(PC) Thompson v. Vidurria et al, No. 1:2014cv01896 - Document 31 (E.D. Cal. 2015)
Court Description: FINDINGS and RECOMMENDATIONS recommending that Defendant Martinez's Motion to Dismiss be DENIED 14 ; referred to Judge O'Neill, signed by Magistrate Judge Stanley A. Boone on 8/31/15. Objections to F&R due by 10/5/2015 (Martin-Gill, S)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 TYRONE THOMPSON, 12 13 14 15 Plaintiff, v. VIDURRIA, et al., Defendants. 16 17 18 ) ) ) ) ) ) ) ) ) ) Case No.: 1:14-cv-01896-LJO-SAB (PC) FINDINGS AND RECOMMENDATION REGARDING DEFENDANT MARTINEZ S MOTION TO DISMISS [ECF No. 14] Plaintiff Tyrone Thompson is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. 19 I. 20 PROCEDURAL BACKGROUND 21 22 23 This action is proceeding against Defendants Vidurria and Martinez for deliberate indifference to a serious medical need in violation of the Eighth Amendment. On June 2, 2015, Defendant Martinez filed a motion to dismiss the complaint for failure to 24 state a cognizable claim upon which relief may be granted. (ECF No. 14.) On this same date, 25 Defendant Vidurria filed an answer to the complaint. (ECF No. 15.) 26 27 28 1 On July 6, 2015, Plaintiff filed an opposition to Defendant Martinez s motion to dismiss, and 1 2 Defendant filed a reply on July 13, 2015.1 (ECF Nos. 20, 21.) On August 26, 2015, defense counsel, Gabriel Ullrich appeared in person and Plaintiff 3 4 appeared by telephone for oral argument on the motion to dismiss. Having considered the parties 5 papers and oral argument, as well as all relevant authority, the Court recommends denial of Defendant 6 Martinez s motion to dismiss. 7 II. 8 DISCUSSION A. 9 Allegations of Complaint On May 1, 2014, Plaintiff was taken to an outside medical appointment in an ADA van. 10 11 Officer Vidaurrri was present when Plaintiff arrived at the hospital in the ADA van and helped get 12 Plaintiff out of the van because the lift to the van broke which required the officer s to carry Plaintiff 13 out of the van. The doctor ordered that Plaintiff return the next day in order to examine a black spot 14 on Plaintiff s lung. 15 The next day, May 2, 2014, officer Vidaurri went to Plaintiff to his outside medical 16 appointment. Vidaurri noticed that Plaintiff was in a wheelchair and asked Plaintiff “can you go up 17 and down the stairs to the van?” Plaintiff stated “no,” and Vidaurri told Plaintiff if he could not go up 18 and down the stairs to the van he was not taking him to his medical appointment. Vidaurri required 19 Plaintiff to sign a refusal form, and although Plaintiff signed it he noted that he was not refusing to go 20 to his outside medical appointment. Vidaurri informed Licensed Vocational Nurse (LVN) Lemay that 21 if Plaintiff could not walk up and down the stairs, he was not taking him to his medical appointment. 22 Later in the month of May, Plaintiff began having breathing problems and was taken to the main 23 hospital for emergency breathing treatment. Dr. Alphonso told Plaintiff that if he had not refused his 24 prior outside medical appointment, he would not be experiencing the breathing problems. 25 26 1 27 28 Defendant notes that Plaintiff s opposition is untimely. Under the mailbox rule, Plaintiff s opposition was deemed filed on June 27, 2015- four days beyond the 21 day period of time to file an opposition pursuant to Local Rule 230(l). Plaintiff s opposition will be deemed timely filed given Plaintiff s pro se status and the fact that Defendant failed to serve Plaintiff with the motion to dismiss at the appropriate address of record. (See ECF No. 14-1.) 2 On that same day, May 2, 2014, Plaintiff filed an inmate appeal. On May 12, 2014, Sergeant 1 2 Martinez called Plaintiff to the program office for an interview regarding the inmate appeal relating to 3 the actions of officer Vidaurri. Martinez told Plaintiff he was not going to do anything to officer 4 Vidaurri and asked Plaintiff to drop the inmate appeal. Plaintiff told him he was not going to drop the 5 inmate appeal against Vidaurri. On May 22, 2014, Plaintiff was transferred to the California Medical Facility (“CMF”) in 6 7 Vacaville. When Plaintiff arrived at CMF, he put in medical forms because he was having difficulty 8 breathing. Plaintiff was examined by Dr. Bick and was placed on breathing treatments three times a 9 day and requires the use of three different inhalers. Plaintiff was also sent to an outside facility to 10 examine the black spot on his lung and was prescribed pain medication. Dr. Bick informed Plaintiff 11 that he would be experiencing the problems if he had previously been sent to an outside medical 12 examination. 13 B. Prior Screening Order 14 Plaintiff s complaint was screened and the Court determined it stated a claim upon which relief 15 may be granted. 28 U.S.C. § 1915A; Nordstrom, 762 F.3d at 908 (“Dismissal for failure to state a 16 claim under § 1915A „incorporates the familiar standard applied in the context of failure to state a 17 claim under Federal Rule of Civil Procedure 12(b)(6). ”) (quoting Wilhelm, 680 F.3d at 1121); 18 Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012) (section 1915(e)(2)(B)(ii) screening standard 19 is the same as Rule 12(b)(6) standard). 20 screened is appreciated; however, they present no arguments which persuade the Court it erred in 21 determining that Plaintiff s Eighth Amendment claims were cognizable or that any other grounds 22 justifying relief from the screening order exist. See Ingle v. Circuit City, 408 F.3d 592, 594 (9th Cir. 23 2005) (“A district court abuses its discretion in applying the law of the case doctrine only if (1) the 24 first decision was clearly erroneous; (2) an intervening change in the law occurred; (3) the evidence on 25 remand was substantially different; (4) other changed circumstances exist; or (5) a manifest injustice 26 would otherwise result.”). As explained below, Plaintiff s allegation against Defendant Martinez are 27 sufficient to allow him to proceed past the pleading stage. 28 /// Defendants acknowledgement that the complaint was 3 1 C. Motion to Dismiss Standard Under Rule 12(b)(6) 2 A motion to dismiss brought pursuant to Rule 12(b)(6) tests the legal sufficiency of a claim, 3 and dismissal is proper if there is a lack of a cognizable legal theory or the absence of sufficient facts 4 alleged under a cognizable legal theory. Conservation Force v. Salazar, 646 F.3d 1240, 1241-42 (9th 5 Cir. 2011) (quotation marks and citations omitted). In resolving a 12(b)(6) motion, a court s review is 6 generally limited to the operative pleading. Daniels-Hall v. National Educ. Ass n, 629 F.3d 992, 998 7 (9th Cir. 2010); Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007); Schneider v. California Dept. of 8 Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998). 9 To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as 10 true, to state a claim that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing 11 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)) (quotation marks omitted); Conservation 12 Force, 646 F.3d at 1242; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The Court 13 must accept the factual allegations as true and draw all reasonable inferences in favor of the non- 14 moving party, Daniels-Hall, 629 F.3d at 998; Sanders, 504 F.3d at 910; Morales v. City of Los 15 Angeles, 214 F.3d 1151, 1153 (9th Cir. 2000), and in this Circuit, pro se litigants are entitled to have 16 their pleadings liberally construed and to have any doubt resolved in their favor, Wilhelm v. Rotman, 17 680 F.3d 1113, 1121 (9th Cir. 2012); Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); Silva v. 18 Di Vittorio, 658 F.3d 1090, 1101 (9th Cir. 2011); Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). 19 Defendant Martinez contends that the complaint “does not contain any allegations against 20 Sergeant Martinez other than interviewing Plaintiff related to his grievance on May 12, 2014.” (ECF 21 No. 14, Def s Mot. at 3:23-24.) Defendant argues the interview took place more than a week after the 22 missed medical appointment and there are no allegations that Martinez had any involvement in the 23 May 2, 2014, transaction. 24 25 While Defendant Martinez correctly points out that he cannot be held vicariously liable or liable on a supervisory basis, a liberal construction of the allegations in the complaint set forth more 26 27 28 4 1 than vicarious or supervisory liability against Defendant Martinez.2 In his complaint, Plaintiff alleges 2 that he filed an inmate appeal on May 2, 2014, and complained that officer Vidaurri would not take 3 Plaintiff to his outside medical appointment if he could not walk up and down the stairs to the 4 transportation van, and Plaintiff never refused to go to his medical appointment. The inmate grievance 5 was reviewed by Sergeant Martinez, and on May 12, 2014, Martinez attempted to interview Plaintiff 6 regarding the appeal, and told Plaintiff that he was not going to do anything to officer Vidaurri and 7 asked him to drop the inmate appeal. Thus, at the time that Plaintiff filed his inmate appeal and was 8 interviewed by Sergeant Martinez, Plaintiff was still requesting and seeking outside medical treatment, 9 which could have been granted by Martinez but was not. The fact that inmates do not have any 10 interests at stake with respect to the appeals process so as to invoke the protection of the Due Process 11 Clause does not shield staff from liability if their actions in reviewing an appeal are otherwise 12 sufficient to support a claim that they were placed on notice as to the existence of a constitutional 13 violation and failed to act to prevent it. Snow v. McDaniel, 681 F.3d 978, 989 (9th Cir. 2012); Starr v. 14 Baca, 652 F.3d 1202, 1205-1208 (9th Cir. 2011). Defendant presented, for the first time, at oral argument, several cases which he contends 15 16 support his position that involvement in a constitutional violation by way of inmate grievance cannot 17 support liability under section 1983. Defendant Martinez s motion to dismiss did not mention or cite 18 such authority presented at oral argument and such practice is disfavored by the Court as the purpose 19 of oral argument is not to present new argument that the court and opposing party is unable to 20 adequately addressed at the hearing. Nonetheless, at oral argument, Defendant s argued that Peralta v. Dillard, 744 F.3d 1076, 1086- 21 22 1087 (9th Cir. 2014), with specific regard to Defendant Fitter strongly supported his position that 23 denial of an inmate grievance cannot give rise to personal liability by way of section 1983. In Peralta, 24 Defendant Fitter, as the Chief Medical Officer, signed and denied Peralta s inmate appeal at the 25 2 26 27 28 The Court must construe a pro se pleading liberally to determine if it states a claim and, prior to dismissal, must inform the plaintiff of deficiencies in the complaint and give the plaintiff an opportunity to cure those deficiencies if it appears at all possible that plaintiff can do so. See, e.g., Lopez, 203 F.3d at 1130-1131; see also Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (stating that courts continue to construe pro se filings liberally even when evaluating them under the standard announced in Iqbal). 5 1 second level of review, and the Ninth Circuit found that “[t]he case against Fitter rests entirely on this 2 signature.” Peralta, 744 F.3d at 1086.3 However, in Peralta, unlike in this case, there was no evidence 3 that Defendant Fitter was aware of any risk to Peralta s health or should have been aware of any risk. 4 Id. In this case, Plaintiff specifically alleges that Defendant Martinez interviewed Plaintiff regarding 5 the appeal against Defendant Vidaurri for refusal to take him to an outside medical appointment which 6 resulted in further injury, and Defendant Martinez told Plaintiff he was not going to do anything to 7 officer Vidaurri and asked him to drop the inmate appeal. Thus, Peralta does not answer the question 8 of liability as alleged against Defendant Martinez in this case because based on the allegations 9 Martinez was aware of Plaintiff s need to go to the outside medical appointment and failed to act to 10 prevent further harm. Furthermore, the additional cases cited by Defendant, at oral argument, likewise do not resolve 11 12 the issue presented in this case and are inapposite for the reasons cited hereafter. See Taylor v. List, 13 880 F.2d 1040, 1045 (9th Cir. 1989) (grant of motion for summary judgment upheld against Defendant 14 Walsh because “no showing by Taylor that Walsh participated in or directed any alleged actions by the 15 prison officials which hampered Taylor s defense…. “there was no showing that Walsh knew of 16 specific incidents of misconduct by prison officials and failed to act to prevent them.”); George v. 17 Smith, 507 F.3d 605, 609-610 (7th Cir. 2007) (the Seventh Circuit found that plaintiff failed to allege 18 any constitutional violations by any prison official, much less the supervising officials that denied the 19 administrative appeals); Grinter v. Knight, 532 F.3d 567, 575-576 (6th Cir. 2008) (the Sixth Circuit 20 upheld the denial of plaintiff s due process claims against defendants who participated in the 21 administrative grievance process in supervisory roles and noted that plaintiff “has not alleged that 22 [defendants] Haeberlin and Ree committed any actual acts, nor has he averred that they acquiesced in 23 the conduct of their employees.”); Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009) (the 24 Tenth Circuit found lack of personal participation because the only allegations related to denial of a 25 grievance without additional factual basis to support an “affirmative link” between certain defendants 26 and the alleged constitutional violation.) Based on Plaintiff s allegations in the complaint against 27 3 28 In addition, the procedural posture of Peralta is distinguishable from the present case. Defendant Fitter was granted a directed verdict (Fed. R. Civ. P. 50), after Peralta presented his case to a jury. Peralta, 744 F.3d at 1081. 6 1 Defendant Martinez, Plaintiff has alleged more than mere denial of his inmate grievance to 2 demonstrate an “affirmative link” between Martinez s conduct and the alleged constitutional violation 3 by Defendant Vidaurri. Accordingly, Plaintiff states a plausible basis for personal liability on the part 4 of Defendant Martinez, and his motion to dismiss should be denied.4 5 III. 6 RECOMMENDATION Based on the foregoing, it is HEREBY RECOMMENDED that Defendant Martinez s motion 7 8 to dismiss be DENIED. These Findings and Recommendations will be submitted to the United States District Judge 9 10 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) days 11 after being served with these Findings and Recommendations, the parties may file written objections 12 with the Court. The document should be captioned “Objections to Magistrate Judge s Findings and 13 Recommendations.” The parties are advised that failure to file objections within the specified time 14 may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 15 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 16 17 IT IS SO ORDERED. 18 Dated: August 31, 2015 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 4 26 27 28 Defendant correctly points out that by way of Plaintiff s opposition, Plaintiff appears to also allege a retaliation claim against Sergeant Martinez. However, there are not sufficient facts in the complaint to support such a claim and the Court s February 25, 2015, screening order found only a cognizable Eighth Amendment violation. In addition, Plaintiff has not sought leave to amend the complaint to add such a claim, and this action is presently proceeding only on Plaintiff s claim of deliberate indifference to his serious medical needs. 7
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