grievance system on November 25, 1996, about ten months after his injury. On December 23, 1996, he received a response from the prison staff that his surgery was approved, but that because of security concerns, he could not be told the date of the surgery. On March 31, 1997, Plaintiff filed a request for a second-level review because three months had passed with no further word from prison officials about the surgery. Although requests for second-level reviews must be responded to within ten working days, Plaintiff alleges that he never received a response. Three months after submitting his request for a second-level review, Plaintiff requested a Director's Level Review on June 6, 1997, to which he has also never received a response. Because Plaintiff has attempted to appeal the prison officials' inaction with regard to his treatment to every level of the prison grievance system, it does not appear (and the moving party has not attempted to show) that Plaintiff has failed to exhaust his administrative remedies within the prison system.
2. Plaintiff is not required to comply with the California Tort Claims Act in order to exhaust his administrative remedies.
Defendants contend that 42 U.S.C. § 1997e(a) requires Plaintiff to comply with the presentment of claim procedures provided in the California Tort Claims Act. Defendants correctly note that federal courts require compliance with the CTCA for pendant state law claims against public employees. Willis v. Reddin, 418 F.2d 702, 704 (9th Cir. 1968). Similarly, the federal courts have held that the CTCA applies to state law actions before federal courts sitting in diversity. E.g., Jacobsen v. Marin General Hospital, et al, 963 F. Supp. 866, 870-71 (N.D. Cal. 1997). However, no federal court in California has applied the CTCA to a post-PLRA federal civil rights claim against a state official.
The legislative history of section 1997e(a), as amended by the PLRA, seems to indicate that the drafters did not intend to require prisoners to exhaust state tort remedies before filing a federal civil rights claim. It implies that Congress merely intended to require exhaustion of prison grievance procedures. See Report on the Activities of the Committee on the Judiciary, H.R. Rep. 104-879 (January 2, 1997) (PLRA "requires prisoners to exhaust the administrative remedies established by the corrections system before they may file a lawsuit in federal court"); see also 141 Cong. Rec. S7498-01, at S7527 (remarks of Senator Kyl) (noting that many prisoners seek relief for matters as to which the "prison grievance system" supplies an adequate remedy.) There is no indication in the legislative history surrounding the PLRA to suggest that Congress intended to legislatively overrule Felder v. Casey, 487 U.S. 131, 140-41, 101 L. Ed. 2d 123, 108 S. Ct. 2302 (1988), which held that state law notice-of-claim statutes are inapplicable to § 1983 litigation.
In Felder, the Supreme Court discussed the applicability of a state notice-of-claim provision to a § 1983 suit. The Court noted that because § 1983 contains no statute of limitations, federal courts apply state statutes of limitations to § 1983 suits. However, it distinguished notice-of claim statutes from statutes of limitations, holding that unlike the absence of a statute of limitations, "the absence of any notice-of-claim provision [in 42 U.S.C. § 1983] is not a deficiency requiring the importation of such [state] statutes into the federal civil rights scheme." Felder, 487 U.S. at 140.
Therefore, the Court holds that Plaintiff need not comply with the notice-of-claim provisions in the CTCA in order to allege a federal civil rights cause of action under § 1983.
C. The allegations against Defendants meet the Ninth Circuit's heightened pleading standard.
Plaintiff's claim includes an element of "unlawful intent," i.e., the element that Defendants were deliberately indifferent to his medical needs. Wilson v. Seiter, 501 U.S. 294, 297, 115 L. Ed. 2d 271, 111 S. Ct. 2321 (1990); Estelle v. Gamble, 429 U.S. 97, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976). The Ninth Circuit requires plaintiffs in constitutional tort actions in which subjective intent is an element to satisfy a heightened pleading standard. Specifically, to survive a motion to dismiss, "plaintiffs must state in their complaint[s] nonconclusory allegations setting forth evidence of unlawful intent." Branch v. Tunnell, 937 F.2d 1382, 1386 (9th Cir. 1991). "The allegations of facts must be specific and concrete enough to enable Defendants to prepare a response . . . ." Id. Defendants argue that Plaintiff has failed to fulfill this standard.
The heightened Branch pleading standard does not require that plaintiffs produce direct evidence of unlawful intent; circumstantial evidence will suffice. Id. Plaintiff alleges that Defendants were aware of his medical needs and that, despite their knowledge, they consciously neglected over a considerable period of time to give him necessary medical treatment. In support of this claim, he has attached to his complaint copies of letters, prison appeal forms and interview requests. These documents indicate that Defendants were given notice of Plaintiff's medical needs. Plaintiff asserts that Defendants' alleged failure to respond despite their knowledge of his needs is adequately set forth to state a cause of action. The Court agrees.
D. Plaintiff's complaint is defective as against Defendant Ratelle, but not as against Defendant Crews, for failing to allege a proper basis for § 1983 liability.
Defendants Ratelle (the prison warden) and Crews (the chief medical officer of the prison) contend that Plaintiff specifies no conduct through which they, as supervisory personnel who had no personal contact with Plaintiff, participated in any alleged violation of his civil rights. Conclusory allegations of participation in civil rights violations are not sufficient to withstand a motion to dismiss. Ivey v. Board of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982); Richards v. Harper, 864 F.2d 85, 88 (9th Cir. 1988). Moreover, liability under § 1983 attaches only upon personal participation by a defendant in the constitutional violation. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). A supervisor may be liable for constitutional violations of subordinates, however, if the supervisor participated in, directed, or knew of the violations and failed to act to prevent them. Taylor, 880 F.2d at 1045.
Plaintiff's complaint specifically alleges that Crews knew of his subordinates' inaction through at least two letters that Plaintiff wrote to Crews in an attempt to remedy the problem, yet Crews failed to act on that knowledge. Thus, Plaintiff has alleged a proper basis for liability against Crews. By contrast, Plaintiff merely implies that Ratelle knew or should have known that Plaintiff's medical needs were being neglected because of the prison appeals system and/or Plaintiff's requests to review his medical records. Plaintiff must show that Ratelle actually knew of any constitutional violations committed by his subordinates in order to recover against him on a § 1983 claim. If Ratelle did not have actual knowledge of the alleged violations, there is no basis for § 1983 liability, because defendants in constitutional tort actions are not liable for negligence only. Disjunctive allegations in a complaint are usually defective because they do not adequately advise defendants of the allegations to defend against. Such is the case here. For this reason, Plaintiff's complaint as to Defendant Ratelle is defective and must be dismissed with leave to amend.
E. Plaintiff has alleged a violation of his Eighth Amendment rights by Defendants Armstrong and Hunt.
Defendants Armstrong and Hunt argue that Plaintiff's allegations fail to state a claim for violation of a constitutional right. Under 42 U.S.C. 1983, a plaintiff has a cause of action against anyone who under color of state law deprives the plaintiff of a constitutional right. Plaintiff alleges that Defendants have been deliberately indifferent to his serious medical needs in violation of his Eighth Amendment rights, as applied to the state via the Fourteenth Amendment. Helling v. McKinney, 509 U.S. 25, 33, 125 L. Ed. 2d 22, 113 S. Ct. 2475 (1993). A difference of opinion between a prisoner and prison officials regarding medical treatment does not constitute deliberate indifference to medical needs. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). However, Plaintiff's complaint alleges more than a mere difference of opinion. Plaintiff asserts that he is experiencing severe pain caused by a serious medical condition of which Defendants are aware and for which Defendants have prescribed surgery. Plaintiff claims that allowing him to remain in pain for nearly two years without even giving him a truss once the need for surgery was identified constitutes deliberate indifference to his medical needs. In other words, Plaintiff claims that there was a serious need, Defendants were aware of it, and they failed to take the course of action that Defendants themselves deemed necessary. Therefore, Plaintiff has alleged facts which, if true, would constitute an Eighth Amendment violation.
F. Plaintiff's complaint contains an Eleventh Amendment defect.
All four defendants claim that they are immune from liability in this action pursuant to the Eleventh Amendment. The Eleventh Amendment prohibits suits against a state or state agency, and § 1983 does not abrogate this immunity since a state or state agency is not a "person" for purposes of the statute. Will v. Michigan Dept of State Police, 491 U.S. 58, 62, 105 L. Ed. 2d 45, 109 S. Ct. 2304 (1989). As Defendants note, the Eleventh Amendment also prohibits damage actions against state officials acting in their official capacities. Will, 491 U.S. at 71 n.10.
However, the Eleventh Amendment does not bar damage actions against state officials in their personal capacities. Hafer v. Melo, 502 U.S. 21, 31, 116 L. Ed. 2d 301, 112 S. Ct. 358 (1991). Personal capacity suits seek to impose liability on state officials for acts taken under color of state law. 502 U.S. at 25-26. In Hafer, the Supreme Court held that the Eleventh Amendment does not shield state officials from allegations that they violated a federal right while acting under color of state law. Id. at 29. The Amendment only prohibits damage actions against the "official's office" -- actions that are in reality suits against the state itself, rather than its individual officials. Id.; Will, 491 U.S. at 71; Stivers v. Pierce, 71 F.3d 732 (9th Cir. 1995). Defendants seem to imply that any action for damages against a state employee for actions taken in the course of his or her employment is necessarily an official capacity suit. This conclusion contradicts the Supreme Court's holding in Hafer.
Plaintiff's complaint does not state whether he is suing the individual Defendants in their official or personal capacities. For this reason, the Court must dismiss his complaint. However, the Court grants Plaintiff leave to amend his complaint to specify whether he is suing any Defendants in their personal capacities.
For the reasons stated above, the Court holds the following.
(1) Plaintiff's complaint is defective as to Defendant Ratelle because it fails to allege that Ratelle was actually aware of the alleged violations committed by other prison staff members.
(2) Plaintiff's complaint contains an Eleventh Amendment defect as to all defendants because it fails to specify whether he is suing Defendants in their personal capacities.
(3) Plaintiff's complaint is dismissed in its entirety with leave to amend. The amended complaint must correct the deficiencies discussed in this order. Plaintiff must file his amended complaint with the Clerk of Court and affect service on all defendants within sixty days from the date of this order.
IT IS SO ORDERED.
DATED: DEC 3 1997
RUDI M. BREWSTER
UNITED STATES DISTRICT JUDGE