Grajeda v. Horel et al, No. 4:2007cv04752 - Document 28 (N.D. Cal. 2009)
Court Description: ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS; DENIAL OF PLAINTIFF'S MOTION FOR APPOINTMENT OF COUNSEL by Judge Phyllis J. Hamilton denying 7 Motion to Appoint Counsel ; granting in part and denying in part 14 Motion to Dismiss (Attachments: # 1 Certificate of Service) (nah, COURT STAFF) (Filed on 2/6/2009)
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Grajeda v. Horel et al Doc. 28 1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 7 THOMAS GRANDE GRAJEDA, Plaintiff, 8 v. 9 11 For the Northern District of California United States District Court 10 12 No. C 07-4752 PJH (PR) ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS; DENIAL OF PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL ROBERT A. HOREL, Warden; MICHAEL SAYRE, M.D.; SUE RISENHOOVER, F.N.P.; JOHN KRAVITZ, CCII (A); MAUREEN McLEAN, F.N.P.; J. FLOWERS, R.N.; and LINDA ROWE, M.D., 13 Defendants. 14 / 15 This is a civil rights case filed pro se by a state prisoner. Plaintiff contends that he 16 received inadequate medical care from defendants. Defendants McLean, Sayre, Horel, 17 Rowe and Risenhoover have now filed an unenumerated motion to dismiss in which they 18 contend that plaintiff failed to exhaust administrative remedies; combined with the 19 unenumerated motion is a motion to dismiss for failure to state a claim.1 Defendants also 20 contend that they are entitled to qualified immunity, that plaintiff cannot have equitable relief 21 while a related class action is pending, and that punitive damages are not available. 22 Plaintiff has opposed the motion and defendants have replied. Plaintiff also has filed a 23 motion for appointment of counsel. The motion to dismiss will be denied in part and granted 24 in part; the motion for counsel will be denied. 25 /// 26 27 28 1 Plaintiff’s claims against defendants Kravitz and Flowers were dismissed in the initial review order, leaving only the moving defendants in the case. References to “defendants” hereafter are to the movants. Dockets.Justia.com 1 For the Northern District of California United States District Court 2 DISCUSSION A. Exhaustion 3 1. 4 The Prison Litigation Reform Act of 1995 amended 42 U.S.C. § 1997e to provide Standard 5 that "[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], 6 or any other Federal law, by a prisoner confined in any jail, prison, or other correctional 7 facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 8 1997e(a). Although once within the discretion of the district court, exhaustion in prisoner 9 cases covered by § 1997e(a) is now mandatory. Porter v Nussle, 122 S. Ct. 983, 988 10 (2002). All available remedies must now be exhausted; those remedies "need not meet 11 federal standards, nor must they be 'plain, speedy, and effective.'" Id. (citation omitted). 12 Even when the prisoner seeks relief not available in grievance proceedings, notably money 13 damages, exhaustion is a prerequisite to suit. Id.; Booth v Churner, 532 U.S. 731, 741 14 (2001). Similarly, exhaustion is a prerequisite to all inmate suits about prison life, whether 15 they involve general circumstances or particular episodes, and whether they allege 16 excessive force or some other wrong. Porter, 122 S. Ct. at 992. 17 The State of California provides its inmates and parolees the right to appeal 18 administratively "any departmental decision, action, condition or policy perceived by those 19 individuals as adversely affecting their welfare." Cal. Code Regs. tit. 15, § 3084.1(a). It 20 also provides its inmates the right to file administrative appeals alleging misconduct by 21 correctional officers. See id. § 3084.1(e). In order to exhaust available administrative 22 remedies within this system, a prisoner must proceed through several levels of appeal: (1) 23 informal resolution, (2) formal written appeal on a CDC 602 inmate appeal form, (3) second 24 level appeal to the institution head or designee, and (4) third level appeal to the Director of 25 the California Department of Corrections. See id. § 3084.5; Barry v. Ratelle, 985 F. Supp. 26 1235, 1237 (S.D. Cal. 1997). A final decision at the director’s level satisfies the exhaustion 27 requirement under § 1997e(a). Id. at 1237-38. 28 /// 2 1 2 F.3d 1108, 1119 (9th Cir 2003). It should be treated as a matter of abatement and brought 3 in an “unenumerated Rule 12(b) motion rather than [in] a motion for summary judgment.” 4 Id. (citations omitted). In deciding a motion to dismiss for failure to exhaust administrative 5 remedies under § 1997e(a), the court may look beyond the pleadings and decide disputed 6 issues of fact. Id. at 1119-20. If the court concludes that the prisoner has not exhausted 7 California’s prison administrative process, the proper remedy is dismissal without prejudice. 8 Id. at 1120. 9 For the Northern District of California 10 United States District Court Nonexhaustion under § 1997e(a) is an affirmative defense. Wyatt v Terhune, 315 2. Plaintiff’s Claims Plaintiff alleged in his amended complaint that he has suffered from severe and 11 continuing pain in his hips and back for the last five years. Although in the amended 12 complaint plaintiff presented only two claims for relief, in the order of service the court 13 divided them into five claims for clarity. The first of the claims the court listed was plaintiff’s 14 contention that defendants Sayre and Risenhoover willfully and maliciously deprived him of 15 his cane and leg brace, despite knowing of his injuries. Claim two was that Sayre refused 16 to examine him, retaliated against him for filing grievances, and failed to obtain his medical 17 records. Claim three was that defendant McLean, although informed of his ongoing 18 medical needs by way of his grievances, failed to provide medical care. Claim four was 19 that defendant Rowe was deliberately indifferent to a serious medical need by not treating 20 his acknowledged anemia for fourteen months. 21 Claim five in the court’s list was based on part of plaintiff’s second claim, which was 22 headed “Violation of 8th and 14th Amendment[;] Negligence, Medical Malpractice and 23 Violation of California Penal Code 2656 and Section 2656(d).” In the order of service the 24 court described the claim as being “a state law medical malpractice claim, to some extent 25 echoing [claims one through four], but also including respondeat superior and failure to 26 supervise claims against defendant Horel.” Upon further consideration, the court concludes 27 that plaintiff intended to assert only federal claims against Horel; they are contained in 28 paragraph sixty-two of the complaint. The state law malpractice and California Penal Code 3 1 § 2656 claims are asserted only against Sayre and Risenhoover; they appear in paragraph 2 sixty-four. 3 4 Plaintiff contends that Sayre and Risenhoover deprived him of his cane and leg brace. In the motion to dismiss Sayre and Risenhoover concede that this claim is 6 exhausted. 8 9 For the Northern District of California Claim One 5 7 United States District Court a. b. Claim Two Plaintiff claims that Sayre refused to examine him on August 30, 2006, retaliated against him for filing grievances, and failed to obtain his medical records. Sayre has 10 supplied evidence that this claim was not exhausted, decl. Wilber, ex. A-F (providing copies 11 of plaintiff’s administrative appeals), and plaintiff does not mention it in his opposition. The 12 motion will be granted as to this claim. 13 c. Claim Three 14 Plaintiff claims that defendant McLean was informed of plaintiff’s need for medical 15 care by way of his grievances, but failed to see that he received it. McLean has supplied 16 evidence that this claim was not exhausted, decl. Wilber, ex. A-F, and plaintiff does not 17 contend in his opposition that it was; his only reference to McLean is a contention that she 18 wrote telling him to use the administrative appeal system for his grievances rather than 19 writing to the warden. The motion will be granted as to this claim. 20 d. Claim Four 21 Plaintiff claims that defendant Rowe failed to treat his anemia for fourteen months. 22 Contrary to defendant’s contention, plaintiff’s administrative appeal log number PBSP 06- 23 02546 did present this claim and was sufficient to exhaust it. See Decl. Wilber, ex. F. 24 Rowe’s motion will be denied as to this claim. 25 26 e. Claim Five In claim five plaintiff presents state-law medical malpractice claims against Sayre 27 and Risenhoover and federal claims against Warden Horel. Because the malpractice 28 claims are not federal, exhaustion is not required as to them. See 42 U.S.C. § 1997e(a) 4 1 (exhaustion requirement applies to federal law claims). The federal claims against Horel are contained in paragraph sixty-two of the For the Northern District of California United States District Court 2 3 amended complaint. Plaintiff contends that Horel allowed staff to confiscate plaintiff’s cane 4 and leg brace and did not require staff under his supervision to provide plaintiff with 5 (unspecified) proper medical care. As noted in the discussion of claim one, above, 6 defendants concede exhaustion of plaintiff’s contention that staff confiscated his leg brace 7 and cane, and because it is unnecessary for prisoners to name specific defendants when 8 exhausting, see Jones v. Bock, 127 S. Ct. 910, 922-23 (2007), this part of plaintiff’s claim 9 against Horel is exhausted. As to the generalized “proper medical care” claim, plaintiff 10 contended that he was not receiving proper medical care for his injuries in appeal log 11 number PBSP 06-00709, which was exhausted through the third formal level. That was 12 sufficient to exhaust.2 13 e. 14 Summary as to Exhaustion The motion to dismiss for failure to exhaust will be granted as to claims two and 15 three and denied as to the other claims. This eliminates all claims against McLean and one 16 of the claims against Sayre. 17 B. Failure to State a Claim 18 1. 19 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential Standard 20 elements: (1) that a right secured by the Constitution or laws of the United States was 21 violated, and (2) that the alleged deprivation was committed by a person acting under the 22 color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). 23 Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of 24 the claim showing that the pleader is entitled to relief." "Specific facts are not necessary; 25 the statement need only '"give the defendant fair notice of what the . . . . claim is and the 26 grounds upon which it rests."'" Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (citations 27 28 2 Although plaintiff has exhausted these claims against Horel, the court below concludes that the allegations in the complaint are insufficient to state a claim against him. 5 1 omitted). Although in order to state a claim a complaint “does not need detailed factual 2 allegations, . . . a plaintiff's obligation to provide the 'grounds of his 'entitle[ment] to relief' 3 requires more than labels and conclusions, and a formulaic recitation of the elements of a 4 cause of action will not do. . . . Factual allegations must be enough to raise a right to relief 5 above the speculative level." Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 6 (2007) (citations omitted). A complaint must proffer "enough facts to state a claim for relief 7 that is plausible on its face." Id. at 1986-87. 8 For the Northern District of California United States District Court 9 In ruling on a motion to dismiss, review is limited to the contents of the complaint, Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994), including 10 documents physically attached to the complaint or documents the complaint necessarily 11 relies on and whose authenticity is not contested. Lee v. County of Los Angeles, 250 F.3d 12 668, 688 (9th Cir. 2001). In addition, the court may take judicial notice of facts that are not 13 subject to reasonable dispute. Id. at 688 (discussing Fed. R. Evid. 201(b)). Allegations of 14 fact in the complaint must be taken as true and construed in the light most favorable to the 15 non-moving party. Spreewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). 16 The court need not, however, “accept as true allegations that are merely conclusory, 17 unwarranted deductions of fact, or unreasonable inferences.” Id. Pro se pleadings must be 18 construed liberally on a defendant’s motion to dismiss for failure to state a claim. Ortez v. 19 Washington County Oregon, 88 F.3d 804, 807 (9th Cir. 1996). 20 21 2. Analysis a. Defendants Horel and McLean 22 Defendant Horel contends that plaintiff has failed to state a claim against him. As 23 discussed above, plaintiff claims that Horel violated his federal rights by allowing staff to 24 confiscate his cane and leg brace and not requiring staff under his supervision to provide 25 plaintiff with (unspecified) proper medical care. Also, in paragraph forty-three of the 26 complaint he alleges that he wrote to Horel complaining about the lack of care, but the 27 letter was routed to defendant McLean. There is no allegation that Horel actually learned of 28 plaintiff’s problems. 6 For the Northern District of California United States District Court 1 A supervisor generally "is only liable for constitutional violations of his subordinates if 2 the supervisor participated in or directed the violations, or knew of the violations and failed 3 to act to prevent them." Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). "A plaintiff 4 must allege facts, not simply conclusions, that show that an individual was personally 5 involved in the deprivation of his civil rights." Barren v. Harrington, 152 F.3d 1193, 1194 6 (9th Cir. 1998). Plaintiff has provided no factual allegations that would link Horel to the 7 alleged constitutional violations, and there is there is no respondeat superior liability under 8 section 1983 – in layman's terms, under no circumstances is there liability under section 9 1983 solely because a defendant is the superior of a person who violated the plaintiff’s 10 rights. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). The motion to dismiss for 11 failure to state a claim will be granted as to Horel. 12 Plaintiff’s claim against McLean is similar – he contends that she failed to require 13 staff to provide sufficient medical care “for severe chronic pain.” Her involvement, however, 14 is greater than that of Horel, as she was involved in processing all of plaintiff’s grievances, 15 which served to put her on notice of his medical problems, for instance the refusal to allow 16 him to have his cane and leg brace. This is sufficient to state a claim against her. See Jett 17 v. Penner, 439 F.3d 1091, 1098 (9th Cir. 2006) (holding that allegations that prisoner- 18 plaintiff wrote to prison administrators asking for help with a medical problem and prison 19 administrators failed or refused to address the problem was sufficient to state claim against 20 them for deliberate indifference). The motion to dismiss for failure to state a claim by 21 McLean will be denied. As noted above, however, the claims against her have not been 22 exhausted, so they will be dismissed without prejudice on that ground. 23 24 b. Defendants Sayre, Risenhoover, and Rowe: Difference of Opinion Sayre, Risenhoover, and Rowe contend that plaintiff has not stated a claim against 25 them for deliberate indifference because the facts alleged amount to no more than a 26 “difference of medical opinion.” As defendants concede, however, the “difference of 27 medical opinion” analysis depends upon a showing that both the treatment given by the 28 doctor and the treatment desired by the prisoner were “medically acceptable.” See 7 1 Jackson v. McIntosh, 90 F.3d 330, 332 9th Cir. 2004). This fact does not appear from the 2 allegations of the complaint here and this argument is better suited to a motion for 3 summary judgment. The motion to dismiss for failure to state a claim by Sayre, 4 Risenhoover, and Rowe will be denied. For the Northern District of California United States District Court 5 c. Defendants Sayre and Risenhoover: Medical Malpractice 6 Defendants Sayre and Risenhoover ignore that plaintiff’s amended complaint 7 presents a supplemental state law claim, rather than just federal claims. Plaintiff captions 8 his amended complaint thus: “First Amended Complaint[;] 42 U.S.C. Section 1983[;] (with 9 supplemental state law).” His specific allegations regarding Sayre and Risenhoover, in 10 paragraph sixty-four of the complaint, are that the facts recited “constitute a breach of their 11 duties of negligence, medical malpractice, deliberate indifference and violation of California 12 Penal Code 2656 and Section 2656(D) . . . .” 13 Sayre and Risenhoover contend that negligence cannot be the basis for an Eighth 14 Amendment deliberate indifference claim, which is correct but irrelevant, given that plaintiff 15 has adequately presented a state-law malpractice claim. Their motion will be denied as to 16 this claim. 17 C. Qualified Immunity 18 Defendants contend that they are entitled to qualified immunity because, assuming 19 the truth of the allegations of the petition, no reasonable officer would have known that his 20 or her conduct violated plaintiff’s rights. Given that prisoners’ right not to be subjected to 21 deliberate indifference to a serious medical need has been established since 1976, see 22 Estelle v. Gamble, 429 U.S. 97, 104 (1976), and that the facts alleged, if true, are such that 23 a reasonable person in the place of a defendant here should have known that he or she 24 was violating plaintiff’s rights, the contention is without merit. The motion will be denied as 25 to this ground with leave to raise the point again on summary judgment, when the factual 26 position may be different. 27 // 28 D. Equitable Relief 8 Defendants contend that plaintiff’s claims for equitable relief must be dismissed For the Northern District of California United States District Court 1 2 because of the pendency of a class action involving the adequacy of medical care in 3 California prisons, Plata v. Schwarzenegger, No. C 01-1351 TEH. They are correct. 4 Individual suits for injunctive and equitable relief from alleged unconstitutional prison 5 conditions cannot be brought where there is a pending class action suit involving the same 6 subject matter. McNeil v. Guthrie, 945 F.2d 1163, 1165 (10th Cir. 1991); Gillespie v. 7 Crawford, 858 F.2d 1101, 1103 (5th Cir. 1988) (en banc). "Individual members of the class 8 and other prisoners may assert any equitable or declaratory claims they have, but they 9 must do so by urging further actions through the class representative and attorney, 10 including contempt proceedings, or by intervention in the class action." Id. The equitable 11 relief claims will be dismissed.3 Because the Eleventh Amendment immunizes state officials sued in their official 12 13 capacity from damages claims, see Kentucky v. Graham, 473 U.S. 159, 169-70 (1985), the 14 dismissal of the equitable claims eliminates all the official-capacity claims against 15 defendants. 16 E. Punitive Damages 17 Defendants contend that punitive damages are not available against governmental 18 officials sued in their official capacities. Because no official-capacity claims remain in the 19 case, this contention is moot. 20 F. Plaintiff’s Motion for Appointment of Counsel 21 There is no constitutional right to counsel in a civil case, Lassiter v. Dep't of Social 22 Services, 452 U.S. 18, 25 (1981), and although district courts may "request" that counsel 23 represent a litigant who is proceeding in forma pauperis, as plaintiff is here, see 28 U.S.C. 24 § 1915(e)(1), that does not give the courts the power to make "coercive appointments of 25 counsel." Mallard v. United States Dist. Court, 490 U.S. 296, 310 (1989). 26 The Ninth Circuit has held that a district court may ask counsel to represent an 27 3 28 Class counsel in Plata is: Donald H. Specter, Prison Law Office, General Delivery, San Quentin, CA 94964. 9 1 indigent litigant only in "exceptional circumstances," the determination of which requires an 2 evaluation of both (1) the likelihood of success on the merits and (2) the ability of the 3 plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved. 4 Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). 5 The likelihood of success is difficult to judge at this stage of the case, but plaintiff 6 has done a fine job presenting his claims and arguing against the motion to dismiss, and 7 the issues are not complex. The motion for appointment of counsel will be denied 8 CONCLUSION For the Northern District of California United States District Court 9 1. The motion to dismiss (document number 14) is GRANTED in part and DENIED 10 in part. It is granted as to the contention that plaintiff failed to exhaust claims two and 11 three, and those claims are dismissed without prejudice to reasserting them if exhaustion is 12 achieved. This eliminates defendant McLean from the case. The motion to dismiss is 13 denied as to all other exhaustion claims. 14 Horel’s motion to dismiss for failure to state a claim is granted. The claims against 15 Horel are dismissed with leave to amend. McLean’s motion to dismiss for failure to state a 16 claim is denied as moot. The motion is denied as to the failure to state a claim contention 17 by Sayre, Risenhoover, and Rowe. It is denied as to the qualified immunity ground, without 18 prejudice to renewing the argument in a motion for summary judgment. It is granted as to 19 the contention that plaintiff’s equitable claims cannot be maintained in a separate action. 20 The equitable claims are dismissed. This eliminates all official-capacity claims. The 21 contention that punitive damages are not available as to the official-capacity claims is 22 denied as moot. 23 The consequence of these rulings is that (1) McLean is no longer in the case; (2) 24 claims two and three are no longer in the case; (3) the claims against Horel have been 25 dismissed with leave to amend; and (4) the official-capacity claims are no longer in the 26 case. 27 2. Plaintiff’s motion for appointment of counsel (document number 7) is DENIED. 28 3. The claims against Horel are DISMISSED with leave to amend, as indicated 10 For the Northern District of California United States District Court 1 above, within thirty days from the date of this order. The amended complaint must include 2 the caption and civil case number used in this order and the words AMENDED 3 COMPLAINT on the first page. Because an amended complaint completely replaces the 4 original complaint, plaintiff must include in it all the claims he wishes to present, including 5 those listed above as still being in the case after this ruling. See Ferdik v. Bonzelet, 963 6 F.2d 1258, 1262 (9th Cir. 1992). He may not incorporate material from the original 7 complaint by reference. Failure to amend within the designated time will result in the 8 dismissal of the claims against Horel. If plaintiff does not wish to pursue his claims against 9 Horel, he need not amend, or he may file a statement within thirty days saying that he is 10 abandoning those claims. When plaintiff amends, or if the time to amend expires without 11 amendment, the court will enter a further scheduling order. 12 4. It is the plaintiff's responsibility to prosecute this case. Plaintiff must keep the 13 court informed of any change of address by filing a separate paper with the clerk headed 14 “Notice of Change of Address,” and must comply with the court's orders in a timely fashion. 15 Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to 16 Federal Rule of Civil Procedure 41(b). 17 18 IT IS SO ORDERED. Dated: February 6, 2009. PHYLLIS J. HAMILTON United States District Judge 19 20 21 22 23 24 25 26 G:\PRO-SE\PJH\CR.07\GRAJEDA4752.MDSMS.wpd 27 28 11
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