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
20
and in forma pauperis, filed a Complaint on November 23, 2009,
21
against Defendants Ridge, Martinez, Sanchez, and Wilson, pursuant
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to 42 U.S.C. § 1983 [ECF Nos. 1, 4].
23
filed an Amended Complaint against Defendants Ridge, Martinez, and
24
Wilson [ECF No. 5].
25
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].
27
issued its Report and Recommendation Granting Defendants' Motion to
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Dismiss Plaintiff's First Amended Complaint, the parties sought to
1
One day after this Court
09cv02654-RBB
1
consent to magistrate judge jurisdiction [ECF No. 21].
2
district court subsequently referred the case to this Court for all
3
proceedings [ECF No. 22].
4
Order Granting Defendants' Motion to Dismiss Plaintiff's First
5
Amended Complaint [ECF No. 23], which superseded the Report and
6
Recommendation it issued on May 10, 2011.
7
Defs.' Mot. Dismiss Pl.'s First Am. Compl. 1, ECF No. 23.)
8
was only given leave to amend his claim that Defendants Ridge and
9
Martinez were deliberately indifferent to Plaintiff's serious
10
medical needs by failing to ensure that he received previously
11
ordered medical tests.
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were dismissed without leave to amend.
13
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
14
against Defendants Ridge and Martinez [ECF No. 25].1
15
Defendants' Motion to Dismiss Plaintiff's Second Amended Complaint
16
was filed on June 23, 2011, along with a Memorandum of Points and
17
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
20
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
23
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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1
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27
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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.
2
The Court will also cite to Goolsby's Opposition using the
page numbers assigned by the Court's electronic filing system.
2
09cv02654-RBB
1
Also before the Court is Plaintiff's Motion for Order on
2
Defendants' Motion to Dismiss, which was filed nunc pro tunc to
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February 29, 2012 [ECF No. 38].
4
The Court has considered Plaintiff's Second Amended Complaint,
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Defendants' Motion to Dismiss and attachments, Goolsby's Opposition
6
and attachment, Defendants' Reply, and Plaintiff’s Motion for
7
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
13
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.)
18
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.)
20
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.
22
Although Goolsby had a prior right shoulder tear, it had healed
23
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
26
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.)
3
Plaintiff was given pain
(Id.)
Soon
09cv02654-RBB
1
vomiting blood and had a bloody stool.
2
and Plaintiff was told that he had strictures, which are intestinal
3
cuts.
4
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.
16
(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
17
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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09cv02654-RBB
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because they cost way too much.
2
colonoscopy[.]'"
3
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
10
to ensure that he receive the previously ordered medical tests.
11
(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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09cv02654-RBB
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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.
16
(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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09cv02654-RBB
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on the next doctor line (the list of inmates seen every week).
2
(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
2
he was on the list to be seen by the doctor that day, and she said
3
that he had been "scratched off by the doctor."
4
Goolsby was transferred from Donovan to California Correctional
5
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.)
8
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.)
10
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
12
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.
16
(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.
20
(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.
25
Martinez interfered with the orders from county jail doctors for
26
medical tests for budgetary and caseload reasons.
27
also argues that Martinez refused to see him; consequently,
28
Plaintiff could not get his walker back, in violation of Goolsby's
8
(Id. at 11.)
Defendant
(Id.)
Plaintiff
09cv02654-RBB
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constitutional rights.
(Id.)
"Dr. Martinez was the sole person
2
who could control when and how such test[s] and medical appliances
3
were given."
(Id.)
4
In count three of the Second Amended Complaint, Goolsby
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alleges that Dr. Martinez retaliated against Plaintiff for filing
6
requests for medical attention as well as inmate grievances by
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"scratching [Plaintiff] off the [doctor] line so [Goolsby] could
8
not receive the medical care [he] so desperately needed."
9
12.)
(Id. at
According to Goolsby, this chilled his First and Eighth
10
Amendment rights, and Dr. Martinez had no legitimate correctional
11
goal.
II.
12
13
14
(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
15
Federal Rule of Civil Procedure 12(b)(6) tests the legal
16
sufficiency of the claims in the complaint.
17
County Bd. of Educ., 526 U.S. 629, 633 (1999).
18
that the complaint must not be dismissed unless it is beyond doubt
19
without merit -- was discarded by the Bell Atlantic decision [Bell
20
Atl. Corp. v. Twombly, 550 U.S. 544, 563 n.8 (2007)]."
21
Dev. Corp. v. Vill. of Lemont, 520 F.3d 797, 803 (7th Cir. 2008).
22
A complaint must be dismissed if it does not contain "enough facts
23
to state a claim to relief that is plausible on its face."
24
Atl. Corp., 550 U.S. at 570.
25
the plaintiff pleads factual content that allows the court to draw
26
the reasonable inference that the defendant is liable for the
27
misconduct alleged."
28
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
9
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factual allegations in the complaint, as well as reasonable
2
inferences to be drawn from them, and must construe the complaint
3
in the light most favorable to the plaintiff.
4
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).
7
Cholla Ready Mix,
The court does not look at whether the plaintiff will
8
ultimately prevail, but whether the plaintiff is entitled to
9
present evidence to support the asserted claims.
Jackson v.
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Birmingham Bd. of Educ., 544 U.S. 167, 184 (2005) (quotation
11
omitted); see Bell Atl. Corp., 550 U.S. at 563 n.8.
12
under Federal Rule of Civil Procedure 12(b)(6) is generally proper
13
only where there "is no cognizable legal theory or an absence of
14
sufficient facts alleged to support a cognizable legal theory."
15
Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001) (citing
16
Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.
17
1988)).
A dismissal
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The court need not accept conclusory allegations in the
19
complaint as true; rather, it must "examine whether [they] follow
20
from the description of facts as alleged by the plaintiff."
21
v. Hagopian, 978 F.2d 1115, 1121 (9th Cir. 1992) (citation
22
omitted); see Halkin v. VeriFone, Inc., 11 F.3d 865, 868 (9th Cir.
23
1993); see also Clegg v. Cult Awareness Network, 18 F.3d 752,
24
754-55 (9th Cir. 1994) ("[T]he court is not required to accept
25
legal conclusions cast in the form of factual allegations if those
26
conclusions cannot reasonably be drawn from the facts alleged.").
27
"Nor is the court required to accept as true allegations that are
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merely conclusory, unwarranted deductions of fact, or unreasonable
10
Holden
09cv02654-RBB
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inferences."
2
(9th Cir. 2001).
3
Sprewell v. Golden State Warriors, 266 F.3d 979, 988
In addition, when resolving a motion to dismiss for failure to
4
state a claim, the court generally may not consider materials
5
outside of the pleadings.
6
F.3d 1194, 1197 n.1 (9th Cir. 1998); Jacobellis v. State Farm Fire
7
& Cas. Co., 120 F.3d 171, 172 (9th Cir. 1997); Allarcom Pay
8
Television Ltd. v. Gen. Instrument Corp., 69 F.3d 381, 385 (9th
9
Cir. 1995).
"The focus of any Rule 12(b)(6) dismissal . . . is the
10
complaint."
Schneider, 151 F.3d at 1197 n.1.
11
consideration of "new" allegations that may be raised in a
12
plaintiff's opposition to a motion to dismiss brought pursuant to
13
Rule 12(b)(6).
14
Schneider v. Cal. Dep't of Corr., 151
This precludes
Id. (citations omitted).
"When a plaintiff has attached various exhibits to the
15
complaint, those exhibits may be considered in determining whether
16
dismissal [i]s proper . . . ."
17
(citation omitted).
18
contents are alleged in a complaint and whose authenticity no party
19
questions, but which are not physically attached to the
20
[plaintiff's] pleading.'"
21
Corp., 241 F. App'x 363, 365 (9th Cir. 2007) (quoting Janas v.
22
McCracken (In re Silicon Graphics Inc. Sec. Litig.), 183 F.3d 970,
23
986 (9th Cir. 1999)) (alterations in original); Stone v. Writer's
24
Guild of Am. W., Inc., 101 F.3d 1312, 1313-14 (9th Cir. 1996).
25
B.
26
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
27
case, the court must construe the pleadings liberally and afford
28
the plaintiff any benefit of the doubt.
11
Karim-Panahi v. Los
09cv02654-RBB
1
Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988).
The rule
2
of liberal construction is "particularly important in civil rights
3
cases."
4
In giving liberal interpretation to a pro se civil rights
5
complaint, courts may not "supply essential elements of claims that
6
were not initially pled."
7
Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
8
allegations of official participation in civil rights violations
9
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.
11
1984) (finding conclusory allegations unsupported by facts
12
insufficient to state a claim under § 1983).
13
allege with at least some degree of particularity overt acts which
14
defendants engaged in that support the plaintiff's claim."
15
v. Cmty. Redev. Agency, 733 F.2d at 649 (internal quotation
16
omitted).
"The plaintiff must
Jones
17
Nevertheless, the court must give a pro se litigant leave to
18
amend his complaint "unless it determines that the pleading could
19
not possibly be cured by the allegation of other facts."
20
Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (quotation marks and
21
citations omitted).
22
may be dismissed, the court must provide the plaintiff with a
23
statement of the complaint's deficiencies.
24
at 623-24.
25
would be futile, denial of leave to amend is appropriate.
26
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
27
28
12
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C.
2
Stating a Claim Under 42 U.S.C. § 1983
To state a claim under § 1983, the plaintiff must allege facts
3
sufficient to show (1) a person acting "under color of state law"
4
committed the conduct at issue, and (2) the conduct deprived the
5
plaintiff of some right, privilege, or immunity protected by the
6
Constitution or laws of the United States.
7
(West 2003); Shah v. County of Los Angeles, 797 F.2d 743, 746 (9th
8
Cir. 1986).
9
42 U.S.C.A. § 1983
These guidelines apply to Defendants' Motion to Dismiss.
10
III.
11
DEFENDANTS' MOTION TO DISMISS
Doctors Ridge and Martinez move to dismiss Plaintiff's Second
12
Amended Complaint in its entirety.
13
ECF No. 29.)
14
walker or retaliation claims against him.
15
& A. 8.)
16
state an Eighth Amendment claim against them, that they are
17
entitled to qualified immunity, and that Goolsby fails to state a
18
claim for injunctive relief.
19
A.
20
(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
21
its pleading once as a matter of course.
Fed. R. Civ. P. 15(a).
22
Thereafter, a party must seek leave of court or obtain written
23
permission from the opposing party to amend again.
24
15(a)(2).
25
First Amended Complaint were dismissed.
26
Mot. Dismiss Pl.'s First Am. Compl. 52-53, ECF No. 23.)
27
only granted Plaintiff leave to amend his claim concerning
28
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
13
(Order Granting Defs.'
The Court
09cv02654-RBB
1
previously ordered medical tests were performed.
(Id.)
Each of
2
Goolsby's other claims was dismissed without leave to amend, and he
3
was not given leave to add new causes of action.
(See id.)
4
In a footnote, Dr. Martinez complains that Plaintiff added two
5
new accusations relating to Defendant's retaliation and his failure
6
to order Goolsby's walker returned without properly seeking leave
7
of court.
8
29.)
9
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
10
insists that he properly exhausted these claims, but he does not
11
address whether the causes of action were properly added to the
12
Second Amended Complaint.
13
ECF No. 32.)
14
(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.
16
that Defendant Martinez was deliberately indifferent to Plaintiff's
17
serious medical needs because Dr. Martinez should have ordered
18
Goolsby's walker returned to him).)
19
finds that Plaintiff's walker claim was not properly included in
20
the Second Amended Complaint.
21
retaliation claim.
22
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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09cv02654-RBB
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
43
09cv02654-RBB
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
44
09cv02654-RBB
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
45
09cv02654-RBB
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,
46
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
47
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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K:\COMMON\BROOKS\CASES\_1983\PRISONER\GOOLSBY2654\Order re MTD SAC.wpd
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09cv02654-RBB
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