Garcia v. C.D.C.R. et al, No. 3:2012cv01084 - Document 26 (S.D. Cal. 2013)
Court Description: ORDER granting in part and denying in part Defendants' 13 Motion to Dismiss. The Court: 1.) grants Dfts' motion to dismiss Pla's Eighth Amendment excessive force claims w/o prejudice for failing to exhaust his administrative remedie s pursuant to FRCP 12(b) and 42 USC 1997e, 2.) denies Dfts Ko and Sangha's motion to dismiss Pla's Eighth Amendment inadequate medical care claims pursuant to FRCP 12(b)(6), 3.) grants Dft Zamora's motion to dismiss Pla's Eighth A mendment inadequate medical care claims pursuant to FRCP 12(b)(6), 4.) grants Dfts De La Trinidad, Garcia and Lerma's motion to dismiss Pla's claims against them pursuant to FRCP 12(b)(6). Dfts Ko and Sangha shall file an answer to Pla's Complaint within the time prescribed by FRCP 12(a)(4)(B). Signed by Judge Irma E. Gonzalez on 6/26/2013. (All non-registered users served via U.S. Mail Service) (jah)
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Garcia v. C.D.C.R. et al Doc. 26 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 RICHARD GARCIA, CDCR # T-77914, Plaintiff, 13 vs. 14 15 Civil No. C.D.C.R., et al., 12cv1084 IEG (KSC) ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS COMPLAINT PURSUANT TO FED.R.CIV.P. 12(b) & 12(b)(6) Defendants. 16 17 18 19 I. Procedural History 20 Plaintiff, a state prisoner currently incarcerated at California State Prison–Los Angeles 21 County (“CSP-LAC”), in Lancaster, California, is proceeding pro se and in forma pauperis with 22 this civil action filed pursuant to 42 U.S.C. § 1983. Plaintiff alleges his rights to adequate 23 medical care, due process, and to be free of cruel and unusual punishment were violated while 24 he was an inmate at Centinela State Prison in 2011. See Compl. [ECF No. 1] at 1-6. 25 On November 30, 2012, Defendants filed a Motion to Dismiss for failing to exhaust his 26 administrative remedies for failing to state a claim pursuant to FED.R.CIV.P. 12(b) & 12(b)(6).1 27 1 28 Both the Court and Defendants have provided Plaintiff notice of his opportunity to develop a record and to include in his Opposition to Defendants’ Motion whatever arguments and documentary evidence he may have to show that he did, in fact, exhaust all administrative -1- 12cv1084 IEG (KSC) Dockets.Justia.com 1 [ECF No. 57.] Instead of filing an Opposition, Plaintiff filed two Motions to Stay the 2 proceedings and Motions for Extension of Time to file an Opposition. The Motions toStay were 3 denied but Plaintiff was granted an extension of time on two occasions to file his Opposition. 4 [ECF Nos. 19, 25.] Those dates have since passed and Plaintiff has failed to file an Opposition. 5 The Court has determined that Defendants’ Motion is suitable for disposition upon the 6 papers without oral argument and that no Report and Recommendation from Magistrate Judge 7 Karen S. Crawford is necessary. See S.D. CAL. CIVLR 7.1(d)(1), 72.3(e). 8 II. Plaintiff’s Factual Allegations 9 On January 20, 2011, Plaintiff was housed at Centinela State Prison (“CEN”). (See 10 Compl. at 4.) On that date, Plaintiff became involved in physical altercation with another 11 inmate. (Id.) Plaintiff contends that CEN prison officials “negligently” used “O.C. pepper 12 spray” to stop the altercation between Plaintiff and the other inmate. (Id.) Plaintiff alleges that 13 he was sprayed with pepper spray in his “mouth, face and overall body,” and he was shot in the 14 “back upper left shoulder area with a 40 mm gun” by an officer in the control tower. (Id.) 15 Plaintiff claims as soon as he was shot he “immediately dropped to the ground and assumed the 16 prone position.” (Id.) Even though Plaintiff was “immobilized” from the first shot, “choking, 17 as well as unable to see from the pepper spray,” he was shot again in his forearm and the right 18 side of his head. (Id.) 19 Plaintiff was charged with a rules violation and placed in Administrative Segregation 20 (“Ad-Seg”) following this incident. (Id.) Plaintiff alleges that prison staff conspired to “cover 21 up” the incident in part by failing to “assess and evaluate the severity of [Plaintiff’s] head 22 wounds/injury.” (Id.) 23 (“CTC”) where he was examined, his wounds were cleaned and he was given bandages for his 24 head wound. (Id. at 5.) Plaintiff was not given “any x-rays, c.t. scan or any type of intensive 25 care, examinations etc.” (Id.) Plaintiff alleges he told the CTC staff that he was suffering from 26 severe headaches, dizziness, blurred vision and a hurt back. (Id.) It was later determined that Plaintiff was eventually taken to the Correctional Treatment Center 27 28 remedies as were available to him prior to filing suit as required by Wyatt v. Terhune, 315 F.3d 1108, 1119-20 (9th Cir. 2003). [ECF No. 13-2; 14.] -2- 12cv1084 IEG (KSC) 1 Plaintiff had a “large laceration, a fractured skull, disfigurement and impaired vision.” (Id. at 2 4.) 3 Five days after the incident, Plaintiff was sent to USCD, an “outside” hospital. (Id. at 5.) 4 Plaintiff alleges they sent him to the outside hospital because he continued to have the symptoms 5 that he complained of on the day he was examined at the CTC. (Id.) Plaintiff claims the doctors 6 at UCSD informed him that he did have a fractured skull as a result of the gunshot and they 7 found the prison medical staff “had indeed been negligent with the inadequate medical care.” 8 (Id.) After two days at UCSD, Plaintiff was returned to the prison where he claims he still has 9 not received adequate medical attention. (Id.) 10 Plaintiff alleges that he told prison medical doctors Defendants Ko, Sangha and Zamora 11 that he continues to “suffer severe headaches, my vision gets blurry, I get dizzy.” (Id.) Plaintiff 12 claims that when he was interviewed by Defendant Ko, he told him of his hurt back, numb feet, 13 and “persistent headache.” (Id. at 6.) Plaintiff alleges Defendant Ko refused to allow x-rays or 14 prescribe stronger pain medication and instead would only provide Plaintiff with a cane. (Id.) 15 Plaintiff appealed to Defendant Sangha who also denied his requests. (Id.) On June 24, 2011, 16 Plaintiff went “man down” in his cell “due to severe back pain.” (Id.) However, Defendant Ko 17 continued to refuse to provide treatment to Plaintiff. (Id.) Instead, Defendant Ko told Plaintiff 18 “there was nothing wrong” with him and threatened to issue Plaintiff a rules violation report. 19 III. DEFENDANTS’ MOTION TO DISMISS PURSUANT TO FED.R.CIV.P. 12(b) 20 Defendants move to dismiss the excessive force claims in Plaintiff’s Complaint on the 21 grounds that they should be dismissed for failing to exhaust available administrative remedies 22 pursuant to FED.R.CIV.P. 12(b) and 42 U.S.C. § 1997e(a). 23 A. Standard of Review per FED.R.CIV.P. 12(b) and 42 U.S.C. § 1997e(a) 24 Defendants claims Plaintiff failed to exhaust available administrative remedies as to the 25 claims against them pursuant to 42 U.S.C. § 1997e(a) before bringing this suit, therefore, 26 Defendants seek dismissal under the “non-enumerated” provisions of FED.R.CIV.P. 12(b). The 27 Ninth Circuit has held that “failure to exhaust nonjudicial remedies is a matter of abatement” not 28 going to the merits of the case and is properly raised pursuant to a motion to dismiss, including -3- 12cv1084 IEG (KSC) 1 a non-enumerated motion under FED.R.CIV.P. 12(b). See Wyatt v. Terhune, 315 F.3d 1108, 1119 2 (9th Cir. 2003) It is also well established that non-exhaustion of administrative remedies as set 3 forth in 42 U.S.C. § 1997e(a) is an affirmative defense which defendant prison officials have the 4 burden of raising and proving. See Jones v. Bock, 594 U.S. 199, 216 (2007); Wyatt, 315 F.3d 5 at 1119. However, unlike under Rule 12(b)(6), “[i]n deciding a motion to dismiss for failure 6 to exhaust nonjudicial remedies, the court may look beyond the pleadings and decide disputed 7 issues of fact.” Wyatt, F.3d at 1120. 8 B. Exhaustion of Administrative Remedies per 42 U.S.C. § 1997e(a) 9 The Prison Litigation Reform Act (“PLRA”) amended 42 U.S.C. § 1997e(a) to provide 10 that “[n]o action shall be brought with respect to prison conditions under section 1983 . . . by a 11 prisoner confined in any jail, prison or other correctional facility until such administrative 12 remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). “Once within the discretion of 13 the district court, exhaustion in cases covered by § 1997e(a) is now mandatory.” Porter v. 14 Nussle, 534 U.S. 516, 532 (2002). 42 U.S.C. § 1997e(a) has been construed broadly to “afford 15 [ ] corrections officials time and opportunity to address complaints internally before allowing 16 the initiation of a federal case, id. at 525-26, and to encompass inmate suits about both general 17 circumstances and particular episodes of prison life--including incidents of alleged excessive 18 force. Id. at 532. Finally, “[t]he ‘available’ ‘remed[y]’ must be ‘exhausted’ before a complaint 19 under § 1983 may be entertained,” “regardless of the relief offered through administrative 20 procedures.” Booth v. Churner, 532 U.S. 731, 738, 741 (2001); see also McKinney v. Carey, 21 311 F.3d 1198, 1200-01 (9th Cir. 2002). 22 The State of California provides its prisoners and parolees the right to administratively 23 appeal “any departmental policies, decisions, actions, conditions, or omissions that have a 24 material adverse effect on the welfare of inmates and parolees.” CAL. CODE REGS., tit. 15 25 § 3084.1(a) (2011). Prior to January 28, 2011, in order to exhaust available administrative 26 remedies within this system, a prisoner would proceed through several levels: (1) informal 27 resolution, (2) formal written appeal on a CDC 602 inmate appeal form, (3) second level appeal 28 to the institution head or designee, and (4) third level appeal to the Director of the California -4- 12cv1084 IEG (KSC) 1 Department of Corrections. CAL. CODE REGS., tit. 15 § 3084.1(a) (2010). However, in January 2 2011, the process was changed. Following January 28, 2011, prison regulations no longer 3 required an inmate to submit to informal resolution while the other remaining levels remain the 4 same. CAL. CODE REGS. tit. 15 § 3084.5 (2011). 5 C. 6 Defendants argue that Plaintiff did file an administrative grievance related to the 7 excessive force claims but it was untimely. (Defs.’ Memo of Ps & As in Supp. of MTD, ECF 8 No. 13-1, at 11.) In support of their claims, Defendants supply the declarations of J. Jimenez, 9 Appeals Coordinator for CEN (ECF No. 13-4) and J.D. Lozano, Chief of the Offices of Appeals 10 Application of 42 U.S.C. § 1997e(a) to Plaintiff’s Case (ECF No. 13-3). 11 In his Declaration, J. Jimenez states that Plaintiff submitted a grievance on March 3, 2011 12 regarding the alleged excessive force claims on January 20, 2011. (See Jimenez Decl. at ¶ 8.) 13 However, this appeal “was cancelled and sent back to Plaintiff because he did not file it within 14 30 days of the event being appeal.” (Id.) Plaintiff submitted another appeal “challenging the 15 cancellation of his March 3, 2011" appeal. (Id. at ¶ 9, Ex. “B,” Inmate/Parolee Appeal CDCR 16 602 dated April 25, 2011, Log No. 11-00378.) In this appeal, Plaintiff argues that the time 17 constraints could not be complied with because he was having difficulties with headaches, as 18 well as obtaining the necessary documentation to support his claims. (Id.) This appeal was also 19 denied. (Id.) Specifically, in this request, Plaintiff indicates that his headaches lasted for two 20 weeks after the alleged incident. (Id. at 2.) However, as Plaintiff himself acknowledges, he had 21 thirty (30) days to file a grievance and therefore, it does not appear that his medical condition 22 prevented him from filing the grievance in a timely manner. 23 Plaintiff filed another appeal to the Third Level Appeal Decision. (See Lozano Decl. at 24 ¶ 9.) It was determined that his injuries did not prevent him from timely filing his initial appeal 25 and therefore, his appeal was again denied and the “allegations contained within the cancelled 26 appeal (related to the January 20, 2011 allegations of excessive force) were not considered.” 27 (Id.) 28 /// -5- 12cv1084 IEG (KSC) 1 The Supreme Court has made clear that Plaintiff must “properly exhaust” his 2 administrative remedies before filing a prison conditions action. In Woodford v. Ngo, 548 U.S. 3 81, 91 (2006), the Supreme Court held that “[p]roper exhaustion demands compliance with an 4 agency’s deadlines and other critical procedural rules because no adjudicative system can 5 function effectively without imposing some orderly structure on the course of its proceedings.” 6 Woodford, 548 U.S. at 91. The Court further held that “[proper exhaustion] means ... a prisoner 7 must complete the administrative review process in accordance with the applicable procedural 8 rules ... as a precondition to bring suit in federal court.” Id. Plaintiff has failed to submit any 9 evidence to rebut Defendants’ showing that he failed to properly exhaust his administrative 10 grievances prior to bringing this action. 11 For all the reasons set forth above, the Court GRANTS Defendants’ Motion to Dismiss 12 Plaintiff’s Eighth Amendment excessive force claims for failing to exhaust his administrative 13 remedies as required by 42 U.S.C. § 1997e(a). This dismissal is without prejudice to permit 14 Plaintiff to file a separate action once he has properly exhausted his administrative remedies. 15 IV. Defendants’ Motion to Dismiss pursuant to fed.r.civ.p. 12(b)(6) 16 A. Eighth Amendment inadequate medical care claims 17 Defendants move to dismiss Plaintiff’s Eighth Amendment inadequate medical care 18 claims on the grounds that they argue they were not deliberately indifferent to his serious 19 medical needs. Where an inmate’s claim is one of inadequate medical care, the inmate must 20 allege “acts or omissions sufficiently harmful to evidence deliberate indifference to serious 21 medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). Such a claim has two elements: 22 “the seriousness of the prisoner’s medical need and the nature of the defendant’s response to that 23 need.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1991), overruled on other grounds 24 by WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997). A medical need is serious 25 “if the failure to treat the prisoner’s condition could result in further significant injury or the 26 ‘unnecessary and wanton infliction of pain.’” McGuckin, 974 F.2d at 1059 (quoting Estelle, 429 27 U.S. at 104). Indications of a serious medical need include “the presence of a medical condition 28 that significantly affects an individual’s daily activities.” Id. at 1059-60. By establishing the -6- 12cv1084 IEG (KSC) 1 existence of a serious medical need, an inmate satisfies the objective requirement for proving an 2 Eighth Amendment violation. Farmer v. Brennan, 511 U.S. 825, 834 (1994). 3 In general, deliberate indifference may be shown when prison officials deny, delay, or 4 intentionally interfere with a prescribed course of medical treatment, or it may be shown by the 5 way in which prison medical officials provide necessary care. Hutchinson v. United States, 838 6 F.2d 390, 393-94 (9th Cir. 1988). Before it can be said that a inmate’s civil rights have been 7 abridged with regard to medical care, however, “the indifference to his medical needs must be 8 substantial. Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this 9 cause of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing 10 Estelle, 429 U.S. at 105-06). See also Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). 11 First, Defendants argue that Plaintiff has failed to allege a serious medical need. The 12 Court disagrees. Plaintiff has alleged that prison officials used pepper spray against him and he 13 was shot twice by prison guards. (See Compl. at 4-5.) Further, Plaintiff claims the doctors at 14 UCSD informed him that he had a fractured skull as a result of the gunshots. (Id. at 5.) 15 Defendants cite to a second level grievance response as “evidence” that Plaintiff had no serious 16 medical need. However, this is Defendants summary of their version of the facts. To make an 17 argument of this nature, Defendants should raise it, with properly evidentiary support, in a 18 motion for summary judgment. These claims do not defeat Plaintiff’s allegations of a fractured 19 skull which is sufficient for the Court to find that he has adequately alleged a serious medical 20 need. 21 Defendants then argue that Plaintiff has not alleged facts sufficient to show that any of 22 the named Defendants were “deliberately indifferent” to his serious medical needs. Plaintiff 23 alleges that he told prison medical doctors Defendants Ko, Sangha and Zamora that suffers from 24 “severe headaches, my vision gets blurry, I get dizzy.” (Compl. at 5.) Plaintiff alleges that 25 Defendant Ko “refused” to treat Plaintiff and threatened him with a rules violation report in 26 response to Plaintiff’s requests for medical attention. (Id. at 6.) When Plaintiff sought relief 27 from Dr. Sangha, he also alleges that Dr. Sangha refused to provide him with medical attention. 28 (Id.) Thus, as for Defendants Ko and Sangha, the Court finds that Plaintiff has adequately -7- 12cv1084 IEG (KSC) 1 alleged that these Defendants were deliberately indifferent to Plaintiff’s serious medical needs. 2 However, other than alleging that he informed Defendant Zamora of his medical issues, Plaintiff 3 does not allege anything that Defendant Zamora did or failed to do with regard to his medical 4 treatment. Therefore, the Court finds that Plaintiff has not alleged an Eighth Amendment 5 deliberate indifference to serious medical needs as to Defendant Zamora. 6 B. Personal causation 7 Defendants De La Trinidad, A. Garcia and V. Lerma move to dismiss Plaintiff’s 8 Complaint on the grounds that there are no factual claims in the Complaint that support the 9 necessary causation requirement. A person deprives another “of a constitutional right, within 10 the meaning of section 1983, if he does an affirmative act, participates in another’s affirmative 11 acts, or omits to perform an act which he is legally required to do that causes the deprivation of 12 which [the plaintiff complains].” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 13 “Causation is, of course, a required element of a § 1983 claim.” Estate of Brooks v. United 14 States, 197 F.3d 1245, 1248 (9th Cir. 1999). “The inquiry into causation must be individualized 15 and focus on the duties and responsibilities of each individual defendant whose acts or 16 omissions are alleged to have caused a constitutional deprivation.” Leer v. Murphy, 844 F.2d 17 628, 633 (9th Cir. 1988) (citing Rizzo v. Goode, 423 U.S. 362, 370-71 (1976)); Berg v. 18 Kincheloe, 794 F.2d 457, 460 (9th Cir. 1986). It appears that these Defendants may be the 19 “Does” listed in Plaintiff’s Complaint. However, Plaintiff must seek leave to amend his pleading 20 to substitute their true names. See Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999). 21 Because Plaintiff has not sought leave to amend his Complaint, there is no way for this Court 22 or these Defendants to know which claims Plaintiff is seeking to hold them liable. Accordingly, 23 the Court finds that Plaintiff has failed to state any facts that would hold Defendants De La 24 Trinidad, A. Garcia or V. Lerma liable for the alleged deprivation of his constitutional rights. 25 IV. Conclusion and Order 26 For the reasons set forth above, the Court hereby: 27 1) 28 GRANTS Defendants’ Motion to Dismiss Plaintiff’s Eighth Amendment excessive force claims without prejudice for failing to exhaust his administrative remedies -8- 12cv1084 IEG (KSC) 1 2 3 4 5 6 7 pursuant to FED.R.CIV.P. 12(b) and 42 U.S.C. § 1997e; 2) DENIES Defendants Ko and Sangha’s Motion to Dismiss Plaintiff’s Eighth Amendment inadequate medical care claims pursuant to FED.R.CIV.P. 12(b)(6); 3) GRANTS Defendant Zamora’s Motion to Dismiss Plaintiff’s Eighth Amendment inadequate medical care claims pursuant to FED.R.CIV.P. 12(b)(6); 4) GRANTS Defendants De La Trinidad, Garcia and Lerma’s Motion to Dismiss Plaintiff’s claims against them pursuant to FED.R.CIV.P. 12(b)(6). 8 IT IS FURTHER ORDERED that: 9 Defendants Ko and Sangha shall serve and file an Answer to Plaintiff’s Complaint within 10 11 the time prescribed by FED.R.CIV.P. 12(a)(4)(B). IT IS SO ORDERED. 12 13 DATED: June 26, 2013 ___________________________________ HON. IRMA E. GONZALEZ United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -9- 12cv1084 IEG (KSC)
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