Holmes v. Estock et al

Filing 79

ORDER Granting in Part and Denying in Part 60 Defendants' Motion to Dismiss 55 Second Amended Complaint. The Court grants in part and denies in part Defendants' motion to dismiss as follows: The Court denies Defendants' motion to d ismiss Plaintiff's Eighth Amendment claims against Defendants Estock and Currier in their individual capacities. The Court grants Defendants' motion and dismisses Plaintiff's Eighth Amendment claim against Governor Brown with prejudice . The Court grants Defendants' motion and dismisses Plaintiff's Eighth Amendment claims against Defendants Estock, Diaz, Nasir, and Montgomery in their official capacities without prejudice. The Court grants Plaintiff leave to amend his off icial capacity claims against Defendants Estock, Diaz, Nasir, and Montgomery. If he chooses to amend his official capacity claims against these three defendants, Plaintiff must file a Third Amended Complaint on or before 12/10/2018. Plaintiff may not add any new claims or parties. Defendants not named and any claim not re-alleged in a Third Amended Complaint will be considered waived. Signed by Judge Michael M. Anello on 11/8/2018. (rmc) Modified on 11/8/2018; no non-registeresd users to be served via mail (rmc). (Main Document 79 replaced on 11/8/2018) (amk).

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Case No.: 3:16-cv-02458-MMA-BLM CHARLES HOLMES, Plaintiff, 12 13 v. 14 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS SECOND AMENDED COMPLAINT ESTOCK, et al., Defendants. 15 16 [Doc. No. 60] 17 18 19 20 Plaintiff Charles Holmes, a California inmate, brings this civil rights action 21 pursuant to 42 U.S.C. § 1983 alleging violations of his Eighth Amendment right to 22 adequate medical care. Plaintiff, proceeding through counsel, filed a Second Amended 23 Complaint (“SAC”) against various medical personnel, correctional officials, and 24 California Governor Edmund G. Brown. See Doc. No. 55. Defendants move to dismiss 25 Plaintiff’s claims pursuant to Federal Rule of Civil Procedure 12(b)(6). See Doc. No. 60. 26 Plaintiff filed an opposition to the motion, to which Defendants replied. See Doc. Nos. 27 65, 67. For the reasons set forth below, the Court GRANTS IN PART and DENIES IN 28 PART Defendants’ motion. 1 3:16-cv-02458-MMA-BLM BACKGROUND1 1 2 Plaintiff has a congenital defect in his left kidney, which requires ongoing medical 3 treatment. In February 2012, Plaintiff began to experience flank pain and recurrent 4 urinary tract infections, and was subsequently referred for consultation and treatment to 5 two urology specialists. From 2012 to July 2014, while housed at Calipatria State Prison 6 (“CSP-CAL”), Plaintiff was treated by urologists who recommended further surgery at 7 University of California San Diego’s Medical Center (“UCSD”) to treat his kidney, 8 which was not draining properly. A urologist inserted a nephrostomy tube into Plaintiff’s 9 left kidney to help with drainage on October 31, 2013, and then replaced the nephrostomy 10 tube on May 9, 2014. That same day, Plaintiff’s primary care physician at CSP-CAL, 11 Defendant Estock, warned Plaintiff of the substantial risks associated with the removal of 12 his nephrostomy tube. Plaintiff’s treating urologist recommended the nephrostomy tube 13 not be removed until Plaintiff was further evaluated to decide on definitive surgery to 14 correct an obstruction in his ureter. However, in July 2014, before Plaintiff could be 15 further evaluated, the area around the nephrostomy tube became infected. The 16 nephrostomy tube was removed on July 14, 2014. The following day, Plaintiff was 17 transferred to California State Prison, Sacramento (“CSP-SAC”). 18 According to Plaintiff, Defendant Estock “allowed Plaintiff to be transferred to 19 CSP-SAC and failed to arrange the recommended treatment.” SAC ¶ 32. Plaintiff was 20 not seen by the doctor for 14 days upon his arrival, and developed a kidney infection. 21 Two months later, Plaintiff was treated by a urologist at University of California San 22 Francisco Medical Center (“UCSF”), but the treatment proved ineffective. Plaintiff’s 23 primary care physician noted on November 19, 2014, “patient has complied with UCSF 24 urology treatment recommendations. Zero help. No response to UCSF treatment 25 26                                                 27 1 28 Because this matter is before the Court on a motion to dismiss, the Court must accept Plaintiff’s allegations as true. See Hosp. Bldg. Co. v. Trs. Of Rex Hosp., 425 U.S. 738, 740 (1976). 2 3:16-cv-02458-MMA-BLM 1 suggestion and strongly recommend transfer to California State Prison near USCD! 2 ASAP!” Id. ¶ 35. 3 Plaintiff submitted his first inmate health care appeal on July 1, 2014, indicating 4 significant pain in both of his kidneys, and requesting a second opinion from a urologist. 5 Plaintiff was interviewed by Defendant Estock via telephone regarding the appeal; the 6 appeal was ultimately denied. Plaintiff filed a second inmate health care appeal on 7 January 16, 2015, indicating that his urine was backing up to his kidney from his bladder 8 and he was experiencing significant pain. Plaintiff’s second appeal was ultimately denied 9 on October 26, 2015. 10 Plaintiff was transferred back to CSP-CAL in July 2016. Plaintiff has suffered 11 recurring urinary tract infections, with only temporary relief from recommended 12 antibiotics and self-catheterization. Plaintiff’s current primary care physician at CSP- 13 CAL, Defendant Currier, has stopped administering pain medications to Plaintiff. In 14 sum, Plaintiff alleges that “[s]ince July 15, 2014, [he] has not received the medical care 15 necessary to avert permanent damage to his kidney(s).” Id. ¶ 7. 16 Based on these allegations, Plaintiff alleges violations of his Eighth Amendment 17 right to adequate medical care. Plaintiff sues Defendants Estock and Currier in their 18 individual capacities, alleging that they were deliberately indifferent to his serious 19 medical needs.2 Plaintiff sues Defendant Estock, Governor Brown, and prison officials 20 Diaz3, Montgomery, and Nasir, in their official capacities, alleging that they are 21 responsible for maintaining “policies, customs, and practices which were the moving 22 23 24 25 26 27 28                                                 2 See SAC at 1 (“DR. ESTOCK, in her official and individual capacities” and “DR. THERESA CURRIER, an official, as custodial primary care physician for Plaintiff, in her individual capacity”) (emphasis added). 3 The Court sua sponte SUBSTITUTES Ralph Diaz, Acting Secretary of the California Department of Corrections and Rehabilitation (“CDCR”) in place of Scott Kernan, who retired from the position effective August 31, 2018. Plaintiff sued Kernan in his official capacity, and as such, “replacement of the named official . . . result[s] in automatic substitution of the official’s successor in office.” Kentucky v. Graham, 473 U.S. 159, 166 n. 11; see also Fed. R. Civ. P. 25(d). 3 3:16-cv-02458-MMA-BLM 1 force of the constitutional deprivations Plaintiff has suffered.” Id. ¶¶ 14-17. Plaintiff 2 further alleges that some of the defendants are “empowered to transfer Mr. Holmes to any 3 facility due to his medical condition,” so that he may receive medically necessary 4 treatment for his kidney disease. Id. ¶¶ 47, 49. To this end, Plaintiff seeks prospective 5 injunctive relief, in addition to damages. 6 7 LEGAL STANDARD A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the 8 sufficiency of the complaint. See Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). A 9 pleading must contain “a short and plain statement of the claim showing that the pleader 10 is entitled to relief.” Fed. R. Civ. P. 8(a)(2). However, plaintiffs must also plead 11 “enough facts to state a claim to relief that is plausible on its face.” Fed. R. Civ. P. 12 12(b)(6); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard 13 thus demands more than a formulaic recitation of the elements of a cause of action, or 14 naked assertions devoid of further factual enhancement. See Ashcroft v. Iqbal, 556 U.S. 15 662, 678 (2009). Instead, the complaint “must contain allegations of underlying facts 16 sufficient to give fair notice and to enable the opposing party to defend itself effectively.” 17 Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). 18 In reviewing a motion to dismiss under Rule 12(b)(6), courts must assume the truth 19 of all factual allegations and must construe them in the light most favorable to the 20 nonmoving party. See Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337–38 (9th Cir. 21 1996). The court need not take legal conclusions as true merely because they are cast in 22 the form of factual allegations. Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 23 1987). Similarly, “conclusory allegations of law and unwarranted inferences are not 24 sufficient to defeat a motion to dismiss.” Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir. 25 1998). 26 In determining the propriety of a Rule 12(b)(6) dismissal, courts generally may not 27 look beyond the complaint for additional facts. See United States v. Ritchie, 342 F.3d 28 903, 908 (9th Cir. 2003). “A court may, however, consider certain materials—documents 4 3:16-cv-02458-MMA-BLM 1 attached to the complaint, documents incorporated by reference in the complaint, or 2 matters of judicial notice—without converting the motion to dismiss into a motion for 3 summary judgment.” Id.; see also Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir 4 2001). “However, [courts] are not required to accept as true conclusory allegations 5 which are contradicted by documents referred to in the complaint.” Steckman v. Hart 6 Brewing, Inc., 143 F.3d 1293, 1295–96 (9th Cir. 1998). Where dismissal is appropriate, a 7 court should grant leave to amend unless the plaintiff could not possibly cure the defects 8 in the pleading. See Knappenberger v. City of Phoenix, 566 F.3d 936, 942 (9th Cir. 9 2009). 10 11 12 DISCUSSION 1. Individual Capacity Claims Against Defendants Estock and Currier Plaintiff alleges that Defendants Estock and Currier acted with deliberate 13 indifference to his serious medical needs by failing to adequately treat his kidney disease 14 while under their primary care. 15 A determination of deliberate indifference involves a two-step analysis consisting 16 of both objective and subjective inquiries. Farmer v. Brennan, 511 U.S. 825, 837 (1994). 17 “First, the plaintiff must demonstrate a serious medical need such that failure to provide 18 treatment could result in further significant injury or unnecessary and wanton infliction of 19 pain. Second, the plaintiff must show that the defendant’s response to the medical need 20 was deliberately indifferent.” McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 21 1992) (citations and internal quotations omitted). “In order to show deliberate 22 indifference, an inmate must allege sufficient facts to indicate that prison officials acted 23 with a culpable state of mind.” Wilson v. Seiter, 501 U.S. 294, 302 (1991). 24 At the first step, Plaintiff adequately alleges the existence of an objectively serious 25 medical need. Plaintiff has a congenital kidney disease that has resulted in improper 26 function and recurring bladder infections. 27 At the second step, Plaintiff has alleged sufficient facts to demonstrate that 28 Defendants Estock and Currier acted with the requisite subjective intent. According to 5 3:16-cv-02458-MMA-BLM 1 Plaintiff, while under the primary care of each physician, he has never “received the 2 medical care necessary to avert permanent damage to his kidney(s),” despite both 3 Defendants Estock and Currier being aware of the substantial risk of harm to Plaintiff. 4 SAC ¶ 7. For example, Defendant Estock warned Plaintiff of “the damage that he would 5 do to the kidney if he removed the nephrostomy tube including, but not limited to, 6 infection, loss of kidney function or kidney itself and/or death,” but then failed twice to 7 provide or arrange “for appropriate and clearly medically necessary care, i.e. replacement 8 of the nephrostomy tube at a minimum.” Id. ¶¶ 29, 33. Plaintiff alleges that Defendant 9 Currier has refused to continue administering pain medications despite Plaintiff’s 10 “persistent and painful urinary tract infections.” Id. ¶ 7. A failure to alleviate Plaintiff’s 11 pain with medication likely would have resulted in “unnecessary and wanton infliction of 12 pain.” See McGuckin, 974 F.2d at 1059. Plaintiff further claims that Defendant Currier 13 has treated his condition with antibiotics, despite possessing “all of Plaintiff’s medical 14 records,” and therefore being aware of the need for surgical intervention in order to avoid 15 permanent damage to Plaintiff’s kidney and potential renal failure. SAC ¶ 18. 16 17 18 In sum, taking Plaintiff’s allegations as true, he has alleged plausible violations by Defendant Estock and Currier of his Eighth Amendment right to adequate medical care. 2. Official Capacity Claims Against Defendants Estock, Diaz, Brown, Montgomery, 19 and Nasir 20 Plaintiff alleges Defendants Estock, Diaz, Brown, Montgomery, and Nasir are 21 liable in their official capacities under the Eighth Amendment because “Plaintiff did not 22 receive adequate and appropriate treatment for his kidney because it was too expensive 23 and the CDCR implemented, condoned, and ratified policies designed to save money by 24 denying inmates necessary medical care.” SAC ¶¶ 21-22. 25 As an initial matter, Plaintiff relies on Monell v. Dep’t of Soc. Servs., 436 U.S. 658 26 (1978), to support his theory of liability against these defendants. See Doc. No. 65 at 16. 27 However, Plaintiff brings his claims against them in their official capacities, i.e. as agents 28 of the state. The Supreme Court has held that Monell liability does not extend to the 6 3:16-cv-02458-MMA-BLM 1 states. See Quern v. Jordan, 440 U.S. 33, 338 (1979). Instead, liability is “limited to 2 local government units which are not considered part of the State for Eleventh 3 Amendment purposes.” Id. Accordingly, Monell is inapplicable, and Plaintiff cannot 4 maintain a suit for damages against these defendants in their official capacities. See 5 Arizonans for Official English v. Arizona, 520 U.S. 43, 69 n.24 (1997) (“State officers in 6 their official capacities, like States themselves, are not amenable to suit for damages 7 under § 1983.”). 8 While the Eleventh Amendment bars a prisoner’s section 1983 damages claims 9 against state actors sued in their official capacities, Will v. Michigan, 491 U.S. 58, 66 10 (1989), it does not bar actions against state officials seeking prospective injunctive relief. 11 See Quern, 440 U.S. at 337 (“[A] federal court, consistent with the Eleventh Amendment, 12 may enjoin state officials to conform their future conduct to the requirements of federal 13 law.”); see also Flint v. Dennison, 488 F.3d. 816, 825 (9th Cir. 2007) (“[A] suit for 14 prospective injunctive relief provides a narrow, but well-established, exception to 15 Eleventh Amendment immunity.”). In this case, Plaintiff seeks “an injunction 16 compelling Defendants to comply with the Eighth Amendment and provide Plaintiff with 17 appropriate medical care for his ongoing kidney problem.” SAC at 16. Plaintiff alleges 18 that applicable regulations, “in conjunction with the official powers vested by California 19 law . . . empower these defendants to comply with any order for injunctive relief which 20 this court deems appropriate.” Id. ¶ 50. 21 “A plaintiff seeking injunctive relief against the State is not required to allege a 22 named official’s personal involvement in the acts or omissions constituting the alleged 23 constitutional violation. Rather, a plaintiff need only identify the law or policy 24 challenged as a constitutional violation and name the official within the entity who can 25 appropriately respond to injunctive relief.” Hartmann v. Cal. Dep’t of Corr. & Rehab., 26 707 F.3d 1114, 1127 (9th Cir. 2013) (internal citations omitted). However, the official 27 “must have some connection with the enforcement of the act,” and that connection “must 28 be fairly direct; a generalized duty to enforce state law or general supervisory power over 7 3:16-cv-02458-MMA-BLM 1 the persons responsible for enforcing the challenged provision will not subject an official 2 to suit.” Ex parte Young, 209 U.S. 123, 157 (1908). 3 It is well-established that Governor Brown, sued in his official capacity, has no 4 alleged factual connection to the enforcement of CDCR regulations or the administration 5 of the prison healthcare system, other than a general duty to enforce California law as the 6 governor. See L.A. Cnty. Bar Ass’n v. Eu, 979 F.2d 697, 704 (9th Cir. 1992); see also 7 Ass’n des Eleveurs de Canards et d’Oies du Quebec v. Harris, 729 F.3d 937, 943 (9th 8 Cir. 2013) (holding that Governor Brown is entitled to Eleventh Amendment immunity 9 where his only connection to challenged California statute is a general duty to enforce 10 California law). As such, the Court dismisses Plaintiff’s Eighth Amendment claim 11 against Governor Brown. 12 Plaintiff’s allegations are currently insufficient to demonstrate that Defendant 13 Estock, a primary care physician at CSP-CAL, has the authority to effectuate or 14 implement the desired changes to his medical care. For example, Plaintiff alleges that he 15 has been under the primary care of Defendant Currier since his transfer back to CSP- 16 CAL. Plaintiff alleges no facts to suggest that Defendant Estock is currently treating him, 17 or otherwise involved with his medical care. Defendant Diaz, Acting Secretary of 18 CDCR,4 Defendant Nasir, the Healthcare CEO at CSP-CAL, and Defendant 19 Montgomery, the Warden of CSP-CAL, are sufficiently connected to the implementation 20 and enforcement of CDCR healthcare policies and regulations, such that they could 21 respond to a court order granting Plaintiff prospective injunctive relief. However, 22 Plaintiff fails to allege with sufficient specificity which policy or regulation violates his 23 24 25 26 27 28                                                 4 In February 2006, “all of the powers of the Secretary of the CDCR with respect to the delivery of medical care” were suspended and conferred upon a court-appointed Receiver. Plata v. Schwarzenegger, 603 F.3d 1088, 1092 (9th Cir. 2010). In September 2012, the district court presiding over the Plata class action ordered the implementation of a transition plan, to begin the process of returning responsibility for inmate healthcare to the Secretary of CDCR. Since that time, the Receiver has delegated responsibility back to the Secretary of the CDCR for certain institutions, including CSPCAL. 8 3:16-cv-02458-MMA-BLM 1 Eighth Amendment right to adequate medical care. Plaintiff only generally avers that his 2 “medical care providers breached their duties and violated numerous CDCR policies 3 governing the provision of necessary medical care in failing to treat Plaintiff’s 4 condition.” SAC ¶ 61. Amongst his allegations, Plaintiff specifically references only 5 Title 15, Section 3379 of the California Code of Regulations, which regulates the transfer 6 of inmates between facilities. Plaintiff does not allege that Defendants Diaz, Nasir, or 7 Montgomery violated any particular policy or regulation related to the provision of 8 medical services, much less the manner in which a specific individual’s non-compliance 9 resulted in a violation of Plaintiff’s constitutional rights. 10 In sum, Plaintiff fails to allege plausible claims against any defendant in his or her 11 official capacity. Plaintiff requests leave to amend his deficient claims pursuant to the 12 liberal standard set forth in Federal Rule of Civil Procedure 15. See Doc. No. 65 at 26; 13 Fed. R. Civ. P. 15(a)(2) (“The court should freely give leave when justice so requires.”). 14 However, the deadline for amending pleadings has expired. See Doc. Nos. 28 at 6; 42 at 15 2 n.3. As such, Plaintiff “must satisfy the ‘good cause’ standard of Federal Rule of Civil 16 Procedure 16(b)(4), which provides that ‘[a] schedule may be modified only for good 17 cause and with the judge’s consent.’” In re W. States Wholesale Natural Gas Antitrust 18 Litig., 715 F.3d 716, 737 (9th Cir. 2013). Upon due consideration, the Court finds good 19 cause to grant Plaintiff an opportunity to amend his official capacity claims against 20 Defendants Estock, Diaz, Nasir, and Montgomery. 21 22 23 24 CONCLUSION Based on the foregoing, the Court GRANTS IN PART and DENIES IN PART Defendants’ motion to dismiss as follows: 1. The Court DENIES Defendants’ motion to dismiss Plaintiff’s Eighth 25 Amendment claims against Defendants Estock and Currier in their individual 26 capacities. 27 28 2. The Court GRANTS Defendants’ motion and DISMISSES Plaintiff’s Eighth Amendment claim against Governor Brown with prejudice. 9 3:16-cv-02458-MMA-BLM 1 3. The Court GRANTS Defendants’ motion and DISMISSES Plaintiff’s Eighth 2 Amendment claims against Defendants Estock, Diaz, Nasir, and Montgomery 3 in their official capacities without prejudice. 4 4. The Court GRANTS Plaintiff leave to amend his official capacity claims 5 against Defendants Estock, Diaz, Nasir, and Montgomery. If he chooses to 6 amend his official capacity claims against these three defendants, Plaintiff must 7 file a Third Amended Complaint on or before December 10, 2018. Plaintiff 8 may not add any new claims or parties. Defendants not named and any claim 9 not re-alleged in a Third Amended Complaint will be considered waived. See 10 SD Cal CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 11 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the 12 original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting 13 that claims dismissed with leave to amend which are not re-alleged in an 14 amended pleading may be “considered waived.”). 15 16 17 IT IS SO ORDERED. DATE: November 8, 2018 _______________________________________ HON. MICHAEL M. ANELLO United States District Judge 18 19 20 21 22 23 24 25 26 27 28 10 3:16-cv-02458-MMA-BLM

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