Spector v. California Department of Corrections et al, No. 1:2012cv01450 - Document 17 (E.D. Cal. 2012)
Court Description: FINDINGS and RECOMMENDATIONS recommending that Plaintiff's Application for Order to Show Cause in re Temporary Restraining Order and Preliminary Injunction 6 be DENIED without prejudice re 6 MOTION for TEMPORARY RESTRAINING ORDER filed by Phillip Spector ; referred to Judge Ishii, signed by Magistrate Judge Michael J. Seng on 11/15/12. Objections to F&R due by 12/3/2012(Martin-Gill, S)
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Spector v. California Department of Corrections et al Doc. 17 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 PHILLIP SPECTOR, CASE No. 1:12-cv-01450-AWI-MJS (PC) 10 Plaintiff, 11 FINDINGS AND RECOMMENDATION DENYING PLAINTIFF’S APPLICATION FOR ORDER TO SHOW CAUSE IN RE TEMPORARY RETRAINING ORDER AND PRELIMINARY INJUNCTION v. 12 13 CALIFORNIA DEPARTMENT OF CORRECTIONS, STATE OF 14 CALIFORNIA, et al., 15 (ECF No. 6) Defendants. FOURTEEN (14) DAY DEADLINE / 16 17 18 19 20 I. PROCEDURAL HISTORY 21 Plaintiff Phillip Spector, a state prisoner, initiated this action on August 29, 2012 in 22 23 Kings County Superior Court.1 (Notice of Removal, ECF No. 1, Attach. 1.) In it, he alleges negligence, violation of prison regulations, and violation under 42 U.S.C. § 1983. 24 25 26 27 Plaintiff names as Defendants (1) California Substance Abuse Treatment Facility 1 Phillip Spector v. California Department of Corrections, et al., Kern County Super. Ct. Case No. 12C0261. -1- Dockets.Justia.com 1 (“CSATF”), (2) California Department of Corrections and Rehabilitation (“CDCR”), (3) Dr. 2 Kumar D.D.S., (4) Dr. Pringle D.D.S., and (5) Does 1-10. (Id. at 2.) 3 Defendant Kumar was served on September 5, 2012. and immediately removed 4 5 6 this action to this Court. (Notice of Removal at 1 and 2.) Defendants CSATF and CDCR consented to removal. (Joinder, ECF Nos. 4 & 13.) On September 12, 2012, Defendants 7 CSTAF and Kumar filed their Answer to the Complaint. (Answer, ECF No. 5.) On 8 October 4, 2012, Defendant CDCR filed its Answer to the Complaint. (Answer, ECF No. 9 14.) 10 On September 13, 2012, Plaintiff filed an Ex Parte Application for Order to Show 11 12 13 Cause in re Temporary Restraining Order and Preliminary Injunction (Appl. for TRO/Prelim. Inj., ECF No. 6) to permit him to have dental work completed as previously 14 begun by his private dentist. On October 5, 2012, Defendants CDCR, CSATF, and 15 Kumar filed Opposition to the Application. (Opp’n to TRO/Prelim. Inj., ECF No. 15.) 16 Plaintiff did not file a Reply brief within the time for doing so or at all. On October 17, 17 2012, the Court deemed the matter submitted for ruling on the papers filed and without 18 oral argument. (Minute Order, ECF No. 16.) 19 20 21 II. SUMMARY OF CLAIMS AND APPLICATION Plaintiff claim Defendants have been deliberately indifferent to his serious dental 22 needs by denying him access to a Dr. Albus, his private dentist of long standing, for 23 completion of dental implants and other dental work begun by him. He also alleges 24 Defendants have negligently provided dental care to him and caused him severe, and 25 activity limiting, pain. He asserts that such actions violate the cruel and unusual 26 27 -2- 1 punishments clause of article 1, section 17 of the California Constitution,2 the Eighth and 2 3 Fourteenth Amendments of the U.S. Constitution, Cal. Code Regs. tit. 15 § 3354(c), and state negligence law. (Notice of Removal, Attach. 1 at 13-20.) 4 5 6 Plaintiff has been incarcerated at CSATF since June 2009. (Id. at 4.) He is over 70 years old and alleges severe dental problems including infections, loss of teeth and 7 periodontal disease. (Id. at 4, 13.) Until August 2010, Dr. Albus was allowed to provide 8 dental care to Plaintiff at Dr. Albus’ Burbank, California office, pursuant to a treatment 9 plan that included decay removal and preliminary work for dental implants. Relying on 10 CDCR’s authorization of such treatment, Plaintiff paid the entire cost thereof which 11 12 13 exceeded $10,000. (Id. at 5 and 11.) In August 2010, the CDCR updated its Inmate Dental Services Program, Policies 14 & Procedures Manual (“P&P”) (Id. at 6) so that CDCR dentists were prohibited from 15 initiating, completing, or repairing dental implants for inmates even for inmates with 16 dental implants begun but not completed at the time of incarceration.3 Thereafter, the 17 CDCR, through Defendant Kumar, D.D.S., CSATF Supervising Dentist, declined to allow 18 Plaintiff’s continued treatment by Dr. Albus. (Id.) Specifically, Defendant Kumar and 19 20 Defendant Pringle, D.D.S., CDCR Region III Dentist Director, citing to the P&P, informed 21 22 23 24 25 26 2 Plaintiff’s cruel and unusual punishments claim is properly analyzed under the Eighth Amendment of the U.S. Constitution. See Giraldo v. California Dep’t of Corr. and Rehab., 168 Cal.App.4th 231, 253-57 (Cal.Ct. App. 2008), citing Katzberg v. Regents of the University of California, 29 Cal.4th 300, 329 (2002) (there is no private cause of action for damages for violation of the cruel and unusual punishments clause of the California Constitution at article 1, section 17); Los Angeles County Bar Assoc. v. Eu, 979 F.2d 697, 705 (9th Cir. 1992), citing Payne v. Superior Court, 17 Cal.3d 908, 914 at n.3 (Cal. 1976) (the discussion of plaintiff’s federal constitutional claim resolves both the federal and state constitutional claim.) 3 27 CDCR Division of Correctional Health Care Services, P&P, Ch. 2.11 “Implants”. -3- 1 Plaintiff in November 2010 that he would no longer be allowed treatment by Dr. Albus. 2 3 (Id.) Dr. Albus’ May 2011 request for permission to treat Plaintiff was denied by Dr. Kumar. (Id. at 13.) Plaintiff alleges Dr. Kumar then provided dental care which was 4 5 6 contrary to Dr. Albus’ treatment plan, undermined the work Dr. Albus had done, and caused Plaintiff severe ongoing pain. (Id. at 7.) Plaintiff filed a claim with the State Victim Compensation and Government Claims 7 8 Board. It was rejected on January 19, 2012. (Id. at 13.) Plaintiff’s health care appeal, 9 seeking treatment by Dr. Albus was denied at the Third Level in April of 2012, on the 10 ground that CDCR was providing constitutionally appropriate treatment. (Id. at 12.) 11 Plaintiff seeks monetary damages and injunctive relief directing Defendants to 12 13 allow Plaintiff to receive immediate dental treatment from Dr. Albus at Plaintiff’s 14 expense. (Id. at 20.) As noted, his current application seeks an order allowing Dr. Albus 15 to resume and complete his treatment plan forthwith at Plaintiff’s expense. 16 III. 17 LEGAL STANDARD FOR INJUNCTIVE RELIEF Injunctive relief, whether temporary or permanent, is an “extraordinary remedy, 18 19 20 never awarded as of right.” Winter v. Natural Res. Defense Council, 555 U.S. 7, 22 (2008). “A plaintiff seeking a preliminary injunction must establish that he is likely to 21 succeed on the merits, that he is likely to suffer irreparable harm in the absence of 22 preliminary relief, that the balance of equities tips in his favor, and that an injunction is in 23 the public interest.” Am. Trucking Ass'ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 24 1052 (9th Cir. 2009), quoting Winter, 555 U.S. at 20. An injunction may only be awarded 25 upon a clear showing that the plaintiff is entitled to relief. Winter, 555 U.S. at 22. 26 27 Requests for prospective relief are further limited by 18 U.S.C. § 3626(a)(1)(A) of -4- 1 the Prison Litigation Reform Act (“PLRA”), which requires that the Court find the “relief 2 3 [sought] is narrowly drawn, extends no further than necessary to correct the violation of the federal right, and is the least intrusive means necessary to correct the violation of the 4 5 federal right.” Injunctive relief is to be granted “sparingly, and only . . . in clear and plain 6 7 case[s].” Rizzo v. Goode, 423 U.S. 362, 378 (1976). 8 IV. 9 ANALYSIS A. 10 Plaintiff Has not Shown Likely Success on the Merits 1. Eleventh Amendment and Personal Participation 11 Plaintiff’s claims against the CDCR and CSATF are barred by the Eleventh 12 13 Amendment. The Eleventh Amendment prohibits suits against state agencies. See 14 Natural Res. Def. Council v. California Dep't of Transp., 96 F.3d 420, 421 (9th Cir. 15 1996). The CDCR including its CSATF facility are entitled to Eleventh Amendment 16 17 immunity from suit. See Hunt v. Dental Dept., 865 F.2d 198, 200-01 (9th Cir. 1989) (dental department of state prison part of state Department of Corrections and immune 18 19 from § 1983 actions.) Plaintiff also makes no allegations against any of the Doe Defendants. To state a 20 21 claim under § 1983, Plaintiff must demonstrate that each individually named defendant 22 personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 23 934 (9th Cir. 2002). 24 /////// 25 26 ////// 27 -5- 2. 1 2 Medical Indifference Plaintiff’s allegations of medical indifference on the part of Defendants Kumar and 3 Pringle are disputed. The facts alleged do not reflect a likelihood that Plaintiff will 4 succeed on the merits.4 5 6 7 “[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 8 439 F.3d 1091, 1096 (9th Cir. 2006), quoting Estelle v. Gamble, 429 U.S. 97, 106 9 (1976). The two prong test for deliberate indifference requires the plaintiff to show (1) “‘a 10 serious medical need’ by demonstrating that ‘failure to treat a prisoner's condition could 11 result in further significant injury or the unnecessary and wanton infliction of pain,’” and 12 (2) “the defendant's response to the need was deliberately indifferent.” Jett, 439 F.3d at 13 14 15 1096, quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992). Deliberate indifference is shown by “a purposeful act or failure to respond to a 16 prisoner's pain or possible medical need, and harm caused by the indifference.” Jett, 17 439 F.3d at 1096, citing McGuckin, 974 F.2d at 1060). In order to state a claim for 18 violation of the Eighth Amendment, a plaintiff must allege sufficient facts to support a 19 claim that the named defendants “[knew] of and disregard[ed] an excessive risk to 20 21 22 [plaintiff's] health . . . .” Farmer v. Brennan, 511 U.S. 825, 837 (1994). In applying this standard, the Ninth Circuit has held that before it can be said that 23 4 24 25 26 Plaintiff’s medical indifference claim is covered by the more explicit clause of the Eighth Amendment, rather than the Due Process Clause of the Fourteenth Amendment. See County of Sacramento v. Lewis, 523 U.S. 833, 842 (1998) (“Where a particular amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing a plaintiff's claims.”) 27 -6- 1 a prisoner's civil rights have been abridged, “the indifference to his medical needs must 2 be substantial. Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support 3 this cause of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 4 1980), citing Estelle, 429 U.S. at 105–06. A complaint that a physician has been 5 6 7 negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Even gross negligence is 8 insufficient to establish deliberate indifference to serious medical needs. See Wood v. 9 Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990). 10 11 A difference of opinion between medical professionals concerning the appropriate course of treatment generally does not amount to deliberate indifference to serious 12 medical needs. Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004); Sanchez v. Vild, 13 14 891 F.2d 240, 242 (9th Cir. 1989). Similarly, “a difference of opinion between a 15 prisoner-patient and prison medical authorities regarding treatment does not give rise to 16 a [§] 1983 claim.” Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981). To establish 17 that such a difference of opinion amounted to deliberate indifference, the prisoner “must 18 show that the course of treatment the doctors chose was medically unacceptable under 19 the circumstances” and “that they chose this course in conscious disregard of an 20 21 excessive risk to [the prisoner’s] health.” See Jackson v. McIntosh, 90 F.3d 330, 332 22 (9th Cir. 1996). 23 Plaintiff alleges chronic dental pain, periodontal disease and loss of teeth. He 24 claims he has trouble speaking and has lost weight because chewing is painful. (Decl. of 25 26 Phillip Spector in Supp. at ¶ 12; Decl. of Dr. Jerry Albus in Supp. at ¶ 11.) These alleged conditions are sufficient to show a serious need for dental treatment satisfying 27 -7- 1 the first prong of deliberate indifference. See Chance v. Armstrong, 143 F.3d 698, 702 2 (2d Cir. 1998) (chronic great pain, inability to chew properly and inadequate treatment 3 causing tooth degeneration to point requiring extraction as sufficient to state a serious 4 medical condition.) “Dental care is an important medical need, the denial of which may 5 6 7 8 constitute an Eighth Amendment violation.” Dixon v. Bannister, 845 F.Supp.2d 1136, 1143 (D. Nev. 2012). However, the facts alleged do not suggest a likelihood Plaintiff can show 9 Defendants Kumar and Pringle were deliberately indifferent to these serious dental 10 needs. 11 Dr. Albus, who has not examined Plaintiff since June 2010, believes the CDCR is 12 incapable of treating Plaintiff’s gum disease appropriately and providing the implants 13 14 necessary to enable Plaintiff to chew food. (Decl. of Dr. Jerry Albus in Supp. at ¶ ¶ 10- 15 11.) He feels Plaintiff’s partially complete dental implant treatments need be finished 16 urgently. (Id. at ¶ 12.) 17 18 Plaintiff has no right to treatment by a private dentist. Cal. Code Regs. tit. 15 § 3354(a)(c)(f). Dr. Albus’ reported dental implant plan is not binding on Defendants and it, 19 in any event, exceeds the basic dental treatment available from CDCR. (Decl. of Phillip 20 21 Spector in Supp. at ¶¶ 10-11.) There also is professional disagreement as to the proper 22 course of treatment. 23 The CDCR’s Deputy Statewide Dental Director, M. Rosenberg, D.D.S., opines 24 that Plaintiff’s ongoing CDCR dental care is constitutionally adequate. (Decl. of 25 26 Rosenberg in Opp’n at ¶ 9; Opp’n to TRO/Prelim. Inj. at Attach. 2.) He reports that such care includes treatment for gum disease and maintenance, cleaning and scaling, tooth 27 -8- 1 restoration and, where necessary, extraction, and removable denture adjustment, fitting 2 and replacement. (Decl. of Rosenberg in Opp’n at ¶ 61.) It is Dr. Rosenberg’s medical 3 opinion that Plaintiff has no urgent conditions and requires no outside dental treatment. 4 (Id.) 5 6 7 As noted, Plaintiff’s and his dentist’s difference of opinion with Defendants as to appropriate medical care is not sufficient to show deliberate indifference where, as here, 8 there are no facts alleged which would support a finding that CDCR’s dental care is 9 knowingly inadequate. Plaintiff has seen CDCR dentists regularly since 2009. They 10 have made available to Plaintiff ongoing essential assessment, maintenance, care and 11 treatment of his various dental conditions and, they report, they have done so in 12 compliance with the prevailing standard of care. (Decl. of Rosenberg in Opp’n at ¶ 63; 13 14 Opp’n to TRO/Prelim. Inj. at Attachment 2.) Nothing before the Court is sufficient to 15 support the conclusion that Defendants are unable to care, and are not caring, for 16 Plaintiff’s essential dental health. The Court is unable to conclude on the basis of the 17 disputed evidence before it at this early stage of the proceedings that dental implants 18 are indeed necessary to enable Plaintiff to chew food and that partial dentures will not 19 suffice for that purpose. See Dixon, 845 F.Supp.2d at 1144 (prison dentist not 20 21 deliberately indifferent by extracting inmate’s teeth and providing partial denture, rather 22 than allowing inmate to visit outside dentist for crowns or veneers, as course chosen 23 was medically acceptable.) Dr. Rosenberg characterizes Dr. Albus’ 2009 24 recommendations as outdated, and he disagrees that removal of plaintiff’s temporary 25 26 implants and installation of permanent ones is necessary. (Decl. of Rosenberg in Opp’n at ¶ 54.) He advises that other portions of Dr. Albus treatment plan have been or will be 27 -9- 1 implemented by CDCR dentists as necessary. (Id. at ¶¶ 56-59.) 2 Plaintiff’s claim that while in prison he has lost teeth which Dr. Albus would have 3 saved is speculative and unsupported. (Decl. of Phillip Spector in Supp. at ¶ 14.) Dr. 4 Rosenburg believes that Plaintiff’s loss of teeth in prison is unrelated to the implant 5 6 7 8 treatment or the lack thereof; he notes that Dr. Albus himself extracted five of the total seven teeth extracted. (Id. at ¶ 55.) Dr. Rosenberg also notes that Plaintiff’s body weight is normal for his height and 9 that there is no loss of weight attributable to his dental condition. (Id. at ¶ 62.) 10 11 Certainly, the Court can appreciate Plaintiff’s desire to be treated by his own personal dentist and can also see that there may be benefit to the state in allowing such 12 treatment at Plaintiff’s expense. However, the inaccessibility of such care is not of 13 14 constitutional moment. As noted, Plaintiff’s and his medical expert’s disagreement with 15 Defendants’ treatment decisions is not alone a basis for a federal claim. The Eighth 16 Amendment does not require that prisoners receive “unqualified access to health care.” 17 Hudson v. McMillian, 503 U.S. 1, 9 (1992). 18 In summary, nothing presently before the Court establishes a likelihood of Plaintiff 19 establishing that any named Defendant intentionally provided inadequate dental 20 21 treatment or actually knew of, and disregarded, an excessive risk of harm to Plaintiff 22 from the dental care and treatment provided or as a result of the denial of the care 23 Plaintiff seeks. Plaintiff alleges at most a difference of opinion which does not appear to 24 reach even a level which would support a finding of dental negligence or malpractice. 25 26 Even if the contrary were true, such negligence does not by itself state or support a federal claim. Wood, 900 F.2d at 1334; Scotton v. Amerongen, - - - F.Supp.2d - - - - , 27 -10- 1 2009 WL 1853311 at *5 (N.D. Iowa June 29, 2009) (negligent acts by prison officials are 2 not actionable under § 1983.) 3 3. 4 5 Private Dental Care Plaintiff argues that the August 2010 P&P change does not preclude private care, and that Cal. Code Regs. tit. 15 § 3354(c) actually requires it here, where the inmate has 6 offered to pay all costs of such private treatment. (Notice of Removal, Attach. 1 at 9, 177 8 9 18.) Although a prisoner has a right to adequate medical care, a prisoner has “no 10 independent constitutional right to outside medical care additional and supplemental to 11 the medical care provided by the prison staff within the institution.” Dixon, 845 F.Supp.2d 12 at 1143, citing Roberts v. Spalding, 783 F.2d 867, 870 (9th Cir. 1986). Outside dental 13 care for Plaintiff is left to prison staff discretion based on specific case factors. Cal. Code 14 15 Regs. tit. 15 § 3354(a)(c)(f); P&P at Ch. 5:15(IV)(B). The policy of the CDCR is to 16 provide only the most essential dental services. CDCR - Operations Manual § 91030.1. 17 For the reasons discussed above, the Court is unable to conclude based on the present 18 record that Plaintiff’s dental care is constitutionally inadequate. Moreover, Defendants 19 20 have noted what appear to be quite legitimate safety and security concerns attendant to transporting Plaintiff, an inmate of notoriety, for outside care. Six officers are needed to 21 22 transport Plaintiff to Dr. Albus’ Office. (Decl. of Lt. J. Perez in Opp’n at ¶¶ 5-7.) Past 23 visits have been disrupted and security threatened by arrival of paparazzi and Plaintiff’s 24 wife at Dr. Albus’ offices. (Id.) 25 26 Furthermore, even an adequately alleged violation of prison regulations does not give rise to a redressable § 1983 claim. The Court is unaware of any authority giving rise 27 -11- 1 to a private right of action for violation of Title 15 regulations. See e.g. Gonzaga 2 University v. Doe, 536 U.S. 273, 283-86 (2002) (basing a claim on an implied private 3 right of action requires a showing that the statute both contains explicit rights-creating 4 terms and manifests an intent to create a private remedy); Parra v. Hernandez, 2009 WL 5 3818376 at *8 (S.D. Cal. Nov. 13, 2009); Davis v. Kissinger, 2009 WL 256574 at *12 n.4 6 (E.D. Cal. Feb. 3, 2009), adopted in full, 2009 WL 647350 (Mar. 10, 2009). Plaintiff 7 8 cannot conjure such a right by claiming detrimental reliance upon the staff’s previous 9 decision to allow outside dental care. Plaintiff does not challenge the validity or 10 constitutionality of the prison regulation. “Where the state regulation is neither 11 unreasonable nor arbitrary, the courts will not interfere with the administrative functions 12 of state prisons.” Brooks v. Wainwright, 428 F.2d 652, 653 (5th Cir. 1970). 13 Accordingly, Plaintiff has failed to allege facts establishing a likelihood he will 14 15 16 17 prevailing on the merits of his claim under Cal. Code Regs. tit. 15 § 3354(c). 4. State Law Negligence Plaintiff alleges Defendants negligently provided dental care to him and thereby 18 caused him to suffer severe pain and distress. 19 Plaintiff also fails to allege facts showing a likelihood of success on this state law 20 tort claim. “To establish a medical malpractice claim, a plaintiff must allege in the 21 22 complaint: (1) defendant's legal duty of care toward plaintiff; (2) defendant's breach of 23 that duty; (3) injury to plaintiff as a result of that breach—proximate or legal cause; and 24 (4) damage to plaintiff.” Rightley v. Alexander, 1995 WL 437710 at *3 (N.D. Cal. July 13, 25 1995), citing Hoyem v. Manhattan Beach School Dist., 22 Cal.3d 508, 514 (Cal. 1978); 6 26 B.E. Witkin, Summary of California Law, Torts § 732 (9th ed.1988). “[M]edical personnel 27 -12- 1 are held in both diagnosis and treatment to the degree of knowledge and skill ordinarily 2 possessed and exercised by members of their profession in similar circumstances.” 3 Hutchinson v. United States, 838 F.2d 390, 392–93 (9th Cir. 1988). 4 5 Defendants’ evidence is that Plaintiff’s treatment was in accord with applicable standards of care. (Decl. of Rosenberg in Opp’n at ¶ 63; Opp’n to TRO/Prelim. Inj. at 6 Attach. 2.) Plaintiff has not established the contrary nor that he has suffered physical or 7 8 other injury as a result of Defendants’ care and treatment.5 (Decl. of Rosenberg in 9 Opp’n at ¶¶ 10-63.) 10 Additionally, under the California Tort Claims Act (“CTCA”), a plaintiff may not 11 maintain an action for damages against a public employee unless he has presented a 12 written claim to the state Victim Compensation and Government Claims Board within six 13 months of accrual of the action. Cal. Gov't Code §§ 905, 911.2(a), 945.4 & 950.2; 14 15 Mangold v. California Pub. Utils. Comm'n, 67 F.3d 1470, 1477 (9th Cir.1995). A plaintiff 16 may file a written application for leave to file a late claim up to one year after the cause 17 of action accrues. Cal. Gov't Code § 911.4. Presentation of a written claim, and action 18 on or rejection of the claim are conditions precedent to suit. Shirk v. Vista Unified Sch. 19 20 Dist., 42 Cal.4th 201, 208–09 (Cal. 2007). Thus, in pleading a state law claim, a plaintiff must allege facts demonstrating that he has complied with CTCA's presentation 21 22 requirement. State of California v. Superior Court (Bodde), 32 Cal.4th 1234, 1240 (Cal. 23 2004). Failure to demonstrate compliance constitutes a failure to state a cause of action 24 25 26 27 5 The Prison Litigation Reform Act provides that “[N]o Federal civil action may be brought by a prisoner confined in jail, prison, or other correctional facility, for mental and emotional injury suffered while in custody without a prior showing of physical injury.” 42 U.S.C. § 1997e(e). The physical injury “need not be significant but must be more than de minimis.” Oliver v. Keller, 289 F.3d 623, 627 (9th Cir. 2002). -13- 1 2 and will result in the dismissal of state law claims. Id. Here Plaintiff does allege that “he filed a claim with the Victim Compensation and 3 Government Claims board which was rejected on January 19, 2012.” (Notice of 4 Removal, Attach. 1 at ¶ 46.) This alone does not show that Plaintiff complied fully with 5 CTCA’s presentation requirements. 6 Accordingly, Plaintiff has failed to allege facts establishing a likelihood of 7 8 prevailing on the merits of his state law negligence claims. 5. 9 10 Qualified Immunity The Court need not address Defendants’ qualified immunity argument as Plaintiff 11 has failed to establish a likelihood of prevailing on the merits of his claims for the 12 reasons stated above. 13 B. Plaintiff Establishes No Irreparable Harm 14 15 Plaintiff asserts, without identifying competent support therefor, that Defendants’ 16 care and treatment, and their failure follow Dr. Ablus’ circa 2009 treatment plan, is 17 causing him irreparable injury. 18 19 As noted, Defendants have been providing Plaintiff with ongoing and frequent dental care and treatment, including prioritized treatment, medication for pain and 20 infection, and prophylaxis. Dr. Rosenberg describes Plaintiff’s dental condition as non21 22 urgent and reports that the essential care portions of Dr. Albus treatment plan which are 23 not outdated have been or will be implemented by CDCR dentists as necessary. (Decl. 24 of Rosenberg at ¶ ¶ 56-59, 61.) Inasmuch as Plaintiff apparently has not seen Dr. Albus 25 in over two years, the logical inclination is to defer to the more current health and 26 treatment plan prescribed by prison medical staff based upon Plaintff’s evolving dental 27 -14- 1 condition and needs. Plaintiff has not adduced facts of irreparable harm arising from Defendants’ 2 3 failure to fully implement Dr. Albus’ treatment plan or provide implants. (Decl. of 4 Rosenberg at ¶ 54.) The claim that Plaintiff’s future dental treatment options have been 5 impacted adversely by Defendants’ care and treatment can not be said to be supported 6 by the evidence before the Court. (Id. at ¶ 63.) Plaintiff has failed to demonstrate he is 7 8 likely to suffer irreparable harm in the absence of preliminary relief. See City of Los 9 Angeles v. Lyons, 461 U.S. 95, 101–102 (1983) (plaintiff must show “real and 10 immediate” threat of injury, and “past exposure to illegal conduct does not in itself show 11 a present case or controversy regarding injunctive relief . . . if unaccompanied by any 12 continuing, present, adverse effects.”) 13 C. The Equities and Public Interest do not Favor Plaintiff 14 The absence of a likelihood of success on the merits and the failure of Plaintiff to 15 16 show irreparable harm leaves nothing to tip the balance of equities in Plaintiff's favor or 17 suggest that an injunction would be in the public interest. 18 19 Even the projected cost savings to the state from granting the relief sought here would not justify or enable the Court to step in and substitute its judgement for that of 20 the Defendants. Absent the existence of exceptional circumstances not present here, 21 22 the Court will not intervene in the day-to-day management of prisons. See e.g., Overton 23 v. Bazzetta, 539 U.S. 126, 132 (2003) (prison officials entitled to substantial deference); 24 Sandin v. Conner, 515 U.S. 472, 482-83 (1995) (disapproving the involvement of federal 25 courts in the day-to-day-management of prisons.) 26 /////// 27 -15- 1 V. CONCLUSIONS AND RECOMMENDATION Plaintiff fails to provide facts which would enable the Court to find that he is in 2 3 need of, and entitled to injunctive relief. 4 5 Accordingly, for the reasons stated above the Court RECOMMENDS that Plaintiff's Application for Order to Show Cause in re Temporary Restraining Order and 6 7 8 Preliminary Injunction (ECF No. 6) be DENIED without prejudice. These findings and recommendation are submitted to the United States District Judge assigned to the case, 9 pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen (14) days after 10 being served with these findings and recommendation, any party may file written 11 objections with the Court and serve a copy on all parties. Such a document should be 12 captioned “Objections to Magistrate Judge's Findings and Recommendation.” Any reply 13 to the objections shall be served and filed within ten (10) days after service of the 14 15 objections. The parties are advised that failure to file objections within the specified time 16 may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 17 (9th Cir. 1991). 18 19 IT IS SO ORDERED. 20 21 Dated: 22 ci4d6 November 15, 2012 /s/ Michael J. Seng UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 -16-
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