)

(Reply 2, ECF No. 34.)

(Id.)

Additionally, Plaintiff's purported

Ridge and Martinez reiterate that even

(Id. (citing Farmer, 511 U.S. at 837-38).)

The Defendants recharacterize Goolsby's claim as one for a

25

delay in treatment; they argue that because Plaintiff did not

26

suffer harm as a result of the delay, he has not stated a claim for

27

deliberate indifference.

28

deliberate indifference arising from a delay in treatment, a

Indeed, to establish a claim of

31

09cv02654-RBB

1

plaintiff must show that the delay was harmful.

2

Bunnell, 39 F.3d 1056, 1057 (9th Cir. 1994); Wood v. Housewright,

3

900 F.2d 1332, 1335 (9th Cir. 1990); Hunt v. Dental Dep't, 865 F.2d

4

198, 200 (9th Cir. 1989).

5

budgetary and other administrative reasons, Defendants Ridge and

6

Martinez failed to order medical tests previously ordered by

7

doctors at county jail.

8
9

See Berry v.

But Plaintiff's claim is that for

(See Second Am. Compl. 9-11, ECF No. 25.)

The Supreme Court has noted that "[a] medical decision" to not
order further diagnostic tests does not necessarily constitute

10

cruel and unusual punishment.

11

Nonetheless, prison officials act with deliberate indifference when

12

they "intentionally interfer[e] with . . . treatment once

13

prescribed."

14

1999) (quoting Estelle, 429 U.S. at 104-05).

15

found when an official deliberately ignores orders of the

16

prisoner's previous doctor for reasons not related to the inmate's

17

medical needs.

18

1066-67 (9th Cir. 1992)).

19

a.

Estelle, 429 U.S. at 107.

Wakefield v. Thompson, 177 F.3d 1160, 1165 (9th Cir.
A violation may be

Id. (citing Hamilton v. Endell, 981 F.2d 1062,

Defendant Ridge

20

In the Second Amended Complaint, Plaintiff contends that

21

before he was transferred from county jail to Donovan, physicians

22

at county jail had diagnosed him with a torn rotator cuff and

23

sprained or strained back and neck muscles.

24

ECF No. 25.)

25

him to an orthopedic surgeon; soon after, Plaintiff was sent to the

26

emergency room for vomiting blood and a bloody stool.

27

Goolsby asserts the county jail physicians conducted tests,

28

determined that he had intestinal cuts, and ordered an endoscopy

(Second Am. Compl. 4,

The doctors gave Goolsby pain medication and referred

32

(Id.)

09cv02654-RBB

1

and colonoscopy to confirm the diagnosis and determine the extent

2

of damage.

3

he fell on his back, neck, and head, for which he was sent to the

4

emergency room, and medical staff found that his back muscles were

5

damaged.

6

MRI from the orthopedic surgeon.

7

(Id.)

Plaintiff also alleges that while in his cell,

(Id. at 5.)

The county jail physicians also ordered an
(Id.)

Goolsby maintains that when he arrived at Donovan, a screening

8

nurse told him that he would not likely receive the medical tests

9

ordered by county jail physicians; the nurse said that Dr. Ridge

10

never orders these tests "because they cost way too much."

(Id. at

11

6.)

12

examine Plaintiff within three days; the nurse told Goolsby that as

13

the treating physician, Dr. Ridge was the only one who could order

14

the tests.

15

days later, so he filed a request for medical attention and "began

16

to suffer."

The nurse telephoned Dr. Ridge, and he told her he would

17

(Id.)

Plaintiff had not been seen by Dr. Ridge three

(Id. at 7.)

On December 24, 2008, Plaintiff told Nurse Sheriff that his

18

condition was worsening, and he asked for the medical tests.

19

The nurse told Goolsby that because he was not "endorsed" to

20

Donovan, Dr. Ridge would likely ignore the request; Ridge was known

21

to ignore inmates until they transferred due to his heavy caseload.

22

(Id.)

23

As of December 30, 2008, Plaintiff was experiencing "tremendous

24

pain" and still had not received the medical tests, so he filed

25

another request for medical attention.

26

allegations satisfy the objective component of his claim.

27
28

Goolsby observed Nurse Sheriff telephone Dr. Ridge.

(Id. at 8.)

(Id.)

(Id.)

Goolsby’s

Goolsby has pleaded that Dr. Ridge's decision to not order the
MRI, colonoscopy, and endoscopy was based on budget concerns and

33

09cv02654-RBB

1

workload, instead of medical reasons.

See Goring v. Elyona, No. 96

2

C 4521, 1997 U.S. Dist. LEXIS 1464, at *7 (N.D. Ill. Feb. 13, 1997)

3

("Denial of necessary care for a serious medical condition because

4

of budgetary constraints may give rise to a colorable claim under

5

the Eighth Amendment."); see also Chance v. Armstrong, 143 F.3d

6

698, 703-04 (2d Cir. 1998) (finding that plaintiff alleged an

7

Eighth Amendment violation when the physicians' recommended course

8

of treatment was based on monetary incentives as opposed to medical

9

opinions); Jones v. Johnson, 781 F.2d 769, 771 (9th Cir. 1986).

10

This alleged ulterior motive, if proven true, would show that Dr.

11

Ridge had a culpable state of mind and that his decision to refrain

12

from ordering the tests was not derived from "sound medical

13

judgment."

14

unlikely that [plaintiff] will be able to prove his allegations,

15

that fact does not justify dismissal for failure to state a

16

claim . . . ."); George v. Sonoma County Sheriff's Dep't, 2010 U.S.

17

Dist. LEXIS 111193, at *31-32 (N.D. Cal. Oct. 19, 2010)

18

("[E]vidence of an improper or ulterior motive can support a

19

conclusion that a defendant failed to exercise sound medical

20

judgment but instead acted with a culpable state of mind.").

Chance, 143 F.3d at 704 ("[E]ven if we think it highly

21

Defendant Ridge was allegedly aware of the county jail

22

doctors' orders for medical tests as well as Plaintiff's repeated

23

requests to receive them.

24

necessary to diagnose and treat Goolsby's injuries.

25

Prison Health Servs., Inc., 769 F.2d 700, 704 (11th Cir. 1985)

26

("[I]f necessary medical treatment has been delayed for non-medical

27

reasons, a case of deliberate indifference has been made out.").

28

Plaintiff submits that he experienced severe pain while waiting for

The medical tests were purportedly

34

See Ancata v.

09cv02654-RBB

1

the tests and that Dr. Ridge had control over whether such tests

2

were administered.

3

F. App’x 289, 291 (11th Cir. 2008) (concluding that plaintiff

4

alleged deliberate indifference when prison medical staff failed to

5

provide plaintiff with an orthopedic consultation on two occasions,

6

even though another doctor had recommended it and prisoner was in

7

pain).

See Parzck v. Prison Health Servs., Inc., 290

8

Plaintiff has contended that Dr. Ridge pursued a course of

9

treatment based on nonmedical reasons, which is sufficient to state

10

a constitutional violation.

See Chance, 143 F.3d at 704

11

("Crucially, he has also alleged that Dr. Moore and Dr. Murphy

12

recommended extraction not on the basis of their medical views, but

13

because of monetary incentives."); Jackson v. McIntosh, 90 F.3d

14

330, 332 (9th Cir. 1996) (observing that a violation is established

15

if plaintiff can prove the doctors chose to deny him a kidney

16

transplant because of personal animosity and not medical judgment

17

and that the delay in performing the transplant was medically

18

unacceptable); Jones v. Johnson, 781 F.2d at 771 (finding that

19

plaintiff stated a claim when defendants' only explanation for

20

denying surgery was budgetary constraints, and plaintiff alleged a

21

serious medical need, experiencing pain from his herniated

22

condition).

23

Consequently, Defendant Ridge's Motion to Dismiss the Eighth

24

Amendment cause of action against him in count one for failing to

25

ensure that Goolsby received previously ordered diagnostic tests is

26

DENIED.

27
28

35

09cv02654-RBB

1

b.

2

Defendant Martinez

In the Second Amended Complaint, Plaintiff maintains that on

3

January 12, 2009, while Dr. Martinez was Goolsby's treating

4

physician, Plaintiff asked Nurses McArthur and Sanchez about the

5

status of his medical tests.

6

One of the nurses told Goolsby that Dr. Martinez was the only

7

person who could order the tests and that Plaintiff had to see Dr.

8

Martinez before the doctor would do so.

9

telephoned Dr. Martinez and informed him of Goolsby's injuries.

(Second Am. Compl. 9, ECF No. 25.)

(Id.)

Nurse Sanchez then

10

(Id.)

Sanchez then advised Plaintiff not to "count on" receiving

11

the medical tests while in Martinez's care; the doctor told her

12

that they rarely order tests like MRIs, colonoscopies, or

13

endoscopies due to budgetary constraints.

14

told Goolsby that Dr. Martinez had asked whether Plaintiff was an

15

"endorsed inmate."

16

told Sanchez to allow Goolsby’s assigned prison to "deal with"

17

Plaintiff.

(Id.)

(Id. at 10.)

Sanchez

When the nurse told Dr. Martinez no, he

(Id.)

18

The day before, Goolsby had filed a grievance against the

19

prison medical staff for ignoring his requests and for refusing to

20

order the medical tests.

21

wrote another grievance complaining about having not received the

22

tests and he gave it to Correctional Officer Gamble.

23

Goolsby watched Officer Gamble hand the grievance to Dr. Martinez;

24

the doctor read it and gave it back to Gamble, who brought it back

25

to Goolsby.

26

"'I know all about Goolsby and his 602's, medical requests and

27

complaints, but I don't deal with whiners, he's not endorsed [to

28

Donovan] and we don't do MRIs cause they cost too much, give [the

(Id.)

(Id.)

On January 22, 2009, Plaintiff

(Id.)

Gamble told Plaintiff that Dr. Martinez said,

36

09cv02654-RBB

1

grievance] back to [Goolsby].'"

(Id. at 10-11.)

The Plaintiff was

2

transferred from Donovan to California Correctional Institution on

3

February 11, 2009, three weeks later.

(Id. at 11.)

4

Similarly, the Plaintiff has stated an Eighth Amendment claim

5

against Dr. Martinez for basing his treatment of a serious medical

6

need on budgetary concerns instead of medical opinions.

7

143 F.3d at 703-04; see Jones v. Johnson, 781 F.2d at 771 (9th Cir.

8

1986) ("Budgetary constraints . . . do not justify cruel and

9

unusual punishment.").

Chance,

If true, Plaintiff will have established

10

that Dr. Martinez had a culpable state of mind and that his

11

decision was not based on medical judgment.

12

704; George, 2010 U.S. Dist. LEXIS 111193, at *31-32.

13

maintains that while treating him, Dr. Martinez was the only person

14

during that time who could control when and how medical tests were

15

administered, and Goolsby was in severe pain while waiting for the

16

tests.

17

Plaintiff has asserted that the delay was caused by the doctor's

18

decisions that were not derived from sound medical judgment.

19

Chance, 143 F.3d at 704; Jackson, 90 F.3d at 332.

20

Plaintiff maintains that Dr. Martinez was advised of Goolsby’s

21

injuries and that medical tests were previously ordered to confirm

22

diagnoses and determine the extent of his injuries.

23

769 F.2d at 704.

24

Chance, 143 F.3d at
Plaintiff

Substantial harm from the delay is not required because

See

Finally,

See Ancata,

Defendant Martinez's Motion to Dismiss the Eighth Amendment

25

cause of action in count two for failing to ensure that Goolsby

26

receive the medical tests ordered by physicians at the county jail

27

is DENIED.

28

37

09cv02654-RBB

1
2

D.

Qualified Immunity
Finally, Defendants Ridge and Martinez contend that they are

3

entitled to qualified immunity.

4

A. 15, ECF No. 29.)

5

reasonable doctor would believe that an inmate had a right to have

6

recommended tests done immediately instead of waiting until he

7

arrived at his permanent prison assignment, even if the decision

8

was based on budgetary and workload concerns.

9

state there was no apparent risk of substantial harm to Plaintiff

(Mot. Dismiss Attach. #1 Mem. P. &

They argue that the issue is whether a

(Id.)

Defendants

10

in delaying the tests.

11

clearly established when the events giving rise to this claim

12

occurred, because federal courts had held that delay in treatment

13

must cause the inmate substantial harm.

14

Treiber, 492 F. Supp. 2d 1206, 1213 (E.D. Cal. 2006)).

(Id.)

This right, they argue, was not

(Id. (citing Bowen v.

15

In his Opposition, Goolsby insists that he has pleaded a

16

constitutional violation of a right that was clearly established at

17

the time of the purported misconduct.

18

A. 5, ECF No. 32.)

19

have a previous doctors orders interfe[r]ed with" had been well

20

established for at least twenty years.

21

Karnes, 398 F.3d 868 (6th Cir. 2005); Brock v. Wright, 315 F.3d

22

158, 166 (2nd Cir. 2003); Hemming v. Gorczyk, 134 F.3d 104, 108

23

(2nd Cir. 1998); Chance, 143 F.3d at 702; Gill v. Mooney, 824 F.2d

24

192, 196 (2nd Cir. 1987).)

25

(Opp'n Attach. #1 Mem. P. &

The Plaintiff argues that "the right to NOT

(Id. (citing Johnson v.

In their Reply, Defendants argue that "clearly establishing a

26

general proposition is not enough."

27

maintain that none of the cases Plaintiff relies on would make it

28

sufficiently clear that an intake inmate had a constitutional right

38

(Reply 3, ECF No. 34.)

They

09cv02654-RBB

1

to have recommended medical tests done immediately.

2

(citing Johnson, 398 F.3d at 871; Brock, 315 F.3d at 166; Hemming,

3

134 F.3d at 109; Chance, 143 F.3d at 702; Gill, 824 F.2d at

4

195-96).)

5

(Id. at 3-4

"Qualified immunity shields federal and state officials from

6

money damages unless a plaintiff pleads facts showing (1) that the

7

official violated a statutory or constitutional right, and (2) that

8

the right was 'clearly established' at the time of the challenged

9

conduct."

Ashcroft v. Al-Kidd, __ U.S. __, 131 S. Ct. 2074, 2080

10

(2011) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)); see

11

also Hydrick v. Hunter, 449 F.3d 978, 992 (9th Cir. 2006).

12

immunity protects "all but the plainly incompetent or those who

13

knowingly violate the law."

14

(1986).

15

This

Malley v. Briggs, 475 U.S. 335, 341

When considering a claim for qualified immunity, courts engage

16

in a two-part inquiry:

17

violated a constitutional right, and was the right clearly

18

established at the time of the defendant's purported misconduct?

19

Delia v. City of Rialto, 621 F.3d 1069, 1074 (9th Cir. 2010)

20

(quoting Pearson v. Callahan, 555 U.S. 223, 232 (2009)).

21

is clearly established if the contours of the right are so clear

22

that a reasonable official would understand his conduct was

23

unlawful in the situation he confronted.

24

1196, 1199-1200 (9th Cir. 2010) (citation omitted) (internal

25

quotation marks omitted).

26

officials are on notice of the illegality of their conduct before

27

they are subjected to suit.

Hope v. Pelzer, 536 U.S. 730, 739

28

(2002) (citation omitted).

"This is not to say that an official

Do the facts show that the defendant

A right

Dunn v. Castro, 621 F.3d

This standard ensures that government

39

09cv02654-RBB

1

action is protected by qualified immunity unless the very action in

2

question has previously been held unlawful . . . ."

3

Id.

"[L]ower courts have discretion to decide which of the two

4

prongs of qualified-immunity analysis to tackle first."

Al-Kidd,

5

__ U.S. at __, 131 S. Ct. at 2080; Pearson, 555 U.S. at 236; see

6

also Delia, 621 F.3d at 1075 (citing Brooks v. Seattle, 599 F.3d

7

1018, 1022 n.7 (9th Cir. 2010); Bull v. City & County of San

8

Francisco, 595 F.3d 964, 971 (9th Cir. 2010)).

9

actions do not amount to a constitutional violation, the violation

"If the Officers'

10

was not clearly established, or their actions reflected a

11

reasonable mistake about what the law requires, they are entitled

12

to qualified immunity."

13

Blankenhorn v. City of Orange, 485 F.3d 463, 471 (9th Cir. 2007));

14

see James v. Rowlands, 606 F.3d 646, 651 (9th Cir. 2010) (quoting

15

Pearson, 555 U.S. at 232, 236).

Brooks, 599 F.3d at 1022 (citing

16

Courts should generally attempt to resolve this threshold

17

immunity question at the earliest possible stage in the litigation

18

"before expending 'scarce judicial resources' to resolve difficult

19

and novel questions of constitutional or statutory interpretation

20

that will 'have no effect on the outcome of the case.'"

21

__ U.S. at __, 131 S. Ct. at 2080 (quoting Pearson, 555 U.S. at

22

236-37); see also Crawford-El v. Britton, 523 U.S. 574, 598 (1998)

23

(noting that the purpose of resolving immunity issues early is so

24

that officials are not subjected to unnecessary discovery); Hunter

25

v. Bryant, 502 U.S. 224, 227 (1991).

Al-Kidd,

26

1.

27

A prisoner has a constitutional right to "ready access to

28

Violation of a constitutional right

adequate medical care."

Hoptowit, 682 F.2d at 1253.

40

When

09cv02654-RBB

1

institutional officials are deliberately indifferent to an inmate's

2

medical needs, the prisoner's Eighth Amendment right to be free

3

from cruel and unusual punishment is violated.

4

at 103.

Estelle, 429 U.S.

The Court has already found that Goolsby adequately alleged

5
6

that Defendants Ridge and Martinez were deliberately indifferent to

7

a serious medical need when they, for nonmedical reasons, failed to

8

order medical tests previously ordered by doctors at county jail.

9

The Plaintiff has asserted that the Defendants violated a

10

constitutional right.

11

2.

Whether the right was clearly established

12

"Whether a right is clearly established turns on the

13

'objective legal reasonableness of the action, addressed in light

14

of the legal rules that were clearly established at the time it was

15

taken.'"

16

(9th Cir. 2010) (quoting Pearson, 555 U.S. at ___, 129 S. Ct. at

17

822).

18

state official's conduct clearly established?

19

could a reasonable state official have believed his conduct was

20

lawful?'"

21

F.3d at 910).

22

Clouthier v. County of Contra Costa, 591 F.3d 1232, 1241

"This is 'a two-part inquiry:

(1) Was the law governing the
(2) Under that law

Estate of Ford, 301 F.3d at 1050 (quoting Jeffers, 267

First, the law governing the Defendants' conduct was clearly

23

established.

"Whether the right is clearly established in a

24

particular case is judged as of the date of the incident alleged,

25

and is a pure question of law."

26

at 1162 (citing Act Up!/Portland v. Bagley, 988 F.2d 868, 873 (9th

27

Cir. 1993)).

28

be so broadly defined as to 'convert the rule of qualified immunity

Phillips v. Hust, 338 F. Supp. 2d

"[T]he right alleged to have been violated must not

41

09cv02654-RBB

1

that our cases plainly establish into a rule of virtually

2

unqualified liability simply by alleging violation of extremely

3

abstract rights.'"

4

Cir. 2000) (quoting Anderson v. Creighton, 483 U.S. 635, 639

5

(1987)).

6

narrowly construed so as to 'define away all potential claims.'"

7

Id. (quoting Kelley v. Borg, 60 F.3d 664, 667 (9th Cir. 1995)).

8

In the context of qualified immunity, the Court determines

Cunningham v. Gates, 229 F.3d 1271, 1288 (9th

"On the other hand, . . . the right can not be so

9

whether a right was clearly established by looking to “Supreme

10

Court and Ninth Circuit law existing at the time of the alleged

11

act.”

Community House, Inc. v. Boise, 623 F.3d 945, 967 (9th Cir.

12

2010).

An inmate's right to adequate medical care has long been

13

recognized.

14

103-04; Hoptowit, 682 F.2d at 1253.

15

indifference to an inmate's serious medical needs constitutes the

16

unnecessary and wanton infliction of pain prohibited by the Eighth

17

Amendment.

18

McGuckin, 974 F.2d at 1059.

19

manifested by the intentional interference "with the treatment once

20

prescribed."

21

1165.

22

deliberately ignores orders of the prisoner's previous doctor for

23

reasons unrelated to the inmate's medical needs.

24

F.3d at 1165 (“too busy”); see Chance, 143 F.3d at 703-04 (finding

25

that deliberate indifference may be alleged where a physician

26

pursues a treatment plan that is not "derive[d] from sound medical

27

judgment[]"); Jones v. Johnson, 781 F.2d at 771 (budget concerns).

Farmer, 511 U.S. at 828-29; Estelle, 429 U.S. at
A prison official's deliberate

Helling, 509 U.S. at 32; Estelle, 429 U.S. at 104;
Deliberate indifference may be

Estelle, 429 U.S. at 104-05; Wakefield, 177 F.3d at

A constitutional violation may be found when an official

Wakefield, 177

28

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1

The Defendants confuse the issue by arguing that the right was

2

not clearly established because a delay in treatment must cause the

3

inmate substantial harm.

4

ECF No. 29 (citing Bowen, 492 F. Supp. 2d at 1213).

5

plaintiff argued that the defendants were deliberately indifferent

6

because they knew about plaintiff's hernia and could have provided

7

surgery, but they delayed his treatment.

8

1213.

9

resulted from the time that it took the "MAR committee" to

(Mot. Dismiss Attach. #1 Mem. P. & A. 15,
In Bowen, the

Bowen, 492 F. Supp. 2d at

The court found that any delay in plaintiff's surgery

10

authorize the procedure, and plaintiff failed to demonstrate that

11

the delay in receiving surgery caused him substantial harm.

12

1213-14.

13

result of nonmedical considerations.

14

is not whether the delay in medical tests caused Goolsby

15

substantial harm, but whether the Defendants' reasons for ignoring

16

the prior doctors' orders were based on "sound medical judgment."

17

The law applicable to Goolsby's deliberate indifference allegations

18

was clearly established on December 16, 2008, the date Plaintiff

19

was transferred to Donovan.

20

previously ordered medical treatment for reasons unrelated to

21

medical needs.

Id. at

Notably, there was no allegation that the delay was the
Here, in contrast, the issue

Defendants cannot interfere with

22

Second, viewing the facts in the light most favorable to

23

Plaintiff, a rational prison official in these circumstances would

24

believe that his or her conduct was unlawful.

25

301 F.3d at 1045.

26

whether it would be clear to a reasonable officer that his conduct

27

was unlawful in the situation he confronted."

28

202.

See Estate of Ford,

"The relevant, dispositive inquiry . . . is

Saucier, 533 U.S. at

"If the law did not put the officer on notice that his

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1

conduct would be clearly unlawful, . . . qualified immunity is

2

appropriate."

3

Id.

Goolsby alleges that Dr. Ridge was his treating physician at

4

Donovan for approximately two weeks.

(Second Am. Compl. 5, 8, ECF

5

No. 25.)

6

and described Plaintiff’s injuries.

7

the nurse that he would examine Plaintiff within three days.

8

The screening nurse told Goolsby that although physicians at the

9

county jail had ordered an MRI, colonoscopy, and endoscopy for him,

During that time, a screening nurse telephoned Dr. Ridge
(Id. at 6.)

The doctor told
(Id.)

10

Ridge never orders the tests because they cost too much.

11

Dr. Ridge never met with Plaintiff.

12

too, told Plaintiff that Ridge would not likely order the medical

13

tests before Goolsby was transferred out of Donovan because of the

14

doctor's high workload.

15

the MRI, endoscopy, or colonoscopy.

16

(Id. at 7.)

(Id. at 8.)

(Id.)

Nurse Sheriff,

Defendant Ridge never ordered

Plaintiff alleges that Dr. Martinez was his treating physician

17

for one and one-half months.

18

telephoned Dr. Martinez in front of Goolsby, and Martinez asked

19

Sanchez whether Plaintiff was an "endorsed" inmate; when she said

20

no, Dr. Martinez told her to let the assigned prison "deal with"

21

Goolsby.

22

handed it to Correctional Officer Gamble to give to Dr. Martinez.

23

(Id. at 10.)

24

doctor.

25

Goolsby was not endorsed at Donovan, the doctor would not order the

26

medical tests because they cost too much.

27

Martinez never ordered the MRI, endoscopy, or colonoscopy.

(Id. at 9-10.)

(Id. at 9-11.)

Nurse Sanchez

Later, Plaintiff wrote a grievance and

Goolsby observed Gamble hand the grievance to the

(Id.)

After reading it, Dr. Martinez said that because

(Id. at 11.)

Defendant

28

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1

A reasonable physician in the Defendants' positions would know

2

that refusing to order the medical tests previously ordered by

3

doctors at county jail for workload or budgetary reasons was

4

unconstitutional.

5

deliberate indifference may be established by showing that a prison

6

official intentionally interfered with an inmate's medical

7

treatment); Wakefield, 177 F.3d at 1165 & n.6 (holding that "a

8

prison official acts with deliberate indifference when he ignores

9

the instructions of the prisoner's treating physician or

See, e.g., Lopez, 203 F.3d at 1132 (finding that

10

surgeon[]"); Chance, 143 F.3d at 703-04 (noting that deliberate

11

indifference may be shown by alleging the defendant pursued a

12

treatment plan that was not derived from "sound medical

13

judgment[]"); Goring, 1997 U.S. Dist. LEXIS 1464, at *7 (finding

14

that plaintiff alleged deliberate indifference where defendant's

15

decision to not follow the prior doctor's recommendation to give

16

diagnostic tests was based on fiscal, rather than medical,

17

concerns).

18

Both Dr. Ridge and Dr. Martinez are alleged to have been aware

19

of the orders for tests from the doctors at county jail and failed

20

to follow up on the orders.

21

with the prior physicians' orders for reasons unrelated to

22

Goolsby's medical care can constitute deliberate indifference in

23

violation of the Eighth Amendment.

24

to qualified immunity from liability.

25

Dismiss Goolsby's claim for civil damages against both Defendants

26

on this ground is DENIED.

By 2008, it was clear that interfering

Neither Defendant is entitled
Accordingly, the Motion to

27
28

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1
2

E.

Injunctive Relief
Finally, Plaintiff seeks a mandatory injunction to receive an

3

MRI of his right shoulder.

4

Defendants assert that the Court may not issue an injunction that

5

affects the rights of persons not before the Court and not

6

otherwise subject to its jurisdiction.

7

Mem. P. & A. 15, ECF No. 29.)

8

at California Correctional Institution, and the medical personnel

9

at that prison are not before the Court, Defendants argue that

(Second Am. Compl. 14, ECF No. 25.)

(Mot. Dismiss Attach. #1

Because Goolsby is currently housed

10

Plaintiff's request for injunctive relief should be denied.

11

at 15-16.)

12

(Id.

Injunctive relief is an equitable remedy that is appropriate

13

where a plaintiff can establish he will suffer a "likelihood of

14

substantial and immediate irreparable injury" if an injunction is

15

not granted.

16

(9th Cir. 1999) (quoting City Los Angeles v. Lyons, 461 U.S. 95,

17

111 (1983)); see also Doran v. Salem Inn, Inc., 422 U.S. 922, 932

18

(1975).

19

personal jurisdiction over the parties and subject matter

20

jurisdiction over the claim; it may not attempt to determine the

21

rights of persons not before the court.'"

22

Stockton, 390 F.3d 1105, 1117 (9th Cir. 2004) (quoting Zepeda v.

23

I.N.S., 753 F.2d 719, 727 (9th Cir. 1983)).

24

be narrowly tailored "to affect only those persons over which it

25

has power . . . ."

26

Hodgers-Durgin v. De La Vina, 199 F.3d 1037, 1049

"'A federal court may issue an injunction if it has

Price v. City of

"[A]n injunction must

Id.

Goolsby is no longer incarcerated at Donovan, where Defendants

27

Ridge and Martinez are employed.

Because he is currently housed at

28

an institution that provides medical care to its inmates,

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09cv02654-RBB

1

California Correctional Institution in Tehacapi, California [ECF

2

No. 36], Plaintiff has not shown that he is entitled to the

3

injunctive relief he seeks.

4

jurisdiction over the personnel at Goolsby's current prison.

5

all these reasons, his request for injunctive relief is DENIED.

6
7

IV.

Furthermore, the Court does not have
For

MOTION FOR ORDER ON DEFENDANTS' MOTION TO DISMISS

In his Motion for Order on Defendants' Motion to Dismiss,

8

Goolsby asks that the Court issue a ruling on the Motion to

9

Dismiss.

10

(Mot. Order Defs.' Mot. Dismiss 1, ECF No. 38.)

of this Order, Goolsby's Motion [ECF No. 38] is DENIED as moot.

11
12

In light

V.

CONCLUSION

Goolsby's claim that Dr. Martinez was deliberately indifferent

13

for failing to order that Plaintiff's walker be returned to him,

14

whether construed as either an independent walker claim or a

15

realleged failure-to-examine cause of action, fails.

16

it constitutes a new deprivation-of-medical-appliance claim, it is

17

unexhausted; to the extent it is a realleged failure-to-examine

18

claim, it was previously dismissed from this lawsuit without leave

19

to amend.

20

without leave to amend.

21

count three of the Second Amended Complaint, the unexhausted claim

22

for retaliation, is GRANTED without leave to amend.

23

To the extent

Martinez's Motion to Dismiss this claim is GRANTED
Defendant Martinez's Motion to Dismiss

Defendant Ridge's Motion to Dismiss the Eighth Amendment cause

24

of action against him in count one for failing to order the

25

diagnostic tests previously ordered by doctors as county jail is

26

DENIED.

27

cause of action in count two for failing to order the medical tests

28

is also DENIED.

Dr. Martinez's Motion to Dismiss the Eighth Amendment

Neither Defendant is entitled to qualified

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09cv02654-RBB

1

immunity, and their Motion to Dismiss Plaintiff's claim for civil

2

damages on this basis is DENIED.

3

jurisdiction over the personnel at Goolsby's current prison and his

4

request for injunctive relief is DISMISSED.

5
6

Finally, the Court does not have

Defendants’ answer to the Second Amended Complaint must be
filed no later than April 23, 2012.

7

IT IS SO ORDERED.

8
9

DATE:

March 29, 2012

10
11

_____________________________
RUBEN B. BROOKS
United States Magistrate Judge

cc:
All Parties of Record

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