Carroll v. California Department of Corrections ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 ABONILICO CARROLL, Case No.: 19cv2126-BAS(KSC) 14 Plaintiff, REPORT AND 15 v. RECOMMENDATION RE DEFENDANTS’ MOTION TO 16 CALIFORNIA DEPARTMENT OF DISMISS CORRECTIONS, et al, 17 Defendants. [Doc. No. 16.] 18 19 Plaintiff Abonilico Carrol is a prisoner proceeding in this Section 1983 civil rights 20 action pro se and in forma pauperis. [Doc. No. 9.] In his First Amended Complaint 21 (FAC), plaintiff alleges his constitutional rights under the Eighth Amendment were 22 violated by correctional officers at the Richard J. Donovan Correction Facility (RJD).1 23 24 25 26 27 1 Plaintiff refers to this pleading as the Second Amended Complaint. [Doc. No. 20.] However, the Court will construe this pleading as the First Amended Complaint, because 28 1 [Doc. No. 20, at pp. 2-3.] The Court’s docket indicates plaintiff is currently housed at the 2 North Kern State Prison in Delano, California. [Doc. No. 13.] 3 Defendants C. Wright and S. Miller have filed a Motion to Dismiss. [Doc. No. 4 16.] In their Motion to Dismiss, defendants seek dismissal on three grounds. First, 5 defendants argue that plaintiff’s claims for monetary damages against them in their 6 official capacity should be dismissed with prejudice, because they are immune under the 7 Eleventh Amendment from liability for damages in their official capacities. [Doc. No. 8 16, at pp. 4-5.] Second, defendants argue that plaintiff’s claims for injunctive relief 9 should be dismissed as moot, because plaintiff was transferred to another prison. [Doc. 10 No. 16, at p. 5.] Third, defendants argue that the action should be dismissed, because 11 plaintiff admitted that he failed to exhaust his administrative remedies. [Doc. No. 16, at 12 pp. 5-6.] 13 Background 14 The FAC alleges that plaintiff returned to RJD in a wheelchair after reconstructive 15 surgery at USCD Hospital and was “barely able to walk.” [Doc. No. 20, at p. 5.] 16 Although plaintiff told defendants he had just returned from surgery, the FAC alleges no 17 measures were taken on his behalf to ensure his health and safety. Instead, the FAC 18 claims that defendants threatened plaintiff and forced him to walk up a flight of stairs 19 even though they knew about his surgery; he was obviously in pain; and he pleaded with 20 them to check with a supervisor to confirm his condition and where he should be housed. 21 Plaintiff was assisted up the stairs by other inmates while defendants laughed and joked 22 about him. [Doc. No. 20, at pp. 5-6.] Plaintiff believes arrangements should have been 23 made by medical staff to house plaintiff on a lower tier or in the infirmary, so he could 24 recover, but he “was made to go back to the general population” while “under duress.” 25 [Doc. No. 20, at p. 6.] 26 The next day, plaintiff claims he still had “diminished strength” and mobility and 27 fell from the top of the stairs to the bottom “hitting the floor hard,” which caused him to 28 “pass out.” [Doc. No. 20, at p. 6.] Because of the fall, plaintiff had to be transported by 1 ambulance to the prison’s hospital. The FAC alleges plaintiff’s need for appropriate 2 housing was not addressed until after he fell down the stairs and returned from the 3 prison’s hospital. This time, plaintiff was assigned to “medically appropriate housing” on 4 a lower tier with a “lower bunk chrono.” [Doc. No. 20, at p. 7.] Because of the fall, 5 plaintiff claims he now suffers from more headaches than ever before and has sharp pains 6 in his shoulders at random times. Plaintiff also claims he is “jittery more often” because 7 of the trauma. [Doc. No. 20, at p. 7.] 8 In the FAC, plaintiff added new claims against two new defendants -- the Warden 9 of RJD and the Chief Medical Officer of RJD. These new defendants have not been 10 served. 11 Discussion 12 I. Procedural History. 13 Plaintiff’s original Complaint, which included the same or similar allegations, 14 survived initial screening as to the Eighth Amendment claims against defendants Wright 15 and Miller. [Doc. No. 9, at pp. 5-6.] After they were served with the original Complaint, 16 defendants Wright and Miller filed the instant Motion to Dismiss. [Doc. No. 9, at pp. 8- 17 9; Doc. No. 16.] Next, plaintiff filed the FAC and an Opposition to defendant’s Motion 18 to Dismiss. [Doc. Nos. 20, 21.] Defendants also filed a Reply to plaintiff’s Opposition. 19 [Doc. No. 22.] 20 Plaintiff’s FAC, which was mislabeled “Second Amended Complaint,” was 21 accepted for filing by the Clerk of the Court without a hearing on the attached Motion for 22 Leave to Amend. In the Motion for Leave to Amend, plaintiff requested leave to add 23 new claims against two new defendants -- the Warden of RJD and the Chief Medical 24 Officer of RJD. [Doc. No. 20, at p. 12.] It appears the Clerk of the Court accepted the 25 FAC for filing without a hearing on the Motion for Leave to Amend under Federal Rule 26 of Civil Procedure 15, which provides in part as follows: “A party may amend its 27 pleading once as a matter of course within: . . . (B) . . . 21 days after service of a motion 28 under Rule 12(b) . . . .” Fed.R.Civ.P. 15(a)(1)(B). Although plaintiff did not file the 1 FAC within 21 days after defendants’ Motion to Dismiss was filed, he did request and 2 was granted an extension of time before the 21 days expired [Doc. No. 18], and he then 3 submitted the FAC without further delay [Doc. No. 20]. It therefore appears the FAC 4 was accepted for filing pursuant to Rule 15(a)(1) without an order granting leave. 5 Generally, an amended complaint supersedes an original complaint, and the 6 original complaint is then treated as if it is non-existent. Ramirez v. Cty. of San 7 Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015). Thus, if an amended complaint is filed 8 while a motion to dismiss is pending, the motion will typically be denied as moot, 9 because the motion targets the prior complaint which no longer exists, and the Court is 10 proceeding on the amended complaint. Id. 11 In this case, because plaintiff is a prisoner and is proceeding in forma pauperis, the 12 FAC is subject to sua sponte screening under 28 U.S.C. § 1915(e)(2) and § 1915A(b). 13 Under these statutes, a cause of action that fails to state a claim can be dismissed sua 14 sponte by the Court “at any time.” Id. For this reason, the Court will screen the FAC, 15 particularly with respect to the two new defendants, and will consider the arguments in 16 defendants’ Motion to Dismiss to determine whether any apply to the FAC. 17 II. Motion to Dismiss Standards. 18 A plaintiff’s complaint must provide a “short and plain statement of the claim 19 showing that [he] is entitled to relief.” Johnson v. Riverside Healthcare System, LP, 534 20 F.3d 1116, 1122 (9th Cir. 2008) (citing Fed.R.Civ.P. 8(a)(2)). “Specific facts are not 21 necessary; the statement need only ‘give the defendant[s] fair notice of what . . . the claim 22 is and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 94 (2007). 23 A motion to dismiss under Federal Rule 12(b)(6) may be based on either a “lack of 24 a cognizable legal theory” or “the absence of sufficient facts alleged under a cognizable 25 legal theory.” Johnson v. Riverside, 534 F.3d at 1121. A motion to dismiss should be 26 granted if the plaintiff fails to proffer “enough facts to state a claim to relief that is 27 plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A 28 claim has facial plausibility when the plaintiff pleads factual content that allows the court 1 to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 2 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In determining whether the plaintiff has 3 alleged enough facts to state a claim, a District Court may consider “material which is 4 properly submitted as part of the complaint,” such as an attached exhibit. Hal Roach 5 Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 (9th Cir. 1989). 6 When considering a Rule 12(b)(6) motion to dismiss, the Court must “accept all 7 allegations of material fact in the complaint as true and construe them in the light most 8 favorable to the non-moving party.” Cedars-Sinai Med. Ctr. v. Nat’l League of 9 Postmasters, 497 F.3d 972, 975 (9th Cir. 2007). However, it is not necessary for the 10 Court “to accept as true allegations that are merely conclusory, unwarranted deductions 11 of fact, or unreasonable inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 12 988 (9th Cir. 2001). “[T]hreadbare recitals” of the elements of a cause of action, 13 “supported by mere conclusory statements,” are not enough. Ashcroft v. Iqbal, 556 U.S. 14 at 678. “Factual allegations must be enough to raise a right to relief above the 15 speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. at 555. 16 On the other hand, “[a] document filed pro se is ‘to be liberally construed,’ and ‘a 17 pro se complaint, however inartfully pleaded, must be held to less stringent standards 18 than formal pleadings drafted by lawyers. . . .’” Erickson v. Pardus, 551 U.S. at 94. 19 Particularly in civil rights cases, courts have an obligation to construe the pleadings 20 liberally and to afford the plaintiff the benefit of any doubt. Bretz v. Kelman, 773 F.2d 21 1026, 1027 n.1 (9th Cir. 1985). 22 III. Claims for Monetary Damages Against Defendants in Their Official Capacities. 23 Previously, in the original Complaint, defendants Wright and Miller were sued 24 only in their official capacities for money damages and injunctive relief. [Doc. No. 1, at 25 p. 2.] In the FAC, both defendants Wright and Miller have been sued for money damages 26 individually and in their official capacities. [Doc. No. 20, at p. 2.] In the Motion to 27 Dismiss, defendants correctly contend that plaintiff’s claims for monetary damages 28 / / / 1 against them in their official capacities should be dismissed, because these defendants are 2 immune from liability for damages in their official capacities. [Doc. No. 16, at pp. 4-5.] 3 “Put simply, the eleventh amendment bars actions against state officers sued in 4 their official capacities for past alleged misconduct involving a complainant’s federally 5 protected rights, where the nature of the relief sought is retroactive, i.e., money damages, 6 rather than prospective, e.g., an injunction.” Bair v. Krug, 853 F.2d 672, 675 (9th Cir. 7 1988). The Eleventh Amendment does not bar actions against state officers in their 8 personal or individual capacities. Pena v. Gardner, 976 F.2d 469, 472-473 (9th Cir. 9 1992). It is therefore RECOMMENDED that the District Court grant defendants’ Motion 10 to Dismiss any claims against defendants in their official capacities for violating 11 plaintiff’s constitutional rights under the Eighth Amendment. Since plaintiff cannot 12 amend the FAC to correct this defect, it is further RECOMMENDED that plaintiff’s 13 official capacity claims against defendants Wright and Miller be dismissed WITH 14 PREJUDICE and WITHOUT LEAVE TO AMEND. 15 IV. Plaintiff’s Claims for Injunctive Relief. 16 In their Motion to Dismiss, defendants argue that plaintiff’s claims for injunctive 17 relief should be dismissed as moot, because plaintiff alleges his rights were violated at 18 RJD, but he was transferred to another prison. [Doc. No. 16, at p. 5.] As defendants 19 contend, the Ninth Circuit has indicated that claims for injunctive relief should be 20 dismissed when an inmate is transferred to another prison that is not the subject of the 21 allegations at issue. See Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1991). However, 22 the FAC does not include claims for injunctive relief. [Doc. No. 20, at p. 8.] 23 Accordingly, IT IS RECOMMENDED that the District Court DENY defendant’s Motion 24 to Dismiss as moot to the extent it seeks dismissal of claims for injunctive relief, because 25 no such claims are included in the FAC. 26 V. Exhaustion of Administrative Remedies. 27 Defendants contend in the Motion to Dismiss that the Complaint should be 28 dismissed for failure to exhaust administrative remedies. In support of this argument, 1 defendants cite the original Complaint, which was submitted on a standard form. On the 2 form Complaint, plaintiff selected “No” in response to the question whether he 3 “exhausted all forms of available relief from the proper administrative officials.” [Doc. 4 No. 1, at p. 6.] 5 In contrast, the FAC states as follows: “Plaintiff filed a 602 form on this matter 6 and got denied all the way to the third level of appeal which is as far as you can take 7 it . . . ” [Doc. No. 20, at p. 7.] Therefore, without more, there is no basis for plaintiff’s 8 FAC to be dismissed for failure to exhaust administrative remedies. It is therefore 9 RECOMMENDED that the District Court DENY defendants’ Motion to Dismiss to the 10 extent it seeks dismissal of plaintiff’s claims for failure to exhaust available 11 administrative remedies. 12 VI. New Defendants Named in the FAC. 13 1. RJD’s Chief Medical Officer. 14 With respect to the Chief Medical Officer of RJD, the FAC alleges that he or she 15 was “in control” of plaintiff’s housing after his “major surgery,” because he had a duty to 16 arrange for appropriate housing on a lower tier or the infirmary, so plaintiff could heal 17 from his surgery with appropriate care. Instead, plaintiff was returned to the general 18 population “under duress;” no measures were taken to protect his health and safety; and 19 this allegedly lead to a serious fall down the stairs, injuries, and a hospital visit by 20 ambulance. [Doc. No. 20, at p. 6.] 21 The FAC does not identify the constitutional basis for plaintiff’s claim against the 22 Chief Medical Officer. To the extent plaintiff claims the Chief Medical Officer was 23 deliberately indifferent to his health and safety in violation of the Eighth Amendment, 24 plaintiff fails to allege a plausible claim for relief. To successfully plead a violation of 25 the Eighth Amendment, a plaintiff must allege plausible facts indicating an official acted 26 with “deliberate indifference” to his health and safety. Farmer v. Brennan, 511 U.S. 825, 27 834 (1964). 28 / / / 1 “Deliberate indifference” means “the official knows of and disregards an excessive 2 risk to inmate health or safety; the official must both be aware of facts from which the 3 inference could be drawn that a substantial risk of serious harms exists, and he must also 4 draw the inference.” Farmer, 511 U.S. at 837. “If a [prison official] should have been 5 aware of the risk, but was not, then the [official] has not violated the Eighth Amendment, 6 no matter how severe the risk.” Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004). 7 This “subjective approach” focuses only “on what a defendant's mental attitude actually 8 was.” Id. citing Farmer, 511 U.S. at 839. “[A]n officials’ failure to alleviate a 9 significant risk that he should have perceived but did not, while no cause for 10 commendation, cannot under [the Eighth Amendment] be condemned as the infliction of 11 punishment.” Farmer, 511 U.S. at 838. 12 Here, the allegations indicate the Chief Medical Officer’s only duty and 13 involvement was to make the arrangements for plaintiff to be housed appropriately after 14 the surgery. The FAC does not claim the Chief Medical Office acted with deliberate 15 indifference by failing in his alleged duty to make these arrangements. Nor are there any 16 allegations from which it could be inferred the Chief Medical Officer knew about but 17 disregarded a risk that plaintiff would not be properly housed after surgery (i.e., that 18 defendants Wright and Miller would force plaintiff to climb stairs when he could barely 19 walk and then ignore plaintiff’s pleas for them to call and get confirmation about 20 appropriate housing). In sum, the allegations in the FAC against the Chief Medical 21 Officer do not adequately state a claim against him/her for deliberate indifference under 22 the Eighth Amendment. It is therefore RECOMMENDED that the District Court dismiss 23 sua sponte plaintiff’s allegations against the Chief Medical Officer under 28 U.S.C. 24 §§ 1915(e)(2) and 1915A(b) for failure to state a claim. 25 2. RJD’s Warden. 26 The FAC further alleges that RJD’s Warden was made aware of plaintiff’s 27 situation during “the 602 process,” but he/she refused to take any actions to assist 28 plaintiff and failed to take any corrective measures. [Doc. No. 20, at p. 7.] The FAC 1 does not identify a constitutional basis for plaintiff’s claim against the Warden and does 2 not include any further factual allegations to suggest how the Warden could have been 3 aware of any objectively serious threat to plaintiff’s safety and acted with deliberate 4 indifference to an “excessive risk” of harm to plaintiff. 5 All that is alleged is the Warden’s involvement in the grievance process. However, 6 a prisoner “does not have a constitutional right under the Eighth Amendment or 7 otherwise to have his administrative appeal processed or decided in a particular manner.” 8 Hernandez v. Cate, 918 F. Supp. 2d 987, 1015 (C.D. Cal. 2013), citing Ramirez v. 9 Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (stating under the Due Process clause inmates 10 “lack a separate constitutional entitlement to a specific prison grievance procedure”); 11 Buckley v. Barlow, 997 F.2d 494, 496 (8th Cir. 1993) (stating that “no constitutional right 12 was violated by the defendants’ failure, if any, to process all of the grievances [the 13 inmate] submitted for consideration” and that a failure to process grievances “without 14 more, is not actionable under section 1983”); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 15 1988) (stating “[t]here is no legitimate claim of entitlement to a grievance procedure”). 16 Therefore, any failure on the part of the Warden to reach a favorable outcome on 17 plaintiff’s grievance is not actionable under Section 1983. It is therefore 18 RECOMMENDED that the District Court dismiss plaintiff’s allegations against the 19 Warden for failure to state a claim. 20 3. Leave to Amend. 21 Prior to dismissal, a pro se litigant “is entitled to notice of the complaint’s 22 deficiencies and an opportunity to amend.” Lucas v. Department of Corrections, 66 F.3d 23 245, 248 (9th Cir. 1995). “[A] district court should grant leave to amend even if no 24 request to amend the pleading was made, unless it determines that the pleading could not 25 possibly be cured by the allegation of other facts.” Doe v. United States, 58 F.3d 494, 497 26 (9th Cir.1995) (internal quotation marks omitted). Although unlikely, it is possible 27 plaintiff may be able to cure the defects as to his claims against the Warden and the Chief 28 Medical Officer, and he has not previously been granted leave to amend his allegations 1 against these defendants. It is also RECOMMENDED that the District Court GRANT 2 plaintiff at least 30 days’ leave to amend his claims against the Warden and the Chief 3 Medical Officer. 4 Conclusion 5 The undersigned Magistrate Judge submits this Report and Recommendation to the 6 United States District Judge assigned to this case pursuant to Title 28, United States 7 Code, Section 636(b)(1). For the reasons outlined above, IT IS RECOMMENDED that 8 the District Court: 9 1. GRANT defendants’ Motion to Dismiss any claims against defendants in 10 their official capacities for violating plaintiff’s constitutional rights under the Eighth 11 Amendment WITH PREJUDICE and WITHOUT LEAVE TO AMEND, because these 12 defendants are immune from liability for money damages in their official capacities. 13 2. DENY as MOOT defendants’ Motion to Dismiss plaintiff claims against 14 defendants for injunctive relief, because no such claims are included in the operative 15 FAC. 16 3. DENY defendants’ Motion to Dismiss for failure to exhaust administrative 17 remedies, because the FAC alleges that plaintiff did exhaust his administrative remedies, 18 and defendant’s have not proven otherwise. 19 4. DISMISS sua sponte plaintiff’s allegations against RJD’s Chief Medical 20 Officer under 28 U.S.C. §§ 1915(e)(2) and 1915A(b) for failure to state a claim. 21 5. DISMISS sua sponte plaintiff’s allegations against RJD’s Warden under 28 22 U.S.C. §§ 1915(e)(2) and 1915A(b) for failure to state a claim. 23 6. GRANT plaintiff at least 30 days’ leave to amend his claims against RJD’s 24 Warden and RJD’s Chief Medical Officer, because it is possible plaintiff could cure the 25 defects as to his claims against these defendants. 26 IT IS HEREBY ORDERED that no later than October 23, 2020 any party to this 27 action may file written objections with the Court and serve a copy on all parties. The 28 document should be captioned “Objections to Report and Recommendation.” 1 IT IS FURTHER ORDERED that any reply to the objections shall be filed with the 2 Court and served on all parties no later than October 30, 2020. The parties are advised 3 || that failure to file objections within the specified time may waive the right to raise those 4 || objections on appeal of the Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 5 1991). 6 IT IS SO ORDERED. 7 ||Dated: September 29, 2020 te ae ) 8 Mfficae fa 9 Hort. Karen S. Crawford United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28