(PC) Rowell v. Zamora, et al, No. 2:2014cv01888 - Document 65 (E.D. Cal. 2018)
Court Description: AMENDED FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 3/15/18 recommending that defendants' motion to dismiss 36 be granted in part as follows: The official capacity claims against defendants Abdur Rahman, Doroth y Swingle, and David Medina should be dismissed for failure to state a claim. The medical delberate indifference claims based on the prescription of NSAIDs against Rahman, Swingle and Medina should also be dismissed for failure to state ca claim; and the motion should be denied in all other respects. MOTION to DISMISS 36 referred to Judge Kimberly J. Mueller. Objections due within 14 days. (Plummer, M) Modified on 3/16/2018 (Plummer, M).
Download PDF
<![CDATA[
(PC) Rowell v. Zamora, et al Doc. 65 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SEAN LOUIS ROWELL, 12 13 14 No. 2:14-cv-1888-KJM-EFB P Plaintiff, v. AMENDED FINDINGS AND RECOMMENDATIONS L.D. ZAMORA, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 18 U.S.C. § 1983. He alleges that defendants violated his Eighth Amendment rights through 19 deliberate indifference toward his serious medical needs. ECF No. 20. Defendant Abdur 20 Rahman has filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) (ECF 21 No. 36), defendants Dorothy Swingle and David Medina have joined that motion (ECF Nos. 44, 22 57). Plaintiff has filed an opposition (ECF No. 56) and no reply has been filed within the allotted 23 time. For the reasons discussed below, the motion should be granted in part and denied in part. 24 I. Legal Standard 25 A complaint may be dismissed under that rule for “failure to state a claim upon which 26 relief may be granted.” Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss for failure to 27 state a claim, a plaintiff must allege “enough facts to state a claim to relief that is plausible on its 28 face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim has “facial plausibility 1 Dockets.Justia.com 1 when the plaintiff pleads factual content that allows the court to draw the reasonable inference 2 that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 3 (2009) (citing Twombly, 550 U.S. at 556). The plausibility standard is not akin to a “probability 4 requirement,” but it requires more than a sheer possibility that a defendant has acted unlawfully. 5 Iqbal, 556 U.S. at 678. 6 In addressing a motion under Rule 12(b)(6), the court generally considers only allegations 7 contained in the pleadings, exhibits attached to the complaint, and matters properly subject to 8 judicial notice, and construes all well-pleaded material factual allegations in the light most 9 favorable to the nonmoving party. Chubb Custom Ins. Co. v. Space Sys./Loral, Inc., 710 F.3d 10 11 946, 956 (9th Cir. 2013); Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012). Dismissal under Rule 12(b)(6) may be based on either: (1) lack of a cognizable legal 12 theory, or (2) insufficient facts under a cognizable legal theory. Chubb Custom Ins. Co., 710 F.3d 13 at 956. Dismissal also is appropriate if the complaint alleges a fact that necessarily defeats the 14 claim. Franklin v. Murphy, 745 F.2d 1221, 1228-1229 (9th Cir. 1984). 15 Pro se pleadings are held to a less-stringent standard than those drafted by lawyers. 16 Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam). However, the Court need not accept as 17 true unreasonable inferences or conclusory legal allegations cast in the form of factual 18 allegations. See Ileto v. Glock Inc., 349 F.3d 1191, 1200 (9th Cir. 2003) (citing Western Mining 19 Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981)). 20 II. 21 Defendants raise two primary arguments in favor of dismissal. 22 First, they argue that the allegations in the current, second amended complaint (SAC) are 23 factually inconsistent with the allegations raised in the previous, first amended complaint (FAC). 24 ECF No. 36-1 at 2. They contend that the claims in the FAC and SAC are “so contradictory that 25 both versions of events cannot be true.” Id. at 6. Defendants also note that the exhibits attached 26 to the FAC – which the court partially relied on in screening that earlier complaint – have been 27 omitted from the SAC. Id. at 6-7. Based on the foregoing, they argue that the SAC was filed in 28 bad faith and the court should not accept its allegations as true. Id. at 9. Analysis 2 1 Second, defendants argue that plaintiff is barred from seeking damages against them in 2 their official capacities. Id. at 11. 3 A. 4 5 6 7 8 9 Inconsistent Allegations The court cannot dismiss the instant complaint based on inconsistencies between it and plaintiff’s FAC. The Ninth Circuit has held that: The short of it is that there is nothing in the Federal Rules of Civil Procedure to prevent a party from filing successive pleadings that make inconsistent or even contradictory allegations. Unless there is a showing that the party acted in bad faith--a showing that can only be made after the party is given an opportunity to respond under the procedures of Rule 11--inconsistent allegations are simply not a basis for striking the pleading. 10 PAE Gov't Servs. v. MPRI, Inc., 514 F.3d 856, 860 (9th Cir. 2007). Additionally, “Rule 12 11 provides no authority to dismiss “sham” pleadings.” Id. Based on the foregoing, the court cannot 12 strike the original complaint on a Rule 12 motion, nor can it decline to take the current allegations 13 as true for purposes of a Rule 12(b)(6) motion to dismiss. Instead, “[i]f a party believes that its 14 opponent pled in bad faith, it can seek other means of redress, such as sanctions under Rule 11, 28 15 U.S.C. § 1927 or the court’s inherent authority.” Id. Further, defendants are free to utilize the 16 earlier allegations and attachments in deposing plaintiff, and if necessary, in cross examination, as 17 well in testing the sufficiency of plaintiff’s evidence in an appropriate motion under Rule 56. But 18 the instant motion tests only the sufficiency of the allegations of the second amended complaint. 19 For similar reasons, the court also declines to look to the administrative appeal exhibits 20 attached to the FAC in weighing whether to dismiss the SAC. Generally, an amended complaint 21 supersedes its predecessor, “the latter being treated thereafter as non-existent.” Rhodes v. 22 Robinson, 621 F.3d 1002, 1005 (9th Cir. 2010); see also Lacey v. Maricopa Cnty., 693 F.3d 896, 23 927 (9th Cir. 2012). With few exceptions, a court is not permitted to look beyond the operative 24 complaint in weighing a 12(b)(6) motion. See Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 25 2006). “[T]he weight of federal authority suggests that previous complaints do not generally fall 26 within those exceptions.” Santana v. State of Cal. Dep't of Corr. & Rehab., Case No. 09-cv- 27 03226, 2010 U.S. Dist. LEXIS 111499, at *18 (N.D. Cal. Oct. 19, 2010). Thus, the remedy for 28 defendants is provided under Rule 56 if, as they argue, the attachments to the earlier complaint 3 1 disprove the allegations of the instant complaint. The standards applicable under Rule 56 will 2 enable the parties and ultimately the court to analyze whether plaintiff can produce evidence 3 sufficient to enable a reasonable jury to find in his favor on the requisite elements of his claims, 4 but that is not the purpose of Rule 12(b)(6). 5 6 B. Official Capacity Claims The court does agree that the Eleventh Amendment bars plaintiff’s official capacity claims 7 against the defendants. Under the Eleventh Amendment, a state and its official arms are immune 8 from section 1983 suit. See Howlett v. Rose, 496 U.S. 356, 365 (1990); Brown v. Cal. Dept. of 9 Corrections, 554 F.3d 747, 752 (9th Cir. 2009) (“California has not waived its Eleventh 10 Amendment immunity with respect to claims brought under § 1983 in federal court”). And “[a] 11 suit against a state official in his or her official capacity . . . is no different from a suit against the 12 State itself.” Flint v. Dennison, 488 F.3d 816, 824-25 (9th Cir. 2007). It follows that state 13 officials sued in their official capacity only for damages are typically entitled to immunity. Id. at 14 825. Here, plaintiff has not requested any injunctive relief; he seeks only money damages. ECF 15 No. 20 at 9. 16 C. Miscellaneous Arguments 17 The court notes that defendants raise two other brief, ancillary arguments in their motion. 18 Defendants argue that “[contradictory] factual allegations aside”, the claims in plaintiff’s 19 SAC are too conclusory to proceed. ECF No. 36-1 at 10. The court has already found these 20 allegations sufficient to proceed past screening, however. ECF No. 21. Accordingly it declines 21 to dismiss these allegations as ‘conclusory’ at this juncture. 22 Finally, defendants argue that plaintiff cannot pursue a deliberate indifference claim 23 against him based on an allegation that the prescription of nonsteroidal anti-inflammatory drugs 24 (NSAIDs) violated California Prison Healthcare Guidelines. ECF No. 36-1 at 10-11. Review of 25 the SAC indicates that plaintiff’s allegations against the defendants are premised on two separate 26 theories of medical deliberate indifference. First, he alleges that a specialist – Dr. Imperial – had 27 prescribed a course of treatment that defendants declined to follow. ECF No. 20 at 6-7. He 28 claims that he sustained liver damage as a result of defendants’ failure to follow Imperial’s 4 1 recommendations. Id. at 7. This theory is suitable to proceed. Second, he claims that, after 2 reviewing the aforementioned guidelines, he learned that individuals with his condition should 3 not be prescribed NSAIDs – which defendants allegedly prescribed. Id. at 7-8. He goes on to 4 state that, “under the Prison Health Care Guideline set, this course of treatment was medically 5 unacceptable under the circumstances.” Id. at 8. Plaintiff does not, however, allege that the 6 prescription of NSAIDs itself actually resulted in any direct harm to his liver (or other part of his 7 person) – that is, damage beyond what was allegedly caused by the failure to implement 8 Imperial’s treatment plan. “In a constitutional tort, as in any other, a plaintiff must allege that the 9 defendant's actions caused him some injury.” Resnick v. Hayes, 213 F.3d 443, 449 (9th Cir. 10 2000). Mere failure to comply with a prison guideline does not give rise to a cognizable injury 11 under section 1983. See Ybarra v. Bastian, 647 F.2d 891, 892 (9th Cir. 1981) (“Only federal 12 rights, privileges, or immunities are protected by the section. Violations of state law alone are 13 insufficient.”). 14 III. 15 For the foregoing reasons, it is hereby RECOMMENDED that defendants’ motion to 16 dismiss (ECF No. 36) be granted in part as follows: 17 18 1. The official capacity claims against defendants Abdur Rahman, Dorothy Swingle, and David Medina should be dismissed for failure to state a claim; 19 20 Conclusion 2. The medical deliberate indifference claims based on the prescription of NSAIDs against Rahman, Swingle, and Medina should also be dismissed for failure to state a claim; and 21 3. 22 These findings and recommendations are submitted to the United States District Judge 23 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 24 after being served with these findings and recommendations, any party may file written 25 objections with the court and serve a copy on all parties. Such a document should be captioned 26 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 27 ///// 28 ///// The motion should be denied in all other respects. 5 1 within the specified time may waive the right to appeal the District Court’s order. Turner v. 2 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 DATED: March 15, 2018. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
