-JFM (PC) Randall v. Kimura, et al, No. 2:2010cv00052 - Document 35 (E.D. Cal. 2011)
Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge John F. Moulds on 06/06/11 ORDERING the Clerk of the Court is directed to assign a U.S. District Judge to this action. U.S. District Judge John A. Mendez randomly assigned to this act ion. Also, RECOMMENDING that defendant Wrigley's 02/14/11 motion to dismiss be denied; and defendant Wrigley be directed to answer the first amended complaint within 10 days from the date of any order by the district court adopting these findings and recommendations. MOTION to DISMISS 22 referred to Judge John A. Mendez. Objections due within 14 days. (Plummer, M)
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-JFM (PC) Randall v. Kimura, et al Doc. 35 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 JERALD RANDALL, 11 12 13 14 15 16 Plaintiff, No. 2:10-cv-0052 JFM (PC) vs. T. KIMURA, et al., ORDER AND Defendants. FINDINGS & RECOMMENDATIONS / Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 17 42 U.S.C. § 1983. This action is proceeding on claims raised against three defendants in 18 plaintiff’s first amended complaint, filed June 8, 2010; it is presently before the court on the 19 motion of one of those defendants for dismissal pursuant to Fed. R. Civ. P. 12(b)(6). 20 21 STANDARDS FOR A MOTION TO DISMISS Rule 12(b)(6) of the Federal Rules of Civil Procedures provides for motions to 22 dismiss for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). 23 In considering a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the court must accept as 24 true the allegations of the complaint in question, Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197 25 (2007), and construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 26 416 U.S. 232, 236 (1974). In order to survive dismissal for failure to state a claim a complaint 1 Dockets.Justia.com 1 must contain more than “a formulaic recitation of the elements of a cause of action;” it must 2 contain factual allegations sufficient “to raise a right to relief above the speculative level.” Bell 3 Atlantic Corp. v. Twombly, 550 U.S. 544, 554 (2007). However, “[s]pecific facts are not 4 necessary; the statement [of facts] need only ‘“give the defendant fair notice of what the . . . 5 claim is and the grounds upon which it rests.”’” Erickson, 551 U.S. 89, 127 S.Ct. at 2200 6 (quoting Bell Atlantic at 554, in turn quoting Conley v. Gibson, 355 U.S. 41, 47 (1957). 7 8 ANALYSIS I. Allegations of the First Amended Complaint 9 10 Plaintiff’s first amended complaint contains the following allegations against defendant Wrigley: 11 In the middle of 2008 I complained to medical staff about my high blood pressure, asthma, and overall physical health being negatively affected by a lack of exercise. I was consistantly [sic] denied by right to exercise by High Desert State Prison employees. I asked Nurse Practitioner Wrigley to prescribe me exercise to help combat my health problems. Wrigley admitted that lack of exercise could contribute and make my existing health problems worse. She also admitted that exercise would improve my health but Wrigley refused to prescribe exercise because it would go against illegal lockdown policies put in place by High Desert State Prison. The lockdown was abusive in nature and Wrigley is obligated to report abuse. Instead, Wrigley sided with prison officials and neglected the plaintiffs [sic] medical needs and rights established by the federal courts. 12 13 14 15 16 17 18 19 First Amended Complaint, filed June 8, 2010, at 3-4. 20 II. Defendant Wrigley’s Motion 21 Defendant Wrigley makes two arguments in support of dismissal. First, she 22 contends that liability in this action cannot be based on her role in responding to the grievance 23 plaintiff filed complaining about the lack of outdoor exercise because inmates do not have a 24 constitutional right to a prison grievance procedure and the existence of administrative remedies 25 does not create any substantive rights. Second, defendant Wrigley contends that plaintiff’s 26 ///// 2 1 allegations are insufficient to state a claim that she acted with deliberate indifference to his 2 serious medical needs. Neither contention has merit. 3 The Civil Rights Act under which this action was filed provides as follows: 4 Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 5 6 7 42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the 8 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 9 Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 10 (1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the 11 meaning of § 1983, if he does an affirmative act, participates in another’s affirmative acts or 12 omits to perform an act which he is legally required to do that causes the deprivation of which 13 complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 14 Defendant is correct that prison inmates possess no due process right to a specific 15 prison grievance procedure. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003); see also 16 Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988). That principle, however, is inapplicable to 17 the matter at bar. Defendant also cites a number of cases, primarily from the United States Court 18 of Appeals for the Seventh Circuit, for the proposition that liability cannot be imposed on a 19 prison official solely based on the act of reviewing and denying a prison grievance. That 20 proposition is readily distinguishable from the claim at bar. 21 Here, plaintiff’s claim is that defendant Wrigley violated his rights under the 22 Eighth Amendment by refusing to prescribe him outdoor exercise, which he alleges was 23 medically necessary for several medical conditions from which he suffers. Whether defendant 24 Wrigley participated in the alleged Eighth Amendment violation through denying a prison 25 grievance by which plaintiff was seeking outdoor exercise or by refusing to prescribe outdoor 26 exercise during a medical visit is immaterial: the point is that plaintiff’s claim against defendant 3 1 Wrigley is that she violated his rights under the Eighth Amendment by failing to prescribe 2 outdoor exercise for him. That claim is cognizable in this § 1983 action. 3 Defendant Wrigley also contends that plaintiff’s allegations are insufficient to 4 state a cognizable Eighth Amendment claim because (1) the allegations show that the prison was 5 on lockdown and prison officials may limit outdoor exercise temporarily during a lockdown 6 without violating the Eighth Amendment; and (2) defendant Wrigley told plaintiff that he could 7 exercise in his cell and that would be adequate for his health. Defendant reads the allegations of 8 the first amended complaint too narrowly. 9 Prison inmates have a constitutional right to outdoor exercise. See, e.g., Thomas 10 v. Ponder, 611 F.3d 1144, 1151-52 (9th Cir. 2010) (and cases cited therein). While a temporary 11 denial of outdoor exercise during an emergency lockdown period does not violate the Eighth 12 Amendment, see Hayward v. Procunier, 629 F.2d 599, 603 (9th Cir. 1980), here plaintiff alleges 13 that the lockdown which was the asserted reason for the denial of outdoor exercise was “illegal” 14 and “abusive”. Viewing the allegations of the first amended complaint in the light most 15 favorable to plaintiff, his claim is that defendant Wrigley violated his rights under the Eighth 16 Amendment by denying his request for medically necessary outdoor exercise based on a prison 17 lockdown that was both illegal and abusive. These allegations are sufficient to state a cognizable 18 claim for relief under the Eighth Amendment. 19 For the foregoing reasons, defendant’s motion to dismiss should be denied. 20 Accordingly IT IS HEREBY ORDERED that the Clerk of the Court is directed to 21 assign this action to a United States District Judge; and 22 IT IS HEREBY RECOMMENDED that: 23 1. Defendant Wrigley’s February 14, 2011 motion to dismiss be denied; and 24 2. Defendant Wrigley be directed to answer the first amended complaint within 25 ten days from the date of any order by the district court adopting these findings and 26 recommendations. 4 1 These findings and recommendations are submitted to the United States District 2 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 3 days after being served with these findings and recommendations, any party may file written 4 objections with the court and serve a copy on all parties. Such a document should be captioned 5 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 6 objections shall be filed and served within fourteen days after service of the objections. The 7 parties are advised that failure to file objections within the specified time may waive the right to 8 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 9 DATED: June 6, 2011. 10 11 12 13 14 12 rand0052.m td1 15 16 17 18 19 20 21 22 23 24 25 26 5
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